R. v. Dempster Date:, 2012 BCPC 275

Citation: R. v. Dempster Date: 20120810 2012 BCPC 0275 File No: 202910-1A Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KYLE MUNRO DEMPSTER REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE H. K. DHILLON Counsel for the Crown: A. Clarkson Counsel for the Defendant: A. Picard Place of Hearing: Vancouver , B.C. Dates of Hearing: January 19, 2012; August 2, 2012 Date of Judgment: August 10, 2012 Introduction

[ 1 ] Kyle Munro Dempster is charged under s. 145(3) of the Criminal Code with breach of his recognizance of bail by failing to comply with his curfew condition and the condition prohibiting him from possessing any cell phone or other portable telecommunication device. The issues in this case bring into consideration the Crown burden to prove the offence as charged and particularized in the context of the statutory burden on an accused to prove a lawful excuse under s. 145(3) . The Evidence [ 2 ] The Crown called evidence from Mr. Dempster’s bail supervisor and from two transit officers who arrested Mr.

Dempster in Vancouver B.C. for breach of his recognizance. [ 3 ] Mr. Dempster did not testify. [ 4 ] It is not disputed that on October 5, 2011, Mr.

Dempster was bound by a recognizance of bail which required him to comply with 10 conditions of which condition number 5 was a curfew condition requiring him to be inside his residence between 10:00 p.m. and 6:00 a.m. unless the stipulated exceptions applied, and condition number 9 prohibited his possession of any cell phone, pager or portable telecommunication device save and except as set out under the condition. [ 5 ] The brief facts are that on October 4, 2011, shortly before midnight Mr. Dempster was found on the Canada Line travelling from Richmond to Vancouver without paid fare.

On questioning by transit police, he presented two pieces of false identification. Eventually his proper name was disclosed and a check revealed that he was bound by curfew conditions. He was arrested for breach of curfew and on a search incident to his arrest Cst. Teitelbaum discovered what he described as two cell phones in his backpack. [ 6 ] Mr. Dempster’s Bail Supervisor Imran Hemani testified that he reviewed Mr. Dempster’s court conditions with him on September 28, 2011.

He went through each condition, explained the consequences of non-compliance under the Criminal Code , and witnessed him sign a copy of the conditions. [ 7 ] In court, he identified Mr. Dempster as the person bound by the conditions. [ 8 ] Mr. Hemani also discussed Mr. Dempster’s employment with him. Mr. Hemani understood from Mr. Dempster that he had contract employment on Vancouver Island but his work would not violate his curfew. [ 9 ] Mr. Hemani did not provide any written consent to Mr. Dempster to be out past his curfew and he was satisfied that no duty officer had done so in his absence. [ 10 ] Mr.

Hemani had not approved in advance any educational or extracurricular activities for Mr. Dempster to attend during his curfew hours. [ 11 ] There is no evidence that Mr. Dempster was enrolled in an educational institution to which he was going or from which he was returning on the night in question. [ 12 ] In short, I am satisfied that Mr. Dempster was outside his residence after the start of his 10:00 p.m. curfew and he did not have the written consent of his bail supervisor to do so. [ 13 ] I am also satisfied that Mr. Dempster was in possession of cell phones when arrested. Cst.

Teitelbaum testified that the two devices he found in Mr. Dempster’s backpack were cell phones. Although not certain of the brand, he was familiar with them, noting they had the requisite parts including a numerical keypad, and he recognized them straightaway as cell phones. [ 14 ] The cell phones were not produced at trial. The officer agreed in cross- examination that one can possess a number of handheld non-telephonic devices such as music or video players or voice recorders that may have screens.

He was not moved off his insistence that he clearly recognized the cell phones. [ 15 ] The fact that no cell phone was produced for verification or entered into evidence at trial is not mandatory if the viva voce evidence of the witness is credible. The officer’s description of a cell phone with a key pad and a screen is entirely consistent with a cell phone’s common appearance. It is not necessary for an officer who is satisfied that the device is a cell phone to confirm it by trying to use it to send or receive calls.

Once the officer has formed the opinion the object is a cell phone, it is sufficient proof of that fact absent any evidence to the contrary. [ 16 ] I have no reason to reject the testimony of the officer that what he saw and recognized were cell phones. Cell phones are now so ubiquitous and readily recognized as such that the officer’s opinion he found cell phones in Mr. Dempster’s possession must be given due weight. [ 17 ] The Crown submits that the following basic facts are established: 1. Mr.

