R. v. Harder, 2021 BCPC 119

Citation: R. v. Harder 2021 BCPC 119 Date: 20210408 File No: 22027-1, 22145-1 Registry: Western Communities IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAWSON JAMES HARDER ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. P. MacCARTHY Counsel for the Crown: P. Cheeseman, by video Counsel for the Defendant: R. Alberto, by video Place of Hearing: Colwood , B.C., by Videoconference Date of Hearing: April 8, 2021 Date of Judgment: April 8, 2021 Introduction:

[ 1 ] THE COURT: Dawson James Harder (hereinafter referred to as the "Accused") is before this court. The Accused has entered guilty pleas on four separate counts contained within two separate Informations. The task of this Court is to determine a fit sentence for the Accused. [ 2 ] Crown is seeking a conditional sentence order followed by a period of probation. Defence seeks to have the Accused be granted a conditional discharge. Hence, the task will be to take into account all the principles of sentencing in order to determine what is a fit sentence in the whole of these circumstances.

The Offences: [ 3 ] The offences for which the Accused is before the court are as follows. On Information 22145, an allegation on Count 2 now admitted to by the Accused is that on or about the 13th of May, 2020, at or near Langford, British Columbia, he did wilfully obstruct Constable S. Cooper, a peace officer in the execution of his duty, contrary to s. 129 (

a) of the Criminal Code , R.S.C. 1985, C. C-46 (“ Criminal Code ”). On Count 3, to which the Accused has also entered a guilty plea, is that on or about the 13th of May, 2020, again at or near Langford, British Columbia, he did knowingly utter or convey a threat to C. A. [omitted for publication] to cause death or bodily harm to C.A.

That is an offence contrary to s. 264.1(1) of the Criminal Code . [ 4 ] On Information 22027-1, the original Count 1 read as follows: that the Accused, on or about May 13th, 2020, at or near Highlands in the Province of British Columbia, did break and enter a dwelling house at [omitted for publication] Road, with intent to commit an indictable offence therein contrary to s. 348(1) (

a) of the Criminal Code . Maintaining a plea of not guilty to that offence, the Accused has entered a guilty plea pursuant to s. 606(4) of the Criminal Code to the lesser included offence of mischief under $5,000, being an offence contrary to s. 430(4) of the Criminal Code . On Count 2 of that same information, the Accused has entered a guilty plea to the offence that on May 13, 2020, at or near View Royal in the Province of British Columbia, he committed the theft of a motor vehicle, being the property of British Columbia Transit, contrary to s. 333.1(1) (

a) of the Criminal Code . The vehicle in that situation was full-sized transit bus. [ 5 ] It is noteworthy that with respect to all of these matters, Crown has proceeded summarily. Hence, with respect to the offence on Count 2 of Information 22145-1, the maximum sentence would be two years less a day. A maximum fine of $5,000 could be applicable. On Count 3, the same maximum sentence and the same fine could occur. [ 6 ] With respect to the plea on the mischief charge on Count 1 of Information 22027-1, again that could attract the same penalty of two years less a day and a $5,000 fine could be applicable.

It is noteworthy that had the Accused pled guilty to the original charged offence under section 348(1) (a), that being an indictable offence and given the fact that it was dwelling house, the resulting maximum sentence can be a life sentence and therefore no conditional discharge and no conditional sentence order would be available to the court for consideration. [ 7 ] The offence on Count 2 of Information 22027-1, the theft of the motor vehicle, attracts a maximum sentence of two years less a day, but no fine is applicable to that particular offence.

Circumstances Surrounding the Offences: [ 8 ] Crown provided a very detailed

summary of the circumstances. No issue is taken by defence with respect to those circumstances. However, for the purposes of this sentencing, it is important that there be some understanding of the essential elements of those circumstances.

For the applicable circumstances, I am drawing both from the recitals by Crown, but also supplemented by some of the comments that have been made both by defence counsel as well as by the Accused in direct submissions to the court. [ 9 ] With respect to the offences contained on Information 22145-1, those events arose apparently following a drinking party attended by the Accused at an apartment in the Western Communities area of South Vancouver Island. As I take it, the Accused, who is a young man, had moved to Vancouver Island. He had difficulty meeting people.

He was invited through a social media platform, to attend a party. He attended that party and it appears that he consumed somewhere in the amount of between one and two bottles of tequila and also participated in consuming cannabis. [ 10 ] At some time after midnight on May 13th, 2020, he was found in an unconscious state by the complainant in Count 3 on Information 22145, being C.A. The Accused was passed out on the ground and the Complainant and her friend tried to assist him. At that point, the Accused was roused and told those individuals to leave or he would kill them.

