R. v. England, 2023 BCPC 119

Citation: R. v. England 2023 BCPC 119 Date: 20230525 File Nos: 78059-1, 78059-2-KA, 78059-3-A Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. ADAM CARL GEORGE ENGLAND ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: S. MacDonald, appearing by videoconference Counsel for the Defendant: D. Jenkins Jr., appearing by videoconference Place of Hearing: Williams Lake , B.C. Date of Hearing: May 25, 2023 Date of Judgment: May 25 , 2023

[ 1 ] THE COURT: Mr. England has pled guilty to two counts, one on court Information 78059-1 and one on court Information 78059-3-A. [ 2 ] Information 78059-1 is a count that: Adam Carl George ENGLAND, on or about the 31st day of December, 2022, at or near Prince George, in the Province of British Columbia, did knowingly utter or convey a threat to Dwight Hall to cause death or bodily harm to Dwight Hall, contrary to

Section 264.1(1) (

a) of the Criminal Code . [ 3 ] Information 78059-3-A is a count that: Adam Carl George ENGLAND, on or about the 12th day of May, 2023, at or near Prince George, in the Province of British Columbia, being at large on a release order, did fail to comply with a condition of that release order by possessing a weapon, contrary to Section 145(5) (

a) of the Criminal Code . Facts [ 4 ] Mr. England is an Indigenous man. He is 27 years old and has no previous criminal record. He turned the allegations on the two court Informations into facts when he pled guilty to both. [ 5 ] Concerning 78059-1, on December 31, 2022, at approximately 5:05 p.m., Dwight Hall saw what he believed to be Mr. England striking a woman who fell to the ground. When Mr. Hall verbally attempted to intercede, Mr. England stated he would shoot Mr. Hall if Mr. Hall called the police. Mr. England and the woman departed in a truck which the police subsequently stopped. [ 6 ] Mr. Hall and Mr.

England are strangers to each other. The Crown did not rely upon the fact that Mr. England had struck the woman making her fall to the ground. In other words, for Mr. England’s guilty plea, the Crown relied upon only the threat that Mr. England would shoot Mr. Hall if Mr. Hall called the police. [ 7 ] No victim impact statement was filed with the court despite the wording of s. 722 of the Criminal Code . [ 8 ] Concerning Information 78059-3-A, Mr. England was on a release order dated March 1, 2023, which included a condition that Mr. England is not allowed to possess weapons as defined by the Criminal Code .

On May 12, 2023, at about 1:25 in the afternoon, the police received a report of an individual in a park matching Mr. England's description using bear spray on a 15-year-old boy. The police attended to the park. They located Mr. England. When police searched Mr. England, they found him possessing a can of bear spray. [ 9 ] The Crown has not charged Mr. England with a substantive offence concerning the bear-spraying of the 15-year-old boy. Instead, what the Crown has relied upon, and what Mr. England has pled guilty to, is Mr.

England violating the terms of his release order by possessing bear spray in a park as a weapon as opposed to having the bear spray for self-defence against bears. [ 10 ] Again, no victim impact statement was filed with the court. Rejection of the Joint Submission [ 11 ] The Crown and Defence have presented a joint submission for a suspended sentence plus a probation period. Joint submissions urge judges such as myself to sentence a defendant to a particular position unless that proposed sentence would disrepute the administration of justice or be otherwise contrary to the public interest.

In paragraph 34 of R. v. Anthony-Cook , 2016 SCC 43 , the Supreme Court of Canada said: Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. [ 12 ] Our Court of Appeal has recently guided sentencing judges on approaching joint submissions.

The guidance of our Court of Appeal in Cheema , 2019 BCCA 268 , is based upon the Supreme Court of Canada's decision in Anthony-Cook . Justice Dickson instructed judges such as myself in paragraph 22 of Cheema : Given the foregoing, a judge presented with a joint submission must approach the sentencing task differently than on a conventional sentence hearing. Under the conventional approach, the judge focuses on the circumstances of the offender and the offence, and the applicable sentencing principles.

