R. v. L.A.Q., 2021 BCPC 288

Citation: R. v. L.A.Q. 2021 BCPC 288 Date: 20211102 File No: 181132-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. L.A.Q. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MACCARTHY Counsel for the Crown (appearing by videoconference): M.D. Halston Counsel for the Accused (appearing by videoconference): R. Kim, Articled Student (as Agent for C. Sutton) Place of Hearing: Duncan , B.C.

Date of Hearing: November 1 & 2, 2021 Date of Judgment: November 2, 2021 These written reasons are supplemental to the oral reasons for judgment rendered on November 2, 2021 and do not change the results of those oral reasons. Introduction [ 1 ] THE COURT: L.A.Q. has entered a guilty plea to an allegation that on or about November 1, 2020, at or near Saanich, British Columbia, she did commit the assault of B.R.K. The Crown urges me to grant a conditional discharge. Defence seeks an absolute

discharge. [ 2 ] The duty of this court is to consider what is a fit sentence for this accused for this particular offence. Circumstances Surrounding the Offence [ 3 ] L.A.Q. was in Victoria on a B.C. Transit bus on her way to the Tsawwassen ferry terminal via the Swartz Bay ferry terminal. She had luggage with her. She was apparently seated beside the victim, B.R.K. (hereinafter referenced as the "Victim").

L.A.Q. (hereinafter referenced as the "Offender") had consumed a significant amount of alcohol. [ 4 ] The luggage that the Offender had with her came into physical contact with the Victim on several occasions. In response the Victim asked the Offender to secure her luggage and not to permit it to come into contact with her. That led to a verbal altercation between the two individuals with the Offender elevating her voice. The bus driver stopped the transit vehicle.

In the course of the altercation, the Offender spat in the direction of the Victim and that resulted in the expirated secretion landing on the coat of the Victim. As I understand it, at that point the Offender was removed from the transit bus, the police were called, she was arrested, and eventually she was released on a release document known as a police undertaking, Form 10. [ 5 ] The terms and conditions of the Offender's release required her to report to a bail supervisor at the Saanich Corrections office on or before November 2, 2020.

It also prohibited her from the use of any public transportation offered by B.C. Transit in the Greater Victoria area. Those terms and conditions remained in effect until the Offender entered her guilty plea before this court on November 1, 2021. [ 6 ] The Victim did not file a victim impact statement and, so far as has been determined, the Victim suffered little if no effects as a result of the altercation and the spitting on her by the Offender. Circumstances of the Offender [ 7 ] The Offender comes before this court with no criminal record. She is age 29.

She has attended post-secondary education at both the University of Victoria and the University of Toronto. She was pursuing a double major in English and psychology. As I understand it, she completed the first year of her university education, but thereafter dropped out. She has indicated in direct submissions to the court that she then became entrenched in substance misuse for a number of years.

As part of that drug entrenchment, she came into contact with various individuals which, according to defence counsel, led her to be engaged in a very destructive and physically abusive relationship with a long-time boyfriend who was about 20 years her senior, that person being J.E.K. [ 8 ] It is indicated by defence counsel that the relationship between J.E.K. and the Offender hit a particularly difficult period of time on the night preceding the offence subject of these sentencing proceedings.

At that time, the Offender was required to flee from the presence of J.E.K. because of physical threats; that also led her to then self-medicate with the consumption of a significant amount of alcohol. This caused her to become highly intoxicated. She stayed with friends in the Greater Victoria area and then she was placed on the transit bus by one of those friends to allow her to return to Vancouver and, as described, to thereby flee the situation involving J.E.K. [ 9 ] It was during the transit ride out to the Swartz Bay ferry terminal that the events took place.

The indication is that the Offender has little or no recollection of the events that took place on the transit vehicle due to her level of intoxication. However, her actions were apparently caught on transit bus’s video camera; it is on the basis of the whole of these circumstances surrounding the events that the Offender has entered her guilty plea. [ 10 ] Having returned to Vancouver, the Offender obviously became painfully aware of the necessity to seek some support and to deal with her long-time drug and alcohol misuse issues.

