R. v. E.K. Date:, 2012 BCPC 132

Citation: R. v. E.K. Date: 20120416 2012 BCPC 0132 File Nos.: 74970, 16369-1, and 74489-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. E.K. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: J. Carpenter (Apr. 4/12) and K. Paziuk (Apr. 11 and 12/12) Counsel for the Defendant: L. Wansbrough, Duty Counsel (Apr. 4/12) P. Gibb (Apr. 11 and 12/12) Place of Hearing: Nanaimo , B.C. Dates of Hearing: April 4, 11, and 12, 2012 Date of Judgment: April 16, 2012

The Issues [ 1 ] Mr. K. has entered a plea of guilty to a charge of breach of a recognizance, contrary to

section 811 of the Criminal Code . I must decide what sentence to impose for that offence. [ 2 ] At the time that the offence in question was committed, Mr. K. was serving an intermittent sentence, imposed by His Honour Judge Gould of this court on March 26, 2012. Mr. K. applies to vary the terms of that intermittent sentence. The Crown opposes the variation sought by Mr. K., and submits that this court has no jurisdiction, in the circumstances of this case, to vary an intermittent sentence. The Facts [ 3 ] Mr. K. is 38 years of age.

He is a member of the Clayoquot First Nation, whose reserve and traditional territory are near Tofino, British Columbia. He is an alcoholic with an extensive criminal record. His record since 1998 includes more than 40 convictions for Criminal Code offences and several convictions for offences under the Motor Vehicle Act. I am advised that he also has a record of criminal offences prior to 1998, but I was given no particulars of that record.

His record since 1998 includes convictions for violent offences, notably (among others) for assault causing bodily harm and attempting to choke to overcome resistance, both in 2009. His Criminal Code convictions include, by my count, 26 convictions for failures to appear and breaches of probation orders, recognizances and undertakings. He has served many prison sentences, ranging from 7 to 21 days, for breach of probation orders, recognizances and undertakings. He has not been a man who respects court orders or honours his undertakings. [ 4 ] Mr.

K. comes from an abusive and alcoholic family, and is a residential school survivor. He is an alcoholic. He also used illicit narcotics in past years, but was able to stop using narcotics as a result of a residential treatment program which he attended 12 years ago. He has attended seven or eight other residential treatment programs for his alcohol addiction, and has also completed a number of other counseling programs. He attends meetings of Narcotics Anonymous and Alcoholics Anonymous several times a week, and also participates in programs offered by other community agencies to assist alcoholics.

He says that he is one of only three members of his family who has reached out to Alcoholics Anonymous. In his evidence, Mr. K. said: I don’t turn to my family anymore because they don’t understand recovery. They like to see you trip up, and offer you beer and stuff. By contrast, he said that the leaders of the Clayoquot First Nation have been helpful and supportive to him. He has been offered temporary housing on the reserve, and there is a least a prospect that the construction of new housing on the reserve might make available a permanent home for Mr. K. and his family. [ 5 ] Mr.

K. now resides with J.F., who is 30 years of age. They have been engaged in an intimate relationship for 10 years. She is a member of the Ahousaht First Nation, whose reserve and traditional territory are also near Tofino. Mr. K. advises that the relationship between the two First Nations is good. J.F. said that she has not sought out assistance from the Ahousaht First Nation in the past, but that she now intends to, and that she believes that they will be helpful to her. They have offered to make housing available for Mr.

K. and his family on the reserve. [ 6 ] J.F. is an alcoholic, and has attended a number of treatment programs in the past. Her daughter, S.C., died in 2002 while in the care of the Ministry of Children & Families. That event was the subject of intensive media coverage, which exacerbated J.F.’s grief. She and Mr. K. have had a troubled relationship. At least one of Mr. K.’s convictions was for a spousal assault on J.F. There are at present four children in her life: (

i) J., J.F.’s son from another relationship, who is 13; (ii) E., Mr. K.’s son from another relationship, who is 12; (iii) D., her son by Mr. K., who is 6; and (iv) A., her daughter by Mr. K., who is 4. All four are presently in the care of the Ministry of Children & Families, and reside in a foster home. She had another son by Mr. K., J., who died on June 5, 2011. The circumstances of that death were the subject of a police investigation. [ 7 ] All of the children have been intermittently in foster care.

