R. v. P.M.M., 2019 BCPC 170

Citation: R. v. P.M.M. 2019 BCPC 170 Date: 20190730 File No: 25135-1 Registry: Hazelton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Judicial Interim Release REGINA v. P.M.M. RULING ON APPLICATION OF THE HONOURABLE JUDGE J.T. DOULIS Publication Ban pursuant to ss. 486.4 of the Criminal Code Counsel for the Crown: Reed, A., Feinberg, L. Counsel for the Defendant: Murphey, M. Duty Counsel Place of Hearing: Smithers, BC Date of Hearing: July 23 and 30, 2019 Date of Judgment: July 30, 2019 A Corrigendum was released by the Court on September 4, 2019. The corrections have been made to the text and the Corrigendum is appended to this document.

Publication Ban [1] Pursuant to ss. 486.4(2) and 486.4(3) of the Criminal Code, any information that could identify T.T. or T.B. in theseproceedings must not be published in any document or broadcast or transmitted in any way. Introduction [2] The Crown Counsel applies to revoke P.M.M.’s bail pursuant to s. 523 and 524(8)(

a) of the Criminal Code on Information25135-1 P.M.M. seeks his judicial interim release. The Crown also seeks direction with on scheduling a preparation of a pre-sentencereport and P.M.M.’s sentencing. [3] By way of Information 25135-1 sworn July 11, 2018, P.M.M. was which charged summarily as follows: Count 1: P.M.M., on or about the 9th day of July, 2018, at or near [omitted for publication], in the Province of British Columbia, did fora sexual purpose touch, directly or indirectly, with a part of his body or with an object, the body of T.T., a person under the age of sixteenyears contrary to

Section 151 of the Criminal Code. Count 2: P.M.M., on or about the 9th day of July, 2018, at or near [omitted for publication], in the Province of British Columbia, did fora sexual purpose invite, counsel, or solicit T.T., a person under the age of sixteen years to touch directly or indirectly with a part of hisbody, or an object the body of T.T., contrary to

Section 152 of the Criminal Code; [4] On March 19, 2019, after a four day trial, I convicted P.M.M. of the offences charged in Counts 1 and 2 on Information 25135-1. P.M.M. was represented both before and at trial by his legal counsel of record, Mr. I. Lawson. Mr. Lawson filed a CounselDesignation Notice on August 22, 2018. Circumstances of the Offence [5] The circumstances of the offence are set out in my reasons for judgment: R. v. P.M.M., 2019 BCPC 92 . On July 9,2018, at around 10 a.m. T.T. was at home watching television while babysitting her two-year old brother M.T.

T.T.is P.M.M.’s niece andwas 13 years old at the time. P.M.M. walked into T.T.’s home and came upstairs where she was laying on the couch. He started touchingT.T.’s face and telling her how pretty she and tried to kiss her. He offered to teach her how to kiss; he offered to teach her “how to havesex without having sex.” P.M.M. grabbed T.T.’s hand and felt her palms. He told her he was going to Terrace and invited T.T.toaccompany him, offering her alcohol and weed.

When T.T. refused his offers and advances, P.M.M. left the house and T.T. ran to herfriend’s home for solace. [6] On July 11, 2018, P.M.M. appeared before Judge Jackson in Smithers Provincial Court. In order to secure his release fromcustody, P.M.M. entered into an Undertaking Given to a Justice or Judge to abide by the following seven conditions: 1. You must keep the peace and be of good behaviour. 2. You must have no contact or communication, directly or indirectly, with T.T. or T.B. The exception are as follows: during atrial or through your lawyer. 3.

You are not to go or be within 10 meters of any residence, school or workplace of T.T. or T.B. 4. You must report by telephone to a bail supervisor at 114-3793 Alfred Avenue, Smithers, BC – Phone 250-847-73655 by 4 p.m.July 12, 2018. If the office is closed, you must try again the next business day and continue calling until you have spoken to a bailsupervisor and received further direction to report. After that, you must report as directed by the bail supervisor. 5. When first reporting to the bail supervisor, you must inform him or her of your residential address and phone number.

