R. v. C.B.L., 2022 BCPC 157

Citation: R. v. C.B.L. 2022 BCPC 157 Date: 20220603 File No: 43594-1-K, 44366-2-KC Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.B.L. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. CUTLER Counsel for the Crown: J. Cameron Counsel for the Accused: E. Costa Place of Hearing: Duncan , B.C. Dates of Hearing: April 28, May 10 & 24, 2022 Date of Sentence: June 3, 2022

[ 1 ] The offender is before the court to be sentenced for assaulting his former partner; having contact with her contrary to an order of this court: and wilfully attempting to obstruct, pervert, or defeat the course of justice by influencing her participation in the prosecution of the assault. The offender has entered guilty pleas to each of the offences. BACKGROUND [ 2 ] These sentencing proceedings have been unusual in that the offender and counsel have been required to appear before the court on a number of occasions to assist the court in determining a fit sentence for this offender.

He has been in custody since April 12, 2022 as a result of his bail being revoked. [ 3 ] At the initial sentencing hearing, counsel placed a joint submission before the court, submitting that a three day jail sentence was appropriate for the assault. As well, the joint submission further proposed a 30 day jail sentence be imposed on both the breach of a court order and the obstruction of justice offences, to be served concurrently to one another but consecutive to the three day jail sentence. Counsel also sought an 18 month probation order.

Lastly, there was agreement that ancillary orders ought to be made prohibiting the offender from possessing weapons and requiring him to provide a sample of his DNA for the DNA databank. [ 4 ] At that time, I indicated to counsel I believed the sentence being proposed was far too lenient for the offender’s conduct, in particular his efforts to obstruct justice, undermining the entire criminal justice process.

His actions included repeatedly threatening the complainant with significant ramifications for her honest participation in these proceedings, ignoring court orders, and threatening others if they did not assist the offender and tailor their evidence to assist him. I requested counsel to provide case authorities supporting their joint submission. [ 5 ] Several weeks later, counsel appeared before me with a brief of authorities and a revised joint submission.

Counsel proposed a jail sentence of 20 days, time served for the commission of the assault, a jail sentence of 20 days, time served, for the breach of the court order, consecutive to the assault sentence, and, for the obstructing justice offence, a jail sentence of one year, to be served in the community pursuant to a conditional sentence order, consecutive to the other two sentences. It was proposed that the sentences be followed by a 12 month period of probation.

As well the joint submission proposed a five year weapons prohibition as well as an order for samples of the offender’s DNA to be secured for the DNA databank. [ 6 ] After reviewing the jurisprudence and considering the circumstances of the offender and the nature of his attempts to obstruct justice, I advised counsel that I did not believe a conditional sentence order was appropriate and invited further submissions on an appropriate period of incarceration for this offender. Counsel subsequently provided brief submissions in writing which have been filed with the court.

Crown counsel submitted an appropriate period of incarceration for the obstructing justice offence was six to nine months. Counsel for the offender submitted a period of incarceration of three months was appropriate. [ 7 ] Given the manner in which these proceedings have unfolded I believe it necessary for the court to provide a fulsome analysis addressing the issues before the court and how the court has arrived at what I believe to be a fit sentence for this offender. THE VARIOUS OFFENCES COMMITTED BY THE OFFENDER [ 8 ] The circumstances relating to the assault are most disturbing.

The offender and the complainant have two children together, ages two and three. The two children had earlier been apprehended by the Ministry of Children and Family Development as their parents were unable to care for the children, with drug addiction being a significant factor. The children had been placed in the care of the offender’s mother who was awarded guardianship in August 2020. I understand the children continue to reside with her. [ 9 ] On March 7, 2021, the offender’s mother had brought the two children over to the offender’s residence in order for him and the complainant to engage with the children.

