R. v. Boland Date:, 2012 BCPC 57

Citation: R. v. Boland Date: 20120208 2012 BCPC 0057 File No: 219640-1K Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Criminal Division) REGINA v. BENJAMIN LEHI BOLAND EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T.J. GOVE Counsel for the Crown: M. Street Counsel for the Defendant: C. Ronning, Articled Student Place of Hearing: Vancouver , B.C. Date of Hearing: February 8, 2012 Date of Judgment: February 8, 2012 [ 1 ] THE COURT: Benjamin Boland has pled guilty that on the 24th of October, 2010, in Burnaby, he committed assault of Shaunee McCandless.

The Facts [ 2 ] The complainant aged 18 and the accused aged 26 lived together. The complainant was 16 months pregnant. They had an argument. There was childish behaviour. The accused was throwing items around the apartment. The complainant tipped over a chair and started screaming. [ 3 ] The accused put his hand on her mouth to stop her. He let her go. She screamed again. He put his hand on her mouth again. He held it there long enough that she threw up. More items were thrown around the apartment. The accused left. He returned a while later with some sushi which they shared.

The next day the complainant left the apartment and returned to her family in Creston. [ 4 ] A child has been born. His name is James. He is now nine months old, lives with the complainant in Creston. The accused has

visited the child on two occasions. Their respective families have helped in arranging those visits. The accused also pays maintenance to the complainant for the child. Personal Circumstances of the Accused [ 5 ] He has been gainfully employed since he left school at the age of 17. He has attended BCIT. He is now 28 years of age. He has almost completed an apprenticeship. He wants to take responsibility for his child. He has no record. [ 6 ] I note the following which I consider to be relevant. The offence date is October 24th, 2010.

The complainant, upon her arriving in Creston, went to the Creston RCMP shortly after arrival. That led to her being in contact with Burnaby RCMP because the offence occurred in Burnaby. Apparently, a statement was taken from her. [ 7 ] The Report to Crown Counsel was not advanced for many months. In fact, the Information was laid on April the 8th, 2011, almost six months later. A warrant was issued that day. I am informed by the accused that he has not changed his address since the offence occurred and, therefore, his address was well known to the complainant.

The police never went and arrested him. [ 8 ] On October the 10th, 2011, now almost a year after the offence date, the police were in the accused's apartment building on some unrelated matter, ran his name on the system and found there was a warrant. He was arrested. He was released on a promise to appear. There was no undertaking to appear, therefore, no conditions of supervision or restricting contact. The accused in the meantime has completed a six-session one-to-one counselling program.

He has visited with his child on two occasions and he has paid maintenance. [ 9 ] The Crown and defence agree that a discharge is appropriate in this case. The issue is whether it should be conditional or whether it should be absolute. The Crown says that it should be conditional recognizing this happened within a domestic relationship; the accused was older than the complainant, significantly older in terms of their relative ages; she was pregnant with their child at the time of the offence; and that the victim would like control over the accused's conduct and contact with her and the child.

Decision [ 10 ] All domestic assaults, in my view, are serious. In fact, where I usually sit in the Community Court, I deal with domestic assaults usually about four or five a day. [ 11 ] Discharges are not uncommon for persons who do not have criminal records. The purpose of a conditional discharge is to place the person on probation which will provide for supervision by a probation officer, protection for the victim by restricting contact, and ensuring that the accused takes counselling. [ 12 ] This case is somewhat unusual.

It is clear that, whether through inadvertence or not, the allegations have not been taken seriously by government authorities.

There was a delay in charging the accused of up to six months, there was a significant delay in arresting him which happened only, it appears, almost by accident, and there was no concern about him being released from custody on his arrest without any controls over who he could contact and so forth. [ 13 ] For the past 16 months since this offence, the accused has not been under any court order of supervision or a prohibition from contacting the complainant, and yet there are no complaints, no allegations of any untoward conduct.

This accused, although his conduct with the complainant is reprehensible, has, in my view, demonstrated his bona fides after the event. [ 14 ] I see no need to impose supervision on him at this point nor any need to make orders controlling his contact with the complainant. It sounds like she has support by her family and his family. There is no indication that the accused has done anything or will do anything to cause her distress. [ 15 ] There will be a discharge. It will be absolute. No ancillary orders are required. [ 16 ] MS.

STREET: The Crown directs a stay of proceedings on Count 2. [REASONS FOR SENTENCE CONCLUDED]