Dempster was bound by a recognizance of bail requiring him to comply with his hours of curfew (condition 5) and not to possess a cell phone (condition 9); 2. He was found outside his residence on public transit two hours past the start of his curfew; 3. His employment did not interfere with his curfew obligations; 4. He did not have any written consents or prior approvals of his supervisor to be outside of his residence at the time; and

5. He possessed two cell phones on the night in question. Position of the Crown and Defence [ 18 ] On the basis of the aforementioned facts, the Crown seeks a finding of guilt with respect to the charges of breach of recognizance. It submits that it has been established beyond a reasonable doubt that Mr. Dempster was bound by a recognizance at the time of the allegation, he was found outside his residence on public transit after his curfew deadline, and he was found in possession of cell phones. [ 19 ] The defence contends that the Crown has failed to prove the offence “as charged” beyond a reasonable doubt.

The central issue in dispute is whether the Crown must prove, as an essential element of the offence under s. 145(3), that the exceptions to the conditions of recognizance did not apply at the time of the alleged breach. [ 20 ] In the alternative, the defence contends that the curfew condition is vague and unenforceable. [ 21 ] The neat issue in this case is who carries the burden of proof in a prosecution for breach of a condition of recognizance under s. 145(3) where the count charged lists verbatim the whole of the condition imposed on the accused, including the exceptions set out in the condition. [ 22 ] Must the Crown prove beyond a reasonable doubt as part of the prosecution evidence that the exception does not apply in the particular case?

Or, is it sufficient for the Crown to establish a prima facie case of breach of condition simpliciter , thereby shifting to the accused the onus to show on a balance of probabilities a lawful excuse, either because the specified exceptions apply or the facts otherwise show the existence of some other lawful excuse. [ 23 ] As will be seen, the issue is not without debate . The Counts Charged [ 24 ] The Counts alleged against Mr.

Dempster are as follows: Count 1 Kyle Munro DEMPSTER, on or about the 5 th day of October, 2011, at or near the City of Vancouver, in the Province of British Columbia, being at large on a recognizance entered into before a Justice or a Judge and being bound to comply with a condition of that recognizance as directed by a Justice or a Judge, did fail without lawful excuse to comply with the following condition or direction: to wit: You shall obey a curfew by being inside your residence between the hours of 10:00 PM and 6:00 AM each day except as follows:

a) with the written consent of the Bail Supervisor. Such consent to be given only for compelling personal, family or employment reasons or

b) when travelling directly to or returning directly from your place of employment or while in the court ( sic )of your employment. You shall provide the Bail supervisor with written details of employment if requested to do so or

c) when travelling directly to or returning directly from an educational institution at which you are enrolled, or while in the course of classes or extracurruclar ( sic ) activities approved in advance by the Bail Supervisor, contrary to Section 145(3) of the Criminal Code .

Count 2 Kyle Munro DEMPSTER, on or about the 5 th day of October, 2011, at or near the City of Vancouver, in the Province of British Columbia, being at large on a recognizance entered into before a Justice or a Judge and being bound to comply with a condition of that recognizance as directed by a Justice or a Judge, did fail without lawful excuse to comply with the following condition of direction: to wit: You shall not possess any cell phone, pager or portable telecommunication device except for purposes directly and immediately related to your employment, contrary to Section 145(3) of the Criminal Code .

The Issues 1. What is the Onus and Standard of Proof of an Offence under s. 145(3) ? 2. Must the Crown prove any exceptions to the conditions of recognizance as particularized in the information or are the exceptions a lawful excuse the proof of which falls on the accused? 3. Are the conditions alleged to be breached vague and unenforceable?

4. Has the Crown satisfied the criminal burden of proof for conviction on each count? The Law [25] The statutory provisions under consideration are s. 145(3), s. 794 and s. 581(3) of the Criminal Code. Section 145(3) of the Criminal Code is the offence provision and it states: 145(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound tocomply with a condition of that undertaking or recognizance, and who fails, without lawful excuse, the proof of which lies on them, tocomply with the condition, direction or order is guilty of …[an offence]. (emphasis added) [26]

Section 794 of the Criminal Code is a statutory rule as to pleadings and proof. It sets out that the burden of proving an exceptionor excuse “prescribed by law” is on the defendant. It reads: 794

(1) No exception, exemption, proviso, excuse or qualification prescribed by law is required to be set out or negatived, as the casemay be, in an information.

