R. v. Richard, 2019 BCPC 229

Citation: R. v. Richard 2019 BCPC 229 Date: 20190904 File No: 174917-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JASON THOMAS RICHARD ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: S. Bakken Appearing on his own behalf: J. Richard Place of Hearing: Victoria , B.C. Date of Hearing: September 4, 2019 Date of Judgment: September 4, 2019 [ 1 ] THE COURT: In this hearing, the Crown alleges that J.R. has reasonable grounds to fear ,and does fear, that Jason Thomas Richard will cause personal injury to her by virtue of incidents that occurred from July 11 to July 18, 2019, inclusive, pursuant to s. 810(1) (

a) of the Criminal Code . The Crown seeks a s. 810 recognizance order prohibiting Mr. Richard from having any contact or communication directly, or indirectly, with Ms. J.R. for a period of 12 months as well as additional no-go and other conditions.

[ 2 ] Mr. Richard, who is self-represented, disputes the allegation. Given the nature of the allegations and Mr. Richard's self- representation, the Crown sought and obtained an order that Ms. Lowe attend and cross-examine Ms. J.R. rather than Mr. Richard. In this hearing, Ms. J.R. testified and was cross-examined. Mr. Richard elected to give no evidence. Rather, once the Crown closed its case, Mr. Richard sought permission to enter into evidence excerpts from statements given by Ms. J.R. to police, which statements were reduced to writing. As I explained to Mr.

Richard, such allegedly inconsistent statements can be put to a witness on cross-examination, but they are not admissible evidence in their own right. Crown also confirmed that Ms. Lowe had received copies of such statements. [ 3 ] The Crown's case went in entirely through Ms. J.R., as well as through a video Ms. J.R. was able to confirm was taken at her workplace here in Victoria on July 11, 2018. It is a video in which Ms. J.R. is seen and in which Mr. Richard figures prominently or somewhat prominently at various points.

I will return to the question of identity shortly. [ 4 ] The Crown's case for this recognizance order is based on two incidences occurring this July 11 and 18, 2018, but placed in context by events that occurred as far back as October 2016 while Ms. J.R. was living and working and going to school in Toronto. Ms. J.R. is now 25 years of age. In the fall of 2016, she was living in Toronto with a boyfriend and attending school. She also worked part- time two days a week each weekend at a coffee shop located about 30 minutes from her residence. The shop was called the [omitted for publication].

Some time in October 2016, Ms. J.R., who was working as a cashier at the till of the [omitted for publication], served Mr. Richard. [ 5 ] I find that Mr. Richard's identity in this matter, both with respect to what occurred in Toronto including this first meeting and his presence at Ms. J.R.'s place of work in Victoria as partly shown on video, is not a matter of doubt. I say that even bearing in mind the Crown need only prove identity on a balance of probability. I am satisfied that whether or not she knew his name, Ms. J.R. well knew the identity of Mr. Richard. Ms. J.R. identified Mr.

Richard on the stand as the person with whom she interacted in Toronto, and again as the person shown on the video who then interacted with her at her workplace here in Victoria. Ms. J.R. was not cross-examined on this. In argument, Mr. Richard put it as "her word." Here, there is no he-said/she-said, as it is sometimes put. It is Ms. J.R.'s evidence alone that it was Mr. Richard, the person before me in Court today, that was the subject of the interactions that I am now going to describe. In my view, identity had been proven. [ 6 ] Ms. J.R. recalled speaking briefly to Mr.

Richard that first meeting, but quickly feeling uneasy because, as she described it, of his intense eye contact. She brought the banter to an end and Mr. Richard sat down. Ms. J.R. recalled that he sat near the till and stared at her for an hour or two. She saw him, she said, quite regularly at her work over the next several months. She recalled then also starting to see him in her neighbourhood, which was about a 30-minute-walk distance. One day, Ms. J.R. recalled going into a coffee shop on her way to school and was there approached by Mr. Richard.

