R. v. Kozuchar Date:, 2016 BCPC 302

Citation: R. v. Kozuchar Date: 20160919 2016 BCPC 302 File No: 24716-3-C Registry: Quesnel IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAYMOND STEPHEN KOZUCHAR ORAL REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Crown: J. Johnston Counsel for the Defendant: J. Rempel Place of Hearing: Quesnel , B.C. Date of Hearing: September 19, 2016 Date of Judgment: September 19, 2016 [ 1 ] THE COURT: Sir, in deciding on an appropriate sentence in this case, the court has to take into account a number of factors.

They are usually referred to as aggravating and mitigating factors, mitigating being good, aggravating being bad. [ 2 ] The mitigating factors in your case are, number one, you are in your late sixties, and you have no criminal history.

That means for the majority of your life you have maintained what was described as a pro-social lifestyle, you have not come to the attention of the police, you go about your business and you mind your own business, and that is what we expect of citizens in our community. [ 3 ] Another mitigating factor, in my view, is that you were -- and ignorance of the law is not an excuse, but you were under a misapprehension of what Constable Cranmer's duties and responsibilities were, first at the roadside and second, although it is not a positive duty on citizens to assist police officers and there are provisions in the Criminal Code that permit citizens to assist police officers, where a police officer can call upon a citizen to assist them. [ 4 ] So, for the most part, I accept that you were standing by, not really getting involved. [ 5 ] Having said that, when Constable Klassen arrived on the scene, I determined that you did, and I agree with your lawyer, momentarily, take a step forward so that the constable believed that he had to do something -- because he was still focusing on Constable Cranmer and your son's situation, he had to do something to prevent any further interference from you and that is how you ended up being pepper sprayed. [ 6 ] On the aggravating side of things -- in other words, things that I have had to take into account that are negative, first, you knew, or any reasonable person would have known, that your son had the upper hand on the constable.

I accept that you felt the constable was not acting properly, either towards you and that perhaps he indeed deserved it, but the outcome here could have been very serious had Constable Klassen not arrived on the scene. [ 7 ] The second thing is you ran away. Now there may be good reason.

We have two polices officers, one is injured and one who is not very happy, and you know there is more police officers coming, and ambulances and everything else, and perhaps getting out of there at the time seemed like a good idea, but it was an idea that was not a legal option open to you because you were under arrest. [ 8 ] Now the two lawyers take different positions. The Crown says that there should be a jail sentence served by a conditional sentence order. Your lawyer says, no, there should not be a jail sentence. There should be a period of probation.

The Crown says the conditional sentence order should be for three months without any probation to follow. Your lawyer says the period of probation should be nine to 12 months. [ 9 ] I have reviewed the

summary of the cases that the Crown has provided to me.

I also reviewed, in particular, in more detail the decision of McArthur [phonetic] from Saskatchewan Court of Appeal that involved an assault on a police officer, but also there was some commentary about people interfering with the police conducting their duties. [ 10 ] I think that I have to give consideration under s. 718 of the Criminal Code to ensuring that I denounce your behaviour; that I deter you from further issues like this, and I think this whole process has probably done that, but also, I must deter others. [ 11 ] General deterrence is important here because the police are entitled to have -- although they are involved in a dangerous profession -- the courts support their actions when they are legal, such that when people interfere with their actions, they should expect to pay what I would consider to be a significant penalty. [ 12 ] Having considered the positions of the two lawyers, I am going to impose a conditional sentence order, but it is only going to be for 60 days, concurrent on each of the two counts.

I consider them both to be of similar gravity. [ 13 ] So the terms of your conditional sentence order will be as follows. Madam Clerk, I am using the precedent. [ 14 ] 100C, you shall keep the peace and be of good behaviour.

You shall appear before the court when required to do so by the court. [ 15 ] You shall report in person to a conditional supervisor no later than 4:00 p.m. today, September 19, 2016, at the probation office at 208–350 Barlow Avenue, Quesnel, British Columbia and you shall thereafter report as and when directed by the supervisor and in the manner directed by the supervisor. [ 16 ] You shall remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the supervisor. [ 17 ] You shall notify the court or the supervisor in advance of any change of name, or address, and promptly notify the court or the supervisor of any change of employment or occupation. [ 18 ] 103C, Madam Clerk, after your first reporting to the supervisor, further reporting may include reporting by telephone, at the discretion of the supervisor. [ 19 ] 105C, Madam Clerk, when first reporting to the supervisor, you shall inform him or her of your present residential address and phone number, and you shall not change your address or phone number at any time without first providing written notice to the supervisor. [ 20 ] There is going to be only a curfew during the 60 days of the conditional sentence.

There is not going to be house arrest. [ 21 ] Madam Clerk, 111C, you shall obey a curfew by being inside of your residence, or on the lot on which your residence is located, between the hours of 8:00 p.m. and 6:00 a.m. each day, except as follows: (

a) with the written consent of the supervisor, obtained in advance. Such consent is to be given only for compelling personal, family or employment reasons; (

b) when traveling directly to, or returning directly from, your place of employment, or while in the course of your employment. You shall provide the

supervisor with written proof of employment; and

d) in the event of a medical emergency, and then only when traveling directly to or returning directly from a hospital emergency ward. [ 22 ] 114C, Madam Clerk, you shall present yourself at the door to your residence when any peace officer or supervisor attends there for the purpose of determining your compliance with the curfew conditions of this order.

There will be no telephone checks. [ 23 ] 123, Madam Clerk, you shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 24 ] 124, you shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premises from which minors are excluded by the terms of their liquor licence. That is for the 60 days of the conditional sentence, sir. [ 25 ] Number 131, Madam Clerk, you shall not possess any weapon as defined in s. 2 of the Criminal Code .

I am not going to make a surrender order unless Mr. Rempel, you are able to tell me that he actually has weapons. Does he have weapons? Do you have firearms, sir? [ 26 ] THE ACCUSED: No. [ 27 ] THE COURT: Oh, okay. There will be no surrender order, as he does not have any firearms. [ 28 ] Number 134, Madam Clerk, you shall not possess any knife outside of your residence except for the immediate preparation or eating of food, or for purposes directly and immediately related to your employment. [ 29 ] There will be no counselling provision, but there will be a community work service order.

Number 147C, Madam Clerk, under the direction and supervision of the supervisor, you shall successfully complete 15 hours of community work which shall be completed no later than November 30, 2016. [ 30 ] And Number 149, Madam Clerk, you must carry a copy of this conditional sentence order with you at all times when you are in public.

If you are stopped by a peace officer for any reason, you shall immediately provide the peace officer with a copy of this document without being requested to do so. [ 31 ] I also note that, at least, one of the two convictions is a s. 110 -- a discretionary condition. [ 32 ] I am not going to impose a firearms prohibition in this matter as no firearms were suggested or used in the matter at all. [ 33 ] I think that is everything we need to do, counsel. [ 34 ] MS. JOHNSTON: Thank you very much, Your Honour. [ 35 ] MR. REMPEL: Thank you, Your Honour. [REASONS FOR SENTENCE CONCLUDED]