That resulted in a telephone call being made to the West Shore detachment of the RCMP. [ 11 ] Constable Cooper arrived and located the Accused, at which point, Constable Cooper noted the high level of intoxication of the Accused, as evidenced by his demeanour and his staggering. Also observed was a knife in the waistband of the Accused's pants. The Accused was highly uncooperative with the police. Constable Cooper tried to grab the knife and was unsuccessful in the course of doing so. There was resistance from the Accused causing Constable Cooper to draw his taser, but it was not deployed.

Constable Cooper told the Accused he was under arrest for intoxication in a public place, ordered the Accused to go to his knees, at which point, the Accused made several obscene remarks to Constable Cooper including words, "I don't give a fuck." That precipitated Constable Cooper calling for backup. [ 12 ] Police backup arrived. The police officers in attendance were able to subdue the Accused, handcuff him and transport him to the West Shore detachment of the RCMP.

In the course of arresting and placing the Accused into a police vehicle, the Accused continued to resist including spitting at the police officers and continued with a series of threats and invitations to fight the police officers. [ 13 ] Upon arriving at the West Shore detachment of the RCMP, the Accused started to try to retch and vomit. That necessitated transporting the Accused by ambulance to Victoria General Hospital. In the course of that trip, the Accused continued with highly abusive behaviour directed both at the accompanying police officers as well as the paramedics.

That untoward behaviour continued upon arrival at the Victoria General Hospital and was now directed towards the medical staff in attendance.

[ 14 ] As I understand it, the Accused was kept at the hospital until approximately 6:30 in the morning, at which time, it was apparently deemed that he was sober enough to be released; he was released on a police undertaking at that time. [ 15 ] Within a short period of time, the events giving rise to the charges on Information 22027-1 occurred. The Accused stole a BC Transit bus, which had been left unattended by its driver who was apparently taking a break.

The Accused gained entry into the bus and then drove the bus a considerable distance onto roads which were not usually accommodating Transit buses of that size. According to GPS records obtained by BC Transit and used to trace the route of the bus, there were periods of time when the bus was travelling at speeds in excess of 50 kilometres an hour, on a long crooked road, which was described by Crown as being narrow.

It did not take long for the bus to end up crashing and thereby causing damage to the bus. [ 16 ] That crash caused the Accused to flee the bus, kicking the doors and running towards what was described as the Mackenzie Lake area. At that point, the Accused broke into the residence of a 72-year-old gentleman who had heard noises. That individual was B.R. [omitted for publication]. B.R. went down and was able to observe the Accused who had kicked in the front door to gain entry into the residence. B.R. attempted to speak to the Accused.

However, the Accused fled the residence and apparently was able to get a ride which took him back towards the scene of where the bus crash had occurred. [ 17 ] At that point, the police made an observation of the Accused, stopped the vehicle, and the abusive behaviour of the Accused once again continued towards the attending police officers, who, again arrested the Accused and took him into custody.

At that point, the Accused sought to speak to his father, but was refused that opportunity by the police officers due to the fact that he was not a youth; thereafter, several obscene epithets were thrown towards the police officers and the Accused’s uncooperative behaviour continued.

The Accused was subject to a judicial interim release hearing and was released on a series of eight conditions on May 13th, 2020, all by way of a hearing at the British Columbia Justice Centre in Burnaby. [ 18 ] As a result of the events that took place at the residence of B.R., B.R. suffered some trauma which is outlined in a victim impact statement admitted as Exhibit Number 2 in these proceedings.

There was significant damage to his house as a result of the Accused kicking in the door to thereby gain entry into the residential premises, which I again note is the subject matter of the mischief charge to which the accused has pled on Count 1 on Information 22027-1. And which, as further noted above, was originally a break and enter allegation on Count 1. [ 19 ] The owner of the house, B.R., indicates in his victim impact statement that he was caused and continues to suffer from anxiety about his own safety, as a result of this intrusion into his house.

He apparently was required to take time off from his employment for a considerable period, being up to some six months. He had to pay a deductible on his insurance of $1,000 to repair the damage done to his residential premises and then, perhaps to add some insult to injury, he had to pay increased insurance premiums, which over a period of three years total some $690.

A restitution order is sought in connection with those expenses. [ 20 ] In addition, Exhibit Number 1 shows a number of photographs of the damaged Transit bus; it shows extensive damage on the right-hand side of that vehicle including smashed side windows and what appears to be smashed windows at the front of the bus. Surprisingly, in my view, the expenses to repair that damage, according to BC Transit, were only $1,804.65.

