R. v. E. Date:, 2012 BCPC 494

Citation: R. v. E. Date: 20121121 2012 BCPC 0494 File No: 226273-2-B Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.P.E. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE MEYERS Counsel for the Crown: B. Wolfe Counsel for the Defendant: M. Cheema Place of Hearing: Vancouver , B.C. Date of Hearing: November 21, 2012 Date of Judgment: November 21, 2012

[ 1 ] THE COURT: Mr. E., you are charged with two counts on this Information, as you know. The first count is September 10, 2012, in Vancouver. You breached your Recognizance condition in that you were to immediately advise the probation officer of any intimate or companionship relationship with a female person and refrain from continuing that relationship until that female person had been advised of your criminal record in the presence of the probation officer.

That is contrary to s. 811 of the Code . [ 2 ] The second offence occurs between the dates of June 16, 2012, and September 10, 2012, inclusive, in Vancouver. Again, being bound under a Recognizance, you failed to comply with the condition that you shall not own or possess any computer system within the meaning of s. 342 of the Code , nor any other devices capable of accessing the Internet, including cells or Personal Digital Assistant; an exception - you may use a public computer to either send emails or use Facebook provided you get the approval in advance.

You also had to give your probation officer access to the computer Facebook to verify both the contact and nature of any contact, with any persons you are communicating with from time to time. If the probation officer decided that a relationship constituted a risk to yourself or others, you had to end the relationship. [ 3 ] So we have those two counts, one specifically related to September 10, 2012, the other one ranging over a period of time, 16 June to December 10, 2012. [ 4 ] By way of a little bit of background, Mr. E. was sentenced to five years in prison as a result of a conviction for a break and enter.

The Court then, presumably reviewed the facts of that case and Mr. E.'s past history of criminal behaviour. In June of 2007, he was sentenced on that break and enter to five years in prison. He was given credit for the equivalent of one year pre-sentence custody, so whether that was five new years or just four new years, I am not sure, but in any event, what ends up happening is, that the time for his release rolls around, in May of 2012, I think? [ 5 ] MR. WOLFE: Pardon me? [ 6 ] THE COURT: 2012? [ 7 ] MR. WOLFE: For? [ 8 ] THE COURT: His release? [ 9 ] MR.

WOLFE: I believe he was released twice actually. [ 10 ] THE COURT: May of 2011. Right. Thank you. So he was to be released in May of 2011. What happened then is the release took place into the community. He is put on a s. 810 Peace Bond. Now, am I correct that he went back into jail again after that? Is that -- [ 11 ] MR. WOLFE: Well, there -- [ 12 ] THE COURT: After 2011 when he got out? [ 13 ] MR. WOLFE: He was suspended most recently in February of 2012 when he attempted to contact an 18-year-old female via the Internet. [ 14 ] THE COURT: Okay.

But after he got out in May of 2011, where did he go after that? [ 15 ] MR. WOLFE: Well, he would have been under staff -- he would have been on parole, and I presume he would have been at -- [ 16 ] THE COURT: Okay. And until when is it that he finds himself in trouble again? [ 17 ] MR. WOLFE: When his parole is suspended in February of 2012. [ 18 ] THE COURT: Okay. Thank you. Was there trouble between May of 2011 when he got out and when the parole is ended in 2012? [ 19 ] MR.

WOLFE: Oh, no, there was the suspension in 2012, in February, and then his -- and then his warrant expiry was in June of 2012. [ 20 ] THE COURT: But from February until when is he back in jail? February of 2012 till when? [ 21 ] MR. WOLFE: May. [ 22 ] THE COURT: May, I think, or June, yes. All right. Thank you. So let me start a little bit over by saying that as a result of those substantive jail terms, he is on parole. He is released. He is on parole, the parole is suspended, and then in May of 2012 he is released from jail.

What happens then is, as a condition of the release, there is a Committee that looks at risk factors and makes recommendations, if they see fit, to the Crown counsel to ask or require that the individual go on an 810 Recognizance, and they suggest certain conditions that they believe to be the ones that should be in place. [ 23 ] The Committee here read a letter from Dr. Monkman, considers his past, and recommends to the Crown in May of 2012 that he be put on a Recognizance with strict conditions, including the two that were breached.