However, when assessing a joint submission, the judge must consider factors beyond the typical sentencing principles and should not “reverse engineer” a joint submission by determining the sentence that would have been imposed after a trial and comparing it to the jointly proposed sentence. Rather, the analysis should begin with the basis for the joint submission, including the important benefits to the administration of justice, and ask whether there is something apart from the length of the sentence that engages the public interest or repute of the justice system: Anthony-Cook at paras. 32, 42, 44, 48 ; R. v.

Belakziz, 2018 ABCA 370 at para. 18 . This approach enables a full appreciation of the basis and justification of the jointly proposed sentence: R. v. McInnis, 2019 PECA 3 at para. 78 . [ 13 ] I am also aware that, in R. v. Nahanee , 2022 SCC 37 , Justice Moldaver stated in paragraphs 1 and 2: [1] Where the Crown and the defence propose a specific agreed-upon sentence to a judge in exchange for an accused’s guilty plea, a stringent test, known as the “public interest” test, exists to protect that submission. The test, adopted by this Court in R. v.

Anthony-Cook , 2016 SCC 43 … instructs judges not to depart from a joint submission unless the proposed sentence would bring the administration of

justice into disrepute, or is otherwise contrary to the public interest. Sentencing judges must not reject a joint submission lightly. Theyshould only do so where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the properfunctioning of the justice system. [2] The stringency of this test is designed to protect the unique benefits that flow from joint submissions. It provides the parties witha high degree of certainty that the sentence jointly proposed will be the sentence imposed, and it avoids the need for lengthy, costly, andcontentious trials.

As a rule, joint submission sentencing hearings are expeditious and straightforward. They save precious time,resources, and expenses which can be channeled into other court matters.

In short, they enable the justice system to function efficientlyand effectively. [14] In the circumstances of the present case, following the Court of Appeal’s directions in Cheema and looking at the basis for thejoint submission, including the essential benefits to the administration of justice, and asking whether there is something apart from thelength of the sentence that engages the public interest or repute of the justice system, I have come to the conclusion that the answer is“yes.” [15] In saying “yes,” I recognize Mr.

England is a 27-year-old Indigenous man who comes before the court without a criminal record.It is in our society's best interest to come to terms with the reality of the systemic discrimination and colonial impact that Indigenouspeople, including Mr. England, have felt as a result of the history of this country. That does not mean Indigenous people get a "get out ofjail free card.” What it does mean, however, is that we, and by "we" I mean society, need to understand the reality of Indigenous people'slives and, in the best of all worlds, put into action the Supreme Court of Canada's teachings as set out in R. v.

Gladue, (SCC), [1999] 1 S.C.R. 688; and R. v. Ipeelee, 2012 SCC 13. In the context of historical systemic discrimination against Indigenouspeoples, we must recognize the effect addictions, mental health, poverty, and displacement have had on Indigenous peoples, and in doingso, we will incarcerate fewer Indigenous people. [16] I am of the view that a reasonable person looking at the factual situation in Mr.

England's case and understanding that he hascome forward at this early stage and said, "Yes, Judge, I plead guilty to these two offences," that it would not be contrary to the publicinterest to grant him a discharge. [17] Now, I need to be clear about something. I appreciate that discharges are not to be handed out lightly, and I understand, as well,that discharges have requirements. Having considered the gravity of these two offences, the frequency and prevalence of these types ofcrimes in the community, and the general public's attitudes to these offences, I do not doubt that it is in Mr.

England's best interests thathe be discharged. [18] Section 730(1) of the Criminal Code says that: Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which aminimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court beforewhich the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, insteadof convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation ordermade under subsection 731(2).

So while I appreciate and confirm that it is not always in the best interests of an offender to have a discharge, in this case, I do not doubtthat it is in Mr. England's best interests. Based on what counsel has told me about the facts and what they have said about Mr. England, Ido not doubt that Mr. England, despite his addiction issues, has been a person of good character. Moreover, as I indicated earlier, he hasno criminal history. I am going to quote from what I said in R. v. Bolton, 2023 BCPC 96, in paragraph 24: I am also of the view that as part of society’s action plan to:

a) remedy systemic discrimination against Indigenous people,

b) reverse the extreme overrepresentation of Indigenous defendants in the criminal justice system, and

c) do more than merely pay lip service to the Truth and Reconciliation Commission’s Final Report released in 2015, we need to identify appropriate cases involving Indigenous offenders for discharges. And if we, as sentencing judges, error, error on theside of the Indigenous person. Sentence Imposed [19] So, concerning Information 78059-1, there will be a conditional discharge followed by 12 months of probation. [20] The terms of the probation will be as follows, Madam Clerk. [21] 2101 -- Sorry. I will start with 2001.