Again, BC Transit seeks restitution in that amount. [ 21 ] Also, in connection with the damage caused to B.R.’s residence, necessary repair and restoration work was completed at the cost of the insurance company as evidenced in Exhibit Number 3. The total amount paid for the restoration work was $4,911.44. Of that amount, the deductible portion attributable to and paid for by B.R. was the amount of $1,000. Hence, the insurer, which, as I understand it, is represented by Crawford & Company, seeks a restitution order for the amount of $3,911.44 for the damage caused to the B.R. residence by the Accused.

Circumstances of the Accused: [ 22 ] The Accused comes before this court as a very young man. He is only approximately 20 years of age at present time. At the time of the offences, he would have been in his late teens. He grew up in Northern Alberta in a small town. His parents separated resulting in him moving with his mother to Red Deer, Alberta, along with his sister. He completed his education partly in a small northern village in Alberta and which education continued in Red Deer.

He was able to take courses at both grade 10 and grade 11 levels, but did not complete those grades. [ 23 ] At an early age, commencing in about grade seven, he started working with his father who worked in the drywall installation business which, as I take it, was part of a family operation. He has other family members including his uncle, John Harder, who are involved in that business.

John Harder, who carries on business through an entity known as Alta 1 Drywall, has provided the court with a reference letter for the Accused undated, but apparently of recent production. [ 24 ] The Accused started and continued to work mostly on a part-time basis for some three or four years and he eventually made his way to Vancouver Island with his father. His father continued to work up in the Fort McMurray area of Alberta for Alta 1 Drywall. The Accused also accompanied his father there to give him some assistance doing drywall work. Apparently, Alta 1 Drywall has projects on Vancouver Island.

The Accused is working on a full-time basis at present time on Southern Vancouver Island with Alta 1 Drywall. He apparently earns somewhere in the amount of $25 per hour, before taxes and this amount, net of taxes, is somewhere around $20 per hour. [ 25 ] He supports a girlfriend and her dog. They have been together since December 12th of 2020. She is presently looking to resume work as a delivery driver. The Accused has no other dependents.

He says he works some five to six days a week. [ 26 ] He indicates that he has taken significant steps to deal with his issue of excessive alcohol consumption, which seems to have been the driving factor in the events that have brought him before this Court. The Accused has indicated directly to the court, partly based on questions posed to him by the court, that when he arrived on Vancouver Island, he was dealing with a high level of loneliness and he also felt he had some depression issues. That gave rise to some self-medication by way of alcohol consumption.

He says he has spoken to some medical practitioners, but he has not yet received, as I understand it, any formal diagnosis nor counselling to deal with these issues.

However, he says he is now interested in doing so. [27] He has written a letter of apology which has been entered as Exhibit Number 6. That letter of apology is directed to the Court, theCrown, to the young woman who tried to assist him when she found him unconscious, (being the complainant, C.A.) and to the busdriver of the Transit vehicle which was stolen; he is also apologetic for all the damages caused to B.R., the household owner.

The letteris appropriately apologetic; it does extend that apology to “anyone else” who may have been impacted by his actions that occurred at thetime of the events and saying further, "even though I was not in the right state of mind due to the alcohol and marihuana I consumed." Hethen goes on to note that this does not excuse his actions.

The letter of apology then goes on to further suggest that although he does not“fully remember” what he has been told he did, the individual that committed those offences (being himself) at that time was not theperson that the Accused normally presents as being (“who I really am”); he further goes on to say that he has done his best since thoseevents to better himself. The latter part of the letter also contains a "thank you" to the RCMP and others for the way they tried to assisthim, qualifying that by saying, even though at the time “I may not have wanted the help”, but he is appreciative of that help.

He alsoexpresses some gratitude and recognizes that things could have been much worse and other people could have been injured. The lastsentence of the letter states as follows [as read in]: Not only would I like to thank everyone, but I would also have them know I am deeply sorry to everyone who tried to help, the peoplethat I have impacted, and everyone else who took time out of their night or that I may have disturbed with my actions of that night. Ideeply regret my actions on the night of May 13th, 2020. I am truly sorry and thankful to everyone.

The Position of Crown on Sentencing of the Accused: [28] As indicated at the outset, Crown is of a view that the whole of the circumstances of these offences require a jail sentence,although it is submitted that the jail sentence may be in the form of a conditional sentence order for a period of some 90 days (sic)followed by one year of probation. The terms and conditions have been outlined by Crown as being appropriate in order to strike acorrect amount of denunciation and deterrence, both general and specific, as well as some rehabilitative conditions. I am sorry. Imisspoke.

