R. v. Cardenas Date:, 2011 BCPC 265

Citation: R. v. Cardenas Date: 20110713 2011 BCPC 0265 File No: 202373-2-A Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JANER RIASCOS CARDENAS EXCERPTS FROM PROCEEDINGS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.F. GIARDINI Counsel for the Crown: A. Clarkson Counsel for the Defendant: P. Angly Place of Hearing: Vancouver , B.C. Date of Hearing: July 13, 2011 Date of Judgment: July 13, 2011 [ 1 ] THE COURT: Mr. Riascos Cardenas is charged that on the 1st of April, 2011 he breached his undertaking. He did that, it is alleged, by being in his area restriction. Mr.

Angly has admitted much of the Crown's case, including identification, and has linked his client to the undertaking and so forth. [ 2 ] The issue raised in this case is whether the Crown needs to prove that the exceptions set out in the condition which covered the area restriction did not apply in this case. Mr. Angly argues that the Crown has particularized the offence, not only by setting out the area restriction but also by setting out the exceptions.

Accordingly, that since the Crown did not prove the exceptions, namely, either that there was no scheduled court appearance or that there was no scheduled appointment on the date and time in question, the Crown has failed to prove the case as particularized. [ 3 ] The Crown takes the position that the references to the exceptions are simply two examples of lawful excuses that have been specifically set out in the undertaking and in the conditions given by the bail judge. The Crown's position is that it does not have to prove those exceptions; instead, once it has proven that Mr.

Riascos Cardenas was within the area restriction, it is up to him to establish a lawful excuse, namely, that he was attending court or that he was on his way from or to an appointment with his bail supervisor.

[ 4 ] As I indicated to counsel, I dealt with this matter in a different context in R. v. Sahota , 2011 BCPC 124 . In that case the accused Mr. Sahota was charged with failure to provide a breath sample. The charge in that case made reference to the opinion of a qualified technician. The issue raised in that case was whether the Crown had to prove that aspect of the charge in that it had been specifically particularized.

In my reasons, I addressed whether the Crown needed to prove the charge as particularized. [ 5 ] I reviewed a number of cases, both from the Supreme Court of Canada, our Court of Appeal, and our Supreme Court. I concluded, on the basis of R. v. Saunders, R. v. Gauthier and R. v. Jimmy , that the Crown was obliged to prove the offence as particularized in the charge.

In the Sahota case I found that the Crown, having particularized the offences beyond what was necessary to be proved, was required to meet the case as particularized. [ 6 ] Now, the case before me today is a little different in that the charge as particularized is taken directly from the wording of the condition the Crown says was breached. However, in my view that difference does not change the analysis that bears on the issue of whether the Crown needs to prove the charge as particularized. [ 7 ] A breach is a criminal offence.

I know that in these courts it is often taken a little more lightly and it is not seen as a serious offence. However, the cases make it clear that it is a criminal offence. Accordingly, it is my conclusion that the Crown must prove each and every element of the offence. In this case, one of the elements of the offence was the description of the geographical area that was not to be entered into and the exceptions. [ 8 ] I am not going to comment on how the charge could possibly have been worded to avoid reference to the exceptions because I do not feel that would be appropriate.

However, in my view, by listing the exceptions the Crown has particularized the offence it has charged against Mr. Riascos Cardenas, accordingly, it is obliged to prove the offence as particularized. It is my conclusion that the Crown is required to prove that Mr. Cardenas did not attend a scheduled court appearance and did not have a scheduled appointment with the bail supervisor.

The Crown could have proven that he did not attend a scheduled court appearance very easily by putting in the record of proceedings and, if that was not admitted by the defence, having a clerk qualified to give expert evidence as to what the entries on the record of proceedings are. Similarly, it could have proved there was no scheduled appointment by calling the bail supervisor. [ 9 ] I appreciate Mr. Clarkson's submission about resources.

I do appreciate that the Crown has limited resources, but the availability of or limitation on resources is not an issue which can override what I see as the nature of the charge. [ 10 ] Accordingly, I find that the Crown has not proven its charge as particularized and I acquit Mr. Riascos Cardenas. (REASONS FOR JUDGMENT CONCLUDED)