Her Majesty the Queen - v. -, 2011 SKPC 63

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 063 Date: May 3, 2011 Information: 24359697 Location: Tisdale _____________________________________________________________________________ Between: Her Majesty the Queen - and - Anthony James Dean Richardson Appearing: Ms. Lori O’Connor For the Crown Mr. Ian Goldberg For the Accused JUDGMENT B. MORGAN , J [ 1 ] Mr. Richardson faces five counts. Counts 1 through 4 each allege a failure to pay the required restitution in a probation order, dealing with the months of January, February, March and April of 2010, respectively.

Count 5 is a charge of failing to report to the probation officer, a charge that Mr. Richardson pled guilty to. The precise wording of the charges is set out in more detail in the Information itself. [ 2 ] That three year probation order was imposed in December 2009, based on Mr. Richardson’s guilty plea to a charge of committing mischief by damaging the statue of “Quilly Willy” owned by the community of Porcupine Plain. Specifically, the probation

order contained a clause that Mr. Richardson was to pay restitution in the total amount of $4,000.00, at the rate of at least $100.00 per month, commencing on January 1, 2010, and continuing on the first day of each month thereafter until paid in full. The issue in this case is whether the professed inability of Mr. Richardson to obtain employment during the period in question constitutes a “reasonable excuse”, to use the wording of s. 733.1 of the Criminal Code , for not paying the required amounts in each of the months January to April inclusive of 2010. [ 3 ] In brief, Mr.

Richardson acknowledges that he has made no restitution payments. At the time the order was made, he was employed at the 7-11 store in Melfort, working 40 hours a week. His argument is that he lost his job at the 7-11, and that he did not have a job at the time of the trial in April 2011. He argues that it is impossible for him to pay the restitution because he has no income, citing that lack of ability to pay as a reasonable excuse for failing to comply with the probation order during the period in issue.

Strictly speaking, in this trial, his current state of unemployment is not really relevant at any time beyond April of 2010, but as he presented his case by covering the period January of 2010 to April of 2011, I will review that time period. [ 4 ] The relevant portion of s. 733.1 of the Criminal Code states that an “offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order” commits an offence. [ 5 ] The legal test to be applied to this is set out in Jordan Crowe v.

The Queen , 2003 SKQB 536 , an appeal taken to the Court of Queen’s Bench from a somewhat similar situation to this case. In Crowe , the “sole ground for appeal is that the verdict is unreasonable and cannot be supported by the evidence”, in a case in which counsel for Mr. Crowe argued “that his situation is one of abject poverty and that this was a reasonable excuse for his failure to make the restitution as required”. [ 6 ] The law is stated at paragraph 11 of Crowe : I agree with the law as stated by [then] Justice Klebuc in Bird. Mens rea is an element of an offence under

section 733.1 of the Criminal Code and it can usually be inferred from the accused’s failure to comply with the probation order at which point the onus shifts to the accused to provide evidence of a reasonable excuse. If evidence of a reasonable excuse is provided, then the necessary mens rea is negated. It is a question of fact in each case whether that occurs. Paragraph 12 of the Bird case [1999 SKQB 10] was repeated at paragraph 12 of the Crowe decision: While the necessary mens rea may be inferred from the “ actus reus ”, such inference may be discharged by evidence of a reasonable excuse.

An inability to pay restitution because of abject poverty with no realistic employment opportunity in my view constitute a reasonable excuse for non-compliance which negates the requisite mens rea . (Emphasis in Crowe ) [ 7 ] What, then, are the facts in this case? Mr. Richardson’s evidence was that he is 24 years old, resides in Porcupine Plain, Saskatchewan, and is unemployed. As mentioned earlier, he was employed full-time at the 7-11 store in Melfort at the time the probation order was made in December of 2009, working 40 hours a week.

He testified that he was not sure what his actual income was from that employment. [ 8 ] Mr. Richardson went on to testify that in January of 2010, he went home to Porcupine Plain for what was essentially a Christmas visit with his family, as he was working both Christmas Day and January 1 st . He went with a friend, and the friend decided not to go back to Melfort, leaving Mr. Richardson somewhat stranded in Porcupine Plain, he said, until February or so, at which point he returned to Melfort.

Not surprisingly, when he returned to Melfort, having not advised his employer where he was, or why he hadn’t been to work in over a month, he found that he had lost his job. [ 9 ] Mr. Richardson, who has no motor vehicle nor licence, then looked for work in Melfort. He did find work at Venice House, a local restaurant in Melfort, in early March of 2010, although he left that job after receiving his first pay cheque, as in his words, “I wasn’t getting paid enough to pay my rent”. He then looked for other jobs in Porcupine Plain, with no success.