Youmust not change your residence or phone number without first notifying your bail supervisor. 6. You must not go or be within 10 meters of [omitted for publication] BC. 7. You must have no contact or communication directly or indirectly with, nor be alone in the presence of, any person you know tobe or who reasonably appears to be under the age of 16 years. The exceptions are: in the immediate presence of a sober adult who isaware of these charges. [7] On July 13, 2018, P.M.M. applied to vary his bail conditions to permit him have contact with his three youngest sons.

In hisapplication he includes a handwritten and signed note dated July 12, 2018, in which he wrote: I P.M.M. am writing in regards to the charges against me the file #5661-25135-1 Court File I am asking that the condition #7 be lifted as this condition puts strain upon my family life style. I ask this be lifted so I can be part of myfamily. I have 3 sons. Whom I never have parted with. Please consider my family. Thank you for your time & consideration Sincerely, P.M.M. [8] On July 27, 2018, P.M.M. attended before Judge Jackson for a hearing of his application to vary the July 11, 2018

Undertaking. Judge Jackson granted the variation, and on July 27, 2018, P.M.M. entered into a new Undertaking Given to a Justice orJudge which provided: So that I may be released from custody: I undertake to attend court on August 24, 2018 at 9:30 a.m. PT in the Provincial Court at Hazelton Provincial Court, 2210 West Highway62, Hazelton, BC V0J 1Y0 and to attend thereafter as required by the court in order to be dealt with according to the law. . . [9] The July 27, 2018 Undertaking from contained the following conditions 1. You must keep the peace and be of good behaviour. 2.

You must have no contact or communication, directly or indirectly. with T.T. or T.B. 3. You must not go or be within 10 meters of any residence, school or workplace of T.T. or T.B. 4. You must report by telephone to a bail supervisor at 114-3793 Alfred Avenue, Smithers, BC – Phone 250-847-7365 by 4 p.m.July 12, 2018. If the office is closed, you must try again the next business day and continue calling until you have spoken to a bailsupervisor and received further direction to report. After that, you must report as directed by the bail supervisor. 5.

When first reporting to the bail supervisor, you must inform him or her of your residential address and phone number. Youmust not change your residence or phone number without first notifying your bail supervisor. 6. You must not go or be within 10 meters of [omitted for publication] BC. 7. You must have no contact or communication directly or indirectly with, nor be alone in the presence of, any person you know tobe or who reasonably appears to be under the age of 16 years.

The exceptions are: in the immediate presence of a sober adult who isaware of these charges, however, you may be alone with your three sons. [10] Both the July 11, 2018 and July 27, 2018 Undertakings set out the name of the accused as “P.M.M.” Both Undertakings weresigned by P.M.M.’s whose signature was witnessed by the Clerk of the Court on behalf of Judge Jackson. [11] The matter proceeded to trial on November 20, 21, 22, 2018 and February 21, 2019.

On March 19, 2019, I convicted P.M.M. ofsexual interference of and invitation to sexual touching to T.T. as charged under Counts 1 and 2 on Information 25135-1. [12] On March 19, 2019, at the request of the defence, I ordered a Pre-Sentence Report with a Gladue component from SmithersCommunity Corrections. The report was due in Court on May 14, 2019. [13] Probation Officer Graham Lindsay scheduled a pre-sentence report interview with P.M.M. on April 23, 2019. P.M.M. attendedCommunity Corrections on that date but refused to participate in the interview and left PO Lindsay’s office.

A copy of PO Lindsay’scorrespondence to the Court dated April 25, 2019 was marked as Exhibit 4 in this bail hearing. [14] Since his conviction on March 19, 2019, P.M.M. has been sending correspondence to the Court and Court officers in the linguafranca of what Associate Chief Justice Rooke of the Alberta Court of Queen’s Bench in Meads v. Meads, 2012 ABQB 571 dubbed the “Organized Pseudolegal Commercial Argument litigants” (“OPCA litigants”).

This correspondence included: a. a Notice from “P-M” dated April 18, 2019, to PO Lindsay, marked Exhibit 1 in the bail hearing; b. a Notice from “P-M” dated April 18, 2019, the Clerk of the Court and Justice of the Peace, marked Exhibit 2 in the bailhearing; c. a Notice from “P-M” dated April 18, 2019, to the Crown Counsel , marked Exhibit 3 in the bail hearing; d. a Notice of Default and Dishonour from “P-M” dated May 24, 2019 to Judge Doulis, marked Exhibit 5 in the bail hearing; e. the “Affidavit of Attainment of Majority” of “P-M” sworn April 23, 2019, attaching his correspondence to Judge Doulis datedApril 18, 2019, June 5, 2019, June 6, 2019.