When it was time for the children to leave the property, the offender did not want the older boy to leave and became very upset with the complainant and commenced destroying her property. She took the children in an effort to leave and the offender yelled at her to get back in the house. He then approached the mother, grabbed the older child and went back inside his residence. The offender’s mother then went in the house and told the offender to return the child to her but he refused. The complainant meanwhile had placed the other child in the car. The offender soon came out of the residence without the child.

He was upset and started throwing things. He was throwing whatever he could reach in the carport and was screaming and shouting. The complainant indicates that the offender can be unpredictable and “freaks out at random”. [ 10 ] At some point the offender went back into the house and remained there with the older child. Shortly thereafter he appeared with the child and told his mother she could take the child. The offender then grabbed the complainant and threw her on the ground and kicked her in the head. She tried to get away while the offender was screaming for her to get back in the house.

She tried to get into the car but he grabbed her by the hair and threw her down on the ground again. He indicated at that time that if she did not get up to the house he was going to beat her. Not surprisingly, she did not feel safe going back in the house and refused to go there. The offender kept grabbing her by the hair and throwing her on the ground and kicking and punching her. The complainant continued to try to get away with the offender chasing her and insisting that she go back into the house. He indicated that if she did not do that he would “beat her to a pulp”.

This violent assault was committed in the presence of their young child. [ 11 ] The police arrived while the offender was chasing the complainant around the car and the two were separated. The complainant described various injuries to her head and neck, and her left eye. The offender was arrested at that time. He was charged with numerous offences including assaulting the complainant and his mother, and threatening a neighbour.

He was released two days later on a release order with numerous conditions including that he was to have no contact directly or indirectly with the complainant, his mother, and the neighbour who was present during the assault. [ 12 ] The circumstances surrounding the breach of the no contact order and the obstruction of justice charge are extremely disturbing. [ 13 ] The matter came before me for trial on the assault allegations on April 8, 2022.

At the outset of the trial, counsel advised the court that the complainant had moments earlier advised Crown counsel that the offender had recently made contact with her and

threatened harm to her if she gave evidence in the trial. There were obvious concerns with having the complainant testify given this new information which both the Crown and the defence needed to investigate further. In order to preserve precious court time and move the matter forward, it was agreed the Crown would proceed by calling other witnesses who had attended and the matter would then be adjourned for a continuation and allow counsel to gather further information relating to the complainant.

The Crown called two witnesses: an officer who had attended at the scene and witnessed the accused chasing the complainant, as well as a neighbour who was present for the assault. [ 14 ] The neighbour testified that she did not remember the actual assault and that her memory was “fuzzy”. It was clear she was struggling with testifying and was very emotional. The court took a break for her to compose herself. When court reconvened, counsel advised the court that consideration was being given to resolving the matter by way of a recognizance pursuant to s. 810 of the Criminal Code .

The witness was excused and court was stood down to the afternoon to allow counsel to engage in further discussions with respect to the terms of the recognizance. [ 15 ] In the afternoon, further discussions between counsel, and eventually the court, were undertaken with respect to the proposed recognizance. An issue arose between counsel with respect to a term of the recognizance. Counsel for the offender indicated that she had spoken to the complainant and the complainant was content with being able to have contact with the offender with her expressed consent.

Crown counsel was firm that such a condition was not appropriate as he had had conversations with the complainant earlier in the day wherein she was clear with Crown counsel that she did not wish to have contact with the offender.

As the matter could not proceed without confirmation of the complainant’s position, and she had left the courthouse, it was agreed that the trial would be adjourned and counsel could carry on discussions with potential resolutions after speaking to the interested parties, including the complainant, or alternatively the continuation of the trial would proceed at a later date. [ 16 ] There were then extensive discussions before the court as to the offender’s release conditions while awaiting the continuation or resolution of the trial.

As a result of these discussions the offender’s release order was amended to allow him to have contact with his mother and his neighbour with their express consent. Although counsel for the offender sought to have the offender be permitted contact with the complainant with her expressed consent, the Crown firmly opposed same, and the court agreed that that condition must stay in place until such time as the complainant’s position was confirmed.