He enters into that Recognizance and then what happens is, within several days of entering into the Recognizance, on June 16, 2012, he ends up violating the provisions in the Recognizance. [ 24 ] One of the important things to note here is that when one looks at Mr. E.'s background and record, it is very long. It starts in

1983 and continues during the eighties with B&Es, multiple B&Es, thefts, escape lawful custody, more B&Es, attempt B&Es, more B&Es, and then he gets into the nineties, and in the nineties, again, what happens is more B&Es resulting in an 18-month sentence in Kelowna in 1990 and then he gets committed back to the prison for a parole violation in 1990. [ 25 ] Then we hit 1991 and he is off and running again with B&Es in Vernon in 1991. He gets two years consecutive to what he was serving. 1995 in Vernon again, some more B&Es; he gets six years.

Then later, in 1996, another B&E; he gets a year concurrent with what he is doing. 2000, a forcible confinement charge. 2004, an assault. Then in 2005, in Abbotsford, failing to comply with recognizances, possession of stolen property.

Then going into 2005, this time in Kelowna, another breach, B&E, possession of controlled substances, another failing to comply, and that gets him about two years' incarceration. [ 26 ] We then move to 2007 in Kelowna, and that is where he commits the offence of B&E and he gets five years. [ 27 ] It should be noted that the Crown have said that his background criminal offences, are the underlying reasons that he ended up being put on the Recognizance.

It is not a typical Recognizance where we have a person, say, who is convicted of or about to be convicted of a common assault and, instead, he is put on a Peace Bond type of Recognizance. This is very different. Here, the Crown looks at his whole history and the risk analysis. They want to control the behaviour of somebody who has been a multiple problem for society and himself over many, many years.

The Crown says you have to look at the underlying offences as a background to what we are trying to prevent here. [ 28 ] Defence counsel had argued that with respect to these two breaches, they are not of the most serious kind because there were no substantive offences tied up with it.

It is not as if there was an unlawful confinement or another B&E or anything of that nature, and defence says that I have to view and should decide the sentencing here, as reflective of what crime was actually committed and that if I do that, I should be looking on the lower end of what a suitable punishment, an appropriate punishment would be. [ 29 ] The Crown says that if you look closely at some of his background, one would see that on past occasions, albeit 2004, I think, and the year 2000, he was involved with tying up a realtor, two realtors, I think, in total, and then also with tying up an art gallery owner.

In each of those instances, it was extremely serious and obviously very threatening to the people who were involved. He has a history of violent offences, but defence says that that has not been occurring in the last seven or eight years, but when one looks at his record, it is because he has been in jail most of the time. [ 30 ] The Crown provided a number of cases which are relevant to this consideration. I am not going to give all the cites to them but simply the names and the court: Lanferman , 2011 B.C. Court of Appeal; Major , 2007 B.C. Court of Appeal; Teneycke , 2007 B.C.

Provincial Court; Perdomo , 2007 B.C. Provincial Court; Major , 2006 B.C. Provincial Court; Manzie , 2006 B.C. Provincial Court; Bambrick , 2011 Newfoundland and Labrador Court of Appeal; Ballantyne , Saskatchewan Court of Appeal 2009; and Lopatriello , 2010 Alberta Provincial Court. [ 31 ] It is important to note from comments made in a couple of those cases, that will help understand what sentencing is all about on this type of breach of Recognizance.

Quoting from the trial decision in Perdomo from Her Honour Judge Bagnall's decision, bearing in mind, though, that that was appealed and reduced somewhat by the Court of Appeal. They did not comment negatively on her review of the conditions to be considered when sentencing a person on circumstances as we have here in the case at Bar. Judge Bagnall, at page 2 of that decision, [2007] B.C.J. No. 1220, says, at paragraph 8 : The purpose of this kind of recognizance is to prevent further violence on the part of the offender.

Failure to comply with the conditions of the recognizance, in theory, puts the community at risk of further criminal acts of the offender. [ 32 ] She goes on at paragraph 10 quoting from a B.C. Court of Appeal case in 2004, S.J.D. , saying: However, the gravity of an offence under s. 753.3 must be measured with reference not only to the conduct that gave rise to the offence, but also with regard to what it portends in light of the offender's entire history of criminal conduct.

