R. v. S.N.P. Date:, 2014 BCPC 199

Citation: R. v. S.N.P. Date: 20140915 2014 BCPC 0199 File No: 34558-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.N.P. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE THESE REASONS FOR JUDGMENT ARE SUBJECT TO A BAN ON PUBLICATION - SEE PARAGRAPHS 39-58, BELOW

Counsel for the Crown: C. Proteau Counsel for the Defendant: J. Watt Place of Hearing: Port Alberni , B.C. Dates of Hearing: March 27, April, 1, 2, 29, August 29, 2014 Date of Judgment: September 15, 2014 [ 1 ] Three generations of the P family are affected by the issues in this case. NP is the father of SP. SP is the father of JP (now age 13). SP’S PROBATION ORDER 1. The Problem [ 2 ] SP is subject to a probation order which restrains him from being in the presence of young people except in the presence of a supervisor approved by his probation officer. He applies for an order to vary his probation conditions for two purposes: (

i) to facilitate visits with his son and other family members; (ii) to allow him to take advantage of employment opportunities which would require him to travel to Alberta, and to stay in hotels there. The Crown opposes the application because of SP’s history of inappropriate sexual behaviour with children. [ 3 ] Surprisingly, the difficulty does not arise from the existing terms of the probation order, which, if effect were given to them, would be adequate to meet both SP’s needs and the overriding imperative of protecting public safety.

Rather, it arises because SP’s probation officer has declined to give effect to the existing terms. The existing probation order requires Mr. P to be accompanied by a supervisor approved by his probation officer whenever he is in the company of young children. Mr. P’s probation officer has informed Mr. P that no supervisor will be approved (no matter who is proposed). [ 4 ] Even more surprisingly, this appears to be a common problem: R vs L.P. 2014 BCPC 171 . [ 5 ] I heard the application in late March and early April, 2014. However, Mr. Watt, on behalf of Mr.

P, asked me to defer judgment on the application to allow Mr. Watt time to apply for an order banning publication of any information which might identify members of the P family. I heard the latter application on August 29, 2014. 2. SP [ 6 ] SP lived with his mother from birth to age 9, when he went to live with his father. [ 7 ] SP first exhibited unusual behaviours at age 3. He was admitted to his first treatment program at age 9. One of the concerns then identified were reports of inappropriate sexual behaviour with both boys and girls, commencing when Mr. P was about 6 years of age. Mr.

P was readmitted to a treatment program at age 16 because of “… concerns about anger and sexually intrusive behaviour with young children …”. He was described as “… very resistant to programming but did engage when given a clear consequence for his behaviour”. [ 8 ] In 1998, at age 19, Mr. P began a relationship with a girl, then age 13. In 2001, she gave birth to Mr. P’s son, J.

J, now age 13, has lived since his first birthday with SP’s father, NP. [ 9 ] SP has two youth convictions and one adult conviction for minor property offences during the period 1996 - 1998. [ 10 ] In March, 2011, SP was made the subject of a recognizance under

section 810.1 of the Criminal Code . One of the terms of that recognizance was that he have no contact with persons under the age of 16. SP’s response to the recognizance is described in the following terms: The community supervision of [Mr.P’s] Peace Bond … could best be described as combative. For the majority of supervision, [Mr. P] did not cooperate.

He failed to answer questions necessary for effective case management and on one occasion was threatening to a probation staff member. [ 11 ] On January 27, 2012, SP entered a guilty plea to a charge of sexual interference with a person under the age of 16, and was sentenced to 6 months’ jail and 3 years’ probation. [ 12 ] SP is now 35 years of age. He suffers from organic brain syndrome. As a result, his intellectual capacity is very limited, he is functionally illiterate and his attention span is restricted. He has self-regulation deficits and poor impulse control.

His cognitive deficits render him a poor candidate for the sex offender treatment and counselling programs offered by the Forensic Psychiatric Services Commission. For that reason, in May, 2013, he was offered, and accepted, enrolment in a treatment program tailored to his specific needs. In June, 2013, Dr. Piché, his treating psychologist, discharged Mr. P from the program. In her discharge

summary, Dr. Piché said that Mr. P was “… a very positive participant within this program …”, and that his “… participation was excellent …”. Dr. Piché ’s discharge

summary does not include an assessment of Mr. P’s risk of re-offending.

[ 13 ] At my request, Dr. Piché attended by telephone to provide oral evidence on February 25, 2014. She said that: a. Mr. P’s ability to control his impulses, when not supervised, is not significantly different than it was in January, 2012. b. Mr. P is well-motivated and worked cooperatively with her, but that “… his impairments are biological and we can’t fix that”. He cannot internalize new information, as a result of which his risk of re-offending if left unsupervised is not significantly different than it was in 2012. c. Dr. Piché is unable to assess whether, if unsupervised, Mr.