In short, when the matter was adjourned that afternoon for a continuation, it was clear that the offender remained on a condition that he was not to have any contact directly or indirectly with the complainant. [ 17 ] Later that afternoon, within hours of the matter being adjourned, the offender attended at the residence where the complainant was staying and told her he was mad at her for not telling Crown that she wanted contact with him.

And he told her that if she did not come home with him right now he was going to drag her down the stairs. [ 18 ] The police were called and upon their arrival they observed the offender speeding away. Police were unable to detain him at that time. Later that evening and into the following morning the offender sent numerous texts to the complainant indicating that if she did not return to his house, he would let their dogs loose and burn all of their children’s clothes.

As well, he indicated he would be calling the Ministry of Children and Family Development to have their children put into foster care. [ 19 ] Upon further investigation, the police were able to confirm that in the days preceding the trial, the offender had texted the complainant and told her that she needed to make sure that both his mother and the neighbour know that they don’t remember anything from the day of the assault.

The offender told the complainant in a text message something to the effect that if he does not get to walk away from the prosecution, he’s going to make sure that the complainant is behind bars. [ 20 ] The police reviewed the text messages on the complainant’s phone which contained over 60 messages received by the complainant from the offender between April 6 and April 9, 2022.

Descriptions of the text messages include: 1. the offender advising the complainant what he is planning to tell his lawyer and making sure she has this information before her interview with Crown counsel; 2. he indicates to her that he’s going to get revenge if she doesn’t fix this; 3. he admits to assaulting her but indicates it’s her fault for making him angry; 4. he tells her that the worst-case scenario for him if convicted is “house arrest”; 5. he states if she does not do everything in her power, he promises she will regret it the rest of her life; 6. he indicates that he hopes she dies and that he will get even; and 7. a rather ominous message states “I already told you, if I spend one more day in jail what’s going to happen”. [ 21 ] The complainant viewed the messages as the offender attempting to scare her into testifying that she doesn’t remember anything.

The complainant indicated that she fears for her safety which is completely understandable given the violent assault she was subjected to and the offender's persistent threats and harassment. She further indicated she can’t keep lying for the offender as that’s what she did last time and he never has any consequences, so she knows he’s never going to change. [ 22 ] As well, on April 9, the offender had sent messages to the complainant’s roommate, demanding to see the complainant and telling the roommate to send the complainant back to his house. The roommate provided copies of these messages to the police.

The electronic messages threatened the roommate, who has a daughter in her care, that if she did not comply with the offender’s demands, he would be reporting her to the Ministry of Children and Family Development. [ 23 ] The offender was arrested for breaching the court order on April 12 and he has been in custody since that time.

SENTENCE [ 24 ] I have some discomfort with the proposed sentence of 20 days for the assault given the severe nature of the assault, it was committed in the presence of the young child, and the offender has previously been sentenced to 26 days in jail for a domestic assault.

However given the totality of the sentence I am imposing, I am satisfied that 20 days is appropriate. [ 25 ] Similarly, the proposed sentence of 20 days for the breach of the court order would also appear to be overly lenient given the persistent contact, the abusive and threatening content of the messages and that he has three prior convictions for breaching court orders.

However, again, as a result of the totality of the sentence I am imposing, I am satisfied that an appropriate sentence is 20 days jail for breaching the court order, to be served consecutive to the 20 days for the assault offence. [ 26 ] This leaves the court to determine a fit sentence for the obstruction of justice offence which is an extremely serious offence. Counsel are in agreement that the sentencing range in matters involving obstruction of justice offences is quite broad and have referred to the case of R. v.

R.E.D., 2010 BCSC 1523 , where the court recognized the range to be from four months to four years. [ 27 ] In arriving at a fit sentence, it is important to fully understand the context in which the offender’s efforts to obstruct justice occurred and the unique position victims of domestic violence are in when they choose to come forward and report the violent behaviour to the police. [ 28 ] One of the great challenges to our society and the criminal justice system is to bring to an end the perpetuation of violence in domestic relationships.