The conversation was brief and she recalled feeling a little uncomfortable about the meeting. The coffee shop was only about 15 minutes from her residence on her way to school. From there, Ms. J.R. started seeing Mr. Richard a lot more over the next several months sometimes even as she left her house. At first, she testified Mr. Richard would engage saying hello and then he stopped. [ 7 ] In March of 2017 as Ms. J.R. and her then boyfriend were walking home after a dinner, she spotted Mr. Richard on the street coming toward her.

They were, again, in the area of the coffee shop located about 15 minutes from her home. She ignored Mr. Richard, but as they passed, she testified that Mr. Richard did a 180-degree turn and walked quickly back toward her and her companion. They both turned around quickly just as Mr. Richard seemed to be reaching out to touch Ms. J.R.'s shoulder and Ms. J.R. thought this may have startled Mr. Richard. He quickly turned around and walked away. Ms. J.R. then saw him near her residence again and constantly at her place of work.

She spotted what she perceived as him staring at her across a Toronto street as she was shopping with her boyfriend. [ 8 ] In the weeks before leaving Toronto, Ms. J.R. told a friend about this man, Mr. Richard, that she kept running into at work and around her neighbourhood. Strangely, the next day, Mr. Richard turned up at photoshoot she was conducting with that friend where he engaged Ms. J.R. in a brief conversation. [ 9 ] Two weeks before she left Toronto, Ms. J.R. was walking along Keele Street, a well-known and busy street in that city, and saw Mr.

Richard walking toward her on the other side of the street. She had intended to cross the street to enter a subway station, but felt unnerved by his presence and instead walked further down the street with the intention of crossing later and doubling back. She was quite nervous when she noted that Mr. Richard had turned around and began to follow her still on the other side of the street. She eventually had to cross Keele Street and their paths crossed near the subway station. Ms. J.R. testified that she stared full on at Mr. Richard to let him know she knew he was there.

She was scared, she testified, to go into the subway. She did because she needed to, but felt as if she was escaping from harm. Ms. J.R. testified that she made a report to police in Toronto about that instance, but lacked the time to make a formal statement and the inclination. [ 10 ] In June 2017, Ms. J.R. moved back here to Victoria. Like most people, Ms. J.R. has an online presence, in her case, on Facebook and Instagram. Also not unlike many young people, Ms. J.R.'s accounts were public, meaning anyone could find her online with minimal effort. Unfortunately, Ms.

J.R. ultimately posted information concerning where she worked as sort of a marketing attempt in or around July of 2018. At that time, she would working at a new location of a coffee shop located in the [omitted for publication]. [ 11 ] On July 11, 2018, as the video entered into evidence as Exhibit 1 demonstrates clearly, Mr. Richard showed up at the coffee shop. Ms. J.R. testified that she was in the back doing some dishes and saw Mr. Richard in her place of work. She felt shock.

She turned to avoid any contact, but was, as she described it, "super shocked" when he came around the side of the counter and called out, "Hey, don't I know you from Toronto?" Ms. J.R. managed to ask what he was doing there and that is about the extent of her memory on that point. Ultimately, Ms. J.R. testified that she had a panic attack, as she described it. She burst into tears and told her employer about what she described then as "really weird interactions" with Mr. Richard in Toronto. [ 12 ] The idea that Mr. Richard's attendance on July 11, 2018, at Ms.

J.R.'s workplace was no more than a strange and, for Ms. J.R., unhappy coincidence is fanciful. The video evidence itself suggests something entirely different. In that video at the 4:29 minute mark, a mere 38 seconds after Ms. J.R. had returned from her lunch break, Mr. Richard appears in the video. First, while the coffee shop is most easily and reasonably accessible on [omitted for publication] Street, Mr. Richard is seen entering from the back of the building, the same entrance used by Ms. J.R. Mr. Richard is captured on the video as he stops and stares in the direction of Ms. J.R.'s workplace. It is not a

matter of a brief stop. It is considered stare. [ 13 ] He is then seen walking slowly towards the shop only to turn slowly and walk slowly away, again toward the back of the market and to then turn around and walk briskly towards Ms. J.R.'s workplace. It is a deliberate pattern bringing to mind stalking behaviour. At the 5:40 minute mark, Mr. Richard is seen striding purposefully towards Ms. J.R.'s workplace. At the 8:26 mark, he is seen walking away from the coffee shop toward the back of the market where Ms. J.R. found him still sitting about 20 minutes later. Ms.