(2) The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of thedefendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption,proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information. [27] Section 581(3) is a statutory rule for the drafting of counts and reads as follows: 581

(3) A count shall contain sufficient detail of the circumstances of the alleged offence to give to the accused reasonable informationwith respect to the act or omission to be proved against him and to identify the transaction referred to but otherwise the absence orinsufficiency of the details does not vitiate the count.

Onus and Standard of Proof under s. 145(3) [28] A person charged with a criminal offence in Canada is presumed to be innocent of the offence until the Crown has provenbeyond a reasonable doubt the elements of the offence with which he is charged. [29] The elements of the offence of breach of a condition of undertaking or recognizance under s. 145(3) of the Criminal Code areset out in R. v. Custance 2005 MBCA 23, 194 C.C.C. (3d) 225 leave to appeal to SCC refused [2005] S.C.C.A. No, 156.

The Crownmust prove beyond a reasonable doubt that: 1. the accused was bound by an undertaking or recognizance at the time of the alleged offence; 2. the accused committed

an act which was prohibited by that undertaking or recognizance or the accused failed to perform an actrequired to be performed by that undertaking or recognizance (the actus reus); 3. the accused knowingly or recklessly committed the act or omission which constitutes the actus reus of the offence (mens rea). [30] On the Crown having established a prima face case of breach of condition, the accused stands convicted unless he can establisha lawful excuse for not complying with the condition of his undertaking or recognizance. This is set out succinctly in R. v.

Flores-Rivas2008 BCSC 1595 at paras. 15-16 referring to R. v. Ludlow (1999), 1999 BCCA 365 , 136 C.C.C. (3d) 460, 125 B.C.A.C. 924: 1. The accused bears the onus to show on a balance of probabilities that he had a lawful excuse for not complying with a condition ofhis undertaking or recognizance; 2. The lawful excuse, if accepted, does not relate to an element of the offence so as to mitigate or negative the mens rea. Rather, ifaccepted by the trial judge, it provides an excuse for his acts or omissions and thereby avoids a conviction that would otherwise result. As similarly noted in R. v.

Ludlow, supra, at para. 30:

As I interpret Code section 145(2), it provides that when the Crown establishes non-attendance by an accused contrary to an undertakingor recognizance, the accused should be found guilty unless he can point to some evidentiary basis supportive of a lawful excuse for hisfailure to appear. The

section speaks of “the proof of which lies upon him”. [31] The phrase "without lawful excuse, the proof of which lies upon him" in the context of s. 145(3) permits an accused to raise adefence absolving him or her of liability despite proof of the actus reus and mens rea beyond a reasonable doubt: R v Holmes, (SCC), [1988] 1 SCR 914 at paras. 13 and 22. [32] A lawful excuse under law is equivalent to a defence of reasonable excuse. Such an excuse is said to refer to matters“extraneous to the essential elements of the offence”: R. v.

Moser (1992), (ON CA), O.J. 602 (C.A.) per Doherty J.A. at para. 42 referring inter alia to R. v. Holmes, above. [33] The defence of lawful excuse under s. 145(3) expressly and explicitly places a burden on the accused to establish on a balanceof probabilities an excuse which may justify his actions after a prima facie case for conviction has been established by the Crown. Interplay between s. 145(3) and s. 794 [34] I do not propose to discuss in much detail the relationship between these two Criminal Code provisions. As noted by JusticeSmart in R. v. Truong, [2008] B.C.J.

No. 1614, they do not alter the Crown’s burden to prove each and every element of the criminaloffence beyond a reasonable doubt. [35] Truong affirms that under either s. 145(3) or s. 794(2) the burden shifts to the accused to provide an excuse or exception onlyafter the Crown has proved each element of the offence: Truong at paras. 26 and 33. [36] Because s. 145(3) expressly places the burden on the defendant to raise a lawful excuse, it is said in Truong at para. 32 thatresort to s. 794(2) is not necessary.

