R. v. R.A.R. Date:, 2016 BCPC 276

Citation: R. v. R.A.R. Date: 20160914 2016 BCPC 276 File No: 36882-1 Registry: Port Alberni IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.A.R. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: N. Bennet Counsel for the Defendant: B.R.B. Morahan Place of Hearing: Port Alberni , B.C. Date of Hearing: June 28, 2016 Date of Judgment: September 14, 2016

The Issue [ 1 ] Mr. R has entered a guilty plea to a charge of spousal assault. The Crown seeks a suspended sentence and a period of probation. Mr. R seeks a conditional discharge. As will be apparent from the discussion below, the principles to be applied are not well- defined in the jurisprudence and the authorities are difficult to reconcile. The Facts [ 2 ] Mr. R has been granted a conditional discharge on each of three previous occasions: a. In 1986, he entered a guilty plea to a charge of assault. The particulars of the assault were that he seized another person’s glasses and threw them to the ground. b.

In 1990, he entered a guilty plea to a charge of theft. The particulars were that, while the manager of a campus pub, he declared an unauthorized “happy hour” for the customers. c. In 2004, he committed an indecent act, and entered a guilty plea to that charge. [ 3 ] The spousal assault which gives rise to the present charge occurred on the evening of August 22, 2015, the day on which Mr. R and Ms. D were married. Each had consumed a quantity of alcohol. Angry words were exchanged. Mr. R seized Ms. D by the hair and pulled her to her feet. He then dragged her around their hotel room by her hair and slapped her.

She was terrified by the assault and decided that her best strategy was to be physically passive while seeking to mollify Mr. R. That strategy was eventually successful and he released her. She suffered no lasting physical injury and did not require medical treatment. [ 4 ] Ms. D had no wish to involve the police or to see any action taken against Mr. R. However, on the following day, she told her sister what had happened. The sister then reported the incident to the police. Ms. D provided a candid statement to the police, but told the police that she did not want Mr.

R to be charged with an offence. [ 5 ] On August 24, 2015, two days after the assault, Mr. R contacted Mr. Watts, a counselling therapist, to arrange an appointment. He has been engaged in counselling with Mr. Watts since that time. Mr. Watts has also provided counselling to Ms. D, Mr. Watts describes Mr. R’s history as follows: [Mr. R] reports a lengthy childhood history of emotional, psychological and physical abuse by both parents and an older brother. He reports a dysfunctional relationship with his alcoholic father, now deceased.

He is estranged from his mother with whom he has a long standing, challenging relationship. He has suffered from emotional and physical abandonment at a young age, and has subsequent lifelong challenges with anger. In his most recent report, dated June 21, 2016, Mr. Watts said: With the progress that [Mr. R] has demonstrated, I have every reason to believe that [Mr. R] and [Ms. D] will continue to have a safe and mutually beneficial relationship. I am also confident [Mr. R] does not pose a risk to his spouse or to the community, and will provide a positive contribution to the community. Mr. R has informed Mr.

Watts that Mr. R now abstains from alcohol, and there is nothing in Mr. Watts’ reports to contradict that assertion. [ 6 ] In a letter to Crown counsel dated January 9, 2016, Ms. D said: [Mr. R and I] are both committed to ensuring that we help each other in our quest for a normal, happy life without pain and violence. We both feel that we are best equipped to do that together, knowing the triggers and details all too well. * * * Since the events of our wedding night, we have systematically, progressively, worked on our communication together.

We have explored and dug deep into all the underlying reasons that pushed us to collide on that night. … We repeated our vows again in December, 2015, with the intent we would keep finding those joys that brought us together, despite the world around us. We have learned better ways to cope, discuss and deal with our stresses. We use these new tools daily. My plea to you is a selfish one. I would like the chance to once again enjoy my life fully and freely, with my chosen husband.

By granting him a conditional discharge, you are doing so for me as well. … By dealing a heavy hand, you will be contributing to possible further emotional declines and continued difficulties. * * * We have had enough one on one discussions, conflict and time now to be able to practice our new rules and boundaries. I have been kindly granted counselling sessions which I will finish. [Mr. R] will also continue in his alcohol and stress management counselling, with me and without me. Ms. D attended the sentencing hearing in support of Mr. R, but was not called to give evidence. [ 7 ] At the time of the assault, Mr.