While her estimate varied for each child, J.F. said that, overall, the children have spent less than half of their lives in the care of J.F. and Mr. K. At various times, there have been in place orders prohibiting or constraining contact between J.F. and Mr. K., or between J.F., Mr. K. and the children. The most recent such order was rescinded in November, 2011. Since that time, Mr. K. and J.F. have lived together and have visited with the children by arrangement with the Ministry of Children & Families.

The present arrangement is that a social worker brings the children to the family home for two hours, from 3:00 p.m. to 5:00 p.m. on Tuesdays and Wednesdays, and returns them to the foster home at 5:00 p.m. each day. Recently, J.F.’s mother has reached agreement with the Ministry to visit with the children on weekends. The grandmother has invited Mr. K. and J.F. to participate in those visits, which they would like to do. [ 8 ] On June 15, 2011, Mr. K. entered a plea of guilty to a charge of driving while his driver’s license was suspended, contrary to

section 234 of the Motor vehicle Act. In connection with that offence, on September 8, 2011, pursuant to the order of His Honour Judge Cowling of this court, Mr. K. entered into a recognizance pursuant to

section 810 of the Criminal Code . Condition #4 of the recognizance was: You are not to consume or possess any alcohol or other intoxicating substance.

The term of the recognizance was for eight months, commencing September 8, 2011. It will expire on June 8, 2012. [ 9 ] Mr. K. was arrested in Nanaimo on two recent occasions, on February 2 and April 11, 2012. On each occasion, he was grossly intoxicated in a public place. He was verbally abusive to the arresting officers, but not violent. On the second occasion, he was urinating on the sidewalk, and declined to stop when requested so to do by the arresting officer. [ 10 ] On March 26, 2012, His Honour Judge Gould of this court convicted Mr.

K. on charges of driving while his driver’s license was suspended, contrary to section 234(1) of the Motor Vehicle Act , and breach of a probation order, contrary to

section 733.1 of the Criminal Code . Judge Gould imposed a custodial sentence of 21 days on each charge, the sentences to be served consecutively. Judge Gould ordered that the sentences be served intermittently pursuant to

section 732 of the Criminal Code. The material portion of the warrant of committal is in the following terms: INTERMITTENT SENTENCE 42 days (to be served at Nanaimo Correctional Centre …), namely THREE (3) days each week from 6:00 p.m. Friday until 12:00 noon on Sunday, commencing Friday, March 30, 2012 at 3:00 p.m. and each consecutive week thereafter until such sentence is fully served. Mr. K. applies to vary that order, to substitute hours of imprisonment from 6:00 p.m. Wednesday to 12:00 noon on Friday.

He explains that such a variation would allow him to complete his Wednesday visits with the children at 5:00 p.m. and attend at the correctional centre at 6:00 p.m. If his application is granted, he would be released at noon on Friday, which would allow him to participate in the grandmother’s weekend visits with the children. ANALYSIS Sentencing for the Present Offence (Breach of Recognizance) [ 11 ]

Section 718.2 of the Criminal Code provides: an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. It would be unwise to attempt an exhaustive catalogue of the factors to be considered in determining an “appropriate” sentence. However, in my view, it is necessary in every case to consider whether, and if so how, a proposed sanction is likely to assist in effecting one of the objectives identified in

section 718 of the Criminal Code . Paraphrased, they are: (

i) general deterrence; (ii) specific deterrence; (iii) denunciation of the crime; (iv) public safety; and (

v) rehabilitation of, and taking of responsibility by, the offender. The weight to be given to each of those factors will vary, depending on the individual circumstances of the case. [ 12 ] Mr. Paziuk submits that an appropriate sentence for the present offence would be 21 – 30 days incarceration. He bases that submission on the “step-up” principle of sentencing.