P poses a risk to his son. d. There is no further treatment which would assist Mr. P, and the only service which can now usefully be offered to him is supervision. Dr. Piché said that he needs “an external brain” to assist him in controlling his behaviour. e. The best way to manage Mr. P’s risk is to keep him busy and keep him supervised. f. Dr. Piché is unable to comment on the suitability of any particular individual as a supervisor. [ 14 ] Mr. P presently subsists on government disability benefits.

He has an employment opportunity in Alberta, but that opportunity would require him to travel to Alberta and to stay in hotels as he travels from place to place in the course of his employment. Mr. P proposes that his brother accompany him at all times while he is travelling. 3. Procedural History [ 15 ] As noted above, on January 27, 2012, Mr. P entered a guilty plea before His Honour Judge Dohm of this court to a charge of sexual interference with a person under the age of 16 years. Counsel presented a joint submission respecting an appropriate sentence, and Judge Dohm accepted the joint submission.

The terms agreed comprised a sentence of 6 months’ jail, 3 years’ probation, a SOIRA order and an order that Mr. P provide a DNA sample. Significantly, for the present purpose, no order was sought or made under

section 161 of the Criminal Code . [ 16 ] The duration of a probation order is limited, by

section 732.2(2) of the Criminal Code , to three years. An order may be made under

section 161 for any term, and may be made for life. Because Mr. P’s probation order will expire on January 27, 2015, and no order was made under

section 161 , the existing constraints on Mr.

P’s liberty (discussed below) will expire a few months from now. [ 17 ] One of the terms of the probation order was: You are not to engage in any activity that involves contact with persons under the age of 16 years including using a computer system … for the means of communicating with a person under that age. [ 18 ] On July 5, 2012, His Honour Judge Sutton of this court varied that term of the probation order by adding the words “… except for contact with your son JP and only in the presence of the paternal grandfather NP who shall I be present at all times during such contact”.

Counsel agree that the word (or letter) “I” between “shall” and “be” was a mere typographical error. [ 19 ] On December 20, 2012, His Honour Judge MacCarthy of this court further varied that term of the probation order by deleting the words added by Judge Sutton and adding the words “… except you may have contact with your nieces and nephews between the 24 Dec 12 and 26 Dec 12 only under the direct supervision of a parent or guardian of each respective niece or nephew”. Counsel agree that the deletion of the words added by Judge Sutton was inadvertent and passed unnoticed.

SP continued to visit JP in the presence of NP, unaware that, by so doing, he was breaching the terms of the probation order as varied by Judge MacCarthy. [ 20 ] On January 17, 2013, Judge Dohm further varied the probation term in question by deleting the words added by Judge MacCarthy and adding the words “… except you may have contact with your nieces and nephews only under the direct supervision of a parent or guardian of each respective niece and nephew”. The fact that the probation order did not allow Mr.

P to visit his son continued to pass unnoticed. [ 21 ] On November 28, 2013, I further varied the probation term in question by deleting the words added by Judge Dohm and adding the words “… except (

a) at the home of your father NP while under your father’s direct supervision; (

b) incidental contact in the course of your employment as a delivery driver”. [ 22 ] On December 18, 2013, I further varied the probation term in question by adding the words: “… (

c) with your son, JP, while in the company, and under the direct supervision, of your father, NP”. [ 23 ] After a lengthy hearing on February 25, 2014 (during which I heard Dr. Piché’s evidence), I further amended the probation order by deleting all of its then-existing terms and imposing a new set of terms ab initio . My objective was to craft a set of probation terms which would allow Mr. P, under appropriate supervision, to: (

i) visit his son, his nieces and nephews; and (ii) pursue employment opportunities. Of the terms which I imposed, the following are relevant to the present application: 5. If you are absent from your place of residence for more than 12 hours, you must: i. notify your probation officer at least 7 days in advance of your date and time of departure, destination, and date and time of return;

ii. be accompanied at all times by an adult person approved in writing by your probation officer. * * * 7. You must not be in the presence of a person under the age of 16 years, except: i. You may be in a public place in which persons under the age of 16 years are present, if other adults are present. For the purposes of this condition, a “public place” is a business premises which is open to the public throughout the time when you are there, and does not include a public park or public swimming area.

While you are in such a place, you must have no communication, directly or indirectly, with persons under the age of 16 years. ii. You may visit your son or your nieces and nephews if an adult person approved in writing by your probation officer is present at all times throughout the visit. Your probation officer may impose conditions in relation to such visits, and you must comply with any conditions so imposed. * * * 9. You must have no communication, directly or indirectly, … with any person under the age of 16 years.

Provided, however, that: i. you may communicate, directly or indirectly, with your son or your nieces and nephews, but only during visits permitted by paragraph 7 and in accordance with any conditions imposed by your probation officer; ii. you may have direct communication with an adult person approved in writing by your probation officer under paragraphs 5(ii) or 7(ii). [ 24 ] Since I made that order, Mr. P’s probation officer has declined to approve anyone to exercise the supervisory authority established by paragraphs 5(ii), 7(ii) and 9(ii) of my most recent amendments to the probation order. Mr.