To consider only the moral turpitude associated with the sort of innocuous conduct that [that section] renders criminal . . . is not a useful way to gauge the appropriate sentence for breach of a long-term supervision order ... [ 33 ] They then go on to quote a passage from the B.C. Court of appeal as well: As a result, the breach of a

section 810.2 recognizance must be seen as a particularly serious matter and the sentencing principles of specific and general deterrence are of a heightened importance as the community faces a potentially significant risk to the safety of its members when a person bound by a

section 810.2 recognizance fails to comply with it. The community's safety can best be achieved by imposing sentences which ensure that those bound by a

section 810.2 recognizance clearly understand that a breach of such an order will consistently result in considerable periods of imprisonment being imposed. [ 34 ] She goes on at paragraph 17 and 18 to say: 17 The breach here at first glance appears to be a minor one. It was failing to report to a probation officer, which is not ordinarily seen as a serious crime, but I have tried to explain that, given the nature and purpose of the recognizance, this failure to report must be viewed as much more than a technical breach.

18 Many of the conditions attached to the recognizance, which had as their purpose obtaining [the accused's] good conduct in the community, would have been utterly defeated by his failure to report to his probation officer on a regular basis as directed. This must, therefore, be viewed as a serious matter. Having said that, it is not as serious as the breaches involved in those other cases that have been referred to by the Crown. [ 35 ] I have read that out because those are the guiding principles that are in this case for the sentencing of Mr.

E. [ 36 ] The Crown have reviewed the cases and sentences imposed on this type of breach, and they run from nine months to just under three years of incarceration. The Crown have considered those cases and a number of mitigating factors and have asked the Court to consider imposing a sentence of nine months in jail which the Crown says, in their opinion, is at the very low end of the range. I agree with Crown that that is on the low end of the range. [ 37 ] Defence counsel has asked for three to five months being the incarceration time.

Both counsel ask for a two-month credit for the time he has served in jail awaiting this sentence. [ 38 ] The mitigating factors that are talked about are the fact that he turned himself in as soon as he knew there was a warrant out for him. He pled guilty at the first reasonable opportunity. He also allowed the court and the justice system to save a number of days, which otherwise which would have been devoted to a trial. He also saved several women the experience, always negative, of having to testify in court. So those were the mitigating factors that the Crown saw.

Added to that, of course, is the defence argument that there is no substantive offences committed here. That does not exonerate, obviously, but it makes it a little less serious than if he had breached the conditions and had committed some further serious offences. [ 39 ] The type of behaviour that was part and parcel of the conditions of the Recognizance, was designed to keep him away from people that did not know him and would not be aware of his past. He was prohibited from using the Internet or any other electronic facilities to meet people.

He was put on conditions that was carefully crafted with a view to not letting him get access to Facebook or any sites for meeting unsuspecting females in particular. He was also to report to his probation officer should he start any of kind of friendship or intimate relationship with any other woman, and he was to tell that woman about his background and about the Recognizance. He was to, of course, tell the probation officer who would either say go ahead or stop it immediately. [ 40 ] What happened is, he decided on his own, to start communicating with people by trying to enter into their Facebook.

Generally speaking, he was deceptive in ways that he would calculate he could meet the people without having to disclose who he was, what his background had been, and that he was under this type of probation order.

What he did was, he would attempt to infiltrate Facebooks of other women by indicating that he was looking for a long lost relative, and he would talk about himself in ways that were deceitful: that he was working, that he had a dog, that he had a car, that he had a motorcycle, and at no time, really, was he prepared to disclose anything about his true identity and obviously for fear that the probation officer would find out about it or the police would and he would end up getting breached. [ 41 ] Through the efficiency of his Probation Officer and the police, his activities were halted, a warrant went out for his arrest, and here he is. [ 42 ] So there were the issues of deceitfully using, and using contrary to the Recognizance, the Internet and Facebook to make these contacts with these unsuspecting other women.

Then there was another woman who was involved on a friendship or intimate basis with him, which his Probation Officer was not told about. [ 43 ] The defence says, well, one of the things to consider is he did not commit any more crimes, but I think that forgets about the fact that the police and the probation officer intercepted him before he could go any further on what could have been further crimes. [ 44 ] When Dr. Monkman went over his history and background and did testing to see what kind of risk assessment he was, that risk assessment was that Mr. E. would be a moderate to high risk to re-offend.

That is the very harsh reality of the situation that the Court has to deal with in terms of Mr. E. [ 45 ] Mr. E., by his own counsel's submission and by the Crown's and Mr. E. himself, has become institutionalized by virtue of spending most of his life in penal institutions.

By "institutionalized", what that means is that in an institution, others decide what you are going to do and when you are going to do it and for how long you are going to do it, be it exercise, eating, entertainment, whatever, whereas, if somebody is on the outside, they have the freedom to decide what they are going to do and when they are going to do it. When he is inside, apparently, with all of these structures in place for him, he has no real decisions nor power to do anything different, and he goes along without there being any problems. However, when he is released, he does not have those controls.