It is a six-month conditional sentence order that is being sought with 12 months of probation. [29] The allocation of the conditional sentence order would apply mostly to the offences contained in Information 22027-1. Crownseeks an allocation of six months each for the two offences, that is, the mischief perpetrated at the home of B.R. and also six months forthe theft of the Transit bus. Crown considers those offences to be most serious. Those sentences would run on a concurrent basis.

Withrespect to the other offence, that is, the threatening of C.A. on Count 3 of Information 22145, and the wilfully obstructing ConstableCooper on Count 2, Crown says there should be a sentence one day on each. That would be served concurrently, but also would besatisfied by the Accused's attendance in court today. The Crown points to several aggravating and mitigating factors which I will reviewshortly. Defence Position on Sentencing the Offender: [30] As indicated at the outset, defence is seeking to have the Accused receive the benefit of a conditional discharge.

The defencesuggests that the conditional discharge will meet the goals and principles of sentencing in this matter and specifically will not cause thisyoung man to have the hindrance of a criminal record at this early stage in his life. It is argued by defence that this is essentially a singleand continuing incident of offending behaviour.

Although serious in nature, it is essentially a one-time event; defence also points to theissue of the moral culpability that must be considered by this Court, noting that the Accused, both through defence counsel's submissionsas well as the letter of apology, is not denying the serious mistakes, but it must be put into the context of a young man who found himselfin a highly intoxicated situation, specifically noting that it does not excuse his behaviour, but it explains the context of that behaviour. [31] Some significant reliance is placed by defence on the letter from the Accused's uncle, John Harder, the proprietor of Alta 1Drywall.

That letter speaks in positive terms about the Accused and his accomplishments in learning the drywall trade and the fact thathe has become a valued member of the workforce employed by Alta 1 Drywall. It also speaks in positive terms about the character,honesty, and demeanour of the Accused, as presented in the course of his job and in other aspects of his personal life. [32] So it is on that basis that defence seeks this matter to be resolved through the granting of a conditional discharge. The only casereferred to and presented to this Court is the British Columbia Court of Appeal decision in R. v. Fallofield.

It is the leading authority withrespect to the granting of conditional discharges. That case is cited as R. v. Fallofield, (BC CA), [1973] B.C.J. No.559. Purposes, Objectives, and Principles of Sentencing: [33] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence andthe specific circumstances of the offender (see R. v. Shoker , 2006 SCC 44, at paragraph 14, and R. v. Angelillo, 2006 SCC 55, atparagraph 22).

As the sentencing judge, I must direct myself to consider all the 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 other (seeR. v. McCormick, 2006 ABCA 410, at paragraphs 9 to 12). [34] The purposes and principles of sentencing are found in s. 718 to 718.2 of the Criminal Code. These sections codify thesepurposes and principles and clearly state the intention and rationale for imposing particular sentences.

Section 718 of the Code outlinesthe fundamental purposes of sentencing as: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for thelaw 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. [35]

Section 718.1 directs that a sentence must be proportionate to the gravity of the offence and the degree of the offender'sresponsibility. [36] Under s. 718.2, other sentencing principles are cited. It is noted that, in imposing a sentence, sentences should be increased orreduced to account for any relevant aggravating and mitigating circumstances relating to the offence or the offender; also, that sentencesshould be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Where consecutivesentences are imposed, the combined sentence should not be unduly long or harsh; and an offender should not be deprived of liberty ifless restrictive sanctions may be appropriate in the circumstances; and all available sanctions other than imprisonment that arereasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenderswith particular attention on the circumstances of Aboriginal offenders.

Conditional Sentences and Conditional Discharges: [37] The terms "conditional sentence order" and "conditional discharge" may have similarities in name and may lead to someconfusion among the general public, but the results are dramatically different. As noted by Chief Justice Bauman, who serves as ChiefJustice of both the Yukon Territory Court of Appeal and the British Columbia Court of Appeal, in the decision of R. v. Samson, [2015]Y.J.

No. 18, 2015 YKCA 7, at paragraph 11, wherein he says, and I quote: A discharge is available when the sentencing judge considers it “to be in the interests of the accused and not contrary to the publicinterest” (s. 730(1)).

A discharge is somewhere between a conviction and an acquittal in the sense that a person who has been granted adischarge has no criminal record and has not been convicted of a criminal offence, but has been found guilty of a criminal offence(Clayton Ruby, Sentencing, 8th ed. (Markham, ON: LexisNexis, 2008) at 414). [38] Thus, the consequences of a conditional sentence order for an offender is that they will have a conviction and hence a record;however, if a conditional discharge is granted, there will be no record of such an offence.