Edmondson, the supervisor of the Port Alberni probation office, explained that: a. In the past, he, and other probation officers under his supervision, have often been charged with the responsibility to administer probation orders containing terms restraining sexual offenders from contact with young persons except in the presence of a supervisor approved by the probation officer. Because of the nature of sexual offences and offenders, such provisions are difficult to administer and great care must be taken before a supervisor is approved.

However, there have been many cases in which probation officers have approved supervisors for such purposes. b. Early in 2014, Mr. Edmondson’s superiors drew to his attention the existence of a legal opinion, provided to them, to the effect that a probation officer has no legal authority to approve a supervisor in such circumstances, even when provision for supervision is made in a probation order similar to the one which I made in this case. Mr. Edmondson has not seen the opinion.

He has, however, been instructed by his superiors that neither he nor the probation officers whom he supervises is to approve any supervisors for Mr. P, or for any other offender similarly situate. c. As a result, Mr. P’s probation officer will not be approving anyone to carry out the supervisory functions contemplated by my probation order. [ 25 ] The legal opinion to which Mr. Edmondson referred was not provided to Mr. Watt or to me. Ms. Proteau has not read it. I suggested to Ms. Proteau that: a. Because Mr. Edmondson invoked the legal opinion as his reason for declining to approve any supervisors for Mr.

P (which would be necessary to give effect to my amendments to the probation order), the Crown had waived privilege over the opinion. The relevant principle was stated in Pacific Concessions Inc . vs Weir 2004 BCSC 1662 ; [2004] BCJ #2653 @ paragraph 17: … where a party puts its state of mind with respect to its legal knowledge at issue, then that party will be deemed to have waived solicitor-client privilege …. b. It would assist us all to read and understand the opinion. Ms. Proteau did not make the opinion available to Mr. Watt or to me. Mr. Watt did not apply to compel the Crown to produce it. 4.

Should I Amend the Probation Order? [ 26 ] If the legal opinion to which Mr. Edmondson referred is correct, then Mr. P’s probation officer has no power to implement my probation order by approving supervisors for him. If that is so, I ought to exercise my jurisdiction to amend the probation order by naming supervisors whom I consider to be appropriate. If the legal opinion is incorrect, then the power to name supervisors is properly vested in Mr. P’s probation officer and the power to oversee the probation officer’s decisions is vested in the superior courts on judicial review.

If that is so, I should not presume to review Mr. Edmondson’s decision, and should leave the matter to be addressed by the superior courts. I must therefore decide whether the legal opinion, as summarized by Mr. Edmondson, is correct. [ 27 ] I amended Mr. P’s probation order to direct that, in defined circumstances, he be accompanied by a supervisor approved by his probation officer. Similar terms are often included in probation orders issued by this court, and are thought to be authorized by

section

732.1(

h) of the Criminal Code, which empowers the court to prescribe, as terms of a probation order, “… such other reasonableconditions as the court considers desirable … for protecting society …”. [28] A difficulty arises from the judgment in R vs Shorten [1975] BCJ #1073; (BC CA), [1976] 3 WWR 187; 29CCC (2d) 528, in which it was held that the court may not delegate to a probation officer any part of the decision-making powerconferred upon the court by the Criminal Code. If the law was correctly stated in Shorten: a. I erred when I conferred on Mr.

P’s probation officer the authority to decide who would be an appropriate supervisor. b. Only a judge of this court has the authority to identify appropriate supervisors. c. Mr. P’s application is properly before the court. [29] By contrast, if the law was not correctly stated in Shorten, Mr. P’s probation officer is lawfully empowered (by my amendments to the probation order) to determine who is, or is not, an appropriate supervisor. In D.H. vs J.H. 2008 BCCA 222; 81 BCLR (4th) 288;[2008] 9 WWR 82, the court held that, in making such a determination, a probation officer exercises authority conferred by

section 4 ofthe Correction Act SBC 2004, c 46. The determination is, therefore, the exercise of a statutory power of decision. The power to reviewthe determination may be exercised only by judicial review in the Supreme Court of British Columbia: Judicial Review Procedure ActRSBC 1996, c 241.

I have no jurisdiction to conduct a judicial review. [30] So, the question comes down to whether Shorten accurately states the law of British Columbia. [31] In Shorten, the sentencing judge included an order for restitution as a term of a probation order, and fixed the amount to be paid,but left the timing of payment and the question of instalment payments to the discretion of the probation officer. The Court of Appealheld that the latter provision was an unlawful delegation of the authority of the sentencing judge. [32] The reasoning in Shorten has been applied in other circumstances. For example: a.

In R vs C.C.H. [1994] NSJ #334; (NS FC), 136 NSR (2d) 127, a young offender was charged with breach ofa bail condition imposed by a justice of the peace. That condition required him to abide by the rules of a youth home in which he wasrequired (by another bail condition) to reside. The court found that the condition requiring compliance with the rules of the youth homewas an impermissible delegation of authority by the justice of the peace to the youth home supervisors, and the young offender wasacquitted. b.