That caused her to enter into a detoxification program operated by Vancouver Coastal Health. She attended the detoxification program for a significant period of time, preparing herself to enter into a program operated by the Phoenix Society in Vancouver. There were three or four engagements with the detox facilities in Vancouver before she gained admission into the Phoenix Society program.

That program was scheduled to continue for several weeks terminating, as I understand it, sometime around June 23, 2021. [ 11 ] The Phoenix Society program was designed to assist the Offender in terms of her recovery through group therapy and bi-weekly one-to-one counselling.

She attended regular psychoeducational programming as well as recreational events and outings that were offered at the Phoenix Society. [ 12 ] Having completed the program successfully in or around June 23, 2021, Phoenix Society issued a “completion letter” which spoke in very positive terms about the gains made by the Offender during her participation in that program.

She was apparently considered to be very supportive throughout by offering a significant amount of support to her peers, as well as gaining for herself what is referenced as “emotional intelligence” and the ability to communicate effectively. [ 13 ] Having successfully completed that program, the Offender was then admitted into Vancouver Coastal Health’s Onsite Withdrawal Management & Transitional Housing.

As I understand it, the Offender, continues in the program through to today; she has again received glowing reports of her successes in that program as she seeks to satisfy her long-term housing placement goals and also to gain abstinence-based stability. [ 14 ] The Offender has plans to return to university to complete her education, and eventually her career goal is to obtain a certification in the field of social work. That would continue her own positive trajectory and also permit her to start assisting people in their own recovery.

The letters before me indicate that she is both committed to her recovery and understands the necessity of maintaining the various supports that have assisted her so far in gaining a very positive direction in her life. That positive direction was of course absent in the time leading up to the offence that brings her before the court for sentencing. Victim Impact

[ 15 ] As noted above, there is no formal victim impact statement before the court, and there is no indication that there was any significant long-lasting impact upon the Victim from these events. Crown Position on Sentencing of the Offender [ 16 ] Crown has recommended that this matter be resolved by way of the granting to the Offender of a 12-month conditional discharge. The terms and conditions are relatively brief.

Under the suggested terms, Crown says there should be a reporting condition and there should be a counselling provision in order to provide ongoing support for the Offender. [ 17 ] The Crown's position is formulated on the basis that the events leading up to the commission of this offence are highly aggravating.

Specifically, Crown submits that spitting at an individual on a public transit bus in the midst of the COVID-19 pandemic in itself should be regarded as highly aggravating. [ 18 ] The Crown indicates that it would be contrary to the public interest for this type of offence to be dealt with by way of an absolute discharge. [ 19 ] Crown has relied on one case authority which is the decision of this court in R. v. Boucher , a 2014 unreported decision of the Honourable Judge Gordon, Surrey Registry 203322-1.

In that decision, Judge Gordon notes, within an entirely different set of circumstances, at paragraph 2 as follows: It is considered an offence of violence [that is spitting] because of the fear that is instilled in the recipient, and has been probably since 1981 or 1982 when everyone has been well aware that bodily fluids transmit very serious and dangerous diseases. [ 20 ] I respectfully agree with this statement.

I note that the Boucher decision was rendered on August 19, 2014, and that statement was made well in advance of the COVID-19 pandemic which we all are now facing and which was declared prior to the date of the offence in this matter. Defence Position on Sentencing of the Offender [ 21 ] Defence submits that this is a matter for which this court must give consideration of an absolute discharge.

The basis for that, says defence, is that the whole of the circumstances show that the Offender has taken significant steps to rehabilitate herself. [ 22 ] In support of that, reference is made to three letters of recommendation that have been placed before the court and admitted as exhibits. [ 23 ] Defence also says that the whole of the circumstances surrounding the offence must be taken into account, insofar as the intoxication of the Offender at the time of the offending behaviour was precipitated by the abusive relationship and the resulting requirement for the Offender to flee from Vancouver Island to escape that abusive situation. [ 24 ] It is suggested that, as part of the repercussions of that abusive relationship, that the Offender has suffered post-traumatic stress.

