R. v. Berube Date:, 2011 BCPC 30

Citation: R. v. Berube Date: 20110127 2011 BCPC 0030 File No: 36547-2-C Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. YAN JOSEPH MARCEL BERUBE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DOHERTY Counsel for the Crown: B. Morrrison Counsel for the Defendant: D. Evans Place of Hearing: Courtenay, B.C.

Date of Judgment: January 27, 2011 [ 1 ] THE COURT: Yan Joseph Marcel Berube appeared before this court 29 December 2010, on Indictment 36547-C-2, for trial. [ 2 ] Certain admissions of fact were put before the court: namely, on May 18th, 2010, the Comox Valley RCMP detachment received a telephone complaint concerning threats allegedly made towards Stephen Major by Mr. Berube. On that date, Major was interviewed by police. During his interview he revealed that he had received death threats from Berube, threats to cut his hands and feet off, and threats against his family.

Berube demanded that Major meet with him at various locations that night, settling on the Union Bay Petro- Can gas station. Major received a telephone voicemail message from Berube, indicating that if he did not follow through with demands to meet him, Berube would disfigure Major's face so that it would be a closed-casket funeral. [ 3 ] Major indicated in his statement that Berube sent voice and text messages in which he said Major had to be there at 10 o'clock to meet face-to-face and various threats were made to him. Major told police he took the threats seriously.

Major advanced, as a possible motivation for the threats, a belief on the part of Berube that Major was responsible for a break-in of Berube's Cumberland residence, during which military metals of great importance to Berube were stolen. [ 4 ] On May 19th, 2010, police received a call from Dr. Sheila Haegert, a psychologist who had been working with Mr. Berube, advising that she had just spoken to Christine Semenick, a nurse for the Federal Department of Veterans Affairs. Nurse Semenick told Dr. Haegert that she had scheduled an appointment with Mr. Berube that day and was with Mr.

Berube at his residence in Cumberland. Nurse Semenick also advised Dr. Haegert that Mr. Berube had a fully-loaded pistol in his possession. The nurse described him as agitated and pacing up and down. Someone had broken into his home. Certain items were stolen from him, including his service medals. In the presence of the nurse, Berube went into the bedroom and brought out a scarf with a loaded handgun wrapped in it and placed on the table. He was still pacing back and forth, very agitated, and said he would either shoot himself or the RCMP would shoot him. He asked the nurse to leave; she wouldn't.

She explained to him that the RCMP wouldn't shoot him if she remained in the house. [ 5 ] Police attended to Berube's residence and he surrendered to police without incident.

[ 6 ] A supplement to the abbreviated statements of fact was also filed. That set out, among other things, that the Crown reviewed the file. Originally, the matter was set for sentencing on July 22, 2010. Crown reviewed the report and Crown says it recognized an error; Berube had been charged with possession of a prohibited and restricted weapon, a loaded handgun. [ 7 ] Section 91(2) of the Criminal Code relates to unauthorized possession of a prohibited weapon, restricted. The definition of weapon as it relates to this

section excludes firearms. Therefore, a charge under s. 91(2) could not proceed. Crown then drafted the C- Indictment. Crown advised counsel for Mr. Berube of the error. [ 8 ] Those two sets of facts, abbreviated as I have made them, were put before the court, and on the date of the trial the court heard no further evidence and no submissions. A finding of guilt was entered on the C Indictment. [ 9 ] The accused then filed a notice of application for the following: 1. An order pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms , that the within proceedings against the applicant be stayed; and 2.

An order pursuant to s. 24(1) of the Charter , that s. 95(2) of the Criminal Code is unconstitutional and of no force or effect in accordance with s. 52 of the Charter; or 3. An order pursuant to s. 24(1) of the Charter that s. 95(2) is not applicable to the applicant; or 4. Such other order as the court seems just. [ 10 ] The facts upon which this application is founded are included at page 2. I am going to set them out because I think it would be helpful to understand the development of this case: 1. The applicant was originally charged on Information 36547-1 with uttering threats, sworn May 20, 2010. 2.

The applicant made an agreement, on or about the 16th of June 2010, with Crown counsel, whereby he would plead guilty to Counts 1 and 4 on the Information 36547-1 on June 17th, 2010, and participate in a forensic assessment and presentence report investigation prior to sentencing. There was no proposal for a joint submission at that time. 3. On June 17th the applicant entered guilty pleas to Counts 1 and 4 on Information 36547-1. Thereafter, he participated candidly in the assessments agreed upon. 4.