This holding, which relates to the burden of proof on the defendant, is binding on me. [37] On the issue of pleadings, however, it is an unanswered question whether the Crown can rely on the statutory pleading rulesunder s. 794 to argue that the defendant carries the burden to prove such an excuse or exception whether or not the excuse or exception is“set out in the information” alleging a breach of s. 145(3). [38] I also leave open the question of whether stipulated exceptions to judicially imposed conditions under a recognizance of bail fallwithin the definition of an excuse prescribed by law within the meaning of s. 794. [39] The appeal against conviction in Truong was allowed because the Crown had failed to prove an essential element of theoffence, namely that the recognizance was binding on the accused on the date he allegedly breached his area restriction.

Truong did notdeal with the application of a lawful excuse on the facts of that case. [40] Counsel for Mr. Dempster concedes that the recognizance in this case was binding on his client on October 5, 2011, but arguesthat there is a reasonable doubt as to guilt given how the counts are particularized in the charge. [41] This then leads to a consideration of whether the Crown is bound to prove the particulars in the information as charged even ifthe particulars go beyond the strict elements of the offence.

The Crown’s Burden to Prove the Offence as Particularized [42] The heart of the defence argument rests on the detailed manner in which the Crown laid out the charges under Counts 1 and 2.

The counts set out the entirety of each condition alleged to be breached including the exceptions to the conditions contained therein. [43] The Crown says it is bound to lay out the entire condition in the information because it must fulfill its mandate under s. 581 ofthe Criminal Code to give sufficient notice of the transaction, including the condition of the recognizance that forms the subject matter ofthe charge. [44] The Crown contends that the essential elements of the offence under Count 1 are that Mr.

Dempster breached his curfewcondition by intentionally committing the prohibited act of failing to be inside his residence between the hours of 10:00 p.m. to 6:00 a.m.and, under Count 2, that he failed to comply with the condition not to possess a cell phone by having them on his person. The Crownsubmits those elements have been proved. [45] The defence says the Crown has cast its burden of proof too narrowly.

The Crown must prove the offence “as particularized” inthe charging document. [46] It is a fundamental principle of criminal law that an information must provide the accused with sufficient information to identifythe specific transaction which gives rise to his alleged criminal culpability so that he may make full answer and defence to the charge: R.v. Saunders, (SCC), [1990] 1 S.C.R. 1020, R. v. Jimmy, [2004] B.C.J. No. 1555, R. v. Gauthier 1995 B.C.J. No. 1527(C.A.), R v. Katsiris 2008 BCCA 251. [47] It was noted in R. v.

Jimmy that the Crown, having particularized the offence beyond the “bare legal case” necessary to be

proved, was required to meet the case as further particularized. It was required to prove that the fishing offence was committed in non-tidal waters as alleged in the information even though fishing in either tidal or non-tidal waters would have been sufficient to make outthe offence. The Crown did not apply at trial to remove this surplus particular.

The accused’s acquittal on the basis of lack of proof offishing in non-tidal waters was upheld on appeal. [48] Having considered the authorities on this point, it is fair to say that the Crown is held to its broader form of particulars whenthey relate to an element of the offence. For instance, when a charge particularizes the means by which the offence is alleged to havebeen committed, the Crown is bound to prove those means.

In Gauthier the means alleged were shooting “the victim” and not “at him”as later sought to be proved, and in Katsiris the means of committing the assault with a weapon was particularized as broken glass but notproven as such. [49] If the prosecution particularizes a transaction in the charging document which goes beyond an averment of the essentialelements of the offence, it is bound to prove the transaction as delineated and not some other transaction: see R. v.

Rai 2011 BCCA 341at para. 16 referring to s. 581 of the Criminal Code. [50] The Crown is held to such expanded particulars when they factually relate to and give substance to an essential “element of theoffence” or define the transaction alleged. [51] In the case against Mr. Dempster, the defence says bluntly “if the Crown charges it, it must prove it” referring to the exceptionsset out in the counts. Surplusage Rule [52] The Crown submits that the exceptions set out in Counts 1 and 2 are not part of the transaction alleged in the commission of theoffence.