Attached to the Affidavit is the Ministry of Attorney General Client Identification Card ofP.M.M. with a photo taken July 24, 2019. These documents were marked Exhibit 6 in the bail hearing; f. the “Affidavit of P-M” sworn July 2, 2019, attaching a Promise to Appear dated June 29, 2019 marked Exhibit 8 in the bailhearing; and g. a “Notice and Demand for answer and Affidavit of P-M” dated July 6, 2019, marked Exhibit 9 in the bail hearing. (collectively, the “OPCA Correspondence”) [15] On June 4, 2019, the Crown requisitioned this matter into court to seek direction to dispense with the Pre-Sentence Report.

Onthat date, P.M.M. attended court and dismissed Mr. Lawson as his counsel. P.M.M. represented to the Court he had new legal counselfrom Smithers, but refused to disclose his name. P.M.M. said he wanted his counsel present for the pre-sentence interview with theProbation Officer. He said his new lawyer needs 60 days to review the audio recording and transcripts before he was in a position torepresent P.M.M. in the sentencing hearing. I told P.M.M. the court was not prepared to wait 60 days to

schedule the sentencing hearing,and his new counsel needed to advise the court and Crown he was acting for him in the sentencing hearing. I referred the matter to theJudicial Case Manager (“JCM”) to fix a date for a subsequent appearance to give P.M.M. time to consult with his new legal counsel. OnJune 4, 2019, in P.M.M.’s presence, the JCM scheduled a court appearance on June 14, 2019, in Smithers Provincial Court at 9:30.

[16] On June 5, 2019, P.M.M. sent a letter addressed to the Court stating he “hereby declines your offer of your Scheduling Notice atSmithers law Courts Set for June 14, 2019”: Exhibit 6. [17] This matter came before me in Smithers Provincial Court on June 14, 2019.

P.M.M. did not appear and I ordered an endorsedwarrant for his arrest. [18] On June 29, 2019, P.M.M. was arrested pursuant the endorsed bench warrant and released on a Promise to Appear on July 19,2019, at the Provincial Court in Hazelton BC: Exhibit 7. [19] On July 2, 2019, P.M.M. submitted to the court an affidavit in which he says he refuses and returns: the June 29, 2019, Promiseto Appear: Exhibit 8. P.M.M. endorsed his Promise to Appear dated June 29, 2019, with the words, “Refused for Cause ● Fraud –Misrepresentation ● Served on wrong party by Threat Duress & Coercion”.

P.M.M. references the Promise to Appear and states at para.8: 8. Affiant found after reading said document that the document was intended for service upon an individual known as P.M.M. which isa corporate legal construct and is not the Man P-M. [20] On July 19, 2019, P.M.M. failed to appear at the Hazelton Provincial Court and her Worship Justice of the Peace McGregorordered an unendorsed warrant for his arrest. [21] P.M.M. was arrested on July 21, 2019. He was remanded by consent until July 23, 2019. [22] P.M.M. attended Court on July 23, 2019, for a bail hearing. He was represented by Mr. M.

Murphey acting as duty counsel.P.M.M. again asserted he had new legal counsel, but this time he said his counsel was in Edmonton. He reiterated his counsel asked thecourt for 60 days in order to prepare to represent him in court. He refused to identify his counsel to the Court, the Crown or DutyCounsel. P.M.M. did agree to have Mr. Murphey represent him as duty counsel for the purposes of the bail hearing. P.M.M.’s OPCA correspondence [23] P.M.M. OPCA Correspondence indicates he has become enthralled with OPCA concepts. In Meads v.

Meads, Rooke, ACJdescribes OPCA litigants as persons who “employ a collection of techniques and arguments promoted and sold by 'gurus' . . . to disruptcourt operations and to attempt to frustrate the legal rights of governments, corporations, and individuals. Justice Rooke states at paras. 4and 7: [4] OPCA litigants do not express any stereotypic beliefs other than a general rejection of court and state authority; nor do they fallinto any common social or professional association. Arguments and claims of this nature emerge in all kinds of legal proceedings and alllevels of Courts and tribunals.