There is nothing in the materials before me that confirms that submission, but I accept that many individuals who find themselves in interpersonal violence with intimate partners can and do suffer from post-traumatic stress. [ 25 ] Defence also relies heavily on the very positive steps that the Offender has taken on her own volition and which are referred to above. That started with the detoxification program through Vancouver Health Authority. As I understand it, that detoxification program continued for several months between November 2020 and up to and including March of 2021.

It was followed by her subsequent enrolment in the Phoenix Society programs, and then her graduation into the programming offered through Vancouver Coastal Health, and the Onsite Withdrawal Management & Transitional Housing. [ 26 ] On that basis, I am being urged not to impose a sentence which will have the effect of taking away from the great successes and gains made by the Offender up to this point in her life. [ 27 ] In that regard, I am specifically being urged to consider the negative impact that a criminal conviction may have on the future employment plans and career aspirations of the Offender.

The Criminal Records Review Act [ 28 ] Specifically, Defence has pointed to the provisions of the Criminal Records Review Act , R.S.B.C. 1996, c. 86 . This particular piece of legislation has a specific goal and purpose, as set out in paragraph 2 of the Act , which reads as follows: 2.

(1) The purposes of this Act are to help prevent (

a) the physical and sexual abuse of children, and (

b) the physical, sexual and financial abuse of vulnerable adults by requiring individuals to whom this Act applies to undergo criminal record checks. [ 29 ] The process and procedures set out under the Criminal Records Review Act were canvassed in

part in the Alberta Provincial Court decision of R. v. Lamb, 2014 ABPC 214 . In Lamb , the court at paragraph 54 notes that the Criminal Records Review Act is quite a detailed piece of legislation. The decision in Lamb concluded that the offender in that case, by virtue of the Criminal Records Review Act , would be required to undergo a criminal record check because of the nature of the employment she might seek in British Columbia, being that of a care giver to the elderly or the disabled; hence she would be dealing with individuals who would fall within the category and description of "a vulnerable adult".

[ 30 ]

Section 1 of that piece of B.C. legislation defines a "vulnerable adult" as: “an individual 19 years or older who receives health services, other than acute care, from a hospital, facility, unit, society, service” or who receives care or services from what is an extensive list of other defined bodies, agencies, organizations and facilities, which may be providing care and support to such vulnerable adults. Also, the criminal record checking and review scheme extends to individuals “who work with children”.

Again a very broad number of organizations fall within the criminal record check requirements and the resulting processes if the check discloses a conviction or an outstanding charge “relating to a relevant offence or specified offence”, as those terms are defined within the Act . An assault under

section 266 of the Criminal Code is defined as “a relevant offence”. [ 31 ] The Lamb decision points out that if there is such a charge or a conviction, then the matter is referred under section 4(2) of the Criminal Records Review Act to the “deputy registrar” to determine under subsection (

a) whether the conviction or outstanding charge indicates that the individual presents a risk of physical or sexual abuse to children or a risk of physical, sexual or financial abuse to vulnerable adults. [ 32 ] It is also noteworthy that under subsection 4 (2) (

b) the deputy registrar is required to inform the person who authorized the criminal record check and also a large number of other employers and organizations about the results and also that that there has been a referral to the deputy registrar for risk assessment and a determination, having regard to the factors set out in subsection (3). [ 33 ] It is further noteworthy that the definition of "conviction" under the Criminal Records Review Act , includes a conditional discharge, but does not include a reference to an absolute discharge. [ 34 ] Defence submits that given the future career plans of the Offender, she will be subject to the regime under the Criminal Records Review Act .