As such, they are not material averments but instead surplusage. They set out the lawful excuses available to the accused. [53] The surplusage rule states that immaterial or non-essential averments in an indictment need not be strictly proved if the accusedis not misled or prejudiced in his defence: R. v. Vezina, (SCC), [1986] 1 S.C.R. 2 . [54] In R. v. Canadian National Railway Co. 2005 M.J. No. 104 the court persuasively summarizes the rule as follows: 41 The surplusage rule deals with unnecessary detail in an indictment. As noted by Helper J.A., in R. v. J.B.M. (2000), (MB CA), 145 Man.R. (2d) 91 (Man.

C.A.) (at para. 29): That rule is succinctly stated in Eugene G. Ewaschuk, Q.C., Criminal Pleadings and Practice in Canada (Toronto: Canada Law BookLimited, 1983), at pp. 222-223, as: If the particular, whether as originally drafted or as subsequently supplied, is not essential to constitute the offence, it will be treated as surplusage, i.e., a non-necessary which need not beproved. 42 Particulars, of course, are facts that specify the act charged.

They need not be, but sometimes are, essential elements of the offence.So everything that is essential to be proved by the Crown must be alleged in the charge, but it does not necessarily follow that everythingthat is alleged must be proved. An unnecessary allegation may be treated as surplusage if the essential elements of the offence are allegedand established. [emphasis added] [55] I find the

summary of the surplusage rule in R. v. Canadian National Railway Co. to be helpful. I accept that the properapplication of the rule is that the facts that specify the act charged or the actus reus, or otherwise define the essential elements and natureof the transaction are to be proved by the Crown and are not considered surplusage. [56] With that analysis in mind, I conclude that a lawful excuse is not part of the elements of the offence; it is “extraneous to theessential elements of the offence”: see Moser, Holmes, Flores-Rivas and Ludlow, supra.

Hence, even though the excuse or exceptionmay be set out in the information, it is akin to surplusage because it is not “essential to be proved by the Crown”. As a matter ofpleading and proof, this approach is consistent with statutory directive in s. 794 as to pleadings concerning lawful excuses. [57] For this reason, I am of the view that particularizing the entire condition under each count does not transfer to the Crown aburden that rests on the accused. Moreover, I am satisfied that in having done so, Crown has not prejudiced Mr.

Dempster in hisunderstanding the transaction in issue nor does it preclude him from making full answer and defence. Discussion and Analysis

[ 58 ] It is not disputed that the Crown carries the burden of proving the breach offence beyond a reasonable doubt. Once non- compliance with a condition of the recognizance is found on the facts, the accused carries the burden of showing on a balance of probabilities the existence of a lawful excuse for the non-compliance. [ 59 ] But where the information sets out the whole of the condition including exceptions stipulated in the recognizance, the defence argues that the Crown thereby assumes the legal burden of proving that a lawful excuse does not apply.

The defence says that if there is a reasonable doubt as to the Crown having discharged this burden, there must be an acquittal. [ 60 ] I am of the view that the weight of authorities does not support this analysis. The principles that I delineate from the authorities are as follows: 1. The Crown must prove beyond a reasonable doubt each and every element of the offence: Custance, Flores-Rivas and Truong . 2.

The Crown may be required to prove particulars that go beyond the bare elements of the offence if the particulars or facts further and better define the essential elements of the offence or provide necessary details of the transaction that constitutes the offence: Saunders and Gauthier . 3. Immaterial or non-essential averments in an indictment need not be strictly proved if no prejudice results to the accused: Vezina . 4. An exception to a condition of recognizance is equivalent to a lawful excuse: Truong . 5. Proof of a lawful excuse is not an essential element of the offence to be proved by the Crown.

The scope of a lawful excuse is extraneous to the elements of the offence: Moser, Holmes, Flores-Rivas and Ludlow . 6. Proof of a lawful excuse is explicitly and expressly stipulated under s. 145(3) to be the burden of the defendant. The defendant’s proof of a lawful excuse arises only after the Crown has met the burden of proving the mens rea and actus reus of the offence beyond a reasonable doubt: Flores-Rivas, Truong . [ 61 ] I have been referred to R. v. Cardenas , [2011] B.C.J. No. 1901 and R. v. Zamora [B.C.P.C. unreported. May 24, 2012 Vancouver file No. 202493-3-A] relied on by the defence.