This group is unified by: 1. a characteristic set of strategies (somewhat different by group) that they employ, 2. specific but irrelevant formalities and language which they appear to believe are (or portray as) significant, and 3. the commercial sources from which their ideas and materials originate. This category of litigant shares one other critical characteristic: they will only honour state, regulatory, contract, family, fiduciary,equitable, and criminal obligations if they feel like it. And typically, they don’t. . . . [7] . . .

OPCA litigants frequently adopt unusual variations on personal names, for example adding irrelevant punctuation, or usingunusual capital and lower case character combinations. While OPCA litigants and their gurus put special significance on these alternativenomenclature forms, these are ineffectual in law and are meaningless paper masks. . . [24] In Unrau v National Dental Examining Board, 2019 ABQB 283 (Unrau #2) Rooke ACJ held at para. 180 that OPCAlitigation is an abuse of the Court and its processes.

The Associate Chief Judge comments (at paras. 182-18) pseudolaw is embedded inand associated with anti-social, conspiratorial, paranoid, and anti-state ideology and political beliefs. [25] P.M.M.’s OPCA Correspondence does not ask the Court to hear and consider any application. Rather, it purports to demandresponses from the Crown, Probation and Provincial Court of British Columbia in order to conjure up a strawman on which to off-loadwhatever sentence this Court may impose for his recent convictions. P.M.M. is wasting his time.

He does not get to evade his sentencingby mystically subdividing himself into a corporeal and immaterial legal entity through OPCA rhetoric. I take guidance from the words ofGreen, C.J.N.L. in Fiander v.

Mills, 2015 NLCA 31 , in which he states at para. 40, in part: [40] . . . [A]rguments relating to opting out of legislation, the fractionating of human personality to support claims of not beingsubject to law and the fanciful use of arguments based on birth certificates to create notions of estates to advance submissions that wouldotherwise have no rational support in the jurisprudence, have no basis in the law in this jurisdiction.

It would therefore be open to a trialcourt in the future, when made aware of such submissions in other proceedings, to treat those submissions as presumptively vexatiousand abusive and to act pre-emptively to prevent such claims from improperly clogging up the legal system to the cost and prejudice ofthose who would otherwise have to face and deal with them. Crown’s application to revoke bail [26] On July 23, 2019, the Crown sought to revoke P.M.M.’s bail on Information 25135-1 pursuant to s. 523(1)(b) (bail pendingsentencing) and/or s. 524(8)(

a) on the basis he contravened his July 27, 2018 Undertaking and his June 29, 2019 Promise to Appear.P.M.M. neither contests nor attempts to justify his failure to attend court on June 14, 2019 or July 19, 2019.

[27] Section 523(1) of the Criminal Code provides that if an accused is found guilty, his original release order will remain effectiveuntil he is sentenced unless the trial judge orders otherwise. This means P.M.M.’s bail is to continue through to sentence unless I revokeit. Section 523(1) states: The Criminal Code of Canada provides that judicial interim release continues after a finding of guilt until a sentence has been imposed: 523.

(1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or has been released fromcustody under or by virtue of any provision of this Part, the appearance notice, promise to appear, summons, undertaking or recognizanceissued to, given or entered into by the accused continues in force, subject to its terms, ..., ... (b ) ... (

i) until his trial is completed, and (ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence ... is imposed on the accused unless, at thetime the accused is determined to be guilty, the court, judge, or justice orders that the accused be taken into custody pending suchsentence. [28] Section 523(2) states: 523(2) Despite subsections (1) to (1.2), (

a) the court, judge or justice before which or whom an accused is being tried, at any time, ... may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused andmake any other provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge orjustice considers to be warranted. [29] The trial judge’s power to vary or revoke a bail post-conviction is found in s. 523(2)(

a) of the Criminal Code which provides, inrelevant part: The provisions of sections 517, 518 and 519 apply, with such modifications as the circumstances require, in respect of any proceedingsunder subsection (2), except that subsection 518(2) does not apply in respect of an accused who is charged with an offence listed insection 469. [30] The law is somewhat unsettled whether the Crown has to show cause before a Court will revoke bail pending the imposition ofsentence.

