R. v. James, 2013 BCSC 1472

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. James, 2013 BCSC 1472 Date: 20130724 Docket: 147686-2 Registry: Victoria Regina v. William Frederick James Before: The Honourable Mr. Justice G.R.J. Gaul Oral Reasons for Judgmentre: Defence Application to Vary Probation Orders Counsel for the Crown: P. Cheema, Q.C.Appearing on his own behalf: W. F. JamesPlace and Date of Trial/Hearing: Victoria, B.C. July 24, 2013Place and Date of Judgment: Victoria, B.C. July 24, 2013 [1] THE COURT: There are three probation orders before me today and they relate to court files 14048, 15289 and 147686.

Inhis Notice of Application filed 9 July 2013, Mr. James seeks a variation of these probation orders, pursuant to subsections 732.2(3)(a)and (

b) of the Criminal Code. [2] The gist of Mr. James’ application is that he would like to have the probation conditions that prohibit him from possessing apassport suspended for approximately two months so that he can leave Canada. While it is somewhat unclear, it seems he is also seekingto have the length of his probation orders shortened or, in the alternative, to have the reporting conditions of those orders suspended fortwo months, so that he does not have to report to his probation officer when he is away. Whatever the situation, I take it Mr.

James’ goaltoday is to obtain a variation of whatever probation order or orders that prohibit or hinder him from travelling outside of Canada. Allthree probation orders have reporting conditions attached to them; and two of the orders prohibit him from possessing a passport. In myview, all three orders need to be considered today in one way or another. Background [3] This history of this matter is somewhat convoluted and I will try to set it out as clearly as I can. [4] In May 2006, Her Honour Judge Maughan of the Provincial Court sentenced Mr.

James to an 18-month custodial sentence afterhaving convicted him of accessing child pornography, contrary to s. 163.1(4.1) of the Code. The actual period in custody was reduced to14 months after Judge Maughan credited Mr. James for the time he had spent in pre-sentence custody. Additionally, Judge Maughandirected that following Mr.

James’ release from custody, he be bound by a three-year probation order (the “First Probation Order”).There were 14 conditions to the First Probation Order, including: • Not possess any cellular telephone • Not to possess any flash memory storage devices • Not to apply for a passport. [5] On 26 April 2008, Mr. James was charged with breaching the first two conditions that I just listed of the First Probation Order.These charges are associated with court file 14048. [6] On 15 February 2010, Mr. James was charged with breaching the third condition that I just mentioned of the First ProbationOrder.

This charge is associated with court file 15289. [7] In April 2010, Mr. James was charged with three counts of uttering threats contrary to s. 264.1(1)(

a) of the Code and twocounts of engaging in conduct with the intent of intimidating a justice system participant, contrary to s. 423.1(3) of the Code. Thosecharges are associated with court file number 147686. [8] On 5 May 2010, Madam Justice Ross of this court found Mr. James guilty of one count of uttering threats and one count ofintimidating a justice system participant, on court file 147686. Pursuant to the rule articulated in R. v. Kiennapple, (SCC), [1975] 1 S.C.R. 729, Justice Ross directed a judicial stay of proceedings with respect to the uttering threats count and entered a

conviction on the intimidating a justice system participant count (the “Principal Offence”). Justice Ross’ reasons for judgment are indexed as 2010 BCSC 1891 . [ 9 ] On 28 May 2010, Mr. James was before Justice Ross for sentencing. The Crown and the defence chose to call ahead court files 14048 and 15289 and place the three counts of breach of the First Probation Order before Justice Ross. Mr. James was arraigned on these additional charges and entered guilty pleas to all three counts. [ 10 ] On the Principal Offence, Justice Ross sentenced Mr.

James to a one-year custodial sentence, followed by three years of supervised probation. [ 11 ] On court file 14048, Justice Ross sentenced Mr. James to three-month custodial sentences for each count, to be served concurrently, followed by three years of supervised probation. Conditions 9 and 11 of the probation order read as follows: Condition 9: You are not to possess any cellular telephones. Condition 11: You are not to have in your possession or apply for any passport during the term of this order. [ 12 ] On court file 15289, Justice Ross sentenced Mr.

James to another three-month custodial sentence, to be served consecutive to the sentence for the Principal Offence and the sentences imposed on court file 14048. Justice Ross also imposed a three-year probation order identical to the one imposed on court file 14048. [ 13 ] I am advised that all of the probation orders imposed by Justice Ross expire on 28 June 2014. [ 14 ] On 25 April 2013, Mr. James filed an application, similar to the one before me, seeking to amend his probation orders so that the duration of those orders would be reduced to two years. Mr.

James also sought to eliminate the conditions that prohibited him from possessing a cellphone and a passport. The application was heard by Mr. Justice MacKenzie on 8 May 2013. Justice MacKenzie refused to reduce the duration of the probation orders and denied Mr. James’ request to regain his passport. Justice MacKenzie did vary the probation orders associated with court files 14048 and 15289 to permit Mr. James to possess a cellphone so long as it does not have any data capacity or the ability to take photographs, films, or any audio or video recording. Discussion [ 15 ] Mr.

James has an unenviable criminal record. In June 2006, he was sentenced to a custodial sentence of 18-months, to be served in the community under a Conditional Sentence Order, followed by 18 months of supervised probation. This sentence resulted from his conviction for possession of child pornography. As I have already noted, in May of the following year, Mr. James was sentenced to an 18-month custodial sentence, on account of his conviction for accessing child pornography. He was also placed on supervised probation for three years. In January of 2009, Mr.