In R vs Beam [1954] OJ #288; (ON CA), 109 CCC 381, the Ontario Court of Appeal considered a term of aprobation order which required the offender to “… promptly and faithfully obey the directions of the Probation Officer as to his habits oflife and mode of living …”. The court held that, by that term, “… the learned Magistrate was delegating to the Probation Officer thepower to decide what habits of life and mode of living the appellant must follow during the period of his probation.

That, no magistratecan do”. [33] I have made many probation orders requiring (for example) young offenders to obey the rules of youth group homes, adultoffenders to reside in places approved by their probation officers, and offenders of all ages to attend counselling programs to which theymay be directed by their probation officers. I am aware that my colleagues routinely make such orders. Those orders are very useful. Probation officers are possessed of professional skills and knowledge which I lack. They are trained in the assessment and managementof difficult people.

They have access to inventories of community resources which can be of great assistance in risk-management andrehabilitation of offenders. They are in frequent contact with their clientele, and can make day-to-day adjustments to deal with evolvingsituations and emergencies. I lack the skills and knowledge to competently manage a probation program on a day-to-day basis. Thepervasive difficulty in accessing court time would give rise to inappropriate delays in adjusting probation programs if every changerequired judicial approval.

Youth group homes simply can’t function unless the residents are obliged to follow the house rules. Shortlyput, if the law is accurately stated in the cases mentioned, probation will fail to achieve its objectives. [34] Fortunately, I do not think that the law was correctly stated in Shorten, C.C.H. and Beam. I am mindful that Shorten is ajudgment of the British Columbia Court of Appeal, and so binding upon me. However, I am unable to reconcile it with later judgmentsof the same court, and so conclude that it has been implicitly overruled.

In reaching that conclusion, I apply the method of analysisadopted by Esson, JA in Fraser River Pile & Dredge Ltd vs Can-Dive Services Ltd [1997] BCJ #2355; 39 BCLR (3d) 138; (BC CA), [1998] 3 WWR 177 @ paragraphs 39 - 45 {affirmed @ (SCC), [1999] 3 SCR 108}. a. In R vs Lea [1988] BCJ #1957, the Court of Appeal varied a sentence by imposing the following terms of probation (underliningadded): There should also be a term of probation of one year.

In addition to the standard terms, such as keeping the peace and being of goodbehaviour, there should be terms requiring him to report immediately upon his release to a probation officer in the Chilliwack office ofthe probation authorities. He should report to the probation officer as and when directed by the officer. There has been an indication thathe may come to live in Vancouver, or possibly in the Victoria area. Where he resides will be in the discretion of his probation officer. Ifhe changes his place of residence he is to immediately advise his probation officer.

He should take alcohol counselling and other therapyas may be directed by his probation officer. He is to seek and maintain employment and, if necessary, participate in any upgradingtraining that may be directed by his probation officer. b. In R vs Foster 2005 BCCA 447; [2005] BCJ #683, the court dismissed a sentence appeal. In so doing, Newbury, JA said(underlining added): As for the probation order, Ms. DeWitt-Van Oosten notes that it is wide enough to permit flexibility and discretion with respect to thereporting requirements. It is, of course, for the probation officer to consider Mr.

Foster's employment conditions in setting the reportingrequirements and we assume that the probation officer will take cognizance of the fact that it is in the appellant's interest to be employed

either as a fisherman or a tree planter in the upcoming spring season. Obviously, these occupations are normally pursued in remote placeswhere direct reporting may be difficult. Therefore, we would hope that the probation officer will recognize that it is in the appellant'sinterest and in the public interest to permit some telephone reporting in this case. c. In R vs R.R.M. 2009 BCCA 578; [2009] BCJ #2528, a division of five Justices approved the following term of a probation orderin a case factually similar to that of Mr.

P (underlining added): You shall not be in the company of any person under the age of 18 years, unless you are supervised by an adult who was previouslyapproved in writing by your probation officer. d. In R vs Bourque 2013 BCCA 447; [2013] BCJ #2528, the court approved, inter alia, the following probation conditions(underlining added): Condition 13: You are not to have any association with any person under the age of 18 unless you are in the company of an informedadult approved in advance by your Probation Officer.

Condition 14: You are not to attend any public school, parks, playgrounds, or public swimming pools, or areas adjacent to the swimmingpools or any other locations where it can reasonably be expected that persons under the age of 18 are likely to be present unless you areaccompanied by an informed adult approved in advance by your Probation Officer.

Condition 18: You may use a computer, including access in the internet, for the sole purpose of seeking employment but only at theoffices of Vancouver Probation Service at 275 East Cordova Street, Vancouver, British Columbia and only while being supervised by aperson approved by your Probation Officer. e. In D.H. v J.H. (supra), in circumstances remarkably similar to those of Mr.

P, the court affirmed the trial judge’s finding that aprobation officer negligently exercised his statutory discretion in the administration of a probation order. [35] Each of Lea, Foster, R.R.M., Bourque and D.H. would necessarily have been decided differently if the court had been of theopinion that the law was correctly stated in Shorten, C.C.H. and Beam. For that reason, I conclude that Shorten has been overruled, andthat neither C.C.H. nor Beam should be followed in British Columbia. [36] If the legal opinion to which Mr.