The dynamics of such a relationship are complex and difficult to resolve, often resulting in continued abuse as the victim returns to the dysfunctional relationship due to coercion, financial need, desperation, or other reasons. Domestic violence is harmful to both the victim, their families, and the community at large. [ 29 ] Unfortunately, the egregious conduct engaged in by the offender is not uncommon. The offender’s conduct with respect to the matters before the court illustrates the vulnerability of victims and our justice system.

The offender’s conduct was a flagrant attack on the efforts made by governments, community organizations and the justice system to reduce the incidents of domestic violence running rampant in our communities. [ 30 ] The comments of Justice Lambert on the subject of domestic abuse, made almost 40 years ago in R. v. Stanley (B.C.C.A.) [1986] B.C.J. No. 695 , unfortunately remain relevant today in recognizing the harm caused to the victim and the community at large: I wish to say particularly in this case that society has a deep interest in this kind of conduct.

It is not a private matter between the parties to the relationship nor a matter that goes away if there is forgiveness within the relationship. This kind of conduct endangers and imperils society. In addition the guardians of the social interest, the people involved in social work and the police who are called out and into these situations, must have the protection of the law and the understanding that these offences will not be ignored by society or that forgiveness by one spouse will not put an end to the offence. Other people are at risk. Children are at risk and the neighbours are at risk.

The nature of the assaults can escalate to the point where they are completely unbearable. If these sentences were made concurrent there would be, in effect, no sentence at all for the second assault, an assault that was committed at a time when the applicant was on probation and on judicial release, the terms of which were specifically that he be of good behaviour and keep the peace in relation to Marcia Dennis. He flouted that order.

There must be support for the social interest in preventing those kinds of assault and in the interests of the guardians of the peace in feeling that when they investigate this kind of matter the whole issue will not be ignored by the courts. That social interest in my opinion overwhelms the particular relationship between the parties, though the applicant is fortunate to have the support of someone to sustain him at this time and hopefully hereafter. [at para. 8] [ 31 ] Since Justice Lambert’s comments, extensive efforts have been undertaken by numerous agencies, both public and private, to address the problem.

These efforts have resulted in infrastructures having been established across our communities to protect victims of domestic violence from the persistent abuse they are subject to, and to ensure their safety when they choose to escape the abusive relationship, and in some cases report the incidents to the police. These include women’s shelters, also known as ‘safe houses’, victim service agencies, counselling services and other forms of assistance for domestic violence victims who are in a very vulnerable position.

Such agencies have become common in our communities as our society has acquired a better understanding of the nature of an abusive relationship and the need to provide help to victims who come forward, and to protect them from further abuse. [ 32 ] The very existence of the criminal justice system is to arrest criminal conduct and provide justice and protection for victims of criminal conduct and the community generally.

The criminal justice system’s focus, indeed purpose, in the context of violent offences within intimate relationships, is to deter if not eliminate such conduct, and facilitate the prosecution process so as not to re-victimize the complainant. The courts have made extensive efforts to curtail the incidents of domestic violence and improve the prosecution process to ensure victims who come forward are not further victimized by the accused, or the arduous court process which may re-victimized the complainant for participating in a criminal prosecution for domestic assault.

Yet, the criminal justice system continues to see an unrelenting stream of domestic violence cases engaging police investigations, social workers, victim service participation, and a litany of trials each month. It is impossible to measure the damage caused to families and the general community. [ 33 ] The criminal justice system has responded with extraordinary measures to combat persistent, perhaps entrenched, violence in domestic relationships which have been a scourge on our communities as the prevalence of such violence does not abate.

Matters involving domestic violence come before the court on a daily basis. This is confirmed by the high volume of criminal prosecutions addressing various offences including harassment, intimidation, assaults and uttering threats.