Accordingly, it is submitted by Defence that if a conditional discharge is imposed, that will place the Offender in a difficult position in securing future employment because of the existence of that “conviction”. Therefore an absolute discharge should be granted. Other Defence Case Authorities [ 35 ] The Defence relies on some other authorities besides Lamb as follows:

(1) R. v. Pyper , 2020 BCPC 246 ;

(2) R. v. Ruan , 2017 BCCA 284 . R. v. Pyper [ 36 ] The decision in Pyper is placed before this court in support of the proposition that this court should take into account the significant rehabilitative steps and the degree of remorse expressed by the Offender in the present matter. That was the situation in Pyper , which led to the granting of an absolute discharge. Also similar reliance is placed upon the provisions of paragraph 38 of Pyper where it is noted that a criminal record would likely impair Mr.

Pyper's employment in international travel and make it more difficult for him to pursue his profession because of potential concerns of and involvement with his professional regulatory bodies. [ 37 ] Hence, I am being asked to follow the lead set out in R. v. Pyper and grant an absolute discharge to the Offender in this case based on those same sort of factors and considerations. R. v. Ruan [ 38 ] The decision in Ruan is also cited in support of what the defence says is a factually-similar case. It involved an altercation on the street whereby Mr.

Ruan spat at someone who had confronted him as he was holding signage in support of his Christian missionary work. [ 39 ] The decision in that case resulted in the Provincial Court trial judge convicting Mr. Ruan on the offence of assault by way of spitting, but then granted him an absolute discharge on the basis that it was a "one-off" situation and that Mr. Ruan had made a poor decision in the heat of an argument. That decision was upheld by the Supreme Court of British Columbia and leave to the Court of Appeal was dismissed.

It is on the basis of the trial decision, upheld on appeal, that it is submitted that I should consider an absolute discharge for the Offender in this case. The Need for Further Conditions [ 40 ] It is also pointed out that the Offender in this case has been under release conditions, which I have referenced above, for a period of 12 months. That, it is said, has been a significant restraint on her liberty and that should be taken into account in determining whether or not an absolute discharge should be granted.

Defence says it should, noting that none of the conditions that are being recommended by Crown will result in anything further being done by the Offender that the Offender has not already undertaken on her own initiative. Purposes and Objectives and Principles of Sentencing [ 41 ] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence and the specific circumstances of the offender (see R. v. Shoker , 2006 SCC 44 at paragraph 14 , and R. v.

Angelillo, 2006 SCC 55 at paragraph 22 ). [ 42 ] As the sentencing judge, I must direct myself to consider all principles of sentencing contained in the Criminal Code , but also be mindful that, depending on the nature of the offence committed, certain principles will receive more emphasis than others (see R. v. McCormick , 2006 ABCA 410 at paragraphs 9 to 12 ). Applicable Provisions of the Criminal Code [ 43 ] The purposes and principles of sentencing are found in s. 718 to 718.2 of the Criminal Code . These sections codify and plainly

state the intention and rationale for imposing particular sentences. [ 44 ]

Section 718 of the Code outlines the fundamental purpose of sentencing as: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 45 ]

Section 718.1 sets out a fundamental principle of sentencing. It directs that a sentence must be proportionate to the gravity of the offence and the degree of the offender's responsibility. [ 46 ]

Section 718.2 under the heading, "Other sentencing principles" states in part that: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender . . . (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . . (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. Aggravating Factors [ 47 ] In this case, I accept that the aggravating factors are as follows: 1) the offence involved spitting at a co-passenger on a public transit vehicle in the midst of a pandemic. [ 48 ] In R. v. Harvey, 2021 BCPC 176 ; [2021] B.C.J.

No. 1550 at paragraph 98 , I previously stated: I find that the assaults by way of spitting at the two victims to be particularly aggravating and offensive, especially when these offences appear to have occurred in the midst of the COVID pandemic and when there was a heightened public awareness and concern about the possibility of transmission of the virus between persons and certainly we were all being warned to maintain proper social distancing; [ 49 ] In my view, the fact that the spitting occurred on a public transit vehicle adds to the aggravating nature of the offence, especially during the COVID-19 pandemic.