J.R. testified that she felt very scared after this incident. [ 14 ] She later spoke to family members and, once her mother's operation was complete, called police to report Mr. Richard. Ms. J.R. admitted that she was reluctant to call police, not because she was not frightened and unnerved and highly anxious about seeing Mr. Richard now in her workplace in Victoria, but because she felt she would be perceived as being paranoid. Police confirmed for Ms. J.R. that she was indeed right to be wary of Mr. Richard. They confirmed that the pattern of behaviour she described was potentially dangerous.

After that, after police validated her concerns, as Ms. J.R. put it, she felt even more frightened. [ 15 ] After the report, police learned that Mr. Richard had connected with a temp. agency across the street from her workplace on [omitted for publication]. They spent considerable time at Ms. J.R.'s workplace on July 18, 2018, in an attempt to intercept Mr. Richard in the event he attended at her workplace again. Minutes after police left in the afternoon, Ms. J.R. went to collect an advertising or sandwich board sign outside the door on [omitted for publication] only to see Mr.

Richard entering into a store across the street. She called police. Before they arrived, she went out to retrieve the last advertising board and there saw Mr. Richard across the street staring at her or the door behind her. Ms. J.R. testified that she was fearful at this point. [ 16 ] Since then, Ms. J.R. has not seen Mr. Richard, but she has also altered her life considerably. She has left her job and moved out of this community. Her consciousness of her surroundings is now heightened. She worries about safety in her home and outside of her home.

She goes outside less. [ 17 ] The question, given this evidence, is whether the Crown has proven on balance that Ms. J.R. has reason to fear and does fear that Mr. Richard will cause her personal injury as a result of those two incidents on July 11 and July 18, 2018. [ 18 ] The Crown relies on several cases in support of this application for a s. 810 peace bond. First, with respect to the central question, whether the Crown has established on balance that Ms. J.R. has reasonable grounds to fear and does fear Mr. Richard will cause her personal injury, the Crown relies on paragraph 79 of R. v.

H.(D.C.) , 2011 BCPC 443 . There, Judge MacCarthy, of this Court, set out the test for the existence of reasonable grounds: The authorities that deal with s. 810 and analogous sections of the Code in ss. 810.1 and 810.2 suggest that a twofold test applies. First, the subjective test: Is the fear of the complainant real? Then the objective component: Is that fear based on reasonable grounds? There are citations that follow. [ 19 ] I am left, as I have stated, in no doubt that Ms. J.R. does subjectively fear that Mr. Richard will cause her personal injury.

By "personal injury," I do mean at a minimum psychological harm if he is unconstrained in his attempt to be in her presence. That personal injury can include psychological harm is clear in the reasons of Judge Rounthwaite of this Court in R. v. Louis , 2013 BCPC 346 . [ 20 ] There is no question in my mind that Mr. Richard's behaviour, first his constant attendance at Ms. J.R.'s workplace in Toronto, let alone his presence in her neighbourhood, his various attempts to speak to her, and the incident on Keele Street just as Ms. J.R. was leaving Toronto, would, in the context of his appearing in Victoria at Ms.

J.R.'s very workplace be frightening for her. I do not have any difficulty believing her evidence on this point. [ 21 ] Mr. Richard submits the incident in Toronto or the incidents in Toronto simply have no place in this hearing. They are not being the subject of any charge. It is, however, open to a complainant to place evidence in context, the context here being the incidents in Toronto that caused the complainant to fear for her safety when Mr. Richard attended her workplace in Victoria. There is nothing to that objection. [ 22 ] As for the question of the influence of Ms.

J.R.'s family and police on her perception of harm, I am convinced by Ms. J.R.'s evidence that these had the effect of affirming her own views, that they validated her fears, and made her feel they were correct and not the result of paranoia. [ 23 ] Finally, Mr. Richard submits that Ms. J.R. may just be making all of this up. The difficulty with this submission is that there is nothing in the detailed testimony of Ms. J.R. that would substantiate such an allegation. No such allegation was put to Ms. J.R. It was never suggested to her, for example, that she was simply lying to the Court. Having heard Ms.