The forensic report and presentence report were prepared prior to the anticipated disposition date of July 22, 2010, and received by Crown prior to July 22, 2010. 5. On the anticipated disposition date, July 22, 2010, Crown entered a stay of proceedings on Information 36547-1 and advised the court they were proceeding against the applicant on Indictment 36547-2-C, sworn July 22, 2010. [ 11 ] In reference to s. 7 , 9 , and 12 of the Charter , counsel for the applicant notes the sentencing regime in s. 95(2) of the Criminal Code mandates a minimum sentence of three years should Crown proceed by Indictment.

The applicant says the minimum three-year sentence is grossly disproportionate to the facts of this specific case and the offence; that the imposition of a minimum three-year incarceration is entirely within the discretion of the Crown and not in accordance with the principles of fundamental justice and results in arbitrary detention. [ 12 ] The accused is a former member of the Canadian Armed Forces and, specifically, the Third Battalion, Princess Patricia's Light Infantry (PPLI).

On April 18th, 2002, Corporal Berube, as he then was, and his fellow Alpha Company Troops were conducting a live- fire night exercise in Afghanistan, when a U.S. Air Force Major flying an F-16 dropped a 250 kilogram bomb on Alpha Company. That so-called friendly fire incident killed four Canadian soldiers and injured more. Among those killed was Corporal Dyr, the best friend of Corporal Berube. It was Corporal Berube who accompanied his friend's flag-draped coffin to Edmonton burial. [ 13 ] We know a great deal about Mr. Berube because of the information put before the court at a previous hearing.

It is clear that Mr. Berube had to separate himself from the service; that he suffers some sort of post-traumatic stress disorder or perhaps survivor's guilt; and that he self-medicates. Veterans Affairs is actively involved with this man, and at one point the court was told that arrangements were being made to take him into residential care. [ 14 ] It would appear that everyone, and here I include the Crown who agreed to the initial plea agreement, was aware that this damaged former soldier needed help.

I expect the anticipation was that the help would come from a court mandated probation order or with probation and a Conditional Sentence Order. That all changed when Crown laid the new Indictment. [ 15 ] Mr. Berube says what happened in this case amounts to an abuse of process. [ 16 ] A conviction on any count on Information 36547, the original information, did not require the court to impose upon him a minimum mandatory sentence. Crown agreed to take a plea on Counts 1 and 4. The accused, accordingly, entered those pleas, consented to remain in custody while a forensic and presentence report was prepared.

Disposition was set for July 22, 2010, and both Crown and defence had the reports in hand prior to that date. [ 17 ] On the date of disposition, Crown stayed the original information on which the pleas were taken and substituted a C-Indictment.

The C-Indictment contained three counts identical to those on the original information, but added two counts of unlawful possession of a firearm contrary to s. 95(1) of the Criminal Code . [ 18 ] Defence says there was a plea agreement made June 16, 2010, that the accused plead to those counts sought by Crown, that he agreed to stay in custody while the reports were prepared. The inference the accused wants the court to draw, it was only after the

Crown perused the forensic and PSR that Crown decided the plea arrangement, or no plea arrangement, that Crown would place the accused in significantly more jeopardy by exposing him to a three-year minimum mandatory. [ 19 ]

Section 7 of the Canadian Charter of Rights and Freedoms subsumes the doctrine of abuse of process. The accused argues at paragraph 21 of his brief that: Mr. Berube's right to liberty and security of the person has been compromised by the Crown's conduct in this case, and the fairness of the trial has been negatively affected. Paragraph 22, further, at pages four and five: The court in Box and Aubichon makes it clear that the accused does not have to prove that the authorities are guilty of misconduct or that they acted with malice or some ulterior motive in order to find that there was an abuse of process.

Paragraph 23: In Mr. Berube's case, it is submitted that there is evidence of improper conduct by the Crown. It was not until Mr. Berube participated candidly in the reports agreed upon by the Crown, and those reports were received by Crown counsel, that the decision was made by Crown to stay the first information and swear the second information. The timing makes it a reasonable conclusion that the content of the reports led the Crown decision to remove the discretion from the sentencing judge and increase the jeopardy faced by Mr. Berube.