As I understand it, the “step-up” principle is that, where an individual repeats the same, or a similar, offence on a series of occasions, and is not deterred from repeating the offence by past punishment, the punishment should be increased incrementally until the offender alters his behavior. The premise is logical. If human beings were purely rational, the “step-up” principle ought to be effective. However, the empirical evidence (exemplified by Mr. K.) does not support the theory. Mr. K. has served many prison sentences for breaches of recognizances and probation conditions.

He has not been deterred by those sentences. I am not fool enough to expect a different result if I repeat the experiment. The problem is that an alcoholic confronted by an opportunity to consume alcohol is not a rational being. So, while the “step-up” principle may be effective and useful in relation to other offenders and other offences, it is not likely to produce the desired alteration in Mr. K.’s behavior, nor would a prison sentence be likely to deter other alcoholics from similar offences. When I raised this issue with Mr. Carpenter on Mr. K.’s first appearance, Mr.

Carpenter described my analysis as a “counsel of despair”. That was a fair comment. I respond to it below. [ 13 ] Mr. K.’s criminal record is fully worthy of denunciation. He has committed despicable crimes. However, he has already been denounced and imprisoned for those crimes. I am not asked to sentence him for his record, but rather for the crime with which he is now charged; i.e. breach of his recognizance by consuming alcohol. The circumstances of the offence are relevant. On two occasions, he was grossly intoxicated in a public place. On both occasions, he was verbally abusive to police officers.

He indulged in public urination on the second occasion. In considering the importance of denunciation for this crime, I bear in mind that public urination is the offence which comes before this court most frequently when we hold by-law court in Nanaimo. Not surprisingly, most of the people who commit this offence were intoxicated at the time of the offence. The City of Nanaimo by-law imposes a fine of $150 for the offence, which appears to be the accepted appropriate measure of denunciation. It would be disproportionate to denounce Mr. K. by a prison sentence. [ 14 ] Mr. K. may be a threat to public safety.

His record of criminal assaults gives rise to concern on that issue. However, I was given no particulars of those assaults, and neither Mr. Carpenter nor Mr. Paziuk made any submission on that issue. There are cases in

which public safety is a primary factor in a sentencing decision, but there is no basis on which I could find that to be so in the case of Mr.K. If a prison sentence were necessary to protect public safety, the 30-day sentence proposed by the Crown would be inadequate for thepurpose. [15] There is no basis on which I could conclude that a 21 to 30 day jail sentence would assist in Mr. K.’s rehabilitation. Mr.Paziuk reminded me that there are few rehabilitation or treatment programs available for prisoners serving short sentences. [16] I return to Mr. Carpenter’s observation. Mr.

K.’s record demonstrates that incarceration, at least for short periods, is anineffective tool to induce a change in his behaviour. In the same way, and to an equal degree, his record of breaches of probation ordersand recognizances demonstrate that those tools are likely to be ineffective. In this circumstance, one might reasonably despair of asolution. However, I do not despair. To despair is to give up hope. I continue to have hope for Mr. K. However, that hope will not berealized unless he and J.F. can make changes in their lives. [17] Mr. K.’s proposed solution is a new probation order.

He says that he achieved a personal epiphany as a result of a suicideattempt last November which very nearly succeeded. He says that J.F. had been in denial about her addiction until very recently, but thatshe now understands and takes responsibility for her addiction, and that she will take the steps necessary to address it. In short, he saysthat both he and J.F. have changed in the past year, and that they should have another chance to rebuild a life with their children. [18] Mr. K. and J.F. gave evidence at the hearing before me, and were cross-examined by Mr. Paziuk. They are intelligent andarticulate people.

They appear to have genuine insight into their addictions and a genuine resolve to change. That does not give meconfidence that they will succeed. Each of them has participated in many addiction treatment programs in the past, but both remainseverely addicted. J.F. admitted during cross-examination that she has consumed alcohol in the company of Mr. K. during the last sixmonths. Neither Mr. K. nor J.F. promised that they would not drink again. Both of them candidly acknowledged that they will facemany struggles with addiction in the future, and that they may not succeed in overcoming those challenges.

They seek the opportunity tocontinue those efforts, and to be as close to their children as they can while they try to address their addictions. [19] It would have assisted me to have more information about the chances for the successful rehabilitation of Mr. K. and J.F.