Mitigating Factors [ 50 ] I accept the following as mitigating factors:

a) the guilty plea that has been proffered by the Offender in this case;

b) the Offender has no criminal record;

c) the letter of apology which has been provided to the court written by the Offender on April 18, 2021; that letter demonstrates, in my view, sincere remorse and exceptionally good insight into the problems caused by her offending behaviour and the effect that it may have had on the victim in this case. The letter also confirms the intention of the Offender to remain sober and to pursue a continuation of her higher education and eventually to pursue a career in social work, in her words, to help others who suffer with addictions, mental health disorders, and life-changing abuse from intimate relationships;

d) the Offender has remained on conditions and has fulfilled those conditions without any suggestion of breaches; and

e) the generally positive and extensive steps taken by the Offender since commission of the offence to pursue rehabilitation and to gain positive tools in order to deal with her historical substance abuse issues. Conditional Discharges

[51] A conditional discharge is available under s. 730 of the Criminal Code and s. 730(1) sets out the requirements. Thoserequirements have been interpreted by the decision of our Court of Appeal in R. v. Fallofield, BCCA. The statutoryrequirements are that the conditional discharge must be in the best interests of the accused and not contrary to the public interest. [52] Fallofield sets out several requirements with respect to the use of a conditional discharge. An important thing is that it is notavailable in circumstances where there is a minimum sentence requirement. Fallofield indicates to us that the

section contemplates thecommission of an offence, but there is nothing in the language that limits the offence to a technical or a trivial violation. [53] Fallofield also tells us that the two conditions precedent to the exercise of the jurisdiction are: First is that the court mustconsider that it is in the best interests of the accused that he or she should be discharged, either absolutely or upon conditions. If it is notin the best interests of the accused, that of course brings the consideration of a conditional discharge to an end.

If it is decided that it is inthe best interests of the accused, then that brings the next consideration into operation. [54] The second condition precedent is that the court must decide that a grant of the discharge is not contrary to the public interest. [55] Fallofield further indicates that the first condition would presuppose that the accused is a person of good character withoutprevious conviction, and that it is not necessary to enter a conviction against that person in order to deter him from future offences or torehabilitate him and that the entry of a conviction against him may have significant adverse repercussions. [56] In the context of the second condition, that is a public interest in the deterrence of others, Fallofield tells us that this conditionmust be given due weight, but it does not preclude the judicious use of the discharge provisions. [57] The concept of public interest is not defined in the statute.

What needs to be established only is that a discharge would not becontrary to the public interest. A discharge, therefore, may be granted unless some prejudice to the public interest would likely resultfrom it. On the other hand, a discharge should not be granted in every case, which it is not contrary to the public interest, and thereforethe relevant factors must be balanced in each individual case. [58] In this case, I am satisfied that the granting of either a conditional or an absolute discharge would, in this case, certainly be in thebest interests of the Offender.

In coming to that conclusion I am assisted by some other case authorities which are referenced andconsidered below. Analysis Consideration of Some Other Case Authorities R. v. R.A.R. [59] One of the main issues that has been raised by defence is that there could be adverse impact on the job prospects of the Offenderin pursuing her formal education and her goal of becoming a social worker, in a field which is both demanding and very much in demandby our present society. [60] In the decision of R. v. R.A.R., [2016] B.C.J.

No. 1959, 2016 BCPC 276, the court dealt with two important questions that arerelevant to the present case and to this issue. Very recently I followed that analysis in R. v.

Popovich, 2021 BCPC 278 CanLII whenconsidering the granting of a conditional discharge to a youthful offender in a case of intimate partner violence. [61] The first question is should the court consider the possible impairment of an accused’s future prospects in securing remunerativeand productive employment as a factor in granting a discharge or refusing a discharge on the basis of the interests of an accused’semployer or prospective employer knowing the particulars of the offence. [62] In R.A.R.

Judge Gouge at paragraph 21 accepts the line of judicial authority that recognizes the potential adverse effects of acriminal record on future employment prospects of an accused, as a basis for granting a discharge.