In R v BTQ, 2017 ABQB 715, Justice Tilleman disagreed with Justice Ducharme’s decision in R v Green (2006), (ON SC) holding the Crown had to show cause to revoke bail post-conviction but prior to the imposition of sentence. JusticeTilleman held [17] Following conviction, the proper

section for the Crown’s application to revoke bail is s. 523(1)(b), for two reasons. First, becausethe trial is over; and second, a considerable new circumstance exists: the accused is no longer presumed innocent. The “time window”described in s. 523(1)(

b) is exactly and properly where the court finds itself. [31] In reaching his conclusion, Justice Tilleman relied the Ontario Court of Appeal decision in R v Lenart (1998), (ON CA), wherein it stated at para 48: “The trial judge has the authority to remand the appellant in custody pending sentence unders. 523(1)(b)(ii) of the Criminal Code.

The only restriction on the length of the remand is that the trial judge must determine theappropriate sentence "as soon as practicable" after the finding of guilt: see s. 720.” [32] In this case, P.M.M. had breached his bail conditions when he failed to appear in court when required to do so. As aconsequence, the Crown also sought to revoke P.M.M. bail pursuant to s. 424(8)(

a) of the Code which states:

(8) Where an accused described in subsection (3), other than an accused to whom paragraph (

a) of that subsection applies, is takenbefore the justice and the justice finds (

a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking orrecognizance . . . . . . he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detainedin custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is notjustified within the meaning of subsection 515(10). [33] On July 23, 2019, I found P.M.M. had contravened his July 27, 2018 Undertaking and June 29, 2019 Promise to Appear andrevoked his bail pursuant to s. 424(4)(a). [34] P.M.M. now seeks his release pending sentencing which the Crown opposes. [35] On July 23, 2019, I granted P.M.M.’s application to adjourn the continuation of his bail hearing until July 30, 2019.

Purpose of the bail hearing [36] The purpose of this bail hearing is to determine if P.M.M.’s continued detention is justified. As accused persons areconstitutionally presumed innocent their pre-trial release is the cardinal rule and detention, the exception: R. v. St-Cloud, 2015 SCC 27 (para. 70); R. v. Antic, 2017 SCC 27(at para. 67(a)) In this case, however, P.M.M. is no longer an accused, but a convictedoffender and the presumption of innocence is no longer in play. As Arbour J.A. (as she then was) explained in R. v.

Farinacci (1993), (ON CA): The right not to be denied reasonable bail without just cause is rooted in the presumption of innocence, which is substantially spent bythe conviction. Indeed, the presumption of innocence is spent by the verdict, be it a conviction or an acquittal. A conviction does notcreate a presumption of guilt. It constitutes a legal, conclusive finding of guilt. Like an acquittal, it is enforceable unless and untilreversed. After a conviction, there is no presumption left, one way or the other. There is an enforceable finding of guilt. [37]

Section 11(

e) of the Canadian Charter of Rights and Freedoms guarantees the right not to be denied bail without just cause andthe right to bail on reasonable terms. In R. v. Oland, 2017 SCC 17 , the Supreme Court addressed the issues of release pendingappeal under s. 679 of the Criminal Code and the review under s. 680 Criminal Code. This case addressed issues of liberty, detention andpublic confident in the administration of justice. In considering the public confidence issues in the context of s. 673(3)(c), JusticeMoldaver took guidance from 515(10)(

c) which identifies four factors a judge may consider in assessing whether a detention order isnecessary to maintain public confidence in the administration of justice. These factors include: (

a) the gravity of the offence; (

b) thecircumstances surrounding the commission of the offence; and (

c) the potential for a lengthy term of imprisonment. The fourth factor,the strength of the prosecution’s case, has no relevance post-conviction. Justice Moldaver explains his reasoning in paras. 32 to 35: [32] While these factors are tailored to the pre-trial context, a corollary form of the interest underlying each exists in the appellatecontext.