Forexample, it would have assisted me to have evidence from their social worker about the prospects of family reunification, from theiraddiction counselors about treatment options, and (perhaps most importantly) from leaders of the Clayoquot and Ahouset First Nationsabout the supports which those First Nations might be able to offer to this troubled family. Such evidence would have assisted me indeciding two questions: (

i) whether jail or probation is the appropriate sentence; (ii) if probation is the appropriate sentence, whatprobation terms to impose. [20] In the result, I must choose between jail and probation, with only the evidence of Mr. K. and J.F. to guide me. I find that aneasy choice. In my judgment, there is no prospect that a jail sentence will serve any of the sentencing objectives set out in the CriminalCode. There is a chance, however small, that probation may serve one or more of those objectives. For that reason, a probation order isthe appropriate sentence. However, because of the failure of Mr.

K.’s past probation orders, it is necessary to craft new probation termsto address his specific needs. For example, Mr. K. said that there is a place available for him, beginning in June, at the TsowlelumTreatment Centre in Nanoose. I am told that the Tsowlelum Treatment Centre is an excellent facility, with an admirable record ofsuccess in the treatment of addictions. I accept that, but I observe that Mr. K. has completed the program at the Tsowlelum TreatmentCentre in the past, and that, while it may have assisted him (as he says that it has), he continues to commit crimes.

There may be a bettertreatment program for him. There should certainly be a probation term requiring him to attend a residential treatment program. However, it remains an open question whether that should be at Tsowlelum Treatment Centre, at another named facility, or at a facilitychosen by his probation officer. It appears to me that Mr. K. should avail himself of the offers of assistance which have been made bythe two First Nations. A probation term requiring him to live on a reserve might be appropriate. The Crown may believe that measuresfor the protection of the public are necessary.

I ask that counsel consider what probation terms would be useful, and provide me withtheir submissions on that issue. In so doing, I ask counsel to exercise their best creative judgment. It is apparent that the usual terms ofprobation will be ineffective in Mr. K.’s case. Something different is required. Variation of the Existing Intermittent Sentence Order [21] Mr. Paziuk submits that I have no jurisdiction to grant the variation sought by Mr. K. I asked him whether, if I conclude thatI have such jurisdiction, there is any reason to refuse the order. Mr. Paziuk replied in the negative.

Accordingly, the only question iswhether I have jurisdiction to make the order. [22] I would be reluctant to make the order if it would cause any inconvenience for the staff at the Nanaimo Correctional Centre. Mr. K. said that he has discussed that with the staff, and that they have no objection to the proposed variation. I accept that evidence. [23] The Criminal Code confers no express authority to make the order sought by Mr. Kivel.

The governing provision is section732, which empowers the court, in certain circumstances, to order that a custodial sentence “… be served intermittently at such times asare specified in the order …” (underlining added). In this case, the order specifies that Mr. K. is to serve his sentence “…from 6:00p.m. Friday until 12:00 noon on Sunday …”. [24] Mr. Paziuk referred me to a number of authorities for the proposition that I must give to the words of the Criminal Code theirmeaning in ordinary English usage, and that I must not give a strained

interpretation to those words in pursuit of an outcome which Iconsider desirable. I accept that principle. However, in my view, it has no application here. The Criminal Code is simply silent on theissue before me. It neither authorizes me to make the order nor forbids me to do so. There are no relevant words to interpret. [25] In R vs. Germaine (1980) (NS CA), 39 NSR (2d) 177 @ paragraph 5, the Nova Scotia Court of Appealconsidered a predecessor of

section 732, and concluded that the court had no jurisdiction to vary an intermittent sentence order becausethe Criminal Code then contained no provision expressly authorizing such a variation. In R vs Jules [1988] BCJ # 1605, His HonourJudge Robinson of the County Court of British Columbia held that:

… the Germaine decision is essentially authority only for the proposition that an intermittent sentence cannot be varied so as to create anon-intermittent sentence. Mr. K. does not seek to vary his intermittent sentence to make it non-intermittent. He seeks to maintain its intermittent character, but tovary the hours of incarceration. I am obliged by the doctrine of stare decisis to give effect to Judge Robinson’s

interpretation ofGermaine, and so find that Germaine is not an obstacle to Mr. K.’s application.