However, at paragraph 22, JudgeGouge notes that there is an “obvious tension between the employer’s interest in learning as much as it can about the employee andemployee’s interest in withholding some kind of information from his employer”. [63] At paragraph 23 Judge Gouge notes that in balancing these interests it is necessary to consider “the nature of the offence and theresponsibilities of the offender’s profession or occupation.” Therefore, the public interest will demand and the employer will have a“legitimate need to know” and to “be well-informed” about the criminal past of an accused in certain situations.

The examples providedare a school board if a teacher has committed a sexual assault or a bank or other financial institution if a bank teller had committed fraud.Thus, such circumstances may be an appropriate reason for the court to refuse a discharge. [64] In R.A.R.

Judge Gouge concluded that a refusal to grant a discharge would likely have some adverse effect on the future careerof the accused in that case and therefore granted a fourth conditional discharge for an intimate partner assault. [65] The second relevant question considered in R.A.R. is what is required in terms of evidence before the sentencing court in order togrant a conditional discharge on the basis that there may be adverse effects on or an impairment of an accused’s employment prospectscaused by a criminal record. [66] In order to come to a conclusion on that issue, Judge Gouge was required to reconcile the decisions in R. v.

Hust 2004 ABPC 128and in R. v. Moreau, QCCA (which concluded that a court may, even in the absence of evidence, draw inferencesabout the negative impact of a criminal conviction on employment prospects) with the most recent British Columbia judicialpronouncement in R. v. Whitney, 2015 BCPC 27 , 2015 B.C.J. No. 327; 2015 BCPC 27 which held that there must be sufficientevidence or information before the court in order to conclude that a criminal conviction may prevent cross border travel and thus impacton employment prospects of an accused.

[ 67 ] At paragraph 29 of the R. v. R.A.R. decision, Judge Gouge states as follows: [29] However, I think that it is possible to reconcile the judgments in Moreau and Hust with the judgment in Whitney , and there is wisdom in each. A criminal record will almost always impair the employment prospects of the offender. A general inference to that effect may be drawn without evidence. However, where specific prejudice is alleged, evidence is required to support the inference.

I am bound by Whitney to conclude that the travel restrictions of foreign counties are not matters of such common knowledge that they can be determined without evidence. For that reason, I cannot conclude that Mr. R. will suffer specific prejudice if he is refused a discharge. I can, and do, conclude that the refusal of a discharge is likely to have some adverse effect on his future career. R. v. Chesnic [ 68 ] I also have had the opportunity of reviewing some other case authorities, including my own decision in R . v. Chesnic , [2019] B.C.J. No. 2377 ; 2019 BCPC 293 .

The Chesnic decision reviewed a number of case authorities relating to the use of conditional discharges. Commencing at paragraph 152 of Chesnic, that decision considers and relies in part on the decision of Chu v. Canada (Attorney General) , 2017 BCSC 630 CanLII. Chu was considered in the context of the nature of criminal records, and whether a criminal record is part of an offender's original punishment, as the test is outlined in the decision of R. v.

K.R.J. , 2016 SCC 31 CanLII, [2016] 1 S.C.R. 906: [152] Starting at paragraph 156 of Chu , the court arrives at the conclusion that considering criminal records merely as an administrative result of contact with the criminal justice system fails to take into account the sanction imposed of a criminal record.

The court in Chu notes as follows: Are Criminal Records Part of the Arsenal of Sanctions? [156] For the reasons which follow, I have concluded that criminal records meet the first branch of the K.R.J. test for punishment because they are part of a sentencing judge’s arsenal of sanctions for criminal behaviour. [157] Among the sanctions available to sentencing judges are terms of imprisonment, fines, or, where certain conditions are met, conditional or absolute discharges. . . . [159] The effect of a discharge is that the offender is not convicted and, accordingly, has no criminal record of conviction.