You must keep the peace and be of good behaviour, you must appear before the court whenrequired to do so by the court, and you must notify the court or your probation officer in advance of any change of name or address andpromptly notify the court or the officer of any change of employment or occupation. [22] 2101, you must report in person to a probation officer -- and will it be at the Prince George Community Corrections office, Mr.Jenkins? [23] CNSL D.

JENKINS JR: Yes, please, Your Honour. [24] THE COURT: At the Prince George Community Corrections office by 3:00 p.m. tomorrow, May 26, 2023, and after that, youmust report as directed by your probation officer.

[ 25 ] THE ACCUSED: Yeah. [ 26 ] THE COURT: 2202, when first reporting to a probation officer, you must provide them with the address or location where you live and regularly sleep and your telephone number if you have one. You must not change them without notifying your probation officer at least two days before making the change. [ 27 ] 2002, you must have no contact or communication directly or indirectly with Dwight Hall. [ 28 ] 2005-1, you must not go to or be within 100 metres of any place where Dwight Hall lives, works, attends school, worships, or happens to be.

If you see them, you must leave their presence immediately without any words or gestures. [ 29 ] 2501, 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 whatever it is your probation officer determines you need assistance with. [ 30 ] 2610, you must not possess directly or indirectly any weapon as defined by the Criminal Code , including, but not limited to, firearms, ammunition, crossbows, prohibited or restricted weapons or devices, explosive substances, 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, any imitation firearms or weapons, including any compressed airguns, BB or pellet guns. [ 31 ] Madam Clerk, I will add this: "No bear spray or other substance which can be sprayed for the purpose of repelling bears or humans; or any other related authorizations, licenses, and registration certificates and you must not apply for any of these." [ 32 ] Do you understand all those conditions, Mr.

England? [ 33 ] THE ACCUSED: Yes, Your Honour. [ 34 ] THE COURT: Do you agree to abide by them all? [ 35 ] THE ACCUSED: Yes, of course, I promise you. [ 36 ] THE COURT: All right. [ 37 ] Concerning the 3-A Information, Madam Clerk, there, as well, will be a conditional discharge. It will also have a probation period of 12 months, and they will all be the same conditions. [ 38 ] Do you need me to repeat all those conditions for you, Mr. England? [ 39 ] THE ACCUSED (via videoconference): Ah, no [indiscernible/remote audio] Your Honour. [ 40 ] THE COURT: All right.

I am going to require that a justice of the peace read those conditions to you and that you sign the document before you are released from custody, okay? [ 41 ] THE ACCUSED: Of course, thank you so much. [ 42 ] THE COURT: All right. Mr. Jenkins, there is the victim fine surcharge. I take it that you would like me to consider waiving it, given your client's financial situation. [ 43 ] CNSL D. JENKINS JR: That is correct, Your Honour. It -- his situation is undetermined at this point and, on the basis of that, I do make that submission. [ 44 ] THE COURT: All right, thank you. Ms.

MacDonald, any submissions on behalf of the Crown? [ 45 ] CNSL S. MACDONALD: Crown takes no position on the victim fine surcharge. [ 46 ] THE COURT: Thank you. [ 47 ] Pursuant to s. 737(2.1) of the Criminal Code , I am satisfied that because of Mr. England's precarious financial circumstances, the surcharge should not have to be paid, and, accordingly, I order that he pay no surcharge in relation to either count. [ 48 ] In relation to the uttering threats, it is a secondary DNA. I take it you are not seeking DNA; am I correct on that, Ms. MacDonald? [ 49 ] CNSL S.

MACDONALD: No, Your Honour. [ 50 ] THE COURT: All right, there will not be a DNA order, either. [ 51 ] All right. So in relation to those matters, we are done. The 2-A Information, Ms. MacDonald? [ 52 ] CNSL S. MACDONALD: Crown directs a stay of proceedings on 78059-2-KA. (REASONS FOR SENTENCE CONCLUDED)