However, I would reach the same conclusion for reasonsindependent of those given in Jules. [26] In R vs Doyle (SCC), [1977] 1 SCR 597, Ritchie, J. said (underlining added): Whatever inherent powers may be possessed by a superior court judge in controlling the process of his own Court, it is my opinion thatthe powers and functions of a magistrate acting under the Criminal Code are circumscribed by the provisions of that statute and must befound to have been thereby conferred either expressly or by necessary implication. I am not unaware of the fact that Mr. Justice Kelly of the Court of Appeal for Ontario in R. v.

Keating … expressed the opinion that theCriminal Code ... does not restrict the inherent jurisdiction the Court possesses to control its own process and proceedings in any manner not contrary tothe provisions of the Criminal Code or any other statute; ...

I am, however, unable to subscribe to this opinion as I take the view that the careful and detailed procedural directions contained in theCode are of necessity exhaustive, and as I have indicated, I regard the powers of a magistrate or justice acting under the Criminal Codeas entirely statutory. [27] In Germaine, the court did not consider whether jurisdiction to vary could be inferred, as a necessary implication, from thewords of the statute. Because of the nature of the application in Germaine, the outcome would almost certainly have been the same ifthe court had considered that issue.

For that reason, the learned judges may have thought it unnecessary to discuss the question ofnecessary implication. Mr. Germaine was originally sentenced to serve 90 days intermittently. Three weeks later, the learned trial judgeordered the balance of the intermittent sentence to be served continuously. The Criminal Code then contained no provision analogous tothe present section 732(3). As a result, the Criminal Code did not expressly authorize the variation ordered by the learned trial judge.

Inmy view, it would have been difficult for the court in Germaine to conclude that such authority was conferred by necessary implication. When Parliament intends to authorize a limitation on, or infringement of, the liberty of a citizen, it usually employs express language. One can rarely infer a power to infringe the liberty of a citizen. By contrast, in Mr. K.’s case, we are concerned with a proposedvariation which would either expand Mr. K.’s liberty or, at worst, be neutral in relation to his liberty.

The power to make such avariation may be more readily inferred. [28] The question is whether the power to vary an intermittent sentence, in favour of the prisoner, is conferred by “necessaryimplication” by

section 732. One may so conclude where: (

i) an intention to confer the power is “… revealed when the provisions areread in the context of other textual provisions …” of the statute; or (ii) where the purpose of the statute would be “wholly frustrated” ifthe power were found not to exist. In considering those questions it is necessary to consider the mischief to which the statutoryprovision was directed: Friends of the Oldman River Society vs Canada (SCC), [1992] 1 SCR 3 @ paragraphs 62 –66.

Finch, J.A. (as he then was) expressed the principle in the following terms in Ewachniuk vs Law Society of British Columbia (1998) (BC CA), 46 BCLR (3d) 203 @ paragraph 48: … compelling reasons must be demonstrated before one can say that words are to be read into a statute by necessary implication. InBell Canada it was said that the courts should avoid "sterilizing" powers expressly granted by an overly technical

interpretation of thestatute. In Alberta Government Telephones it was said that the meaning of the statutory language could be read broadly to avoid astatutory

interpretation that would "wholly frustrate" the purpose of the statute, or would render it "absurd". And in Oldman River theCourt said that the test of necessary implication would be met where one was "irresistibly drawn to that conclusion through logicalinference". The common themes of these three judgments are that courts should be slow to infer a legislative intention which has notbeen expressed, but that they may do so where the expressed statutory purpose would be defeated by failure to draw the inference. [29] Let us consider first the circumstances of the present application. Mr.

K. does not seek a reduction in the penalty imposedupon him. If the variation which he seeks is granted, he will serve exactly the same number of hours in prison, over the same period ofweeks, as he would do if the order were refused. If the variation is granted, his opportunity to rebuild his family life will be enhanced.An improved chance of success for this family would tend to advance the statutory objective of rehabilitation, and would also tend toserve the compelling public interest in promoting healthy families.