There was otherwise no new evidence in the case. [ 20 ] The accused relies on R. v. Remple , Nelson Registry 936, May 14, 1993, Mr. Justice Oliver, but before I canvass that case, it is important to understand the significant change in jeopardy to Mr. Berube caused by the laying of this C-information. [ 21 ] Setting the two informations side by side, Count 1 on both the original information and the C Indictment is the same, a threatening charge under s. 264.1(1) (

a) of the Criminal Code . On

summary conviction, the accused could be sentenced to a term of imprisonment; on indictment, a term of imprisonment up to two years. [ 22 ] Count 2 of the original information is the same as Count 4 on the Indictment. This careless storage of a firearm might attract a jail sentence upon

summary conviction; on indictment up to two years. [ 23 ] Count 3 of the original information is the same as Count 5 on the Indictment, but Count 5 was conditionally stayed on the Kienapple principle after the findings of guilt were entered on the other counts. [ 24 ] Count 4 of the original information has no counterpart on the Indictment. [ 25 ] The Indictment contains two new counts not contained in the original information. Count 3 was stayed, again, on the Kienapple principle. [ 26 ] It is Count 2 on the indictment that would have the most significant impact for the accused. Section 95(2) (

b) provides that an accused on

summary conviction is liable to a term of imprisonment not exceeding one year. However, a conviction on indictment, even for a first offender, carries with it a sentence of three years. [ 27 ] Section 95(2)(a)(

i) reads: Every person who commits an offence under subsection (1) (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding 10 years and to a minimum punishment of imprisonment for a term of (

i) in the case of a first offence, three years . . . [ 28 ] On the facts of this case, a former soldier mentally traumatized by his experiences in combat, in an obviously agitated state and while a Veterans Affairs nurse was visiting him, brought out a loaded handgun wrapped in a scarf and placed it on a table where it remained. He didn't point it and no threats were made to anyone. The nurse stayed in the residence, and not by compulsion. She tried to calm him down and sought the aid of a psychologist. It would appear that Mr. Berube did say that he would harm himself or the RCMP would do it for him.

Police attended and persuaded Mr. Berube to come out of the house. [ 29 ] For this, this traumatized former soldier now faces a minimum term of three years' imprisonment in a federal penitentiary. This result might strike thoughtful Canadians as manifestly unjust. [ 30 ] I now turn to R. v. Remple .

This is a similar case in which a s. 24(1) Charter remedy was sought after Crown abrogated a plea agreement. [ 31 ] Section 24(1) of the Charter reads: Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [ 32 ] What is sought in the case at bar is a judicial stay of proceedings on the C Indictment.

In Remple, as in the case at bar, Crown and defence engaged in plea negotiations and agreed to the pleas that would be taken on the information. On the date set for the entry of pleas, Crown resiled from the earlier agreement and proposed new terms that would be imposed upon the accused after sentencing or as part of sentencing. These were not accepted by Mr. Remple. Crown then recommenced proceeding on the original indictment. The late Justice Oliver set out the issues as follows; [p.5]

Issues and Analysis The parties are in agreement with respect to the issues to be decided on this application: 1. Did the conduct of the Crown in reneging on the plea agreement concluded with the Applicant's counsel constitute an abuseof process, and if so should a stay of proceedings be issued? 2. Did the conduct of the Crown in reneging on the plea agreement constitute a breach of the Applicant's Charter rights, and ifso should a remedy be granted? [33] In his review of the law on abuse of process, Justice Oliver cited the head note from R. v.

Keyowski (1988), (SCC), 40 C.C.C. (3d) 481, and notes: The headnote accurately summarizes the ratio of this decision: The headnote reads, and it is found at page 8 of Justice Oliver's decision: A stay of proceedings to remedy an abuse of process is available where compelling an accused to stand trial would violate thosefundamental principles of justice which underlie the community sense of fair play and decency or where the proceedings are oppressiveor vexatious. However, this power is one which can be exercised only in the clearest of cases.

Justice Oliver noted: Keyowski was decided after the coming into effect of the Canadian Charter of Rights and Freedoms, and the Court held at p.483 that"the common law doctrine of abuse of process was now subsumed in s.7 [of the Charter]". [34] The court in Remple considered whether the mere fact that the Crown reneged on the agreement should, itself, be sufficientreason for staying the proceedings.

Justice Oliver noted: In Re Smith and the Queen (1974), (BC SC), 22 C.C.C. (2d) 268, (B.C.S.C.) Berger J. granted a writ of prohibitionwhere the Crown breached an agreement with the accused that if the accused turned in a quantity of drug in his possession, no chargeswould be laid with respect to the drug turned in. Berger J. stated at p.272-3: The ordinary man, having made such a deal with Crown counsel, would feel that he could walk in safety thereafter. He would beastounded and amazed if charges of conspiracy could be proceeded with. I think what occurred in this case constitutes oppression.