R was unemployed. In November, 2015, he was offered, and accepted, employment as a technical writer for a technology company. Mr. R’s position is a responsible one, which requires him to travel overseas to train customers’ employees in the use of his employer’s products. Mr. Morahan expressed the concern that a record of conviction for assault

might prevent Mr. R from travelling as required. Mr. Morahan has made enquiries on that subject of the authorities in the country towhich Mr. R is most likely to travel, but has not received any clear response. He told me that, as far as he is able to determine, the matteris in the discretion of the individual immigration officer who interviews the traveller on arrival. [8] Ms. D is a veterinarian, with a private practice in [redacted for publication], British Columbia.

The Statute [9] A conditional discharge may be granted if the court “… considers it to be in the best interests of the accused, and not contraryto the public interest …”: Criminal Code, section 730(1). Evidentiary Issues Arising From Ms. D’s Letter [10] Counsel agree that Ms. D’s letter is not a victim impact statement, as defined in section 722(2) of the Criminal Code. Mr.Morahan submits that it is admissible as “other evidence” under the authority of section 722(3). In his written submission on the point,Mr. Bennet said: The Crown’s position is that a discharge is contrary to the public interest.

The thrust of the Crown’s argument is that: (1) it is in thepublic interest to hold offenders accountable in circumstances of domestic violence; and (2) since Mr. R has received a discharge forthree previous offences, a fourth discharge will erode public confidence in the administration of justice. In the letter, Ms. D requests consideration of a discharge, primarily because of the effect of a conviction on her and Mr. R. The letter ismotivated by personal interest, rather than consideration of public interest.

In the Crown’s submission, the letter does not inform the analysis of the public interest component of the s. 730 test, in particular theimpact on the administration of justice of granting multiple successive discharges. The Crown submits that, although admissible, the letter is not relevant to the fundamental issue to be determined in this matter. [11] Ms. D’s letter is composed of two elements: (

i) a statement of some objective facts about the impact of the assault on herrelationship with Mr. R and the steps which they have taken since the assault to reduce the risk of future domestic violence; and (ii) Ms.D’s submission (or plea) in support of Mr. R’s application for a conditional discharge. a. In my view, the former is clearly relevant and admissible. Section 730(1) of the Criminal Code enacts two statutory conditionsprecedent to the jurisdiction of the court to grant a discharge. The discharge must be in the interest of the offender and it must not becontrary to the public interest.

Unless both conditions are met, no discharge may be granted. However, that does not mean that those arethe only questions to be considered when a discharge is sought. There are many cases in which a discharge should not be granted even ifit would not be contrary to the public interest. Constructive steps taken by the offender subsequent to the offence will often be materialfactors to consider in the judicial exercise of the discretion to grant or refuse a discharge. b. The latter raises more difficult questions. In R. v.

Berner [2013] BCJ No. 835; 2013 BCCA 188; 297 CCC (3d) 69 at paragraphs15 - 17, the Court of Appeal affirmed the principle that a sentencing hearing must not take the form of a tripartite proceeding in whichthe victim has a voice. Rather, it was held that a sentencing hearing must always take the form of “… a proceeding between society, asrepresented by the Crown, and a convicted person”. I do not think that this means that I should disregard the potential impacts of mydecision upon Ms. D.

Those potential impacts are objective facts which are relevant to the exercise of judicial discretion if the statutoryconditions precedent are met. However, I do think that I am bound by the Berner principle to disregard the portions of Ms. D’s letterwhich amount to submissions or pleas, rather than statements of objective fact. [12] There is a case to be made for the proposition that victims of crime should have a voice at a sentencing hearing. However,Parliament has made no provision for that, and such an innovation could be made only by a court of higher authority than this one. [13] I do not agree with Mr.

Bennet’s view that the objective facts asserted in Ms. D’s letter are irrelevant to the public interest. Those facts are relevant to the risk that Mr. R may reoffend and to the prospects for his rehabilitation. The public has an interest in bothof those questions. The Interests of the Accused [14] In R. v.