Crown counsel have not identified any statutory objective whichmight be impaired if the order sought were granted. If the case required the court to weigh prejudice to one statutory objective againstbenefit to another, one might say that the power to make the order is not necessarily implicit, because the priorizing of objectives is forthe legislature, not for the court.

However, where one or more statutory objectives would be advanced, and none impaired, by grantingthe order, it seems to me that the purpose of the statute would be frustrated (although perhaps not “wholly frustrated”) if the power tomake the order could not be inferred by necessary implication. I do not think that the phrase “wholly frustrated” should be appliedliterally. I think it fair to say that an

interpretation of a statute which leads to a consequence directly opposite to the stated objective ofthe statute is one which “wholly frustrates” the purpose of the statute, and should be rejected on that ground.

[30] An alternate approach sanctioned by the authorities is to consider whether it would be “absurd” to conclude that the courtlacks the power to order the variation sought. In answering that question, I think that I should apply the standard of the reasonablecitizen on the Lantzville omnibus. Applying that standard, I have no doubt that the power is necessarily implicit in the statute. I cannotimagine that a member of Parliament would want to deny the court power to make an amendment to the

schedule (although not the term)of an intermittent sentence order to allow the prisoner to pursue opportunities to reunite with his children. [31] Let us consider next another situation which commonly arises. One of the most important reasons to impose an intermittentsentence is to allow the offender to continue his employment with the minimum possible disruption. That is important for severalreasons. Many offenders are the breadwinners for their families. In such cases, interruption of the offender’s income stream duringincarceration inflicts suffering on the offender’s family (who are innocent of any crime).

Many offenders have weak employmenthistories, and so struggle to find employment. Their difficulties in finding and retaining employment are exacerbated by uninterruptedperiods of incarceration. In many cases, an offender is able to retain employment by the adroit use of an intermittent sentence, butwould lose his job if sentenced to a continuous sentence. Suppose that, at the time of sentencing, Mr. K. had been employed and that hishours of work were 8:00 a.m. to 4:00 p.m., Monday to Friday. Suppose that, during his sentence, his employer altered his hours of workto 8:00 a.m. to 4:00 p.m. Thursday to Sunday.

If the Crown’s submission is correct, this court would have no jurisdiction to amend theintermittent sentence order to suit his new work schedule. I am irresistibly drawn, by a process of reasoning which I consider to belogical, to the belief that no member of Parliament could possibly have intended such a result. [32] Mr. Paziuk points out that Parliament has expressly conferred a power to vary in the circumstances defined in sections 732(2)and 732(3) of the Criminal Code. He says that one should infer that Parliament intended to limit the power to those circumstances.

Although (to his credit) he eschewed the Latin tag, Mr. Paziuk invokes the doctrine expressio unius est exclusio alterius. I am guided bythe following statements of principle, each of which was approved by the Saskatchewan Court of Appeal in Canadian Pacific Limited vsCarlyle (Town) (SK CA), [1987] 4 WWR 232: … it is simply not true, generally, that the mere express conferral of a right or privilege in one kind of situation implies the denial of theequivalent right or privilege in other kinds.

Sometimes it does and sometimes it does not, and whether it does or does not depends on theparticular circumstances of context. Without contextual support, therefore, there is not even a mild presumption here.

Accordingly, thismaxim is at best a description, after the fact, of what the court has discovered from context. * * * ..since it is only a guide to the legislature's intent, a contrario reasoning [e.g. use of the maxim: expressio unius est exclusio alterius]should certainly be set aside if other indications reveal that its consequences go contrary to the statute's purpose, are manifestly absurd,or lead to incoherence and injustice that could not have been the desire of Parliament. * * * The failure to make the "expressio" complete very often arises from accident, very often from the fact that it never struck the draftsmanthat the thing supposed to be excluded needed specific mention of any kind. [33] Mr.

