R. v. Whipple, 2022 BCPC 213

Citation: R. v. Whipple 2022 BCPC 213 Date: 20220830 File No: 245849-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. GARY ALLEN JOSEPH WHIPPLE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE V. CHETTIAR Counsel for the Crown: S. McCallum Counsel for the Accused: R. Kandola Place of Hearing: Surrey , B.C. Date of Hearing: July 8, 2022 Date of Sentence: Aug. 30, 2022

INTRODUCTION [ 1 ] On July 8, 2022, Mr. Gary Allen Joseph Whipple pled guilty to the following Count 1 on Information No. 245849-1: Gary Allen Joseph WHIPPLE, on or about the 14 th day of May, 2021, at or near Langley, in the Province of British Columbia, did commit assault of James Barich, contrary to

Section 266 of the Criminal Code . [ 2 ] The Crown seeks a fine of $1,000 and a one-year probation order with certain conditions. Alternatively, if Mr. Whipple is unable to pay the fine, the Crown submits a suspended sentence and a one-year probation order, including 25 hours of community work service, is an appropriate disposition in Mr. Whipple’s case. [ 3 ] The Crown also seeks two ancillary orders: a five-year firearms prohibition order under s. 110 of the Criminal Code , R.S.C., 1985, c. C-46 ; and a DNA order under s. 487.051(3) (

b) of the Criminal Code , on a secondary designated offence basis. [ 4 ] The defence submits that a conditional discharge and an 18 to 24-month probation order with protective conditions is appropriate in Mr. Whipple’s case. It opposes the ancillary orders the Crown seeks. [ 5 ] The issue I have to decide is: what is a just and fit sentence for Mr. Whipple, taking into account the circumstances of the offence, Mr. Whipple’s personal circumstances, his moral blameworthiness, the principles of sentencing, and the proportionality to the offence and Mr. Whipple?

CIRCUMSTANCES OF THE OFFENCE [ 6 ] On May 14, 2021, at or about 11:00 a.m., Mr. Barich went out to walk his dog. He crossed from the north to the south side of Robertson Crescent, in Langley, British Columbia. This is a two-lane paved rural roadway that has a gravel shoulder. [ 7 ] As Mr. Barich crossed the road, he was almost struck by a westbound vehicle driven by Mr. Whipple. Mr. Whipple slammed on his brakes, leaving a black skid mark on the roadway. Mr. Barich yelled at Mr. Whipple stating words to the effect, “why Mr. Whipple came so close to Mr. Barich, and what was Mr.

Whipple’s problem”. [ 8 ] It appears that Mr. Whipple came after Mr. Barich with his fists up. Mr. Barich retreated, but Mr. Whipple headbutted Mr. Barich while Mr. Barich was still on the roadway. Mr. Barich put up his arms, but Mr. Whipple again came at Mr. Barich; so, Mr. Barich kicked out at Mr. Whipple. [ 9 ] Mr. Barich and Mr. Whipple do not know each other. The Crown described this as essentially a “stranger attack”. [ 10 ] There were two witnesses to this incident. [ 11 ] A neighbour, Ms. Brieanna Armstrong, who had heard the tires squealing from the sudden breaking, came out and saw Mr.

Whipple yelling, screaming, and gesturing aggressively several times, as if he was going to punch Mr. Barich. She saw Mr. Barich walking backwards and retreating from Mr. Whipple. She said Mr. Whipple kicked at and headbutted Mr. Barich. [ 12 ] Ms. Jodi Higgs, who was driving westbound behind Mr. Whipple’s vehicle, told police that she saw Mr. Whipple almost hit Mr. Barich, and Mr. Barich gestured with his middle finger towards Mr. Whipple’s vehicle. She said, at that point, Mr. Whipple slammed on his brakes, got out of his vehicle, ran at Mr. Barich, and headbutted him square in the head. As soon as she saw Mr.

Whipple headbutt Mr. Barich, she yelled at Mr. Whipple to “stop it”. As Mr. Whipple again went after Mr. Barich, she began to record the incident with her cell phone. Her brief recording is in evidence. [ 13 ] Ms. Higgs said, Mr. Whipple then returned to his vehicle, calling Mr. Barich, “a fucking baby boomer coward”, as Mr. Barich would not fight Mr. Whipple. Mr. Whipple then drove away. [ 14 ] Both witnesses described Mr. Barich bleeding from his face and nose area. They then called the police. The police observed Mr.