James was sentenced to a 6-month custodial sentence, to be served under a Conditional Sentence Order, followed by 12 months of supervised probation, as a result of his conviction for making child pornography. In

summary, Mr. James has been convicted and sentenced for possessing, accessing and making child pornography. [ 16 ] The offences for which Mr. James has been convicted are serious crimes. In 2008 and 2009 he was subject to the conditions contained in the First Probation Order. Shortly after he was released from custody, Mr. James breached three terms of that order, one of which prohibited him from having a passport. Justice Ross clearly perceived Mr. James’ repeated violations of his conditions of probation as egregious.

In her reasons for sentence at paras. 43 and 44, Justice Ross explained why she would not allow Mr. James to serve his custodial sentences in the community under a Conditional Sentence Order: [43] Mr. James has a history of breaching orders. In my view, given that history and given the assessments on files, I simply cannot be satisfied that the community would not be endangered if his sentences were to be served in the community.

Moreover, in my view, a conditional sentence order would not be consistent with the principles and purposes of sentencing. [44] I agree with the submissions of defence counsel that such an order can serve the functions of deterrence and, with appropriate conditions, house arrest can be a significant sanction; however, much of that depends upon compliance. Consistent monitoring is simply not feasible. The breaches here were multiple and at different times.

They suggest to me a continuing pattern of disregard and disrespect for court orders, and these concerns are reflected in the assessments form which I have quoted. [ 17 ] Today, Mr. James argues that on account of his medical condition, he is no risk whatsoever to the community. Apparently he is undergoing treatment for cancer and the medications associated with that treatment have left him with no sexual drive or ability. In a document dated 4 July 2013 and attached to his Notice of Application, Mr.

James explains: My cancer problem isn’t a fear of losing my life as much as my mobility at this point, which would end my travel days for good. I’m simply asking for a chance to visit them [his “surrogate daughter” and her family]…this year rather than waiting to see what next year (2014) winter brings. [ 18 ] Ms. Natalie Boulianne, Mr. James’ current probation officer, testified during the course of this hearing. Ms. Boulianne reported that the probation services do not support Mr. James’ application to vary his probation orders. She advised that Mr.

James failed to complete all of the required sex offender programs when he was previously incarcerated and was refused admission into some of the programs because of his poor attitude towards his offences and his unwillingness to participate. According to Ms. Boulianne, Mr. James continues to shows little insight into his criminal behaviour and continues to deny that accessing or viewing child pornography is anti- social criminal behaviour. In this regard, Ms. Boulianne reported that Mr. James remains of the view that he has been the victim in the various prosecutions. Decision [ 19 ] In its simplest form, Mr.

James would like to have his probation orders varied so that he can travel to India for approximately

six weeks. He says he has been providing financial assistance to a family in India and he wishes to travel there at some undetermined point this fall so that he can visit with them. It would appear that the family is of very modest financial means and reliant upon Mr. James’ financial help. While it is unclear how many individuals make up the family household, it would appear that the family includes a number of young members. Mr.

James says he is not at risk of committing any sexual offences and in support of this position he points to his medical test results that, according to him, prove he has been, using his expression, chemically castrated. He also asserts that his medical condition may not permit him to travel next year and consequently he would like to do so now while he is still able to. [ 20 ] In my view, Mr. James’ application is without merit. The medical evidence, if I can call it that, is unconvincing and in particular I am not persuaded that the test results confirm that he is as sexually debilitated as he claims.

Moreover, given Mr. James’ continued attitude towards child pornography, it is clear to me that he fails to understand the serious harm that comes to the children who are victimised and abused to create these horrific images or that the abhorrent business of making and distributing this material is fueled only by those who access it. [ 21 ] In my opinion it is mere speculation on the part of Mr. James that he may not be able to travel next year when his probation orders expire. The court does not make orders of the nature Mr. James seeks based on speculation. Justice Ross ordered that Mr.

James be on supervised probation for a 3-year period after he had completed his custodial sentences. She was obviously concerned about Mr. James’ behaviour and attitude towards his offences and in my view, given what I have heard on this application, the grounds for those concerns have not diminished. [ 22 ] The application before me is practically identical to the one denied by Justice MacKenzie in May of this year. Given that nothing has changed to any noticeable degree since the hearing of that application, it would, in my respectful view, be wholly inappropriate for me to grant Mr. James’ application.

I will not use what I consider to be reckless speculation on the part of Mr. James and a weak evidentiary foundation as a basis to grant him the orders he seeks. [ 23 ] Finally, I note that according to Ms. Boulianne, Mr. James has not paid the victim surcharges imposed by Justice Ross. Mr. James did not attempt to contradict this evidence, nor did he offer any explanation for failing to comply with this aspect of his sentences. If Mr.

James has the ability to pay for a six-week trip to India to visit the family that he has been financially supporting for an unspecified period of time, then in my view he has also has the capacity to pay those surcharges. In my opinion, Mr. James would be wise to pay his surcharges before seeking any further variations to his probation orders. [ 24 ] For all of these reasons, Mr. James’ application is dismissed. The probation orders will remain in place and unchanged. “G.R.J. Gaul J.”