In my view, these same factors — with appropriate modifications to reflect the post-conviction context — should be accountedfor in considering how, if at all, a release pending appeal order is likely to affect public confidence in the administration of justice. [33] Approaching the matter this way advances an important policy consideration. It has the virtue of promoting consistency andharmony between the trial and appellate contexts so that, together, they may be seen as providing a cohesive and comprehensivestatement of the law governing bail in Canada.

Importantly, it accords with the basic principle that, in general, bail should not be morereadily accessible for someone who has been convicted of a crime than for someone who is awaiting trial and is presumed innocent.Approaching the two contexts in that fashion can only serve to foster the goals of fairness and coherence and enhance society’sconfidence in the administration of justice. [34] Greater accessibility to bail pending trial is rooted in the presumption of innocence.

Accused persons charged with an offence inCanada are presumed to be innocent, and they remain so unless and until their guilt is proved beyond a reasonable doubt. With this inmind, the framers of the Canadian Charter of Rights and Freedoms saw fit to include in s. 11(

e) the right of every person charged withan offence “not to be denied reasonable bail without just cause”: R. v. Hall, 2002 SCC 64 , [2002] 3 S.C.R. 309, at para. 13. [35] By contrast, once a conviction is entered, the presumption of innocence is displaced and s. 11(

e) of the Charter no longerapplies. This is reflected in the shift in onus which occurs when a person who has been convicted and sentenced applies for bail pendingappeal. Unlike the pre-trial context, where by and large the onus rests on the Crown to establish that an accused should be detained incustody, for appeal purposes, Parliament has seen fit to reverse the onus onto the applicant in all cases. [38] Mr. Justice W.A. Tilleman applied the principles espoused in Oland to an application to revoke bail under s. 523.

He states atparas. 23 to 25: [23] Detention of any accused can be considered at many stages – as early as initial arrest or as late as bail pending appeal. Thesefactors can be viewed as the metaphorical plank that falls or rises where the interests of the individual’s rights of liberty and thepresumption of innocence, on the one hand, are outweighed by society’s interests including public safety and integrity of the judicialsystem on the other hand. This is the usual tension in criminal law and for release or detention it applies both before and after the trial.

Indeciding to vacate bail, the community’s confidence in the administration of justice is not more important than an individual’s rights, butdepending on the gravity of the case it is very important when balancing the community’s interests, including safety. And safety is aderivative of the trial evidence with the focus on the seriousness of the offence. [24] In considering the application of s. 523, s. 515(10) does not apply piecemeal or automatically but the s. 515(10) principles, withfew exceptions, continue to apply after conviction with modifications.

At a pre-trial bail hearing, s. 515(10) factors include aconsideration of the Crown’s case. At that stage, the necessary focus is to cautiously balance an individual’s freedom versus societalinterests. That balance is due to the pinnacle of the criminal justice system which is the presumption of innocence and the danger ofirrevocably interfering with the liberty of someone who may never be convicted.

But after conviction, s. 515(10) is approacheddifferently because the strengths of the Crown’s case are known and upon conviction there is no presumption of innocence. [25] The remaining factors (flight risk, public safety, confidence in the administration of justice) still come into play post-conviction.The first factor is the flight risk, or whether the accused will re-attend court unless detained. Components of past record, court behaviorand nature of the crime can be relevant to flight risk.

The second factor is whether detention is necessary to protect or keep the publicsafe, including whether there is a substantial likelihood the accused will re-offend. Finally, the public’s confidence in the administrationof justice needs to be addressed, considering the • seriousness of the offence; • circumstances surrounding the offence; and • the potential for a lengthy term of imprisonment. [39] P.M.M. bears the onus to show cause why his detention in custody is not justified, both under s. 524(8)(

a) and 523(1)(b)(ii).

Circumstances of the Offender [40] P.M.M. is 63 years old. He was born and raised in [omitted for publication] and is a member of the [omitted for publication]First Nations. He is the father of eight children, including four adult children from his first relationship and three minor children from hiscurrent partner, B.J.: W.M., age 10, P.M. Jr., 9, and W.M.M., 5. P.M.M. and B.J. have been in a common-law relationship for 10 or 11years. [41] For most of his adult life P.M.M. was a commercial truck driver in the logging and mining industries.