In determining whether to impose a discharge, sentencing judges effectively determine whether to impose a record of conviction.

The discharge options available to a sentencing judge avoid the damaging consequences of a criminal record for offenders charged with relatively minor offences. [160] Clayton Ruby said this in his sentencing textbook: Sentencing , 8th ed. (Markham: LexisNexis Canada Inc., 2012) at page 414, para. 9.2: Implicit in the provision of this alternative disposition [a discharge] is a recognition by Parliament that a criminal conviction may in itself be a form of punishment and that further punishment is neither appropriate nor necessary in some instances.

On occasion, very harsh effects upon an accused person’s life can result from the acquisition of a criminal record, and this legislation was thought to be one way of relieving this consequence in appropriate cases. A person who has been granted a discharge may truthfully state that he has never been convicted of a criminal offence and has no criminal record, though, undoubtedly, a record of the finding of guilt and the discharge is kept. … [161] The imposition of a discharge also results in an automatic pardon/record suspension.

In the case of an absolute discharge, s. 6.1 of the CRA [being the Criminal Records Act ] requires that all references to a discharge be removed from CPIC after one year. In the case of a conditional discharge, all references are to be removed after three years. After the expiry of those time periods, disclosure of the discharge is severely restricted.

Offenders are not required to apply for these benefits; instead, they are effective automatically after the passage of time. . . . [163] The distinction between a conditional discharge and the next most serious sentence available to a sentencing judge, a suspended sentence with probation, is the entering of a conviction, the creation of a record of conviction, and the need to apply for a record suspension. [164] In sentencing hearings in criminal courts throughout Canada, counsel regularly make submissions about the appropriateness of a discharge to avoid a criminal record. As Judge Gosselin said in R. v.

Kairouz , 2011 QCCQ 1829 (CQ) at paras. 56-57 : [56] The crux of the matter—whether the sentence, which is adequate in normal circumstances, becomes disproportionate given the facts in this case—must now be examined. For, it bears repeating, a sentence of discharge is an alternative to conviction when the latter would be enough to make the sentence seem disproportionate to the acts of the person to be punished. …. [153] At paragraph 176 of Chu , the Supreme Court goes on to state as follows: [176] Recently . . . in R. v.

Novielli , 2015 ONCJ 192 (ONCJ) at para. 19 , the Ontario Court of Justice took into account, as a factor in considering the appropriateness of a discharge, that the Amendments increased restrictions on pardon availability: . . . when considering the suitability of discharges in 2015, judges might appropriately tweak their analysis from some of the categories of the past. I say this for two reasons. The first is that information in 2015 is not what it was in 1960 or 1970 or 1980.

Computerization and information-sharing now mean that records of a person's criminal history, as well as many lesser contacts with law enforcement, are likely to be immeasurably more widely available than ever before, whether to the public on the internet or to foreign agencies by means of post-"9/11" data-sharing agreements, at the same time that the availability of a "pardon" (now a record suspension) has been

constrained. The difference between a conviction and a discharge is now more acute than it has been in the past. The other consideration is that, sometimes for legitimate reasons and sometimes simply because it is possible, it seems to be much more common for employers and voluntary organizations to insist upon records checks. The potential for a criminal conviction to affect a much broader group of defendants is thus very real. [154] The B.C. Provincial Court decision of the Honourable Judge Paradis in R. v. Bigg , [1994] B.C.J. No. 174 , observes in paragraph 23 as follows: [23] In

summary, having selectively reviewed what has been said in the past about the term "contrary to the public interest" in

Section [now 730(1)], I come to the following conclusions: 1. The public interest cannot and should not be equated with public concern if it exists over the severity or leniency of sentences; and 2. The only basis upon which the term can be applied rationally in any given case is by asking the question: Is it against the public interest not to warn the public at large about the accused through the medium of a criminal record? [155] That decision was cited with approval in the Supreme Court of British Columbia decision of R. v. Anderson [2004] B.C.J.