[ 10 ] Mr. Richardson testified that he has a “reputation as a bad guy in town”, and this fact, he claims, coupled with a lack of employment opportunities or prospects in Porcupine Plain, has prevented him from gaining employment.

He remains optimistic that he may have some work “lined up” for this summer. [ 11 ] His overall plan is to get some employment so he can get his identification back (he said that he lost his wallet, which contained his identification, and stated he lacked the means to pay the fees to reissue various pieces of identification), and he would like to eventually join the Canadian Navy. [ 12 ] As to his educational background, he left school after completing approximately half of his Grade 12.

As he put it, “I kind of just stopped going to school”, this decision apparently being based on his belief that he was able to get employment on the rigs in Alberta, a job which did not require him to have his Grade 12. [ 13 ] Mr. Richardson’s mother, Lara Jensen, testified and confirmed that Mr. Richardson has been living with her and her husband for approximately one year. She confirmed that he is unemployed, and mostly has been for that year.

She testified that he has applied for work, although there simply are no jobs, and when asked what the opportunities for employment were in Porcupine Plain, replied “not too big”. In essence, she confirmed that Mr. Richardson was being supported by her and her husband. I have some question as to how much she could know about the extent of her son’s job search, but her evidence does lend some support to her son’s evidence. [ 14 ] As indicated earlier, there is no dispute that the restitution money hasn’t been paid. Mr.

Richardson acknowledged that he owes the money, and wants to be paying it off, but states that he can’t pay because he has no work. Mr. Goldberg, counsel for Mr. Richardson, argues that when his client lost his job, it became impossible for him to pay. In essence, Mr. Goldberg’s argument is that this lack of employment is a reasonable excuse, and that it is “impossible to pay because he has no income”. [ 15 ] Ms. O’Connor, Crown counsel, takes a different view and argues that there is no reasonable excuse in this case.

Further, she points to s. 733.2(3) of the Criminal Code , which sets out a process by which an individual can make application to amend a probation order, in effect, to grant an extension due to temporary financial hardship. [ 16 ] In my view, the professed inability to pay, based on lack of employment, is not a reasonable excuse in these circumstances. I note as follows: 1) Mr. Richardson’s initial unemployment, arising out of the loss of his job at the 7-11 store, is self-inflicted.

It cannot have come as a surprise to him that a failure to even contact his employer, coupled with a failure to show up for work for one month, would result in the loss of his job. I find it is unreasonable for Mr. Richardson, in these circumstances, to rely on that. His failure to return to Melfort from Porcupine Plain was equally unreasonable; I do not accept that because his friend, who went with him from Melfort to Porcupine Plain in the first place (apparently in the friend’s vehicle), did not want to return to Melfort constitutes a reasonable excuse for Mr.

Richardson not to return to his job. 2) After losing that job, Mr. Richardson was able to acquire a second job, the one at the Venice House restaurant. He chose to leave that job because, in his words, he did not earn enough to pay his rent, although he did not provide particulars of his income from that job at trial. There is simply not enough evidence before me to determine that his decision to terminate that employment was reasonable. All he has said, in a rather blanket statement, is that he didn’t earn enough to pay his rent.

I don’t accept that as being an accurate assessment of his situation, particularly in the absence of any supporting evidence or further details about what his expenses versus employment income were. 3) Although Mr. Richardson has given evidence respecting some efforts made to obtain employment, I am not of the view that he is unemployable (as evidenced by the fact he had two previous jobs, each of which he lost due to his own actions), and whereas it may be difficult to obtain employment in Porcupine Plain, his previous jobs were in Melfort anyway.

In sum, I am not at all satisfied that he is making a reasonable effort to find employment, nor that he is unemployable. [ 17 ] As noted in Bird , “an inability to pay restitution because of abject poverty with no realistic employment opportunity ...constitutes a reasonable excuse...”. But that test has not been met in this case. Here, I am not able to conclude that Mr. Richardson is in a state of poverty, let alone “abject poverty”. I do not accept that there is “no realistic employment opportunity”, especially in light of Mr.

Richardson’s evidence that he hopes to get something “lined up” this summer, and the evidence of his past employment.

[ 18 ] On the facts of this case, I reject the defence suggestion that there is “a reasonable excuse” for Mr. Richardson not to have paid the restitution. There is no dispute respecting the validity of the order or the fact that no payments have been made. I am satisfied beyond a reasonable doubt that each of counts 1 through 4 have been proven, and I find Mr. Richardson guilty on each of those counts. B. Morgan, J