Some of the initiatives adopted by the criminal justice system include designating all domestic violence matters as ‘K-files’, whereby the court file number is proceeded with the letter ‘K’ to ensure that all those working in the criminal justice system are aware of the nature of the allegations, the difficult dynamics often engaged, and the need to take great care in managing the process so as to ensure the prosecution proceeds expeditiously and efficiently to minimize the harm to the victim and the families involved.

As well, domestic violence prosecutions are given priority over other matters to ensure early resolution whether by trial or other means, and limit the upset to those involved and their families. Special courts have been created dedicated to managing domestic violence prosecutions from the earliest opportunity in order to provide the parties the ability to appear before the court early in the process, access supports, engage in counselling, and find a path forward. A

key factor in the adoption of these court initiatives is the recognition that victims of domestic violence are extremely vulnerable to further abuse by their partners while the prosecution proceeds. [ 34 ] It should not be overlooked that it is common in prosecutions for domestic assaults for there to be an undertaking or release order prohibiting the accused from contacting the complainant. Such restrictions are issued in order to ensure the safety of the complainant as well as prevent cajoling, coercing, and intimidating activity to dissuade the complainant to proceed with the prosecution.

As well, it is a common occurrence that these orders are revised sometime after their issuance, to permit contact, often with the complainant’s consent, as the parties wish to continue their relationship for various reasons including desire to see one another or to participate in parenting responsibilities with their children. In such cases, it is not uncommon for the court to hear submissions that permitting contact will allow the accused to manipulate the criminal prosecution.

The court often has to struggle with the difficult choice of prohibiting contact altogether or allowing a relationship between two adults to continue with the risk of further harm to the complainant and providing the accused an opportunity to undermine the prosecution.

The offender’s conduct in this matter confirms the concerns of complainants, Crown counsel, and victim services workers so commonly heard in our courts. [ 35 ] These concerns are particularly relevant and significant when dealing with obstruction of justice in the context of a prosecution for assault of an intimate partner wherein the offender often has easy access and influence, particularly through coercion, to manipulate the criminal prosecution.

Such conduct undermines the efforts of all those in our community, including the courts, to assist victims attempting to escape abusive relationships, and gain some security over their well-being. In R. v.

R.E.D ., Justice Schultes addressed the inherent seriousness of these offences and the risk that they posed to the integrity of our justice system: Simply put, if witnesses are dissuaded from participating in trials, especially criminal prosecutions, through corrupt means, our system of justice cannot operate effectively and true justice will be impossible to achieve. [at para. 44] [ 36 ] The conduct of the offender in this matter is precisely the behaviour that has required the creation of numerous and various initiatives to enable a victim of domestic violence to escape their predicament and the controlling behaviour of their partner.

The conduct represents a constant and persistent threat to the security and well-being of vulnerable members of our community, and strikes at the heart of our justice system as it undermines the court’s authority and ability to protect vulnerable members of our community without which the victims would have little hope to escape their controlling relations and the abuse they are subjected to. [ 37 ] Whether or not there is a no contact order in place, accused individuals have to know that pressuring a complainant by whatever means to recant their allegations and/or to refuse to participate in the prosecution is not acceptable behaviour, will not be tolerated, and will be met with significant sanctions.

When committed in context of an extant ‘no contact order’, the sanctions will be more severe. [ 38 ] There are numerous cases involving similar circumstances to that of the offender before me wherein the offender was involved in an abusive relationship and, after being charged pursuant to offences committed against his partner, and being placed on a ‘no contact order’ with the complainant, the offender ignored the order and put pressure on the complainant by imploring, harassing, or threatening the complainant to change their evidence, recant their allegation, or not appear at the trial.

The jurisprudence makes it clear that denunciation and deterrence are paramount considerations when sentencing for this offence. The courts have repeatedly indicated that efforts to obstruct justice strike at the heart of our judicial system and if not met with significant sanctions, the system itself, which all those in our society rely on as part of our social contract, is placed at risk. R. v. D.W.S ., 2021 BCCA 205 ; R. v. Olson , 2011 BCCA 8 ; R. v. Jahanrakhshan , 2011 BCSC 894 ; and R. v .R.E.D.

