R. v. Cahill Date:, 2017 BCPC 132

Citation: R. v. Cahill Date: 20170412 2017 BCPC 132 File No: 15951 Registry: Powell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. LEE WYATT CAHILL DECISION OF THE HONOURABLE JUDGE R. MILLER Counsel for the Crown: Heather Pineo Counsel for the Defendant: Hovan Patey Place of Hearing: Powell River , B.C. Date of Hearing: April 7, 2017 Date of Judgment: April 12, 2017

[1] In this case, Lee Cahill was charged with possessing marijuana for the purpose of trafficking on Information 15951. Thischarge arose because he was an employee in a marijuana retail outlet in Powell River called Wee Medical. This outlet is apparently partof a chain of such outlets throughout B.C. On June 9, 2016, an undercover officer entered the store and interacted with Mr. Cahill. Theyhad a conversation about what is required by Wee Medical to purchase marijuana. That officer then left. The police later returned with asearch warrant. They found Mr.

Cahill alone in the store with about six thousand dollars cash and several kilograms of packagedmarijuana apparently available for sale. It was Mr. Cahill’s second day on the job. I am told the Wee Medical store has been allowed toremain open. [2] The matter was scheduled for trial before me the morning of April 7, 2017. When the matter was called Mr. Cahill waspresent, his lawyer Hovan Patey appeared by telephone, and Heather Pineo appeared for the Federal Crown.

I was told there would notbe a trial as the parties had agreed upon a “common law peace bond.” I asked for authority for the position that such a resolution wasavailable. I was provided a casebook, which I found helpful, and submissions from both counsel on the matter. I read the cases andconsidered the matter over the lunch break. I concluded I could not do what counsel wanted, but I did not have time to prepare ajudgment without adjourning other matters set that afternoon. So I advised the parties that I would not impose a common law peace bondon Mr.

Cahill and I then adjourned the matter, with the consent of the parties, to a later date so they could decide how to proceed. I saidI would file my decision later. This is that decision. I do not know what has happened with Mr. Cahill’s charges.

I confirmed I am notseized with the matter. [3] I am of the understanding and always have been that, despite the S.C.C. decision in Doyle, (SCC), [1977] 1S.C.R. 597 (which says, and implies, that as Provincial Court Judges are creatures of statute, any authority we seek to exercise must befound in statute) we have a common law jurisdiction on facts established to our satisfaction to bind a party over to keep the peace. Thisjurisdiction was confirmed in B.C. by our Supreme Court in R. v. Chohan (1969), (BC SC), 1 CCC 19 and other casessince that time.

It is referred to as a jurisdiction to dispense “preventative justice.” Many cases have dealt with when and how thisjurisdiction can and should be exercised. None, however, have been referred to me, nor have I found any that deal with the issues raisedbefore me. To do what is urged here, is, in my opinion, beyond the conventional situations where common law peace bonds have beenutilized. [4] In Chohan it was said that “a peace bond is not a finding of guilt or a criminal conviction.

A peace bond is preventative justicein order to keep the peace in general and, in most instances, specifically in regards to one or more named persons. In Order that acommon law peace bond be entered reflects a finding by the court that there was a basis for apprehending that the appellant wouldcommit a breach of the peace.” [5] Here I am told that because Mr. Cahill engaged in the retail marijuana on the day in question and because of some of what hesaid during his dealings with the undercover officer, I should be satisfied that unless I order him to enter into a common law peace bond,he may do so again.

Further I am told that if he did do that it would be a “breach of the peace.” Leaving aside the questionableproposition that because Mr. Cahill worked in a marijuana store once, I should reasonably apprehend he will do so again unless I orderhim into a common law peace bond, I have concluded the behaviour in question is not a “breach of the peace”. [6] An excellent review of the meaning of the term “breach of the peace” is contained in R. v. Siemens (2012), ABPC 116, adecision of the Alberta Provincial Court. [18] The term ‘breach of the peace’ has itself been defined by the court in Frey v.

Fedoruk, (SCC), [1950] S.C.R. 517(S.C.C.) as follows: It may be difficult to define exhaustively what is a breach of the peace but, for present purposes, the statement in Clerk and Lindsell on Torts, (10th edition), page 298 may be accepted: A breach of the peace takes place when either an actual assault is committed on an individual or public alarm and excitement is caused. Mere annoyance or insult to an individual stopping short of actual personal violence is not a breach of the peace.

Thus a householder -apart from special police legislation - cannot give a man into custody for violently and persistently ringing his door-bell. The ‘peeping tom’ in this particular case was found not to have breached the peace. [19] In Brown v. Durham (Regional Municipality) Police Force (1998), (ON CA), 131 C.C.C. (3d) 1 (Ont. C.A.),the court considered the term ‘breach of the peace’ and commented (at para. 73): A breach of the peace does not include any and all conduct which right thinking members of the community would regard as offensive,disturbing, or even vaguely threatening.

A breach of the peace contemplates

an act or actions which result in actual or threatened harmto someone. Actions which amount to a breach of the peace may or may not be unlawful standing alone. Thus, in Percy v. D.P.P.,[1995] 3 All. E.R. 124 at 131 (Q.B.), Collins, J. observed: The conduct in question does not itself have to be disorderly or a breach of the criminal law.

It is sufficient if its natural consequencewould, if persisted in, be to provoke others to violence, and so some actual danger to the peace is established. [20] The authors of The 2012 Annotated Tremeear’s Criminal Code, Thomson Reuters Canada Ltd., Toronto address the term ‘breachof the peace’ in the following terms (at p. 105): ‘Breach of the peace’ is not defined in the

section (s. 30 C.C.), or elsewhere. It occurs whenever harm is actually or likely to be done toa person, or in his/her presence to his/her property, or a person is in fear of being so harmed through and assault, affray, riot unlawfulassembly or other disturbance. The Supreme Court has considered that a person committing a disturbance in a public place can be said to have breached the peace. See

R. v. Biron (1975), (SCC), [1976] 2 S.C.R. 56 (S.C.C.). As would the participants in a consensual fight in public. See: R. v. Bergner (1987), 1987 ABCA 132 , 78 A.R. 331 (Alta. C.A.). [7] It is clear that a “breach of the peace” has to be something involving violence or something akin to violence or something likelyto provoke violence. [8] Clearly the term would not include Mr. Cahill’s activities within the Wee Medical marijuana retail store, unlawful though theymay, or may not, have been. [9] I was told that because both counsel agreed that I should order Mr.

Cahill to enter into a common law peace bond, this shouldbe considered by me to be a “joint submission” and that therefore the principles from the S.C.C. decision of Anthony Cook and HerMajesty apply. However I disagree. This is not the court imposing a sentence different from that agreed to by counsel. [10] I have simply refused to order what I have concluded would be a resolution not legally permitted and sent the matter to anotherday. Even if the principles enunciated by the court in the Anthony Cook case did apply, I have concluded that ordering Mr.

Cahill toenter into a common law peace bond would be unlawful and that would, of course, be contrary to the public interest. The Honourable Judge R. Miller Provincial Court of British Columbia