Conditional Sentences: [39] The principles that underlie conditional sentences are set out in s. 742 to 742.7 of the Criminal Code. R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, sets out the proper approach to the application of these principles (see paragraph 127). Some of thoseprinciples that are particularly relevant to this case are as follows: (

a) A conditional sentence is intended to address punitive and rehabilitative sentencing objectives and it should generally includepunitive conditions that restrict the offender's liberty. (b) "Safety of the community" not being in danger, it is merely one of the statutory requirements for imposing a conditional sentence.It is not the primary consideration. The threat of the specific offender must be considered. The sentencing judge must consider the risk ofthe offender reoffending and the gravity of the damage that could ensue. That risk should be assessed in light of conditions that can beattached to the sentence to thereby reduce any risk to an acceptable level. (

c) A conditional sentence is available to all offences in which the statutory prerequisites are satisfied and there is no presumptionthat conditional sentences are inappropriate for specific offences. The gravity of the offence, however, is very relevant to determiningwhether a conditional sentence is appropriate in the circumstances. (

d) Serious consideration should be given to the imposition of a conditional sentence in all cases where the statutory prerequisites aresatisfied, but there is no presumption in favour of a conditional sentence. (

e) Conditional sentences can provide a significant amount of denunciation particularly where onerous conditions are imposed and theterm of the sentence is longer than would have been imposed as a jail sentence. (

f) A conditional sentence can provide a significant deterrence if sufficient punitive conditions are imposed and judges should bewary of placing too much weight on deterrence when choosing between a conditional sentence and incarceration. However, there maybe circumstances where deterrence will warrant incarceration. (

g) When the objectives of rehabilitation, reparation, and promotion of a sense of responsibility may be realistically achieved, aconditional sentence will be the appropriate sanction subject to considerations of denunciation and deterrence. (

h) While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence,conditional sentences may be imposed even if such factors are present. Conditional Discharges: [40] The position that is put forward by defence counsel is that each of these matters is appropriate for consideration of conditionaldischarges and reliance is therefore placed on R. v. Fallofield, (1973) (BC CA), 13 C.C.C. (2d) 450, being the leadingauthority with respect to the granting of conditional discharges.

The test that is outlined in Fallofield is the granting of a discharge must,first of all, be in the interests of the accused and the second leg of the test is that it must not be contrary to the public interest. Fallofielddraws certain conclusions with respect to the application of s. 730 for discharges. They are listed as follows:

1. The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law or the offence is punishable by imprisonment for 14 years or for life or by death. 2. The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or a trivial violation. 3. Of the two conditions precedent in the exercise of the jurisdiction, the first is that the court must consider that it is in the best interests of the accused that he should be discharged either absolutely or upon conditions. If it is not in the best interests of the accused, that of course is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the next consideration into operation. 4.

The second condition precedent is the court must consider that a grant of discharge is not contrary to the public interest. 5. Generally, the first condition would presuppose that the accused is a person of good character without previous conviction; that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him; and the entry of a conviction against him may have significant adverse repercussions. 6.

The context of the second condition, the public interest in the deterrence of others, while it must be given due weight does not preclude the judicious use of the discharge provisions. 7. The power given (by what is now s. 730) should not be exercised as an alternative to probation or a suspended sentence. 8.

Section now 730 should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in the application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstances of the cases. Analysis: [ 41 ] I am directed that I must consider both aggravating and mitigating factors in imposing a sentence. I agree with the mitigating and aggravating factors that have been identified by both Crown and defence.

Aggravating Factors [ 42 ] With respect to the aggravating factors here, there was a significant span of both antisocial as well as dangerous behaviour on the part of the Accused.

The Accused's behaviour and specifically his stealing the Transit bus put the community at significant risk, both in terms of the theft of that bus as well as the driving that apparently thereafter occurred, ultimately ending up with the crash. [ 43 ] There has been a significant financial loss caused by both the theft of the Transit bus as well as the financial damages caused to the B.R. residence. [ 44 ] There is also the significant impact upon the victim, B.R., both emotionally as well as his loss of opportunity for work, having had to go onto sick leave.

He continues, as of the date of the victim impact statement, to be traumatized and highly anxious and fearful of the return of the Accused to his residential premises and with the media attention making him also potentially subject to and the target of other criminal activity. Mitigating Factors [ 45 ] With respect to the mitigating factors, I accept that I have before me a young man who, certainly since the happening of these events and throughout most of his life, has sought to be a productive member of society. He is gainfully employed. He has taken on the responsibilities of supporting his girlfriend.