The need for deterrence and denunciation cannot be overstated in this regard. [ 39 ] I will first address my position, of which counsel were advised, that a conditional sentence order is not appropriate in this case. [ 40 ] Despite the joint submission of counsel, I concluded after full consideration of the jurisprudence, that a conditional sentence order is not appropriate in this case.

Both the egregious conduct of the offender and his character indicate that a period of incarceration is required, both for specific and general deterrence, and as well to provide the victim a sense of security while she liberates herself from this abusive relationship. I have no confidence that the offender would comply with the conditions imposed by a conditional sentence order, further undermining the authority of the court and placing the victim and others at risk. [ 41 ] The offender is a heavy drug user which he commenced some six years ago. His drug of choice is methamphetamine.

The offender’s mother and guardian of his children, who continues to support her son, believes he needs help with his drug addiction. His mother also advises that he has made no efforts to address his addiction issues and that his visits with the children need to be supervised, although he has not been able to see the children for over a year now due to a restraining order. According to the offender’s mother, the offender is not fit to be a parent.

His mother indicates that he does give her money from time to time to help support the children. [ 42 ] The offender has a cognate record with numerous offences committed in 2008 and 2009, including three offences for breaching court orders, two for domestic assaults, and two for uttering threats.

As indicated earlier, with respect to one of the earlier domestic assaults he received a sentence of one day in jail after being given credit for 26 days in custody. [ 43 ] Aside from his mother, who addressed the court supporting the offender, and a reference letter from his recent employment, I have been provided little positive information with respect to the offender’s antecedents and lifestyle.

The letter from the employer consists of three short paragraphs and is of limited assistance given it indicates the offender was hired by the maintenance company on April 5, 2022, a mere week before he was arrested and placed in custody on this matter where he has remained since that time. I also note that one of those days when he was employed, he was preoccupied with attending court on this matter and then attending at the complainant’s residence in violation of the release order. I am unable to place much weight on the employer’s assessment of the offender.

The offender has no driver’s license as I understand it has been revoked. [ 44 ] A conditional sentence order would not be appropriate in this matter given the nature of his offences, his attitude towards court orders and his view that house arrest would seem to be a nominal penalty.

Moreover I don’t believe a conditional sentence order sends the appropriate, if not necessary message, to violent offenders who abuse their partners by repeated acts of intimidation, harassment and threats, with the belief that they will avoid significant sanctions by obstructing the criminal justice process. [ 45 ] The offender in the case before me has indicated in his own words that a house arrest is not a deterrent to him. As indicated

earlier in these reasons, the offender sent a text message to the complainant indicating he was prepared to engage in this criminal conductas he viewed house arrest as "the worst-case scenario" for him. [46] It is apparent that house arrest is not a deterrent for this offender to engage in this activity, and I have little confidence that ifplaced on house arrest he will comply with the conditions, and this vulnerable victim will remain at risk of being subjected to furtherabuse by this offender. He has indicated the complainant's significant jeopardy if he spends a day in jail.

His history, both dated andrecent, indicates he is unable or unwilling to comply with court orders. The complainant, the community and the court are entitled to feelsecure that the sentence imposed will be effective and protect our community from the offender's lawlessness which constitutes a threatto all. A conditional sentence order will not achieve that objective [47] Accordingly, I must determine what is the appropriate period of incarceration for this offender given his persistent efforts toobstruct justice. [48] In a recent decision from our Court of Appeal, R. v.

D.W.S., the court addressed the sentencing of an individual who wasconvicted at trial for repeatedly assaulting his partner, often with a knife, over a four year period, at times causing her injury. His partnerwas pregnant at the time of some of the assaults. As well, over the years he had engaged in numerous attempts to obstruct justice byasking the complainant to write letters to the police and Crown counsel recanting her allegations, some of which he assisted in drafting.Numerous recantation letters were delivered to Crown counsel.