Cardenas relied on the cases Saunders , Gauthier and Jimmy to hold that the Crown was obliged to prove the offence as particularized, including proof that the exceptions to the area restrictions as set out in the condition, and repeated in the information, did not apply. Cardenas was decided immediately after evidence was heard, and the learned judge was not referred to s. 794 , or the case law on the application of lawful excuses.

Moreover, for reasons I have set out, I am persuaded that exceptions under a condition of recognizance are equivalent to a lawful excuse and not part of the offence, whether particularized or not. [ 62 ] Zamora is a fully considered decision of this court which addresses all of the essential issues also raised in this case. The charge in Zamora was breach of an area restriction condition in a recognizance of bail. The information set out the relevant condition and its exceptions, including the exception that the accused could enter the restricted area to attend his bail supervisor’s office or to attend court.

The learned trial judge found the offence not proved because the Crown did not lead evidence on the non-applicability of the exceptions at the time of the offence. Proof that the exceptions did not apply was said in the case to be “an essential element of the offence charged.” [ 63 ] Zamora was decided on the basis that when an exception is particularized in an Information, it must be proved by the Crown. [ 64 ] A contrary authority to this finding is R. v. Dumais , [2009] S.J. No. 778 (Q.B.) .

The accused was charged under s. 145(3) of the Criminal Code with breach of his undertaking to have no contact direct or indirect with the complainant except through designated third parities or except “with the prior written permission of a bail supervision officer”.

The trial judge held that lack of permission of the bail officer was an essential element of the offence to be proved by the Crown and acquitted the accused. [ 65 ] On reversal after appeal, Justice Mills noted that there was a statutory burden on the accused to prove a lawful excuse under s. 145(3) : 11 Although I do not agree with the concept in R. v. Truong , that s. 794(2) intended to deal with regulatory offences only, I agree with the concept that s. 794(2) does not apply to s. 145(3) given the words "without lawful excuse" found therein.

It would appear in this situation that s. 794(2) would become redundant as it relates to its application to s. 145(3) . 13 The learned trial judge concluded that as a matter of law, lack of prior written permission of the bail supervision officer was an essential element of the offence. I believe she erred in so doing . The undertaking given was to have no direct or indirect contact with Tina Cook. That was the prohibition identified by the court in allowing him to be released. At the same time the undertaking gave a series of lawful excuses which would allow for contact to be entered into.

The lawful excuses are not exhaustive but were specific to the particular accused. In the case of direct contact, "the lawful excuse" was the prior written permission of a bail supervision officer. Section 145(3) stipulates the proof of lawful excuse lies on the accused. The issue of permission from the bail officer is not an essential element of the offence but rather a lawful excuse if the balance of the offence has been proven .

[emphasis added] [66] I find the analysis in R. v Dumais to be persuasive because it is supported in principle by the analysis of the B.C. Court ofAppeal in R. v. Daniels, (BC CA), [1990] B.C.J. No. 2379 (C.A.) holding that the Crown is not obliged prove anexception or excuse. [67] In R. v. Daniels the charge particularized that the defendant “did unlawfully take shellfish, to wit: clams, from a contaminatedarea…contrary to s. 5(1)” of a specific shellfish fisheries regulation, thereby committing an offence under the Fisheries Act.

Section 5(1)of the regulation prohibited the taking of shellfish from a contaminated area unless the person doing so held a special permit issued underthe authority of the Minister of Fisheries. The trial judge held that the Crown had failed to prove an essential element of the offence,being that the defendant was not the holder of a special permit. [68] In allowing a Crown appeal from acquittal, the B.C.

Court of Appeal said that it was an error to hold that the burden rested onthe Crown to prove, as an essential element of its case, that the accused had no permit. [69] I can see no material distinction between the lawful excuse of having a Ministerial permit to do the prohibited act and thewritten consent of a bail supervisor to do

an act otherwise prohibited in a condition of recognizance.