He has fully complied with the provisions of his release order, which has been in force since May of 2020. He has taken steps to curb his alcohol consumption. He has indicated a willingness to undergo forensic counselling and assessment. [ 46 ] He has honestly taken some positive steps to acknowledge his responsibility both through submissions by defence counsel as well as through his direct submissions to the court and by way of the letter of apology.

He seeks to continue to be gainfully employed and to make a career in the drywall installation business. [ 47 ] Also some reasonable steps have been taken to deal with maintaining a more sober lifestyle and to avoid antisocial behaviour. [ 48 ] I am satisfied, based on the evidence before me, that I am dealing with a young man who comes before this court with no prior criminal record. I am mindful of Crown's submission that there is an indication of an outstanding warrant reportedly for some mischief offence in Alberta. However, the details of that are not before me.

Assessment of Accused’s Personal Factors [ 49 ] The impression I get of this young man is that he is a product of a broken home. He is a young man who has had to cope with loneliness. He made a significant error of judgment leading to his high level of intoxication. I fully accept, as does he, that this does not offer an excuse for his behaviour. He has acknowledged his wrongdoing through entering guilty pleas in February of 2021. [ 50 ] It would have been helpful to have a presentence report to provide additional information about the Accused.

However, through direct submissions to the Court by the Accused, I have gained a better understanding of this young man. He is certainly not someone who can be considered as anything approaching a career criminal. He is a young man who has made a very serious mistake and is paying the price by coming before the criminal courts. [ 51 ] Base on all of the above, I am satisfied that the first condition precedent for a conditional discharge has been satisfied.

[ 52 ] I must then turn to whether or not the second condition precedent, that is being contrary to the public interest is satisfied. When taking into account the public interest, I must take a broad view of what the public interest should be. I am satisfied that it is certainly not contrary to the public interest that a conditional discharge be granted in this case.

In fact, I am of the view that it may very well be in the public interest that this young man is not saddled with a criminal record, which could preclude him from certain aspects of his employment and limit his opportunities to participate fully within the community in years to come, having made a serious mistake.

However, that serious mistake can be certainly acknowledged by way of appropriate conditions attached to a conditional discharge. [ 53 ] I have fully considered Crown's position with respect to a conditional sentence order and, in this case, although it is certainly within the range, for an individual with a different criminal record and with an established propensity of antisocial behaviour, I would fully endorse the use of a conditional sentence order in dealing with this matter.

Conclusions and Disposition [ 54 ] Accordingly, I am of the view that the test in Fallofield is met in this set of the circumstances and that the appropriate disposition will be a conditional discharge. In saying that, I am mindful of the conditions that I intend on imposing upon the Accused in terms of making sure that he has an opportunity for rehabilitation and to give back to the community. [ 55 ] Therefore, I am going to impose upon Dawson Harder terms of probation attached to the conditional discharge. Those will be for a period of 20 months, that is two-zero months.

The terms and conditions will be as follows, and I will draw from the Picklist. [ 56 ] Number 2001: you must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the officer of any change of employment or occupation. [ 57 ] I am going to impose a condition that you are not to attend or be on [omitted for publication] Road, Victoria, British Columbia, during the term of this order. [ 58 ] The reporting conditions will be as follows.

You must report in person, rather I am going to make it: report by way of telephone to a probation officer at - and then if I could have the telephone number, at the Western Communities Probation Office. [ 59 ] THE CLERK: Your Honour, I believe that is 250-391-2850. [ 60 ] THE COURT: Yes, okay. So that will be the telephone number and that is at the Western Community Corrections Office, and then the address on the Old Island Highway. What is that address, Madam Clerk, please? [ 61 ] THE CLERK: Your Honour, the address is 200-1756 Island Highway, Victoria, B.C. [ 62 ] THE COURT: All right.

So, you must report, I am going to say, by 12:00 noon tomorrow, being Friday, April 9th, 2021. If the office is closed, you must continue calling daily during regular business hours until you have spoken to a probation officer and received further direction to report. After that, you must report as directed by your officer. [ 63 ] The next one will be number 2202: when first reporting to the probation officer, you must provide them with the address where you live and your phone number.

You must not change your address or phone number without first notifying your officer in writing in advance of any change. [ 64 ] I want to go back and modify the reporting condition. Please add in where I have said, "After that, you must report as directed," I want that to include: "which may include reporting by telephone at the direction of your probation officer." So I have made it clear that the probation officer may allow telephone reporting which I think is important. [ 65 ] I am going to impose a forensic condition to which, as I understand it, Mr. Harder is consenting.