Barich had three small fresh cuts on his nose and forehead area, and they looked red and swollen. [ 15 ] Mr. Barich was 63 years of age at the time of this incident. He was shaken, but he declined medical attention. [ 16 ] The police tracked down Mr. Whipple from his vehicle license plate that was captured in Ms. Higg’s video recording. A few hours after the incident, Mr. Whipple was located at his residence. Mr. Whipple initially denied being involved in the incident, but later told the police officer investigating the incident that he was the one who was assaulted.

He declined to provide any formal statement to the police, but maintained that it was Mr. Barich who came after him. He told the police that Mr. Barich kicked him in the balls, threw things at him, and that he only pushed Mr. Barich one time with his hand on Mr. Barich’s chest. He also told the officer that he is glad that he is not a Canadian, as Canadians are a “bunch of wimps”. He is clearly heard on the video calling Mr. Barich a “fucking baby boomer coward”. [ 17 ] Mr. Whipple was subsequently charged on August 12, 2021, and released on August 19, 2021 on a Release Order, with protective conditions.

CIRCUMSTANCES OF THE OFFENDER [ 18 ] Mr. Whipple is 54 years of age. He was born and raised in Langley, British Columbia. He also lives in Langley, British Columbia.

[ 19 ] Mr. Whipple worked as an ambulance driver for over a decade. He had ambitions of pursuing a career in the medical field. However, he gave up this ambition after his second child. He has since worked in the construction field, including soffit contracting on Vancouver Island. [ 20 ] After his divorce, Mr. Whipple’s life became “upside down”. He was the primary caregiver for his three children. He has been unable to work at a steady job since 2010. He does odd labour jobs such as painting, construction, and the like. His children are on their own now. He is looking for work now. [ 21 ] Mr.

Whipple has family in the United States of America (the “US”) that he regularly visits, and he wants to be able to continue to do so. [ 22 ] Mr. Whipple has faced the criminal justice system on three prior occasions. First, in 2000 for an assault, for which he received a conditional discharge and an 18-month probation. Second, in 2011 for another assault, for which he received a conditional discharge and a 12-month probation. The victims in these two assaults were different individuals.

Third, on October 31, 2001, he entered into a one- year peace bond as a result of an incident that occurred on December 29, 2000. The Crown says that this incident took place in White Rock, BC, when Mr. Whipple was residing in Langley, BC, at that time. The Crown says this incident is not dissimilar to the index offence where Mr. Whipple was yelling threats at another male. [ 23 ] The defence points out that while Mr. Whipple’s prior offences are similar in nature to the index offence, namely assaults, they are limited and dated. VICTIM IMPACT [ 24 ] There is no formal victim impact statement from Mr. Barich.

The Crown tried to reach out to him, but was unsuccessful. However, I note that Mr. Barich was, as the Crown put it, “shaken up”, and he did sustain cuts to his face and was bleeding, as a result of this incident. PARTIES’ POSITION The Crown [ 25 ] The Crown says the principles of denunciation and deterrence are the primary considerations in this case. It says while rehabilitation is still an important factor for the court to consider, it should not be a primary consideration, as it would be for a first time offender. The Crown points out that Mr.

Whipple has, in the past, been placed on probation conditions, including counselling, to address his anger management and other underlying issues. [ 26 ] As I said, the Crown seeks a $1,000 fine and a one-year probation order, or a suspended sentence and a one-year probation order, including 25 hours of community work service. It also seeks the two ancillary orders I mentioned. [ 27 ] With respect to the potential collateral consequences of the disposition the Crown seeks, it relies on the case, R. v. Pham , 2013 SCC 15 (“ Pham ”). The Defence [ 28 ] The Defence submits that according to Mr.

Whipple, while he was driving, it was Mr. Barich who darted out onto the roadway, which was not a crosswalk. Mr. Whipple got out of his vehicle to speak to Mr. Barich after Mr. Barich gestured at him. Unfortunately, the situation got heated, and the two of them were yelling at each other and they both had their hands up. According to Mr. Whipple, it was Mr. Barich who tried to kick Mr. Whipple and said, “people like you should be dead”. In a moment of heightened tension, Mr. Whipple reacted impulsively, and then removed himself from the situation. [ 29 ] The Crown disagrees with Mr.