The Crown does not assume theburden of negativing the existence of a lawful excuse as a part of its case, whether the lawful excuse is in the form of a permit underregulatory legislation or a bail supervisor’s written consent under judicially imposed exceptions to a condition of the recognizance. [70] In deciding whether I am bound by Zamora, which is a considered judgment of this court, I am obliged to consider the doctrineof 'judicial comity' under Re Hansard Spruce Mills, (BC SC), [1954] 4 D.L.R. 590 (B.C.S.C.) which directs that trialjudges of coordinate jurisdiction should follow pronouncements on the law made by each other unless subsequent decisions haveaffected the validity of the judgment, or some binding authority or relevant statute was not considered, or it was a nisi prius judgment. [71] After some anxious reflection, and having regard to the case law discussed herein, I find that in its essential analysis of the legalprinciples, I prefer the reasoning of R. v.

Dumais to R. v. Zamora. I am advised by Crown Counsel that Zamora is presently underappeal. I would encourage counsel to also take this decision on appeal or place it before an appellate court for review as to itscorrectness and for appellate guidance as to the proper legal principles to be applied in breach of recognizance prosecutions. [72] I note that the matter is not without controversy, and the difficulty in reconciling the law in this area was discussed in a recentOntario decision R v JG 2012 ONSC 1090 , 2012 O.J. No. 657.

On appeal, the trial judge was found to be in error in treating acounselling exception as an element of the offence that had to be negatived by the Crown. The court, in dicta, commented: 17 Resolution of this issue is not easy. Terms of probation orders and bail orders often contain what are plainly "exemptions" or"exceptions", within the literal meaning of these terms used in s. 794(2). Furthermore, prosecutions for breaches of bail and probationorders generally proceed summarily under

Part 27 of the Criminal Code. However, these are true criminal offences and not regulatoryoffences. Furthermore, the "exemptions" or "exceptions" do not create "a status in law" that can readily be proved by the accused simplyproducing a license. Without expressing a definitive position on the issue, I am inclined to the view that where the facts elicited inevidence at trial give an "air of reality" to some "exception" or "exemption", then the issue is properly raised and the Crown mustnegative that "exception" or "exemption" by proof beyond reasonable doubt.

In other words, where the "exemption" or "exception" hasbecome a viable defence on the facts of a particular case, the Crown must negative that defence, just like duress, necessity, self-defence,provocation, mistake of fact and most other defences. [73] After a consideration of the law in this area, I conclude that an information alleging a breach of s. 145(3) that particularizes anexcuse or exception to the condition alleged to be breached does not convert what is expressed by statute to be the defendant’s burden tothe Crown’s burden to disprove or negative as part of the Crown’s case. [74] I conclude that if the conditions of a recognizance include an excuse or exception without which the alleged act or omissionwould be unlawful, there is no need for the prosecution to prove a prima facie case of lack of excuse.

If all other essential elements ofthe charge have been proved, the accused has the burden of showing on a balance of probabilities that the excuse or exception applies asa bar to an otherwise successful prosecution. Application of the Law to the Facts [75] The evidence establishes the following facts: a. Mr. Dempster’s recognizance was in force and binding on him on the night of his arrest; b. About one week before the offence date, Mr. Dempster met with his bail supervisor and acknowledged reading and understandingthe contents of his recognizance of bail; c.

On October 5, 2011, just after midnight he was detained for a fare evasion investigation at the Marine Drive Vancouver Canada Linestation; d. He provided two pieces of false identification when stopped and questioned by transit police;

e. Under conditions 5 of his curfew, he was required to be inside his residence between 10:00 p.m. and 6:00 a.m. each night unless hefell within the stipulated exceptions to this curfew condition; f. Mr. Dempster was found outside of his residence riding the Canada Line during the hours his curfew was in effect; g. Mr. Dempster’s bail supervisor did not provide him with a written consent or prior approval to be outside his residence when hiscurfew hours were in effect; h. Mr.

Dempster did not have any prior approvals from his bail supervisor to attend classes or extra curricular activities during hiscurfew hours; i. Mr. Dempster assured his bail supervisor his employment hours did not intrude on his curfew obligations; j. Mr. Dempster was found in possession of two cell phones on a search incident to his arrest; and k. Mr.

Dempster was identified in court as the person found on the Canada Line; [76] Under Count 1, the curfew breach allegation, the actus reus of the offence is failing to obey a curfew by remaining inside hisresidence between the hours of 10:00 p.m. and 6:00 a.m. [77] Under Count 2, the cell phone possession prohibition, the actus reus of the offence is failing to comply with the condition not topossess cell phones. [78] The Crown need not prove that the accused intended to breach the recognizance, only that he intended to commit the actusreus: Custance at para. 12. [79] The mens rea under both counts is knowingly or recklessly doing what he knows he is not permitted to do under the recognizanceor failing to do what was required to be done – remain at home during curfew hours and not possess cell phones. [80] I am satisfied beyond a reasonable doubt that Mr.