Theordinary man is entitled to expect that the Crown will keep its word. It would be an abuse of process if the accused had to stand trial on [the charges of conspiracy]. I therefore direct that a writ ofprohibition issue with respect to those counts. [35] Justice Oliver goes on to note another case, R. v. Betesh (1975), (ON CJ), 30 C.C.C. (2d) 233 (Ont.Dist.Ct.),where there was a plea agreement: [The court] held that the agreement made by the federal Crown was binding upon the provincial Crown and that the Crown had renegedupon its agreement. In that case, that is Betesh, the court notes: . . .

Crown reneging on an agreement made and presented to a Court. To renege on such an agreement constitutes an abuse of the processof the Court. The Crown is expected to honour the agreements it has made in relation to prosecutions. [36] Mr. Justice Oliver in Remple at page 13 says: In my view, the decision in Betesh stands for the proposition that the mere fact that the Crown reneged on its promise can be sufficient toconstitute an abuse of process. [37] That said, if the concept of the detriment is also to be factored in, Mr. Berube has certainly acted to his detriment.

At paragraph32 of the submissions made on behalf of Mr. Berube, counsel note: In Mr. Berube's case, it could be said that the agreement was presented to the court by way of guilty pleas. On June 17, 2010, in therequest for presentence reports by both Crown and defence, it is also clear that he had suffered prejudice in that he remained in custodyfor an additional five weeks by consent.

Further, by pleading guilty in court to the counts on the original information, he admitted tofacts that would convict him of the counts on the second information and thereby has hampered his defence. [38] In the Remple case, although Crown would not have been able to rely on the agreed upon statement of facts, it was still found tobe a detriment to the accused.

Page 17 of Remple, the court notes: Though the Crown will not be able to refer to the agreement [in] its prosecution of the Applicant, I cannot agree with the Crown'ssubmission that the Applicant has done nothing to his detriment in reliance on the agreement. Specifically, he has, through his counsel,made certain admissions contained in the agreed statement of facts which, although they cannot be presented in court by the Crown, willbind any future counsel acting for the Applicant with respect to the charges against him.

A lawyer acting for the Applicant in the present case could not ethically ignore the admissions made by the Applicant in the agreedstatement of facts in reliance on the Crown's agreement with respect to plea. Even though the Crown is not able to refer to the statementof facts as an admission it is, nonetheless, a factor that must constrain the defence presented by the Applicant.

[39] Mr. Berube pled guilty and admitted facts that would convict him on the second indictment. He remained in custody, as I havenoted. The Crown also gained information on Mr. Berube by way of a forensic and PSR. [40] Considering the jeopardy Mr. Berube now faces, a three year minimum mandatory sentence, I conclude, without hesitation, thathe suffered prejudice. [41] Whether it is even necessary for me to come to that conclusion is arguable, because as Mr.

Justice Oliver in Remple says at page15: A plea bargain, due to the public policy considerations involved, is not considered a usual undertaking by either lawyer. Either partymay withdraw from the bargain prior to performance. However, once the defendant has performed his part of the bargain in whole or inpart, or has in reliance on the agreement acted to his detriment or been placed in a position of disadvantage, however slight, it would beimproper for the prosecution to fail to fulfill the agreement. [42]

Section 7 of the Charter reads: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [43] In R. v.

Box and Aubichon, (SK Q.B.), Gerein J said, in part, at page three: I am satisfied on the basis of the authorities that I have set forth above that there is a residual discretion in a trial court judge to stayproceedings where compelling an accused to stand trial . . . -- to which I would add "face sentence" in the case at bar -- . . . would violate those fundamental principles of justice which underlie the community's sense of fair play and decency . . .

Indeed, and so it is in the case at bar. [44] In my respectful opinion, the fundamental principles of justice cry out for a remedy under s. 24(1) of the Charter. As a result, Idirect a judicial stay of proceedings on Indictment 36547-C. [45] If Mr. Berube is not being held on any other matters. He should be released. [46] Mr. Berube, I am going to say to you that you need to reengage with Veterans Affairs; you need to follow their course oftreatment; and, above all, you need to stop self-medicating.

It is getting you into all sorts of trouble. [47] YAN BERUBE: Yes, Your Honour. [48] THE COURT: Thank you. (REASONS CONCLUDED)