Whipple’s version of what happened, in light of the two witnesses’ statements, the video recording, and Mr. Whipple’s statement to the police about Canadians being “wimps”. The Crown says, and I agree, that the evidence indicates that Mr. Whipple was the aggressor, as he verbally and physically attacked Mr. Barich, a total stranger to him. [ 30 ] The defence says that Mr.

Whipple, in spite of his limited financial means and on his own accord, has attended counselling at Crossroads, in Langley, BC, to gain insight into his actions and to learn skills to regulate his emotions. [ 31 ] The letter in evidence, dated March 8, 2022, from Ms. Stacey Zimmermann, Counselling Intern, at Crossroads, states in part, as follows: I have seen Mr. Garry Whipple over four 50 minutes sessions as of today’s date. Mr. Whipple has always arrived at his appointments early, never rescheduling or cancelling. . . . Mr. Whipple was attentive and interacted with the content. At his sessions I observed Mr.

Whipple’s genuine interest and determination to work through areas of his current life that need improvements. [ 32 ] The defence says Mr. Whipple is seeking a conditional discharge because a conviction on his record “may potentially” result in an entry ban by the US border officials. [ 33 ] The defence submits that a conditional discharge is in Mr. Whipple’s best interests, and is not contrary to the public interest. It says a lengthier probation order with protective conditions for Mr. Barich can satisfy the public interest. It says it would keep Mr.

Whipple under community supervision for a longer period to ensure his rehabilitation becomes firmly rooted, and provide a longer period during which Mr. Whipple would be subject to having his discharge revoked. [ 34 ] In support of its position, the defence relies on two cases : R. v. R.A.R. , 2016 BCPC 276 (“ R.A.R. ”), and R. v. Li , 2019 BCSC 648

(“Li”). PURPOSE, OBJECTIVES AND PRINCIPLES OF SENTENCING [35]

Section 718 of the Criminal Code states that: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respectfor the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

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 acknowledgement of the harm done to victims or to the community. [36]

Section 718.1 sets out the fundamental principle in sentencing. It states that “[a] sentence must be proportionate to the gravity ofthe offence and the degree of responsibility of the offender.” [37]

Section 718.2 sets out other sentencing principles that a sentencing judge must take into account in imposing a sentence. It states,in part, as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, . . . (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; . . . DISCUSSION [38] I agree with the Crown that denunciation and deterrence are the primary principles I must consider in this case. Rehabilitation isalways a consideration in sentencing. [39] Rehabilitation of Mr.

Whipple can be addressed in the probation conditions, which the parties do not disagree. [40] The main contention in this case is whether a conditional discharge is appropriate. [41] The Supreme Court of British Columbia in Li described the difference between a suspended sentence and a discharge, at paras.39 and 40, as follows: [39] The significance of a discharge as opposed to a suspended sentence is that pursuant to s. 730(3) of the Code, the offender isdeemed not to have been convicted of the offence upon completion of the terms of the discharge.

It would be wrong, however, to assumethat a conditional discharge with appropriate terms can have no deterrent effect: R. v. Sanders (1993), (BC CA), 39B.C.A.C. 157 (C.A.) at para. 11.

For instance, a prior discharge can be taken into account when a sentence is imposed for anotheroffence (Jeremiah at para. 18), if the offender reoffends during the attached probationary term the discharge can be revoked (s. 730(4)),and the imposition of a conditional discharge may restrict future travel or employment. [40] That said, a suspended sentence has a more permanent quality to it in that it remains on a person's formal criminal record subjectonly perhaps to the possibility of a record suspension.

For this reason, a suspended sentence, fine, or incarceration carry greaterdeterrence which may be called for in cases of domestic assault. As in T.E.C. where a suspended sentence was upheld, a suspendedsentence may be appropriate even where mitigating circumstances are present: T.E.C. at paras. 11 and 15. [42] I will first discuss the mitigating and aggravating circumstances in this case before discussing s. 730(1) of the Criminal Code,which provides for a discharge as a sentencing option. Mitigating Circumstances [43] I find the following to be mitigating circumstances in Mr. Whipple’s case: (

a) Mr. Whipple has pled guilty to the index offence, avoiding the need for a trial, thereby saving valuable court time and resources,and sparing Mr. Barich from testifying and reliving the incident. (

b) Mr. Whipple, on his own accord, has attended some counselling to gain insight into and address his anger issues. (

c) Mr. Whipple accepts responsibility for his offending.