His conduct also included insisting that the complainant attend at theCrown counsel office in an effort to have the Crown drop the charges against him. The court determined a global sentence of six yearswas appropriate of which 18 months was attributed to the obstruction offence.

It is worth noting that the offender had an extensivecriminal record with over 50 convictions and had been sentenced in the past to six years’ incarceration for robbery and weapons offences. [49] The court addressed the nature of violence in domestic relationships and the extremely difficult and precarious situation women,who are almost exclusively the victims of such violence, find themselves in. The court emphasized the need for the criminal justicesystem to address this ongoing problem within our society.

In that regard the court commented that despite amendments to the CriminalCode in 1996 to address intimate partner abuse, these offences continue to occur and there remains a strong need to publicly denounceand deter offenders. [50] The court also addressed the offender’s obstruction of justice offence in that case and the importance to ensure victims ofdomestic violence offences are adequately protected from efforts to dissuade them from coming forward. The court noted the extremecourage it takes for women to report these sorts of offences.

Justice Griffin speaking for the court stated: “[t]he act of reporting intimatepartner abuse can put a woman in grave danger. The attempt to obstruct justice strikes at the very heart of the justice system’s ability torespond to these crimes” [at para. 74].

And further, “[t]he respondent's several attempts to manipulate the complainant so as to obstructjustice, in the context of his willingness to commit offences in direct breach of court orders, suggest a higher degree of moral culpabilityand undermines the legal systems ability to prevent his repeated violence against his intimate partner” [at para. 76]. [51] In the case before me, the offender, over a three day period, repeatedly contacted the complainant and threatened to cause herharm if she continued with the prosecution.

These threats occurred both in the days leading up to the trial, and after it had been adjournedto hear evidence from the complainant. I also need to further emphasize the harassing, threatening and intimidating nature of theoffender’s conduct and the number of messages received by the complainant and other witnesses. The offender forwarded scores ofmessages as well as attended at the complainant’s residence and threatened to drag her down the stairs. These threats had to be takenseriously given the violent assault earlier perpetrated by the offender on the complainant.

There were also threats made to thecomplainant’s roommate. [52] The court has serious concerns for the safety and vulnerability of this complainant who showed great courage in coming forwardand pursuing this prosecution, despite the extensive efforts of intimidation by the offender to obstruct justice in these proceedings.

Aswell, and particularly important when assessing the appropriate sanction for obstruction of justice, the jurisprudence is clear that thisconduct strikes at the heart of our justice system, cannot be tolerated, and deterrence, both general and specific, are of criticalconsideration to ensure the rule of law is maintained within our communities. [53] I have concluded after considering the jurisprudence, the circumstances of this offender and the nature of his egregious criminalconduct and its impact on the victim and the criminal justice system that a nine month jail sentence for obstructing justice to be servedconsecutively to the assault and the breach of court order sentences is an appropriate sentence.

R. v. Dwyer [1996] B.C.J. No. 2347(B.C.C.A.); R. v. Olson; R v D.W.S.; R. v. Crazyboy, [2012] A.J. No. 750 (Alta CA); R. v Costello, 2019 ABCA 104 , [2019]A.J. No. 334. [54] While there are cases where lower sentences have been issued, they are distinguishable as a result of the lack of a prior record,less egregious conduct in pursuing the obstruction, or the compelling circumstances of the offender. An outlier would appear to be R. v.Cooper, 2009 BCCA 208, where a sentence of two months for obstruction of justice was upheld by our Court of Appeal.

However thatwas part of a much larger global sentence of over a year, and the court made reference to the offender's positive aspects including hisvolunteer work in the community and his numerous positive references. I should also note that the issue of whether two months for theobstruction offence was appropriate was not an issue before the court as was recognized by the court in R. v. Olson. [55] Counsel for the offender, in submitting that a three month sentence is appropriate for this offence, relied specifically on two casesin which a six month sentence was imposed for obstruction of justice.