Edmondson referred is correct, the Court of Appeal made, in R.R.M. and Bourque, probationorders which the probation officers had no legal authority to implement. It necessarily follows that the opinion is incorrect. [37] Mr. Watt points out that I have amended Mr. P’s probation order in the past, and have jurisdiction to do so again. He submitsthat I should exercise that jurisdiction because Mr. P’s probation officers are unreasonably refusing to approve supervisors proposed byMr. P.

I do not think that a probation order should be amended for such a reason, even if the evidence were to clearly establish that aprobation officer was acting unreasonably. To grant an amendment on such a ground would be to evade the rule that judicial supervisionof probation officers’ decisions is a matter for judicial review by the superior courts, not for an appeal on the merits to the court whichmade the probation order. 5. A Solution to the Problem [38] As noted above, this problem arises from time to time.

I have been told that probation officers are reluctant to exercisedelegated judicial authority because they fear civil liability. That is a reasonable fear: B.M. vs R.M. 2009 BCCA 413; [2009] BCJ #1942; 97 BCLR (4th) 234 @ paragraphs 36 – 51. If I were to approve a supervisor for Mr. P, I would be immune from civil liability: Sirros vsMoore [1975] 1 QB 118, quoted with approval in Morier vs Rivard (SCC), [1985] 2 SCR 716. However, a probationofficer who, exercising authority which I delegated to him, approves a supervisor for Mr. P is not: B.M. vs R.M.

It is within the powerof the Legislature to confer on probation officers such immunity as the Legislature thinks fit. PUBLICATION BAN [39] Mr. Watt, on behalf of SP, seeks an order banning publication of any information which would enable the public to identify anymember of the P family. 6. The Evidence [40] During the hearing before me, Ms. Proteau, for the Crown, read detailed particulars of the Crown’s allegations in relation to theoffence referred to in paragraph 15. If true, those particulars are very disturbing. The particulars recited by Ms.

Proteau are much moredetailed and much more serious than those recited by Crown counsel at the sentencing hearing before Judge Dohm. At the sentencinghearing, SP admitted some, but not all, of the particulars recited by Crown counsel. Mr. P has not admitted any of the more detailedparticulars recited by Ms. Proteau. No evidence of the particulars was led at either hearing, and they remain unproven. Because theyhave been neither admitted nor proven, I have refrained from summarizing them in these reasons. However, they were recited in opencourt. At least one representative of the press was present to hear them.

Unless a publication ban is ordered, the press will be free topublish those unproven allegations. [41] JP is now 13 years of age. He has been in the care of NP since he was a year old. NP gave evidence at the hearing before me. Iaccept that evidence as accurate and truthful. It may be summarized as follows. JP was diagnosed at an early age with attention deficit

disorder, and takes appropriate medication for that condition on school days only. Until SP’s conviction in January, 2012, JP displayedno other mental or emotional difficulties. He was always a good and well-behaved student, and had many friends at school. When SPwas convicted, his name and the particulars of his offence were published in the local newspaper and broadcast on the local radio station. A local citizen, not associated with any media organization, printed posters carrying SP’s photograph and particulars of his offence, andput up those posters on lamp posts and walls in Port Alberni.

Port Alberni is a small town. As NP expressed it, “everyone knew”immediately that JP was the son of the offender. Over the next 18 months, JP’s life changed dramatically. He was teased and bullied byhis classmates, and frequently got into fights at school. As a result, he was often sent home from school at mid-day, which had neverhappened before. His grades declined dramatically. He became emotionally volatile and twice threatened suicide. NP considers those tobe serious threats. He arranged counselling for JP. Eventually, media coverage of the story ceased. Thereafter, JP’s emotionalcondition improved.

He now does very well in school. He has friends again, and appears to be emotionally stable. NP is concerned thatmedia coverage of the present proceedings will cause JP to relapse. [42] Ms. Proteau points out that the period of J’s emotional turmoil coincides with the period in which SP was in jail. She suggeststhat his emotional turmoil is attributable to separation from his father, rather than to his classmates’ response to media coverage. Adolescent boys are emotionally complex. It may be that separation from his father adversely affected J.

However, I have no doubt thatthe change in J’s social situation at school resulting from the media coverage of SP’s conviction was a very material contributing factorin the behavioural changes described by NP. I have in mind particularly that the early teens are a time when a child’s contemporariestake on an enhanced importance, and often displace parents as the most important influences in young lives. The response of J’sclassmates to the news of SP’s conviction was a predictable result of the media coverage. 7.

Jurisdiction [43] I am mindful that I am a judge of a statutory court, and that my inherent jurisdiction is limited to that described in R vsCunningham 2010 SCC 10 , [2010] 1 SCR 331 @ paragraphs 18 – 19.