(

d) Mr. Whipple has been compliant with his bail conditions for the past year or so. Aggravating Circumstances [ 44 ] I find the following circumstances to be aggravating in Mr. Whipple’s case: (

a) Mr. Barich was a vulnerable victim, given his age. He was almost a decade older than Mr. Whipple. (

b) The incident took place in the middle of a roadway, where there was risk from other traffic. Furthermore, if Mr. Barich had fallen or was knocked to the ground after being hit, he could have suffered an even more serious injury by striking the pavement. (

c) Mr. Whipple acted violently towards Mr. Barich in spite of Mr. Barich retreating, Ms. Armstrong being present and observing the incident, and Ms. Higgs also being present, observing the incident, and screaming at Mr. Whipple to stop. [ 45 ] I will now turn to the discussion of whether a conditional discharge is appropriate in Mr. Whipple’s case. [ 46 ] The Crown submits that even if this was Mr.

Whipple’s first contact with the criminal justice system, a conditional discharge would not be appropriate, as this was a “stranger assault”, and the facts in this case are egregious in nature. [ 47 ] Subsection 730(1) of the Criminal Code states as follows: 730(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2). [ 48 ] For the court to grant a discharge, the two conditions in s. 730(1) must be met, namely, that the discharge is in the best interests of the accused and it is not contrary to the public interest.

If the discharge is not in the best interests of the accused, that 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, namely, that the discharge is not contrary to the public interest. [ 49 ] In R.A.R. , this Court discussed in some detail these two conditions, at paras. 14 to 16. [ 50 ] In R.A.R. , Mr. R pled guilty to a charge of spousal assault, which occurred on the couple’s wedding day, on August 22, 2015. Mr. R and the victim had consumed a quantity of alcohol. Angry words were exchanged. Mr.

R seized the victim by the hair and pulled her to her feet, and then dragged her around their hotel room by her hair and slapped her. In spite of three prior conditional discharges for other offences, Mr. R was granted a conditional discharge and placed on 30 months’ probation. Mr. R attended counselling, and his therapist in her report noted that Mr. R had a history of childhood abuse and “lifelong challenges with anger”. She claimed that Mr. R had made significant progress and that he did not pose a risk to the victim or the community. The victim did not want Mr. R to be charged with an offence.

She was very supportive of Mr. R and wanted to continue her relationship with Mr. R. Mr. R’s new employment as a technical writer required overseas travel. [ 51 ] In Li , Mr. Li successfully appealed against a suspended sentence and a 12-month probation order following his conviction for assault upon his wife. The assault involved Mr. Li grabbing his wife by the neck and shaking her on May 20, 2017, while the two were at their home. The offence was precipitated by the victim throwing a soft toy at Mr. Li and possibly knocking his computer while he was trying to work.

The Court said that the “offence was characterized as one in which [Mr. Li] overreacted to the [victim] behaving in a childish way” (para. 13). His suspended sentence was substituted with a conditional discharge, but the length of his probation was extended from 12 months to 24 months. [ 52 ] Similar to R.A.R. , Mr. Li’s wife was very supportive of him. Mr. Li had no criminal record or any prior history of abuse (para. 15). The offence was an isolated one which was out of character for Mr. Li, and he was not granted a previous discharge (para. 19). [ 53 ] In Li , the Court found that the discharge would be in Mr.

Li’s best interests because he was generally of good character and the registration of a conviction against him was not necessary to specifically deter him from future offences or to ensure his rehabilitation. As well, the Court found that the entry of a conviction may have significant adverse repercussions on his employment, as Mr. Li worked as a software engineer with a satellite communications company, designing and testing communication equipment for the US military.

The Court noted that the conviction could indirectly impact the complainant, as she was and remains dependent on her husband’s employment (para. 6). [ 54 ] In Li , the Court noted, at para. 41, a number of factors as substantial support for the submission that a discharge of Mr.

Li would not be contrary to the public interest: • the lack of a prior record or any history of abuse; • the appellant's record of being a prosocial member of the community with a history of steady employment; • the expression of genuine remorse and the appellant developing insight into the wrongfulness of his actions with the aid of counselling; • the lack of any planning, and the momentary and reactionary nature of the assault; • the extraordinary steps the appellant had taken to rehabilitate himself; • the appellant's good performance on bail and lack of problems since the incident;

• the appellant's admission to police on the night of the assault and his guilty plea following determination of the admissibility of his statement; and • the disproportionate effects upon the respondent's career that could result from a permanent conviction. [ 55 ] As the Crown submits, the facts in R.A.R. and Li are distinguishable from those in Mr. Whipple’s case. [ 56 ] The Crown points out that in R.A.R. , there was a dated (1986) assault (of seizing the same victim’s glasses and throwing them to the ground), but Mr. R had taken significant steps towards his rehabilitation, and had the victim’s support.