The submission asserts that as those cases did not involve a guiltyplea this court should impose a lesser sentence. The cases are distinguishable from the matter before me. [56] The first case, R. v. Jahanrakhshan, is of little assistance as it does not involve a domestic violence situation engaging thevarious issues discussed above, and the offender in that case had no criminal record in Canada, although had been convicted in theUnited States for theft. There was no history indicating a disrespect for court orders.

As well, the trial judge accepted that the offenderwished to live a good life and his rehabilitation was probable. [57] The second case relied on by counsel for the offender is R. v. R.E.D., where the court imposed a sentence of six months as part ofa two year and eight month global sentence with the majority of the sentence being imposed for possession of child pornography

offences. The circumstances of the obstruction of justice offence in that case are nowhere near as egregious as those before me. In that case the offender had been charged with assaulting his partner, the details of which are not provided in the reasons. The circumstances of the obstruction are that the offender’s mother had suggested that the complainant write a letter to the police recanting the allegation. The offender, his mother, and the complainant had participated in the writing of the letter with the offender providing encouragement and approving of the letter’s final contents.

However the court was clear that the offender’s mother was the instigator of the obstruction scheme and the letter was delivered at the direction of his mother to the RCMP. The court indicated that the offender was a party to the obstruction offence instigated by his mother and the obstruction had been “driven by her throughout the process”. Moreover, the obstruction did not entail scores of threatening text messages to the complainant and an attendance at the complainant’s home again threatening her for failing to advise Crown counsel to arrest the prosecution.

As well, the court referred to a “fairly optimistic risk assessment” and that “he is capable of applying himself to rehabilitative goals if he is properly motivated”. [ 58 ] In summation, the jurisprudence does not support a sentence of three months. [ 59 ] I should indicate that I considered a higher sentence than nine months. However, I am mindful that the offender has pled guilty to these offences thus sparing the victim and the court a difficult trial.

As well, the nine month jail term is part of a global sentence which will be a significant step up for this offender and his earlier sentences. [ 60 ] I am also ordering that the offender be placed on probation for a period of 18 months after his release. The probation order will have the following conditions. [ 61 ] You must have no contact, directly or indirectly with [the complainant]. [ 62 ] You must not go to any place where [the complainant] lives, works, attends school, worships, or happens to be.

If you see them, you must leave their presence immediately without any words or gestures. [ 63 ] You must report in person to the probation office at #7 – 180 Central Road, Duncan, BC within two business days after your release from custody. After that you must report as directed by your probation officer. [ 64 ] When first reporting, you must provide your probation officer with the address where you are residing and your phone number.

You must not change your address or phone number without notifying your probation officer in writing at least five days in advance of any change. [ 65 ] You must attend, participate in and complete any intake, assessment, counselling or education program as directed by your probation officer.

This may include counselling or programming for anger management, violence prevention, spousal abuse prevention, and substance abuse. [ 66 ] You must not possess, directly or indirectly, any weapon as defined by the Criminal Code , including : 1. firearms and ammunition; 2. cross-bows, prohibited or restricted weapons or devices, or explosive substances; 3. anything used, designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person; 4. any imitation of all the above, including any compressed air guns or BB/pellet guns; or 5. any related authorizations, licences and registration certificates, and you must not apply for any of these. [ 67 ] I’m also making two ancillary orders. [ 68 ] Pursuant to s. 110 of the Criminal Code you are prohibited from possessing any firearm, cross-bow, restricted or prohibited weapon, prohibited device, ammunition or explosive substance for five years following your release from prison. [ 69 ] As well given the extent of the violent acts of the offender, and the nature of the threats to the complainant, as well as the offender’s background for cognate offences, I believe a DNA order is necessary in this matter.

With respect to the assault offence, after considering the factors set out in s. 487.051(3) of the Criminal Code , I am satisfied that it is in the best interests of the administration of justice to authorize the taking of samples of bodily substances from you. The samples will be taken from you while you are in custody and you must submit to taking of the samples.