Fallowfield (BC CA), [1973] 6 WWR 472, Chief Justice Farris said that a discharge will generallybe in the interest of the accused where “… the accused is a person of good character, without previous conviction, … it is not necessaryto enter a conviction against him to deter him from future offences or to rehabilitate him, and … the entry of a conviction against himmay have significant adverse repercussions …”. (underlining added). Counsel agree that a conditional discharge would be in the bestinterests of Mr. R, and I perceive no reason to differ with that assessment.

The Public Interest Introductory Comments [15] The statute does not require the accused to establish that a discharge would be in the public interest. It need only be shown thata discharge would not be contrary to the public interest. Put another way, a discharge may be granted unless some prejudice to the publicinterest would be likely to result from it. On the other hand, a discharge should not be granted in every case in which it is not contrary tothe public interest. The relevant factors must be balanced in each individual case. [16] The phrase “public interest” is not defined by the Criminal Code or by the

Interpretation Act RSC 1985, c I-21. Anyone whohas listened to debates in Parliament, or read the existing jurisprudence considering

section 730 of the Criminal Code, will be aware that

there is a wide range of opinion as to what is, or is not, in the public interest. In their dissenting judgment in R. v. Zundel (SCC), [1992] 2 SCR 731, Justices Cory and Iacobucci said at paragraph 147: A survey of federal statutes alone reveals that the term "public interest" is mentioned 224 times in 84 federal statutes. The term appearsin comparable numbers in provincial statutes. The term does not and cannot have a uniform meaning in each statute.

It must beinterpreted in light of the legislative history of the particular provision in which it appears and the legislative and social context in whichit is used. However, their attempt to define the phrase in the context of hate crimes legislation did not find favour with the majority of the Court -see paragraphs 58 – 64. A definition of the phrase remains elusive: R. v. Bigg [1994] BCJ No. 174. The Public Interest in Spousal Assault Cases [17]

Section 718 of the Criminal Code provides that denunciation and deterrence are two of the objectives of sentencing. [18] Denunciation is effective because human beings are social animals, whose behaviour is strongly affected by societal norms. Most people, most of the time, are motivated to refrain from behaviour which will bring upon them the opprobrium of their peers. Severe sentences for criminal behaviour are one way in which society expresses its disapproval of particular behaviours. By contrast,there is a risk that a discharge may send a public message that the behaviour in question is not very serious.

Because spousal assault is sofrequent and so destructive, that message should certainly not be sent. [19] In R. v. B.J.M. 1976 ALTASCAD 6 , [1976] AJ No. 429; 3 Alta LR (2d) 341, Justice McGillivray said that “… one ofthe strongest deterrents to criminal activity, particularly in the case of those who have no records, is the fear of the acquisition of acriminal record ...”. [20] In many spousal assault cases, there is a compelling public interest in protecting the victim. Many victims of spousal assaultare unable or unwilling to support a prosecution for psychological or economic reasons.

In such cases, it is the duty of the state tointervene for their protection. For the reasons expressed by Ms. D, I do not think that this is such a case. I would feel more secure in thatconclusion if Ms. D had been called to give evidence at the sentencing hearing. However, doing the best I can with the material providedto me, it appears to me that Ms. D is an autonomous actor, well able to assess her own situation and to make sensible decisions in herown interest. The Public Interest in Mr.

R’s Future Employment Prospects [21] One of the objectives of sentencing is the rehabilitation of the offender: Criminal Code

section 718(d). Secure, remunerativeand productive employment is an important element of rehabilitation for many offenders. A criminal record often impairs theemployment prospects of the offender. [22] There is a divergence of judicial opinion in relation to this factor. In B.J.M. at paragraph 20, Justice McGillivray said that theinterest of employers or prospective employers of the offender in knowing the particulars of the offence is a reason to refuse a discharge.

By contrast, in R vs Moreau [1992] JQ No. 1226; 76 CCC (3d) 18, Justice Rothman said that potential adverse effects on the futureemployment prospects of the offender may be a reason to grant a discharge. There is an obvious tension between the employer’s interestin learning as much as it can about its employee and the employee’s interest in withholding some kinds of information from hisemployer. The balance of judicial opinion appears to favour the Moreau approach: R. v.