J.R. testify, I find the idea that she would have made up her testimony and perjured herself in Court for no apparent purpose to be groundless. There is simply nothing to support it. [ 24 ] I am left satisfied after hearing Ms. J.R.'s evidence, corroborated in part by the video evidence, that she does subjectively fear Mr. Richard will cause her personal injury. [ 25 ] The next question is whether the Crown has shown on balance that Ms. J.R.'s fears are objectively reasonable. As Judge Seidemann put it in R. v.

Firth , 2004 BCPC 449 , at paragraph 26 , here, the Court is called upon to "apply the perception of a reasonable member of the community having the information which has been placed before the judge." Would a reasonable member of the community, having heard the testimony of Ms. J.R. in this Court, conclude that on balance there is no objective basis for Ms. J.R.'s fear that Mr. Richard would cause her personal injury? I find the case supporting an objective base for Ms. J.R.'s fears is well proven.

The Crown has met its onus on this s. 810 application. [ 26 ] In terms of disposition, the Crown seeks the usual conditions such as no contact and no-go. [ 27 ] In addition, the Crown asks for an area restriction prohibiting Mr. Richard from being south of the Malahat on Vancouver

Island. As I understand Mr. Richard, as a Canadian citizen, he objects to any area restriction. Still, there is nothing so prejudicial about such an order relative to the safety concerns for Ms. J.R. that would not justify the Crown's request. [ 28 ] As for disposition generally, Mr. Richard asks the Court to take into account the effect he has experienced as a result of the police investigation. Mr. Richard began and ended this hearing with submissions on the investigation. Police apparently called family members, old employers, the Canadian military and [omitted for publication]. Mr. Richard submits he has already been socioeconomically punished for these allegations. [ 29 ]

Section 810 of the Criminal Code is intended as a measure to prevent harm based on the likelihood of harm. As Judge MacCarthy put in R. v. H.(D.C.) at paragraph 10 , the remedy sought by the Crown herein is best characterized as "preventative justice." Were I to modify my order, which I have found is justified, to account for harms alleged to have been suffered by Mr. Richard as a result of a police investigation, I would be well outside my authority under s. 810 of the Criminal Code . This is about the protection of Ms. J.R. This is about the prevention of harm.

If there is any remedy for the harms alleged to have been suffered by Mr. Richard, it is not in this Court on this application. [ 30 ] I do note, however, one of Mr. Richard's final points which is that it has been some time now since he has had contact with Ms. J.R. In my view, having heard from Mr. Richard, I am convinced that Ms. J.R. needs the protection of this order. [ 31 ] As such, Mr. Richard, I will ask you to stand, sir.

I will ask you to stand, sir. [ 32 ] THE ACCUSED: Yes, Your Honour. [ 33 ] THE COURT: You are then, as a result of my reasons, going to be released on your own recognizance, for a period of 12 months, in the amount of $500. There is no surety and there is no deposit. [ 34 ] The conditions of your release, Mr. Richard, are going to be similar to the conditions on your bail order. First of all, you must keep the peace and be of good behaviour. [ 35 ] Secondly, you will have no contact or communication directly or indirectly with Ms.

J.R. [ 36 ] Thirdly, and I will see if I can get it to match the bail order exactly so there is no confusion, you must not go to or be within 100 metres of any residence, workplace, or place of education of J.R. [ 37 ] There is going to be an area restriction, as well, as you have heard in my reasons, and that order will provide that you will not be anywhere south of the Malahat on Vancouver Island for the period of this order. [ 38 ] There will be an additional order with respect to reporting. You are in Vancouver? [ 39 ] THE ACCUSED: Well, I do not intend to stay now.

Like I mean -- [ 40 ] THE COURT: Okay. [ 41 ] THE ACCUSED: -- is it possible to move out of province? [ 42 ] THE COURT: I just -- just for reporting. It is possible for you to move out of the province? Absolutely. He could make it today, can he not, to -- [ 43 ] MS. BAKKEN: Perhaps, Madam Clerk, do you think -- would that be reasonable for Mr. Richard to make it to the Courtney Street address today? [ 44 ] THE CLERK: It is likely. They close at 4:00 p.m.