However, it has been held that the inherent jurisdictionof the statutory courts includes the power to order publication bans in appropriate circumstances, even where not expressly authorized bystatute: Re Church of Scientology and the Queen [1986] OJ #3068; (ON SC), 27 CCC (3d) 193 @ paragraphs 59, 64,66; R vs T.S. [1993] SJ #96. [44] It is important to note that the jurisdiction of a court of record to order a publication ban was recognized at common law:Dagenais vs Canadian Broadcasting Corporation (SCC), [1994] 3 SCR 835 @ paragraph 68.

It is necessary to considerwhether the common-law jurisdiction is now limited by

section 486.5 of the Criminal Code, which authorizes an order banningpublication of information which might identify a complainant or a witness. JP is neither. The question is whether, by referringexpressly to complainants and witnesses, and no others, Parliament intended to instruct the courts that publication bans should be orderedonly to protect those two classes of people. I think not, for two reasons: a. I understand it to be a general principle of statutory

interpretation that the legislature is presumed to intend no amendment to thecommon law unless such an intention appears clearly from the words of the statute. A rule of common law is not repealed by a statute that does not mention it. Cotroni vs Quebec (Police Commission) (SCC), [1978] 1 SCR 1048 … explicit statutory language is required to divest persons of rights they otherwise enjoy at law. Domgroup Ltd vs Crystalline Investments Ltd 2004 SCC 3 , [2004] 1 SCR 60 @ paragraph 43 b. The applicable legal maxim is expressio unius est exclusio alterius.

I am guided by the following statements of principle, each ofwhich was approved by the Saskatchewan Court of Appeal in Canadian Pacific Limited vs Carlyle (Town) (SK CA),[1987] 4 W.W.R. 232: ... it is simply not true, generally, that the mere express conferral of a right or privilege in one kind of situation implies the denial of theequivalent right or privilege in other kinds. Sometimes it does and sometimes it does not, and whether it does or does not depends on theparticular circumstances of context. Without contextual support, therefore, there is not even a mild presumption here.

Accordingly, thismaxim is at best a description, after the fact, of what the court has discovered from context. * * * … since it is only a guide to the legislature's intent, a contrario reasoning [e.g. use of the maxim: expressio unius est exclusio alterius ]should certainly be set aside if other indications reveal that its consequences go contrary to the statute's purpose, are manifestly absurd,or lead to incoherence and injustice that could not have been the desire of Parliament. * * * The failure to make the "expressio" complete very often arises from accident, very often from the fact that it never struck the draftsmanthat the thing supposed to be excluded needed specific mention of any kind.

[45] I am unable to conclude that, by expressly authorizing publication bans in the interest of complainants and witnesses, Parliamentintended to constrain the common-law jurisdiction of the courts to order publication bans in the interest of others. As noted below, thereis a well-recognized and compelling public interest in the protection of children, which is worthy of consideration in this case. 8. Constitutional Constraints [46] Any publication ban would necessarily impinge upon the constitutional rights of free speech and a free press. For that reason, apublication ban can be ordered only if it can be justified in accordance with

section 1 of the Canadian Charter of Rights & Freedoms; i.e.if it “… can be demonstrably justified in a free and democratic society”. [47] In Saskatchwan (Human Rights Commission) vs Whatcott 2013 SCC 11 , [2013] 1 SCR 467, Rothstein, J said @paragraphs 64, 66 that “… the right to freedom of expression is not absolute and limitations of freedom of expression may be justifiedunder s. 1 …”, and that, when undertaking a justification analysis, the courts are “… required to balance the fundamental valuesunderlying freedom of expression … in the context in which they are invoked, with competing Charter rights and other values essentialto a free and democratic society … “(underlining added).

In so doing, courts must consider three questions: a. Is the risk to competing societal values (in this case, the protection of children) “pressing and substantial”? b. Is the proposed response (a publication ban) “proportionate”? Put differently, does the proposed publication ban impinge aslittle upon free speech as is possible while still attaining the objective of protecting JP from harm? c. Is the proposed publication ban “rationally connected” to the objective of protecting JP from harm? I answer each of those questions in the affirmative.

Further publication of these court proceedings is likely to cause an immediate andserious resumption of harassment of JP by his classmates, particularly in view of the very serious allegations which were made by theCrown at the hearing before me (which had not previously been made). Given the response of JP’s classmates to the limited allegationswhich were made at the sentencing hearing, it is close to certain that they would respond in a more aggressive way to the new and moreserious allegations now made by the Crown. I think that a publication ban would be proportionate.

No alternative measure, sufficient toprovide JP with reasonable protection from bullying, was suggested by either counsel. A publication ban is rationally connected to therisk of harm to JP. His misfortunes resulted from the earlier publication of these proceedings. [48] There is authority for the proposition that private interests cannot justify a publication ban, presumably on the premise that thepublic interest in free speech and a free press is always, and in all circumstances, more compelling than any private interest.

In MEH vsWilliams 2012 ONCA 35; 108 OR (3d) 321, Doherty, JA said @ paragraph 25 (underlining added): Mentuck describes non-publication and sealing orders as potentially justifiable if "necessary in order to prevent a serious risk to theproper administration of justice". A serious risk to public interests other than those that fall under the broad rubric of the "properadministration of justice" can also meet the necessity requirement under the first branch of the Dagenais/Mentuck test …. The interestjeopardized must, however, have a public component.