Hust 2004 ABPC 128. [23] In balancing the interests of the offender and those of employers and prospective employers, it is necessary to consider thenature of the offence and the responsibilities of the offender’s profession or occupation. No one would doubt that a school board has alegitimate need to know whether a teacher has committed a sexual assault, or that a bank has a legitimate need to know whether a bankteller has committed a fraud. In each case, the public interest demands that employers and prospective employers be well-informedabout the criminal past of the offender. [24] Mr.

R’s offence was not one of dishonesty. It has no apparent connection to his work, and gives rise to no reason to doubt thathe can, or will, competently and responsibly perform the duties of his employment. In those circumstances, I think that the potentialadverse effect on his career prospects supports his application for a discharge. [25] Mr. Morahan says that a criminal record might prevent Mr. R from travelling outside Canada, and so might imperil hisemployment prospects. Mr. Bennet responds that there is insufficient evidence to support the conclusion that Mr.

R will be unable totravel if a conditional discharge is refused. Mr. Bennet relies on the decision of my colleague, the Honourable Judge Rideout, in R. v.Whitney 2015 BCPC 27 , [2015] BCJ No. 327; 2015 BCPC 27, in which the offender presented a similar argument in relation totravel to the USA. At paragraphs 89 - 91, Judge Rideout rejected that argument because he was provided with no useful informationabout the policies of the American border agents. In response, Mr.

Morahan pointed out that Moreau and Hust are not among the list ofauthorities considered in Whitney, and submitted that I should decline to follow or apply Whitney because it is not, he says, consistentwith those authorities. [26] In Moreau, the learned trial judge had refused to grant a discharge because there was no evidence to support a conclusion thatthe accused’s employment prospects would be adversely affected by a criminal record.

On appeal, Justice Rothman said: With respect, there is no burden on an accused to establish that his or her employment would be endangered by a criminal conviction inorder to obtain a discharge. Although this may be one appropriate reason for granting a discharge, it is certainly not the only groundpossible. In R. v. Meyers (ON CA), [1977] 37 C.C.C. (2d) 182, 185, (Ont. C.A.), Mr. Justice Martin noted:

In our view, the trial judge, in declining to grant appellant a discharge because the registration of a conviction would have no immediateeffect upon his employment, applied much too narrow a test in deciding whether the granting of a discharge was in the best interest ofappellant. Nor do I think we can presume that a conviction will have no effect on appellant's career. After 19 years of teaching, she probably doeshave considerable seniority and security of tenure, but that does not mean that she would be unscathed professionally by a conviction.

Persons who have been convicted of criminal offences are not always considered the best role models for children or for youngercolleagues. Her ability to attend professional conferences outside of Canada could easily be restricted, and her chances of promotioncould easily be diminished. As I read that passage, Justice Rothman intended to make two distinct points: (

i) a conditional discharge may be granted, in anappropriate case, even if a criminal record would have no adverse effect on the employment prospects of the accused; and (ii) the courtmay draw an inference about the effect of a criminal record on the employment prospects of the accused even if there is no evidence onthe point. Justice Rothman’s conclusion on the second point is supported by the catalogue of authorities found in Hust at paragraphs 22 -38. [27] Mr. Morahan’s submission raises two questions: a. Is Whitney inconsistent with the line of authority reviewed in Hust? b.

If so, am I at liberty to follow that line of authority, rather than Whitney? I will address the second question first. [28] It has been said to me (although not by Mr. Morahan) that I am obliged to follow judgments of courts of higher authority, butfree to decline to follow judgments of other judges of this court. That is simply incorrect. The principle was stated by Justice Wilson inRe Hansard Spruce Mills (BC SC), [1954] BCJ No. 136; [1954] 4 DLR 590 (underlining added): I will only go against a judgment of another Judge of this Court if: (

a) subsequent decisions have affected the validity of the impugned judgment; (

b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered; (

c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of thetrial require an immediate decision without opportunity to fully consult authority. None of those is true in this case. Whitney is the most recent pronouncement on the subject. None of the authorities cited in Hust arebinding upon me: R. v. Vu 2004 BCJ No. 824; 2004 BCCA 230; 184 CCC (3d) 545. Judge Rideout’s judgment was carefullyconsidered.