It could be possible. [ 45 ] THE COURT: Okay. [ 46 ] THE ACCUSED: Can I just make a quick point here? [ 47 ] THE COURT: Yes. [ 48 ] THE ACCUSED: I have got T4s from that labour office from 2014. [ 49 ] THE COURT: Okay, I am not getting it, sorry. [ 50 ] THE ACCUSED: Well, you said that any coincidence if there was some reason to be there would be impossible, some kind of pursuance there, but I have T4s. [ 51 ] THE COURT: Well, I have given my reasons, okay. [ 52 ] THE ACCUSED: Okay. [ 53 ] THE COURT: Yes. [ 54 ] THE ACCUSED: I am just going to appeal it at some point. [ 55 ] THE COURT: No, fair enough.

[ 56 ] THE ACCUSED: I just wanted to state that. [ 57 ] THE COURT: Fair enough. Fair enough. [ 58 ] I think you can report in person today at the bail supervisor across the street here at 836 Courtney Street. You can do that in person before today and that is for the purposes of simply checking in, having this order reread to you, and provide the bail supervisor with your residential address and not change that address during the period of bail without notifying your bail supervisor. [ 59 ] I will pause for a moment here. You have asked if you can move out of the province. You can.

You just advise your bail supervisor of your address. So you will speak to the bail supervisor about that, but people do move out.

Right. [ 60 ] Then there is the condition, as well, and I will make it just the same as it is on the bail order, and that is, Madam Clerk, it is a 1610. [ 61 ] You will not possess, either personally or through any other person, any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in s. 2 of the Criminal Code , or any related authorizations, licences, or registration certificates. [ 62 ] I take it you are not looking for the no knives? You have not mentioned that. [ 63 ] MS.

BAKKEN: No, it is on the bail order, but I think the weapons condition satisfies the Crown concerns in that regard. [ 64 ] THE COURT: That should satisfy that? [ 65 ] MS. BAKKEN: Yes. [ 66 ] THE COURT: Okay. So that is the order. You are going to be signing that before you leave. You will report to the bail supervisor. I am having it done today, which is really to convenience you, okay. So you will report to the bail supervisor today, sir, and it is really just the one time reporting. [ 67 ] MS. BAKKEN: Yes, Your Honour, and just with regard to the timeframe in which Mr.

Richard should be leaving Vancouver Island, should that be stipulated? I am just trying to think of what would make sense. [ 68 ] THE COURT: You are leaving today, are you? You are reporting at 4 o'clock in person. [ 69 ] THE ACCUSED: Yes, Your Honour. [ 70 ] THE COURT: Okay, I will make it a condition of the order that -- [ 71 ] THE ACCUSED: Can I have a little bit of leeway there, not just an hour. [ 72 ] THE COURT: How are you getting off the island? [ 73 ] THE ACCUSED: Ferry. [ 74 ] THE COURT: Okay. Well, are they every hour? [ 75 ] MS. BAKKEN: If Mr.

Richard thinks he can catch a ferry later on this afternoon, I would be satisfied by midnight today. [ 76 ] THE COURT: Oh. [ 77 ] MS. BAKKEN: I think that would be -- [ 78 ] THE COURT: There are no ferries at midnight. So 11 -- [ 79 ] MS.

BAKKEN: I think the last one is at 9 o'clock. [ 80 ] THE COURT: Yes, 9 o'clock, okay, that is the last ferry, right? [ 81 ] THE ACCUSED: Yes, Your Honour. [ 82 ] THE COURT: So if you are taking the ferry, then, my order today will provide that the no-go south of the Malahat will come into force at 9 p.m., this Wednesday, September 4 th of 2019, and will continue for the 12 months of this order. Okay. So you have until 9 p.m. to get off the Island. Okay. [ 83 ] MS. BAKKEN: Thank you, Your Honour. [ 84 ] THE COURT: Thank you. (REASONS FOR JUDGMENT CONCLUDED)