Purely personal interests cannot justify non-publication or sealing orders. Thus,the personal concerns of a litigant, including concerns about the very real emotional distress and embarrassment that can be occasionedto litigants when justice is done in public, will not, standing alone, satisfy the necessity branch of the test. In 101114386 Saskatchewan Ltd vs Saskatchewan (Financial & Consumer Affairs Authority) 2013 SKCA 122; [2013] SJ #679 @paragraph 18, the Saskatchewan Court of Appeal adopted the principles stated in MEH vs Williams.

In R vs Badakhshan [2014] OJ#1396; (ON SC), 118 OR (3d) 706 @ paragraphs 6 - 7, Dambrot, J said (underlining added): … the test for banning publication is an onerous one. A publication ban can only be ordered if it is made to advance the proper interestsof justice, and not merely to advance an individual interest, and further that it is necessary for that purpose. * * * … publication bans should only be ordered when: (

a) such an order is necessary in order to prevent a serious risk to the properadministration of justice because reasonably alternative measures will not prevent the risk; and (

b) the salutary effects of the publicationban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to freeexpression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. [49] However, there is contrary authority. a. In R vs Bernardo [1995] OJ #1472, Lesage, ACJOC held that the privacy interests of the families of Mr. Bernardo’s victimsoutweighed the public interest in free speech and a free press. Ms.

Proteau points out that the issue in Bernardo was publication ofcertain particular items of evidence, while the issue here is publication of all parts of the proceeding. I do not think that is a materialdistinction. The question is what factors may be taken into account. I do not understand why different factors are relevant to part of theproceeding, as distinct from the whole. b.

In Episcopal Corp. of the Diocese of Alexandria-Cornwall vs Cornwall 2007 ONCA 20; [2007] OJ # 100; 278 DLR (4th) 550,Sharpe, JA said @ paragraph 42 that the “… protection of the reputation of innocent persons is a highly significant factor to be weighedin the balance …”. The Alexandria-Cornwall decision was not mentioned in the judgment in MEH vs Williams. c. In R vs Panghali 2011 BCSC 422; [2011] BCJ #698; 271 CCC (3d) 126 @ paragraph 56, Holmes, J held that a child’s privacy is “…a legally-protected interest sufficient for consideration in the application of the Dagenais/Mentuk test”.

[50] It seems to me that MEH vs Williams and Badakhshan state the governing principle too categorically. a. In every human society, a balance must be struck between individual interests and collective interests. Each society strikes thatbalance differently, and the way in which it does so may be said to be characteristic of that society. Canadians value both freedom of thepress and individual privacy. I do not think that there is a consensus among Canadians that freedom of the press is of suchoverwhelming public importance as to trump individual interests in every case.

Rather, I think that Canadians expect that, when publicand private interests conflict, the courts will carefully consider all of the interests engaged by reference to the particular circumstances ofthe case, in an attempt to reach a conclusion which reflects Canadian societal values. b. I think it fair to say that the protection of individual rights is one of the primary objectives of the Charter. That being so, I wouldhave thought there might be cases in which private interests would be worthy of protection even at the risk of constraints upon, orinfringement of, public interests. c.

I observe that, in R vs Mentuk 2001 SCC 76 , [2001] 3 SCR 442, Iacobucci, J said @ paragraph 33 that, while the Dagenaistest is concerned with potential conflicts between free speech and the proper administration of justice, “… [t]here may also be othercases which raise interests other than the administration of justice, for which a similar approach would be used, depending of course onthe particular danger at issue and the rights and interests at stake …”. For those reasons, if I were free to choose, I would be inclined to follow Alexandria-Cornwall and Panghali, rather than MEH vsWilliams and Badakhshan.

I am relieved of the need to make that choice because Panghali is a judgment which I am bound to follow,and the others are not: R vs Vu 2004 BCCA 230; [2004] BCJ #824; 184 CCC (3d) 545 @ paragraphs 26 – 27. 9. Applying Panghali In This Case [51] If Panghali and Alexandria-Cornwall were correctly decided, the question is how to balance the public right of freedom ofexpression against JP’s private rights. Mr. Watt submits that, in the circumstances of this case, JP’s right to privacy has been so severelyinfringed, at such a delicate stage of his personal development, as to affect the security of his person.

I do not think that there has beenan infringement of JP’s rights under

section 7 of the Charter because the injury to his personal security is not the result of governmentaction. His personal security has been threatened, not by the court proceedings or by the prosecution, but rather by the press and by thecitizen who put up the posters. However, the Charter recognition of the right to security of the person is an indication of the high valueattributed by Canadians to that individual right. [52] I think it important to say that I intend no criticism of the press. Canadian journalists enjoy a well-earned reputation forprofessional responsibility and ethical reportage.