He is on his own virtually to decide what he is going to do, when he is going to do it, where he is going to do it. What happens is, it is not healthy for either him or for society if his impulses and lack of ability to control and organize his life, are left in place. [ 46 ] He has had a long history of drug usage. Through his counsel he says that was resolved that five years ago. That may or may not be.

Certainly, it is resolved most of the time, probably while he is in prison, but whether that would be the case when he is outside, who knows? [ 47 ] The conditions that were put in place were, as I said, to protect other people in society in terms of him being under control and not violating the conditions. When the probation officer who was supervising him, Ms.

Jodi Webber, wrote a letter on November 1, 2012 in anticipation of this breach, she writes as follows [as read in]: The writer understands it was Crown's intention initially to allow access to email and Facebook in order to avoid isolation and increase pro-social access for Mr. E. Mr. E.'s activities on Facebook indicate a pattern of soliciting contact with unknown females. This communication is manipulative in that he often pretends to be a different person in order to gain the trust of these females. It does not appear that the subject used Facebook for the purpose it was intended.

The writer is of the belief that allowing this condition to remain

would increase Mr. E.'s risk. He was having contact with females both in person and on the Internet and denying such to his probation officer. It appears that Facebook not only allowed Mr. E. to gain access to potential vulnerable victims, it also allowed him to be deceptive to these persons. Although there is no provision allowing the probation officer to have access to the Facebook account, this is not foolproof and there does not appear to be a positive gain by allowing access to this social network. [ 48 ] The Crown proceeded by way of Indictment.

The cases that were on the lower end of the spectrum had to do with cases where there were breaches of these types of Recognizances when there was a background of sexual offences by the offenders. One of the cases was Major and the other case was Manzie , both accused, having backgrounds of sexual assaults, and when the 810 was put into being, it was to keep them seeing probation officers or away from women. Breaches of those recognizances took place by non-reporting and the non-adherence to the conditions, not by committing new substantive offences.

In those cases, the lower end of the spectrum was utilized for sentencing. [ 49 ] I am told by counsel that Mr. E. had a very difficult upbringing in terms of relationships with parents along with way. I was not given a lot of detail, or almost no detail, about exactly what those issues were. Of course, difficult upbringings can be minimal to very serious. I am giving Mr. E. the benefit of the doubt that his were very serious while he was growing up. He was not provided with the love, care, structures that others have had.

He ends up the way he is through things that happen in utero , after birth, all during his life. Here he is at 47 with some things he is not responsible for in his character, other things that he is, but nonetheless, here he is at 47 and I have to decide what to do by way of balancing the needs and interests of society and the needs and interests of Mr.

E. [ 50 ] The Crown have asked for a minimum of nine months to a maximum of 15 months, and as I said, defence have said three to five would be suitable. [ 51 ] In this particular case, it is my view that 10 months is what is required in following the case law, as well as the particular circumstances surrounding Mr.

E.'s background, the backdrop of the type of offences we are trying to prevent and the very speed which these breaches occurred, that is, within a week of signing the 810 Bond. [ 52 ] He has served two months in custody, and I am prepared to give him, on a one-to-one basis, credit for two months, so that the new time will be eight months.

Following that, there will be a two-year probation period with conditions that I wish to discuss at this time with both counsel. [SUBMISSIONS RE TERMS OF PROBATION ORDER] [ 53 ] THE COURT: Eventually, you are going to get out again, and you know, all going well, you will have another 20 years of life ahead of you, and hopefully, you can do something for yourself and not hurt anyone else. We are not throwing away the key and stuffing you in the jail, but for a period of time, the public has to have some protection from you.

You have not been able to do that on your own insofar as controlling things when you got out. [ 54 ] I am not sure what there is inside the institutions to give you the treatment programs which you need to help you in dealing with all the old issues, but unless they are done away with, unfortunately, when you go out, you do not control yourself. It is not good for you, and it is not good for others. [ 55 ] So the usual probation conditions will be keeping the peace, being of good behaviour, seeing probation officers, taking counselling, and so on.

I know that both of you have other things to do this afternoon, but I would like -- it does not have to be anything fancy, but just draft out what conditions of probation would meet what we have been talking about. I think that from what I have heard, the modified suggestions that Mr. Wolfe has made with your comments in there, Ms. Cheema, would probably allow you fairly quickly to do a scissor-and-glue job for the conditions that I proposed, Mr. Wolfe proposed, and the P.O. proposed, together with what was already in place from before on the former Probation Order and Recognizance. [ 56 ] All right.