Also, Mr. R’s new employment required overseas travel. I note that during the incident, both Mr. R and the victim had consumed “a quantity of alcohol”. Although the victim was terrified by the assault, she suffered no lasting physical injury and did not require medical treatment. [ 57 ] It is also important to note that two of the other conditional discharges that Mr. R received were for: (1) in 1990 to a charge of theft for declaring an unauthorized “happy hour” while Mr. R was the manager of a campus pub; and (2) to a charge of an indecent act he committed in 2004.

These offences did not involve violence or injury to others. [ 58 ] The Crown points out that in Li , Mr. Li had no criminal record or any reference to violence in his life. He took it upon himself to attend two different programs for relationship and anger management counselling prior to sentencing. He expressed “genuine remorse” and showed insight into his behaviour. The incident was isolated and out of character for Mr. Li. The Court noted that his prospects for rehabilitation were particularly positive. I also note that while Mr.

Li’s offence was serious, the assault lasted for only two seconds and the complainant did not experience any residual physical effects from the offence, and her injury did not require any medical attention. [ 59 ] In Mr. Whipple’s case, albeit dated, there is a history of violence towards others, including two different domestic partners. He has had the benefit of three different probation orders to assist in his rehabilitation.

However, it appears that those opportunities have not rehabilitated him or deterred him from engaging in assaultive and abusive behaviour, such as that he displayed during the incident at issue. [ 60 ] Also concerning is his initial denial to the police that he was involved in the incident at all, in spite of two independent witnesses to the incident. He then minimized the altercation and tried to present himself as the person having been attacked. His attitude is also of concern. After verbally and physically abusing Mr. Barich, a complete stranger to him, he seems to have taunted Mr.

Barich to engage in a fist fight with him. When Mr. Barich retreated, he called Mr. Barich a “fucking baby boomer coward”. In his narrative to the police, he told them that he is glad that he is not a Canadian, as Canadians are a bunch of wimps. Having been born in Canada and living here for the better part of his life, for Mr. Whipple to make such statements is very troubling. No doubt, he is entitled to his opinion, but when his attitudes and behaviours spill into violence towards others, they must be denounced. [ 61 ] The defence submits that the main reason for seeking a conditional discharge is because Mr.

Whipple may potentially not be allowed entry into the US if he has a criminal record, and that cases such as R.A.R. demonstrate that there is precedent for multiple conditional discharges to be granted to an accused. [ 62 ] On this point, the Crown says where people have received multiple conditional discharges, they are usually where the impact of a criminal conviction being registered against an offender is particularly great because of immigration or employment status. In Mr. Whipple’s case, there is no evidence that either of these factors is a concern.

There is no evidence for the court to weigh. [ 63 ] The Crown says Mr. Whipple is a Canadian citizen, and, therefore, his immigration status will not be affected. There is no evidence that the three entries on his record has impacted his ability to travel to the US, as the defence said that he has been travelling to the US on a regular basis until the start of the COVID-19 pandemic. The Crown points out that there is no specific policy that says that he would suffer a greater consequence. If he wants to see his family from the US, they can still come to Canada to visit him. [ 64 ] The Crown submits that Mr.

Whipple will clearly not be excessively impacted by an inability to visit family even if he is denied entry into the US. [ 65 ] Furthermore, the Crown says, from Mr. Whipple’s comments to the police about him not being a Canadian, it is not clear whether he is still a Canadian or if he was an American to begin with, in which case, he may still have the right to return to the US. [ 66 ] In Pham , the Supreme Court of Canada, addressed the issue of collateral consequences in sentencing.

The central issue in Pham was “whether a sentence otherwise falling within the range of fit sentences can be varied...on the basis that the offender would face collateral consequences under the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“ IRPA” ), s. 64 , that were not taken into account...” (para. 1). [ 67 ] In Pham , after discussing the principles of sentencing (at paras. 6 to 10), the Court said the following, at paras. 11 to 15, regarding collateral consequences of a sentence: [11] In light of these principles, the collateral consequences of a sentence are any consequences for the impact of the sentence on the particular offender.