No 2801 (BCSC) . [156] I have also considered the decision of the Honourable Judge Harris of our Provincial Court in R. v. Lennox , [2013] B.C.J. No. 2164 . In that decision, at paragraph 55, Judge Harris cites R. v. Pham , 2013 SCC 15 (S.C.C.), especially at paragraph 11 , which references the collateral consequences of a sentence and the consequences or the impact on a particular offender.

At paragraph 10, Pham discusses the principles set out in s. 718 of the Criminal Code and then says as follows: [11] In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender. They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender ( s. 718.2 (

a) of the Criminal Code ). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders ( s. 718 (

d) of the Criminal Code ). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation. [157] At paragraph 56 of Lennox , Judge Harris goes on to say as follows: [56] When sentencing an offender a court must be guarded to ensure that the hardship created by the sentence is not disproportionate to the seriousness of the offence or the offender's culpability.

Such a consideration includes the impact that a conviction will have on an offender. [ 69 ] Having regard to all of the above, I am of the view that it would not be contrary to the public interest to grant a discharge to the Offender in this case, in all of the circumstances of this case. Similarly, I would not refuse the discharge on the basis of the interests of a future employer knowing about this offence, in all of these circumstances, especially taking into account the significant rehabilitative steps undertaken by the Offender.

Should a Conditional Discharge or an Absolute Discharge Be Granted? [ 70 ] Having concluded that a discharge should be granted, the question is should it be a conditional or an absolute discharge? I am satisfied on the materials before me and on submissions that the Offender in this case has taken ample steps in order to pursue her own rehabilitation.

I also take into account that this is a situation of a random encounter between two individuals, apparently strangers, on a public transit bus which gave rise to a significant exchange between them and the commission of the offence. [ 71 ] However, the prospects of these two individuals ever encountering each other again, in my view, are extremely remote.

Hence, I see no benefit in granting any further protective conditions in favour of the Victim in this case, especially given the fact that protective conditions have been in place for some 12 months with no suggestion of any violation or breach of those conditions. [ 72 ] In considering the potential impact on the Offender’s future employment prospects, I am mindful of the requirements of the Criminal Records Review Act .

While the granting of an absolute discharge may have the effect of relieving the Offender from some of the provisions of that Act , it is important for the Offender to remind herself that if she is ever asked in an employment context whether she has been charged with a criminal offence, that she most likely have to confirm that she was so charged.

However, given the definition of "conviction" under the Act , and depending upon the question asked of her, she may be able to safely say that she does not have a criminal conviction if an absolute discharge were granted. [ 73 ] In this case, I am of the view that, given all of the circumstances, there is no particular benefit to imposing conditions upon the Offender as part of a discharge.

In particular, given what I have accepted to be the circumstances surrounding this offence and the events that took place, I am of the view that there is no requirement for any further protective conditions or rehabilitative conditions. [ 74 ] In reaching these conclusions, I have also considered the decision of R v. Holder-Zirbser , 2018 ONCJ 59 CanLII. That is a decision of Justice Boxall of the Ontario Court of Justice. In particular, the provisions of paragraph 16 of that decision are apposite to the matter before me.

The learned judge was dealing with the differences between a conditional discharge and an absolute discharge and said as follows: [16] There is no specific test for when a conditional discharge should be preferred to an absolute one. However, the following framework may be helpful: Are conditions necessary to achieve an appropriate sentence? If they are, the Court should grant a conditional discharge. Otherwise, the discharge should be absolute.

Conclusions and Sentence Imposed [ 75 ] In this matter, I will grant to the Offender an absolute discharge on Count 1 of the charge on Information 181132-1 being the assault of the Victim. [ 76 ] Also, given the steps that the Offender has and is taking in terms of rehabilitation, which still seems to be her major focus, I am going to waive the victim fine surcharge in order to assist her in gaining some financial stability and achieving more independent and better housing. [ 77 ] That concludes my reasons in connection with this matter. ________________________________ The Honourable Judge J.P. MacCarthy Provincial Court of British Columbia