So can we have you come back a little later today? [ 57 ] MS. CHEEMA: I have nothing else on my calendar for the remainder of the day. [ 58 ] THE COURT: Okay. [ 59 ] MR. WOLFE: I have a bail hearing in 101. It will be brief. [ 60 ] THE COURT: All right. [ 61 ] MR. WOLFE: Then I can see my friend. [ 62 ] THE COURT: All right. If you could do that and then come back. [ 63 ] MR. WOLFE: Did you want full conditions or just ones -- [ 64 ] THE COURT: Just the relevant ones here because the other ones will be the standard ones. [ 65 ] MR.

WOLFE: Yes, I think -- and so I can tell you right now, Your Honour, that the conditions that I will offer up will be very minimal to avoid a conflict with those on the 810.2. [ 66 ] THE COURT: All right. (PROCEEDINGS ADJOURNED)

(PROCEEDINGS RECONVENED) [DISCUSSION RE TERM OF PROBATION ORDER] [ 67 ] THE COURT: All right. Thank you. What the conditions will be then, and there is just some very minor change here, the conditions will be: 1. Keep the peace; be of good behaviour; come to court if and when required to do so. 2. Report to a probation officer "in person," I have added, at 275 East Cordova Street, Vancouver, B.C., by 4 p.m. on the first working day following your release from custody, thereafter as and when directed by your probation officer, including in relation to the s. 810.2 Recognizance by which you are currently bound. 3.

You shall reside in a place approved, and I have added, "in advance" by your probation officer and not change that residence without the prior written permission of the probation officer. 4. You shall not own or possess any computer system -- [ 68 ] I was going to say, you shall not own, possess, or use, just to make it perfectly clear, given that possess has some legal definition sometimes. 4. You shall not own, possess, or use any computer system within the meaning of s. 342.1(2) of the Code or any other device capable of accessing the Internet, including cellular phones or personal digital assistants (PDAs).

As an exception, you may use a public computer to send emails related to potential or actual employment, blood-related family members, or other person approved of by your probation officer provided that in advance you give the names and contact emails and provide access to the probation officer to verify both the contact and nature of the contact with the persons you may communicate with from time to time. If the probation officer decides that the contact or relationship constitutes a risk to yourself or others, you shall end that contact or relationship. 5.

You are prohibited from accessing directly or indirectly Internet social networking websites, including but not limited to Facebook, Twitter, Google+, Flickr, Lavalife, or any other social networking site. 6. You will carry a copy of your Probation Order on your person at all times. [ 69 ] Is that probation order and -- I guess it is just probation order. [ 70 ] MR. WOLFE: Oh, this -- a copy of this probation order? [ 71 ] THE COURT: Yes. [ 72 ] MR. WOLFE: Yes. [ 73 ] THE COURT: Okay. 6. You shall carry a copy of this Probation Order on your person at all times. [ 74 ] THE COURT: All right.

Is there anything else, then, that we should -- oh, are we going to put anything about counselling in there or not? [ 75 ] MR. WOLFE: Well, if I can just look at the -- [ 76 ] THE COURT: Because you do not have that in there. [ 77 ] MR. WOLFE: I think it's already covered off, if you'll bear with me. Condition 7, the 810.2: You shall attend and participate in assessments, including assessments to determine your risk to re-offend, counselling, or programming as may be directed by the probation officer -- [ 78 ] THE COURT: When will that end though? [ 79 ] MR. WOLFE: June 10, 2014. [ 80 ] THE COURT: All right.

I think that is all we have to do on that. Okay. That will be for you to sign; all right, Mr. E.? That's it. Okay? [ 81 ] MR. WOLFE: And the victim fine surcharge may be waived. [ 82 ] THE COURT: That is waived, yes. [ 83 ] MS. CHEEMA: No further submissions. Thank you, Your Honour. [ 84 ] THE COURT: All right. Thank you. [ 85 ] THE CLERK: Your Honour, is that an undertaking or an OR? [ 86 ] THE COURT: For which? Oh, that was part of the probation order.

[ 87 ] MR. WOLFE: That's a two-year probation order. [ 88 ] THE CLERK: Okay. [ 89 ] THE COURT: Yes, okay. Yes, you came in in the middle. It is a two-year Probation Order following his time in jail. [ 90 ] All right. Good luck, sir. (REASONS CONCLUDED)