Two years ago he was inan accident in which he sustained injuries which forced him to stop working. [42] In 2018, P.M.M. suffered a number of minor heart attacks for which he underwent surgery in Kelowna, BC on May 24, 2018.P.M.M. still suffers heart fibrillations and has nitro-glycerine spray to manage the symptoms. [43] P.M.M. resides with B.J. and their three boys at [omitted for publication], BC. [44] P.M.M. has no criminal record beyond the two offences for which he was convicted on March 19, 2019. [45] In his younger years, P.M.M. was an alcoholic, but he has been sober since 1989. [46] Other than his refusal to attend court on June 14, 2019, and July 19, 2019, P.M.M. has complied with the terms of his bailconditions.

Should P.M.M. be released pending imposition of sentence? Factor #1: Section 515(10)(a), where the detention is necessary to ensure his or her attendance in court in order to be dealt withaccording to law [47] The Crown opposes P.M.M.’s release primarily on the fact he has failed to attend the last two court appearances. From hisOPCA Correspondence, his non-appearance was planned and deliberate. Mr. Murphey submits the OPCA Correspondence was theresult of medications P.M.M. had been taking since his heart stent operation.

P.M.M. now recognizes the Court has power over him andwill attend future court dates when required to do so. Mr. Murphey submits P.M.M.’s spouse, B.J., would be a surety on anyRecognizance of Bail. [48] Considering his personal circumstances, I do not consider P.M.M. a flight risk. I accept Mr. Murphey’s submissions thatP.M.M. incarceration over the last week has impressed upon him the consequences of failing to attend court.

Factor#2: Section 515(1)(b), Where the detention is necessary for the protection or safety of the public, including any victim of orwitness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantiallikelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice [49] In assessing P.M.M.’s risk under the secondary ground (515(10)(b)),namely, the protection or safety of the public, I haveconsidered the factors set out in the oft-cited case of R. v.

Abdel-Rahman, 2010 BCSC 189 , in which Justice Halfyardarticulated the following criteria a. First, is there is a risk that the accused will either commit an offence, or will interfere with the administration of justice, if he isreleased? b. Second, is this risk is of such magnitude that it amounts to a substantial likelihood? c. Third, does the risk constitute a danger to public safety (in general, or to a specific victim or witness) if the accused is released? d.

Fourth, is the detention necessary because the identified danger to public safety cannot be prevented or reduced to an acceptable levelby bail conditions? [50] In particular, I have considered the fact P.M.M.’s criminal record consists only of those offences for which he was convicted onMarch 19, 2019. Except for his recent non-appearances, P.M.M. has been compliant with his conditions of bail. [51] Based on his history of compliance with his bail conditions, I am of the view any risk P.M.M. poses to public safety can bemitigated to an acceptable degree.

Factor #3: Section 515(10)(c), if the detention is necessary to maintain confidence in the administration of justice, having regard toall the circumstances (

a) the gravity of the offence [52] A sexual offence against a child is one of the most serious offences. Justice Abella (as she then was) in R. v. Stuckless, (ON CA): Sexual abuse is

an act of violence. When committed against children, the violence is both physical and profoundly psychological. It iscoercive and exploitative conduct, and represents the use of compulsion against someone who is defenceless. [53] When the Crown proceeds by indictment, a conviction attracts a maximum sentence of 14 years imprisonment. In this case theCrown has proceeded summarily. In 2018, an offence of sexual interference charged under s. 151 and of invitation to sexual touchingunder s. 152, where the Crown has proceeded by summarily attracted a maximum term of imprisonment of not more than two years lessa day and to a minimum punishment of imprisonment for a term of 90 days.

[54] Recently the statutory minimum sentences for sexual interference and invitation to sexual touching have been challenged wherethe Crown has proceeded indictably or summarily: R. v. Scofield, 2019 BCCA 3 ; R. v. Horswill, 2019 BCCA 2 , R. v.C.V.E.B., 2019 BCPC 118 ; Her Majesty the Queen and R.A., 2019 NWTTC 10 and R. v. Drummonde, 2019 ONSC1005circumstances surrounding the offence. (

b) circumstances surrounding the offence [55] Without diminishing the gravity of any sexual abuse against a child, particularly one in a position of trust, many of theaggravating features of sexual offences associated with strong jurisprudential expressions of condemnation and lengthy penitentiarysentences, are absent in this case. (

c) the potential for a lengthy term of imprisonment [56] The Crown has indicted it intends to see a sentence between 3 to 5 months imprisonment together with a number of ancillaryorders, including a s. 161 and SOIRA order. This sentence is significantly less that those imposed where the Crown has proceeded byindictment and the sexual offence is frequent and accompanied by excessive violence, penetration, grooming, coercion, psychologicalthreats or manipulation.