They may be taken into account in sentencing as personal circumstances of the offender. However, they are not, strictly speaking, aggravating or mitigating factors, since such factors are by definition related only to the gravity of the offence or to the degree of responsibility of the offender ( s. 718.2 (

a) of the Criminal Code ). Their relevance flows from the application of the principles of individualization and parity. The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders ( s. 718 (

d) of the Criminal Code ). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation. [12] However, the weight to be given to collateral consequences varies from case to case and should be determined having regard to the type and seriousness of the offence. Professor Manson explains this as follows:

As a result of the commission of an offence, the offender may suffer physical, emotional, social, or financial consequences. While notpunishment in the true sense of pains or burdens imposed by the state after a finding of guilt, they are often considered in mitigation.... ... The mitigating effect of indirect consequences must be considered in relation both to future re-integration and to the nature of theoffence. Burdens and hardships flowing from a conviction are relevant if they make the rehabilitative path harder to travel. Here, one caninclude loss of financial or social support.

People lose jobs; families are disrupted; sources of assistance disappear. Notwithstanding aneed for denunciation, indirect consequences which arise from stigmatization cannot be isolated from the sentencing matrix if they willhave bearing on the offender’s ability to live productively in the community.

The mitigation will depend on weighing these obstaclesagainst the degree of denunciation appropriate to the offence. [Emphasis added.] (The Law of Sentencing (2001), at pp. 136-37) [13] Therefore, collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance dependson and has to be determined in accordance with the facts of the particular case. [14] The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender.

Inother words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, providedthat the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. [15] The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order toavoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will. [68] I agree with the Crown’s submissions on the collateral issue of Mr.

Whipple’s potential entry ban into the US. There is noconcrete evidence regarding the entry ban for me to weigh. [69] I will now turn to the two preconditions in s. 730(1) of the Criminal Code for the granting of a discharge. Best Interests of Mr. Whipple [70] According to R. v.

Fallofield, (BC CA), 13 C.C.C. (2) 450 (“Fallofield”), the first condition wouldpresuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a convictionagainst him to deter him from future offences or to rehabilitate him, and that the entry of a conviction against him may have significantadverse repercussions. [71] For the reasons I have discussed above, I am not satisfied that the first condition in s. 730(1), as discussed in Fallofield, is met inMr. Whipple’s case. I conclude that it is not in the best interest of Mr.

Whipple to conditionally discharge him. [72] Even if I am wrong in this conclusion, I am not satisfied that on the facts of this case, I can conclude that a conditional dischargewould be “not contrary to the public interest”. Public Interest [73] As noted in R.A.R. (at para. 16) and Li (at para. 28), the term “public interest” is not defined in the Criminal Code. The Court inLi provided some guidance on the meaning to be accorded to this term.

At para. 28, it said: [28] Moreover, while the term "public interest" is not defined in the Criminal Code, it is fair to say that it encompasses broaderconsiderations in addition to deterrence such as an offender's mitigating circumstances (R. v. Dennis, 2013 BCCA 153 at para. 27), his orher character (R. v. Tan (1974), (BC CA), 22 C.C.C. (2d) 184 (B.C.C.A.) at para. 17), the community's attitudetowards the offender's conduct (R. v. Calderwood (1995), (BC CA), 57 B.C.A.C. 237 (C.A.) at para. 14), whether thecrime was committed as a matter of impulse (R. v.

MacFarlane, 1976 AltaSCAD 6 at para. 19), and the offender's moralblameworthiness (Jeremiah at paras. 21-22); see also: R. v. Samson, 2015 YKCA 7 at para. 13. A more comprehensive

interpretation ofthe public interest is consistent with the principle in Fallofield that while the deterrence of others must be given due weight, it does notpreclude the judicious use of the discharge provisions. [74] I conclude that it would be contrary to the public interest to grant Mr. Whipple a conditional discharge for the following reasons: (

a) He has a history of verbal and physical abuse towards others, including domestic partners. (

b) In the past, he has had the benefit of two conditional discharges, one peace bond, and three probation orders: 18 months, 12 monthsand 12 months, respectively, in length. (