I am going to do it in two fashions. First of all, Mr. Alberto, so I understand, he is consenting to counselling, but also he is consenting to a psychiatric intake, assessment, or treatment program; is that correct? [ 66 ] CNSL R. ALBERTO: That is correct, yes. [ 67 ] THE COURT: All right. So I am going to put the counselling provision, number 2501: you must attend, participate in, and complete any intake, assessment, counselling, or education program as directed by your probation officer.

This may include, and I am going to put in anger management and I am going to put in alcohol or drug addiction, and the third will be mental health. [ 68 ] I am going to then put in also number 2503: having consented in court, you must attend for a psychiatric intake, assessment, or treatment program through Forensic Psychiatric Services as directed by your probation officer. [ 69 ] I am going to impose a community work requirement. You must complete six-zero, that is 60, hours of community work under the direction of your probation officer.

Your community work service must be completed within the first 18 months of this order. [ 70 ] I am going to impose a no-weapons provision. You must not possess any weapon as defined in s. 2 of the Criminal Code . [ 71 ] I am going to also include the no-knives provision with a modification, to number 2616: you must not possess any knife outside your residence, except for the immediate preparation or eating of food. The exceptions are as follows: (

a) while on your property; (

b) while at work or going directly to and from work, and I am going to say, provided such work has been approved of in advance by your probation officer; if asked, you must provide your probation officer with the details of your location and hours of employment; and then (

c) with the prior written permission of your probation officer, and you must carry the permission which may be in an electronic format when you possess knives outside of your residence. [ 72 ] Now, I am going to pause for a moment. I want to confirm that there is no concerns about the conditions I have outlined with

respect to the terms of probation. [ 73 ] CNSL R. ALBERTO: I do not think so, Your Honour. If I may just check with my client? [ 74 ] Mr. Harder, you heard the conditions that His Honour has decided to put into the sentence order, correct? [ 75 ] THE ACCUSED: Yes, I have. [ 76 ] CNSL R. ALBERTO: Is there anything in there that causes you concern or that you have a question about? [ 77 ] THE ACCUSED: Oh, the first, like he was breaking in and out so I am not totally clear on those, but -- [ 78 ] CNSL R. ALBERTO: Okay. [ 79 ] THE ACCUSED: -- the one with -- I heard the one about the knives.

The one about good behaviour, the first one, and then it went kind of in and out from there. [ 80 ] CNSL R. ALBERTO: Yes, I can go through those. I am going to get a copy of the actual probation order -- [ 81 ] THE ACCUSED: Oh. [ 82 ] CNSL R. ALBERTO: Yes, the order, so I can go through those and I can explain to you what it means, what you need to do in order to deal with the one that deals with knives because he has given you an exception for work-related reasons, but I can go through that with you, okay? [ 83 ] THE ACCUSED: All right, thank you very much. [ 84 ] CNSL R.

ALBERTO: No problem. [ 85 ] THE COURT: All right. Mr. Cheeseman, any additional conditions or concerns about the conditions that I have outlined? [ 86 ] CNSL P. CHEESEMAN: es, Your Honour, there is a concern that he is not barred from drinking alcohol. Crown would suggest that there be at the very least the current condition on his bail which restricts his consumption of alcohol to being inside his residence, that he not be intoxicated in any public place. That is condition 6 of the current release order.

If it is not going to be a total ban on alcohol, at the very least, for the protection of the public, Crown says that should be imposed as part of the discharge. [ 87 ] THE COURT: Any issue with that? [ 88 ] CNSL R. ALBERTO: Well, yes, unfortunately I - I understand Mr. Cheeseman about that. I still think that we do not need it.

He is committing - part of the reason why he is committing to the forensics term, Your Honour, was because you specifically asked what - that you had concerns about what steps he is not taking and so, in my respectful submission, that particular term very squarely addresses the underlying reasons of the drinking. As I said to you during my submissions, there have been no other issues aside from this very issue that we have from May the 13th and 14th ever since then. We do not have anything. There have been no other concerns. So I am saying, no, we do not need that. We definitely need the counselling.

He has to take counselling. He is willing to do the counselling He is willing to do the forensics, and who knows, they may themselves give him particular steps that he need to take. He may even have to start going to AA, I do not know, but I definitely do not think that we should be doing be doing that. Again, I am concerned, you know, the case of R. v. Zora , I am concerned about creating a condition that may have a very -- the ultimate result of it may be just setting up the accused for breaches and I have that concern.

Those would be all my submissions. [ 89 ] THE COURT: Well, here is what I am going to do, I am mindful of both submissions, but I am going to impose one further condition and that is you must not be intoxicated in any public place and the brackets will be, ("Any place except inside your residence"). Given the circumstances surrounding this offence, I think that that is both rehabilitative in nature and, also, is protective of the larger community.