I am therefore obliged to follow it. [29] However, I think that it is possible to reconcile the judgments in Moreau and Hust with the judgment in Whitney, and that thereis wisdom in each. A criminal record will almost always impair the employment prospects of the offender. A general inference to thateffect may be drawn without evidence. However, where specific prejudice is alleged, evidence is required to support the inference. I ambound by Whitney to conclude that the travel restrictions of foreign countries are not matters of such common knowledge that they can bedetermined without evidence.

For that reason, I cannot conclude that Mr. R will suffer specific prejudice if he is refused a discharge. Ican, and do, conclude that the refusal of a discharge is likely to have some adverse effect on his future career. Multiple Discharges and the Public Interest [30] Mr. Bennet’s most cogent point is the concern that public confidence in the administration of justice may be undermined if Mr.R is granted a fourth discharge. That is certainly a legitimate concern. However, I think that there is a counterbalancing factor. It seemsclear that Mr.

R suffers from an emotional disorder, perhaps derived from the factors described by Mr. Watts. Thoughtful and well-informed members of the public would support sentencing measures which would assist in effecting changes in Mr. R’s behaviour. Itseems clear that there are two essential elements of such measures: (

i) the assistance of a competent clinical counsellor; and (ii) Mr. R’sactive engagement in the counselling process. Mr. Watts appears to be well-suited to provide the first element. Mr. R is more likely tobe a constructive participant if he believes that he will have the support of the justice system in addressing his issues. Conclusion in Relation to the Public Interest [31] A conditional discharge would be contrary to the public interest if denunciation and deterrence were of more importance, in thisindividual case, than rehabilitation. Because of (

i) the determined and apparently successful attempts which Mr. R and Ms. D have madeto address their issues; (ii) the absence of any reason to think that Ms. D is psychologically or economically dependent on Mr. R; and(iii) the probable adverse effects of a criminal record for Mr. R, I think that rehabilitation is the more important factor in this case, andthat a conditional discharge would not be contrary to the public interest. Probation Order [32] Counsel jointly proposed a term of one year’s probation, and did not propose a term requiring Mr. R to abstain fromintoxicants.

I think that a longer term of probation and an abstention provision are necessary because Mr. R has been abstinent, and anactive participant in the counselling process, for only one year. A longer period of abstinence, and continued counselling under thesupervision of a probation officer, will render it less likely that he will relapse.

DNA Sample [ 33 ] Common assault is a “secondary designated offence”, as defined in

section 487.04 of the Criminal Code .

Section 487.051 authorizes me to make an order in Form 5.03, requiring Mr. R to provide a DNA sample, and requires me to give reasons for my decision on the issue. I do make that order, for the following reasons: a. DNA evidence is often useful, and sometimes decisive, in the investigation and prosecution of crimes. The utility of DNA evidence is not limited to sexual offences.

I have presided at several trials of violent offenders in which the decisive evidence justifying a conviction was a match of hair or blood found at the crime scene with saliva found on a cigarette butt discarded by the offender while under police surveillance. b. Spousal assault is a serious and pervasive problem. There is a compelling public interest in the successful investigation and prosecution of spousal assaults. c. Mr. R has entered guilty pleas to two assaults, one in 1986 and one in 2015. I cannot discount the possibility that he may commit a third. d. The taking of a DNA sample is minimally intrusive.

In most cases, the sample is taken by a buccal swab. Disposition [ 34 ] There will be a conditional discharge and a term of 30 months’ probation, on the following conditions. Mr. R must: a. keep the peace and be of good behaviour, and attend court when required to do so by the court; b. report in person to a probation officer no later than 4:00 p.m. on September 16, 2016, and report thereafter as and when directed by his probation officer; c. provide his probation officer with his residential address, and not change that address without first notifying his probation officer; d. leave the presence of Ms.

D immediately if she requests him to do so, and not return to her presence thereafter unless and until she invites him to do so; e. not possess or consume any alcohol or any controlled substance, as defined by the Controlled Drugs & Substances Act , except in accordance with a valid medical prescription; f. attend, participate in and successfully compete any counselling program to which he may be referred by his probation officer. There will also be a DNA order in Form 5.03. September 14, 2016 __________________________ T. Gouge, PCJ