c) There is no indication as to what extent he is a prosocial member of the community. He does not have a history of steadyemployment. His last steady employment was in 2010, almost 12 years ago. He claims to be still looking for work, although he no longerhas any child rearing responsibilities. There is no indication as to how old his children are and how long he has been free from childrearing responsibilities. (

d) His lack of candour with the police regarding the incident, his minimization of his aggressive behaviour towards Mr. Barich inspite of two independent witnesses to the incident, and his disdain for Canadians, raise concerns about his character. (

e) I have no doubt that the community would not approve of Mr. Whipple’s conduct towards Mr. Barich. Mr. Barich was an elderlyman walking his dog in the middle of a morning. The community would understand that it is reasonable for Mr. Whipple to have beenupset if Mr. Barich had darted onto the roadway suddenly and, as a result, the two of them to have exchanged some harsh words in theheat of the moment. However, the community would not approve of Mr. Whipple getting out of his vehicle, headbutting with Mr. Barich

and causing him physical injury, taunting Mr. Barich to engage in a physical fight with him, and calling Mr. Barich a coward for retreating. The community would not approve of such “stranger assaults”. Members of the community would expect to go for a walk on our roadways, without fear of such violence directed towards them. [ 75 ] In arriving at my conclusion, I have not disregarded the mitigating factors in Mr. Whipple’s case, as discussed above, including his recent counselling sessions. SENTENCE [ 76 ] Having considered the circumstances of the offence and the offender, Mr.

Whipple, the impact on the victim, Mr. Barich, the submissions and case authorities of the Crown and the defence, and the sentencing purpose, objectives and principles, I conclude that a suspended sentence (and not a fine, as Mr. Whipple is currently on social assistance), and a 12-month probation order to be a just sanction for Mr. Whipple. [ 77 ] Mr. Whipple, will you please stand up? I suspend the passing of a sentence and place you on a 12-month probation order. Probation Order [ 78 ] Mr. Whipple, you must comply with the conditions of a probation order for a term of 12 months.

The conditions of the order are as follows: (a) 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. (b) 2002 – You must have no contact or communication, directly or indirectly, with JAMES BARICH, BRIEANNA ARMSTRONG and JODI HIGGS. (c) 2005 – You must not go to (or be within 100 meters of) any place where JAMES BARICH, BRIEANNA ARMSTRONG and JODI HIGGS live, work, attend school, or worship, or happen to be.

If you see them, you must leave their presence immediately without any words or gestures. (d) 2005 – You must also not go to the [omitted for publication], in Langley, British Columbia. (e) 2101 – You must report in person to a probation officer at Suite 102 – 14245 56 Avenue, Surrey, BC by 3:00 pm on August 31, 2022. After that, you must report as directed by your probation officer. (f) 2202 – When first reporting to your 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 notifying your officer in writing at least seven days in advance of any change. (g) 2501 – You must attend, participate in, and successfully complete any intake, assessment, counselling, or education program as directed by your probation officer. (h) 2509 – You must complete 25 hours of community work under the direction of your probation officer. Your community work service must be completed within the first 10 months of your probation order. (i) 2610 – You must not possess, directly or indirectly any weapon as defined by the Criminal Code , including: (

a) firearms, and ammunition; (

b) cross-bows, prohibited or restricted weapons or devices, or explosive substances; (

c) anything used, designed to be used or intended for use in causing death or injury to any person, or to threaten or intimidate any person; (

d) any imitation firearms or weapons, including any compressed air guns or BB/pellet guns; or (

e) any related authorizations, licenses and registration certificates, and you must not apply for any of these. (j) 2616 – You must not possess any knife outside your residence, except for the immediate preparation or eating of food. ANCILLARY ORDERS Weapons Prohibition Order [ 79 ] Mr. Whipple, pursuant to s. 110 of the Criminal Code , you are prohibited from possessing any firearm, cross-bow, restricted or prohibited weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for five years from today. DNA Order [ 80 ] Count 1 on Information No. 245849-1 is a secondary designated offence. After considering the factors set out in

section 487.051(3) of the Criminal Code , I am satisfied that it is in the best interest of the administration of justice to authorize the taking of samples of bodily substances from you. [ 81 ] Mr. Whipple, you must attend at the Surrey RCMP Detachment by September 6, 2022, and submit to the taking of the samples. This order is valid until executed. CONCLUSION [ 82 ] That concludes my reasons for sentence. Thank you.

_____________________________ The Honourable Judge V. Chettiar Provincial Court of British Columbia