I am mindful, of course, quite hopefully, he will be receiving counselling with respect to those issues. [ 90 ] Now, I am going to - I am going to be making the standalone restitution orders. So, Madam Clerk, this is looking at the ancillary orders in the Picklist, the restitution order is found on page 10 if you have that. It is under the heading, "Restitution." [ 91 ] It will be pursuant to s. 738 of the Criminal Code .

I order that you, Dawson Harder, will pay restitution in the amount of $1,690 to the clerk of the court for the benefit of B.R., and that amount is to be paid within four months of today's date. [ 92 ] I am going to make a second restitution order and then, pursuant to s. 738 of the Criminal Code , I order that you pay restitution in the amount of $1,804.65 to the clerk of the court for the benefit of BC Transit. [ 93 ] Mr. Cheeseman, is it BC Transit Authority? Is that the formal name or will BC Transit be sufficient? [ 94 ] CNSL P.

CHEESEMAN: Your Honour, I believe BC Transit is the name. [ 95 ] THE COURT: All right. So, BC Transit and that will be within 12 months of the date of this order. [ 96 ] Then I am going to make a final restitution order and that is, pursuant to s. 738 of the Criminal Code , I order that you pay restitution in the amount of $3,911.44 for the benefit of Crawford & Company (Canada) Inc., and that will be within 19 months of the date of this order. [ 97 ] With respect to the victim fine surcharges, I am going to give Mr. Harder 14 months to pay the victim fine surcharges.

[ 98 ] Now, I am a little concerned about the fact that Mr. Harder says I was apparently breaking up as I was giving him the conditions. I think it is important, rather than relying simply on oral confirmation that he understands, I am going to direct that he must attend the court registry tomorrow at Western Communities before 11:00 a.m. for the purposes of signing the document.

I would normally waive this requirement to attend there, but he apparently was not hearing some of the conditions as I was imposing them; he can get there before eleven o'clock, or he can do it first thing in the morning, but he is to attend at the Western Communities courthouse for the purposes of actually signing the document, and he can also, I guess, if he chooses to, he can attend in person at the probation officer at the same time. [ 99 ] CNSL R. ALBERTO: And report on that time, Your Honour? [ 100 ] THE COURT: Yes. [ 101 ] CNSL R. ALBERTO: Your Honour, I had a question.

Are you going to be asking that the reasons be provided to us in writing or are you - just wondering. [ 102 ] THE COURT: I will order a transcript. [ 103 ] CNSL R. ALBERTO: Thank you. [ 104 ] THE COURT: Madam Clerk, order that on a 10-day basis, please. [ 105 ] THE CLERK: Yes, Your Honour. [ 106 ] THE COURT: Okay. [ 107 ] CNSL P.

CHEESEMAN: Crown directs a stay of Count 1 on Information - the outstanding information, Count 1, Your Honour, I believe it is two - I have lost the file here, but the charge of possession of a weapon for a dangerous purpose. [ 108 ] THE COURT: Yes, that is Count 1 on Information 22145-1. [ 109 ] CNSL P. CHEESEMAN: Thank you, Your Honour. [ 110 ] CNSL R. ALBERTO: Yes, thank you. [ 111 ] THE COURT: The stay is recorded. Anything further? [ 112 ] CNSL R. ALBERTO: Not from me, Your Honour, thank you very much. [ 113 ] CNSL P. CHEESEMAN: No, Your Honour. [ 114 ] THE COURT: All right. Mr.

Harder, good luck in terms of dealing with some of the underlying issues that may have caused this very unfortunate incident and I wish you well in your career. I thank Madam Clerk for her indulgences in allowing me to complete my reasons for judgment without having to reserve. All right, thank you. [ 115 ] CNSL R. ALBERTO: Thank you very much. [ 116 ] CNSL P. CHEESEMAN: Thank you. [ 117 ] CNSL R. ALBERTO: and I thank my friend. [ 118 ] THE CLERK: Your Honour -- [ 119 ] THE ACCUSED: Thank you very much for your time. [ 120 ] THE CLERK: -- just -- [ 121 ] THE COURT: Yes.

Yes, Madam Clerk? [ 122 ] THE CLERK: And the orders are made, that was on all the counts? I was just confused about that. [ 123 ] THE COURT: Oh, yes, well, good point. The conditional discharge will apply to all counts to which guilty pleas have been entered. [ 124 ] THE CLERK: Thank you, Your Honour. [ 125 ] THE COURT: Okay, and the restitution orders as I have outlined, those are standalone orders. They are not part of the terms of the conditional discharge. (REASONS FOR SENTENCE CONCLUDED)