Paziuk submits that a court becomes functus officio upon pronouncing sentence, and thereafter lacks jurisdiction to varythe sentence. Whatever the correct general principle, I conclude that it has no application here. A court is functus officio if, and only if,“… the duties and functions of the [court’s] original commission have been fully accomplished …”: Jacobs Catalytic Ltd. vs International Brotherhood of Electrical Workers, Local #353 2009 ONCA 749; 312 DLR (4th) 250 @ paragraph 60.

There are manycases in which courts retain supervisory jurisdiction over the enforcement or implementation of a judgment after it has been rendered. See, for example, Bodnar vs Cash Store Inc. 2011 BCCA 384; 23 BCLR (5th) 93, Sandu vs Dhaliwal 2010 BCSC 1328 @ paragraph 43,and Hewko vs British Columbia 2006 BCSC 1638 @ paragraphs 371 – 372. Other examples are found in family law. It is essential, inthe public interest and in the interest of families, that the court have power to vary custody, access and maintenance orders to addresschanges in family circumstances.

Simply put, there are some kinds of cases in which finality is less important than flexibility. In myjudgment, Mr. K.’s case is one of those. [34] The Supreme Court of Canada adopted the following statement of principle in Comeau’s Sea Foods Ltd. vs Canada (Ministerof Fisheries & Oceans) (SCC), [1997] 1 SCR 12 @ paragraph 44: In all cases where the authority to act is given by statute or other instrument, it is a matter of

interpretation whether the power may beexercised only once or more than once. This principle is congruent with that articulated by Ritchie, J. in Doyle - the question is whether

section 732 of the Criminal Code,construed in accordance with the principles stated in Oldman River and Ewachniuk, confers on this court the power to vary intermittentsentence orders to take into account changes in the offender’s personal circumstances. [35] In the case of

section 732 of the Criminal Code, it is manifest that Parliament did not intend this court’s commission to be

fully accomplished on pronouncement of an intermittent sentence. Section 732(2) expressly empowers this court, on application by theoffender, to amend an intermittent sentence to a continuous sentence. Section 733(3) directs this court to amend an intermittent sentenceto a continuous sentence in certain circumstances. The only question is whether this court’s ongoing duties in relation to intermittentsentences include an obligation to adjudicate applications for other types of amendment not expressly identified in

section 732. Inconsidering that question, I have applied the principles stated in Oldman River and Ewachniuk. [36] For those reasons, I allow Mr. K.’s application, and amend the warrant of committal to read as follows: INTERMITTENT SENTENCE 42 days (to be served at Nanaimo Correctional Centre …), namely THREE (3) days each week from6:00 p.m. Wednesday until 12:00 noon on Friday, commencing Wednesday, April 18, 2012 at 6:00 p.m. and each consecutive weekthereafter until the unserved balance of such sentence is fully served. [37] Two further issues should be mentioned. a.

Despite the judgment in Doyle, it appears that this court may act without express statutory authority in some circumstances. The Court of Appeal approved the following statement of principle in R vs Lindsay 2006 BCCA 150; 265 DLR (4th) 193 @ paragraph 9: The fact that the Provincial Court is a statutory court without inherent jurisdiction does not prevent it from implementing internal or,indeed, informal procedures intended to promote the efficient administration of its statutory responsibilities.

However, what is sought here is not the efficient exercise of some internal court procedure, but rather the exercise of a substantive poweraffecting the liberty of a citizen. I cannot conclude that the order sought falls within the ambit of the powers described in Lindsay. b. I have considered whether I ought to decline to hear the application, and to refer it instead to Judge Gould, who made theintermittent sentence order in the first instance.

In my view, for the reasons stated in Gulf Islands Navigation Ltd. vs Seamen’sInternational Union of North American (Canadian Division) (1959) (BC CA), 18 D.L.R. (2d) 625, it would beinappropriate to introduce a rule requiring such referrals. This court is often asked, on grounds of change of circumstances, to varycustody, access and maintenance orders in family cases. It would cause great inconvenience and expense to the parties and to the justicesystem if such variations could be ordered only by the judge who made the original order. Mr.

K.’s application, and others like it,should be heard and decided by any judge available on the hearing date. BY THE COURT ___________________________ The Honourable Judge T. Gouge