Dempster knowingly and intentionally committed the curfew breach by beingoutside his residence well past the start of his 10:00 p.m. curfew. [81] The evidence does not establish on a balance of probabilities that any of the exceptions to his curfew applied. [82] Mr.

Dempster advised his bail supervisor that he did not have employment that affected his curfew obligations and he sought nowritten consent or prior approval of his supervisor to be out during curfew hours for any reason relating to employment or education. [83] It would be speculation to assume that he was travelling to or from work or school in the absence of some evidence sufficient todraw such an inference. The only direct evidence on this issue was from the bail supervisor who indicated Mr. Dempster’s employmenthours did not compromise curfew obligations. The lateness of the hour when Mr.

Dempster was found is inconsistent with employmentor education related travel. [84] I am satisfied that the evidence as a whole establishes beyond a reasonable doubt that Mr. Dempster was in breach of his curfewcondition and he did not have a lawful excuse. [85] I am further satisfied that Mr. Dempster was in knowing possession of two cell phones found in his backpack. There is noevidence these were possessed for purposes directly or immediately related to his employment. He did not have a lawful excuse topossess the phones.

Curfew Condition is Vague and Unenforceable [86] I next deal with the defence argument that the curfew condition is vague and unenforceable. It is submitted that the languageused does not give sufficiently clear advance notice of the prohibited conduct, which is vital to properly inform an accused of whatconduct is at risk of breaching the condition: R. v. Traverse 2006 MBCA 7, 2005 C.C.C. (3d) 33 at para. 36. [87] The 10 p.m. to 6 a.m. prohibition under the curfew condition itself is straightforward but the exceptions are somewhat long anddetailed. Mr.

Dempster is required to be inside his residence between the hours of 10:00 p.m. and 6:00 a.m. each day unless he has theBail Supervisor’s written consent to be outside, or unless he is travelling directly to or from work or his place of education.

I am satisfiedthat the operative terms of the conditions are readily ascertainable and not vague, as the defence argues. [88] In any event, a complete answer to the defence argument can be found in the comments of the Ontario Court of Appeal in R. v.Lee, (ON CA), [1999] O.J. 1893 (C.A.) in a breach of recognizance appeal: 14 The appellant sought to defend the charges of breach of recognizance by arguing that the term of the recognizance that "he performhis managerial duties in a manner that ensures the establishment runs in a legal fashion" was vague and not authorized by s. 515 of theCriminal Code, which permits the releasing justice to impose appropriate conditions.

We agree with Blacklock Prov. Ct. J. that theappellant was precluded from making this collateral attack on the validity of the recognizance. As he held, this issue is governed by thedecision of this court in R. v. Domm (1996), (ON CA), 31 O.R. (3d) 540 and we agree with his application of thatcase. The Criminal Code provides several different routes to review the terms of a recognizance. The appellant did not resort to any ofthem. It was not open to the appellant to ignore the terms of his recognizance.

In short, having acknowledged in writing that he read and understood the conditions of the recognizance it is not now open for Mr. Dempster to launch a collateral attack of those conditions after breach is alleged. I would not give effect to this argument.

Summary and Disposition [ 89 ] In answer to the issues raised in this case, I find and conclude that the Crown does not carry the burden, as part of the prosecution case, to negative an exception to a condition of recognizance particularized in the information. The Crown must establish the actus reus and mens rea of the offence.

An exception as set out in the case at bar provides a lawful excuse which the accused must prove on a balance of probabilities in order to avoid conviction after the essential elements of the offence are proved. [ 90 ] The conditions are not vague or unenforceable. [ 91 ] I am satisfied that the evidence as a whole establishes beyond a reasonable doubt that Mr.

Dempster breached the curfew and cell phone conditions of his recognizance of bail, and that he did not have a lawful excuse in doing so. [ 92 ] Accordingly, he is found guilty of Count 1 and Count 2 of the information. _______________________________ The Honourable Judge H. K. Dhillon Provincial Court of British Columbia