Release Plan [57] In Antic, the Supreme Court of Canada has recognized the Criminal Code establishes a “ladder principle” approach to bail: ajustice or a judge must impose the least onerous form of release on an accused unless the Crown shows why that should not be the case.The steps of the “ladder” are set out in s. 515(2) of the Criminal Code, and range from a simple undertaking to recognizances withoutand with sureties, and on, up the “ladder”, to recognizance with sureties and deposit of money or other valuable security. [58] It bears reiteration that P.M.M. is no longer an accused, but a convicted offender. [59] P.M.M. proposes a Recognizance of Bail on terms similar to that set out in the July 27, 2018 Undertaking, but with B.J. as anamed surety and if necessary, a $500 cash deposit. [60] I am satisfied P.M.M.’s proposes release plan adequately mitigates the risk he will not attend at court when required to do so orif released he will commit further offences or present a danger to the public or the victim.

I am also satisfied the proposed plan satisfiesthe concern P.M.M.’s continued detention is necessary to maintain confidence in the administration of justice. [61] P.M.M. will be released on a Recognizance of Bail in the amount of $500 without deposit and with B.J. as a surety on thefollowing terms and conditions: 1. You must keep the peace and be of good behaviour. 2. You must have no contact or communication, directly or indirectly, with T.T. or T.B. 3. You must not go or be within 10 meters of any residence, school or workplace of T.T. or T.B. 4.

You must report in person to a bail supervisor at 114-3793 Alfred Avenue, Smithers, BC. by 3 p.m. July 30, 2019, and afterthat, you must report as directed by the bail supervisor. 5. You must reside at [omitted for publication], BC with your surety, B.J. and you must not change your residence or your phonenumber without written permission from your bail supervisor. 6. You must not go or be within 20 kilometers of [omitted for publication] BC except with written permission of your bailsupervisor. 7.

You must have no contact or communication directly or indirectly with, nor be alone in the presence of, any person you know tobe or who reasonably appears to be under the age of 16 years. The exceptions are: (

a) your own children; and (

b) in the immediatepresence of a sober adult who is aware of these charges. Sentencing scheduling [62] P.M.M. is convicted of a

summary conviction offence over four months ago. I have provided lengthy written Reasons forJudgment, which I would think could assist new counsel in preparing for P.M.M.’s sentencing hearing. I have scheduled P.M.M.’ssentencing hearing for September 17, 2019, in Smithers Provincial Court. At P.M.M.’s request, I ask Smithers Community Correctionsprovide a presentence report with a Gladue component by this date. [63] P.M.M. has taken steps to have Mr. Murphey appointed as his legal counsel for the sentencing.

Nevertheless, the Court willproceed with sentencing whether or not P.M.M. chooses to retain counsel or cooperate with Community Corrections with the preparationof a pre-sentence report. If P.M.M. carries through with his plan to retain Mr. Murphey or some other local legal counsel, the Court willconsider a brief adjournment of the sentencing hearing to accommodate counsel’s schedule. _________________________ The Honourable Judge J.T. Doulis

Provincial Court of British Columbia Corrigendum - Released September 4, 2019 [1] References to s. 524(4) (

a) of the Criminal Cod e in paragraphs 2, 26 and 39 are corrected to state 524(8)(

a) of the Criminal Code . [2] Paragraph 32 is corrected to state: [32] In this case, P.M.M. had breached his bail conditions when he failed to appear in court when required to do so. As a consequence, the Crown also sought to revoke P.M.M. bail pursuant to s. 424(8)(

a) of the Code which states:

(8) Where an accused described in subsection (3), other than an accused to whom paragraph (

a) of that subsection applies, is taken before the justice and the justice finds (

a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance . . . . . . he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10) . _________________________ Judge J.T. Doulis Provincial Court of British Columbia