I have not seen the previous media reports of the P case, but I have no reason to doubtthat they have conformed to the high professional standards to which I refer. The posters put up by an anonymous citizen fall into adifferent category, and seem to me to push the boundaries of free expression beyond acceptable limits. [53] There has been a lot of press coverage of this case. The public has been fully informed. The press have had an opportunity toexpress their views, and have done so. JP has suffered as a result.

Balancing one interest against the other, it seems to me that the publicinterest in free expression has been adequately served. It is time to pay appropriate attention to JP’s private interest. At this stage of theproceeding, a publication ban would not infringe significantly on freedom of expression. Given the risk which further publicity wouldpose to JP’s emotional health and social status, a publication ban would be timely and appropriate. 10. Applying Badakhshan In This Case [54] I recognize that I may be wrong in following Panghali.

It is therefore appropriate to consider the case on the premise that thelaw is correctly stated in MEH vs Williams and in Badakhshan. On that premise, the question is whether there exists, in this case, anycompelling public interest which justify a publication ban. I think that there is.

I refer to the following passage from the judgment ofMcIntyre, J in King vs Low (SCC), [1985] 1 SCR 87 @ paragraphs 12 - 14 (underlining added): The law relating to the custody of children and the rights of parents where custody claims are involved has undergone progressivechange since early in the nineteenth century when the parent, usually the father, had a right to custody of an infant child unlessdisqualified by reason of some serious circumstance, having to do with the welfare of the child, making him unfit to have custody. Bylegislative intervention and evolving case law the situation has changed.

The law has moved, first, toward an increase in maternal rights;a progressive diminution of parental rights; and then, a corresponding increase in the consideration of the interest or welfare of the infant,as the significant factor in custody determination. This latter factor has become progressively more important until it may now be saidthat the welfare of the child is the paramount consideration when the courts address the problem. A concise review of the development of the law on this subject may be found in the judgment of Dubin J.A., speaking for the Court ofAppeal of Ontario … in Re Moores and Feldstein ….

That case arose out of an application by the natural mother, married but not to thechild's father, for custody of a four year-old girl whom she had delivered to the defendants a few days after birth, where the child hadremained until the commencement of the application. The trial judge had decided the issue in favour of the natural mother, but DubinJ.A. upon a consideration of earlier authorities (including the cases which have become known in this connection as "the trilogy" …,allowed the appeal and put custody with the adoptive parents.

He drew attention … to the broader, and in his opinion, more enlightened view adopted in the Chancery Court, and referred to the wordsof Lord Cranworth in Hope v. Hope, regarding the application by the court of the parens patriae role.

The jurisdiction of this Court, which is entrusted to the holder of the Great Seal as the representative of the Crown, with regard to thecustody of infants rests upon this ground, that it is the interest of the State and of the Sovereign that children should be properly broughtup and educated: and according to the principle of our law the Sovereign, as parens patriae, is bound to look to the maintenance andeducation (as far as it has the means of judging) of all his subjects.

[ 55 ] I hasten to point out that I do not rely upon the parens patriae doctrine as a source of jurisdiction to make the order sought. The parens patriae jurisdiction may be exercised only by the superior courts: D.S. vs P.S. 2004 BCPC 354 ; [2004] BCJ #1999. The sources of jurisdiction upon which I rely are stated in paragraphs 43 - 44, above. I refer to King vs Low only in support of the proposition that there is a compelling public interest in the protection and fostering of children.

It is therefore right to say that this application is not made solely in pursuit of private interests. [ 56 ] Badakhshan requires me to balance the public interest in a free and unconstrained press, and in open public debate, against the public interest in JP’s healthy development as he transitions from adolescence to adulthood. [ 57 ] I observe that: a. The order sought would not significantly constrain public debate, including press commentary, in relation to the very important public issues discussed in these reasons for judgment.

Those issues can be thoroughly debated without mentioning any information which might disclose the identity of any member of the P family. b. If it is appropriate to warn the public about the continued risk of further offences by SP, that objective has already been attained by the previous press coverage of the case. Any further publication, identifying SP or his family, would not provide additional useful information to the public - it would only serve to feed flames which have died down over the past 18 months. c. JP is a young man on the threshold of adulthood.

He plainly has the capacity to develop into a useful and contributing citizen. That appears to be likely if a publication ban is ordered. He is also at risk of developing into an anti-social and unproductive adult. That appears to be likely if a publication ban is refused. [ 58 ] If I were to order no publication ban, it would be the duty of the press to continue to cover the story, and they would deserve no criticism for doing so.

For the reasons given, I think that the public interest in JP’s healthy development is more compelling than the public interest in continued reporting of this story, and that a publication ban should be ordered. Overall, I think that the public interest would be better served by prohibiting further publication of the details of this proceeding, in the hope that JP’s present developmental trajectory can be sustained. DISPOSITION [ 59 ] Mr.

P’s application for an order approving particular individuals as supervisors under the terms of his probation order is dismissed. [ 60 ] There will be an order, prohibiting publication of any information about, or derived from, these proceedings which would enable or assist the reader to identify any member of the P family. September 15, 2014 ______________________________ T. Gouge, PCJ