R. v. Joseph and McKay Date:, 2016 BCPC 325

Citation: R. v. Joseph and McKay Date: 20161006 2016 BCPC 325 File No: 38345-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CAYLENE JORDYNE JOSEPH BRYCE WILLIAM McKAY (RE: THE ACCUSED McKAY) REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: M. Feldthusen Counsel for the Defendants: S. Sheets Place of Hearing: Duncan, B.C.

Dates of Hearing: October 4 & 6, 2016 Date of Judgment: October 6, 2016 Introduction [ 1 ] THE COURT: Bryce William McKay is before me having been charged on two counts of a three-count Information, 38345-1. Crown entered a stay of proceedings on Count 1, which is an allegation that the accused, Bryce William McKay (the “Accused”), together with another individual, Caylene Jordyne Joseph, did commit theft of merchandise, the property of the Salvation Army, of a value not in excess of $5,000. That alleged offence occurred on the 27th of November 2015.

As noted above, Crown entered a stay of proceedings with respect to that offence as against the Accused. [ 2 ] Crown did proceed to trial on Count Number 2 of the same Information.

In that, the Count 2 reads as follows, and I quote: Bryce William MCKAY, on or about the 27th day of November, 2015, at or near Mill Bay, in the Province of British Columbia, while being bound by a probation order made by the Honourable Judge Cutler on the 14th day of August, 2015, did without reasonable excuse fail to comply with such order to with: "You shall obey a curfew by being inside your residence between the hours of 11:00 p.m. and 7:00 a.m. each day, for the six ... months of this Probation Order, except as follows:

a) with the written consent of the Probation Officer or while in the company of your mother (or a person approved of in advance in writing by the Bail Supervisor", contrary to

Section 733.1(1) ... [ 3 ] Crown called three witnesses in order to testify with respect to this matter. The first was Kirk Sharpe, the supervising probation officer for the Accused. The second was one of two constables who attended at the location where Mr. McKay was found on the evening in question, namely PC Michael N. Furlong. The third witness called by Crown was Constable Rob Katic. With respect to defence evidence, I heard from the mother of the Accused, being Susan McKay, and from the Accused himself.

Circumstances Crown’s Evidence [ 4 ] Based on the evidence of Constable Furlong, he attended along with Constable Katic, as a result of a call placed by a complainant, at the local outlet for the Salvation Army in Mill Bay, British Columbia. [ 5 ] The call was received apparently around 3 a.m. on November 27th, 2015. Police officers, Furlong and Katic, at that time were both attached to the Shawnigan Lake detachment of the Royal Canadian Mounted Police. [ 6 ] That particular Salvation Army outlet location was known to Constable Furlong. He had been in service almost six years at the Shawnigan Lake detachment.

That location was a source of significant calls and inspections conducted by the RCMP as a result of individuals allegedly stealing from three dumpsters located at the rear of the building. [ 7 ] His partner that night Constable Katic was a recent transferee from the Lower Mainland of British Columbia where he had served both with the Surrey RCMP detachment and with the Deas Island Highway RCMP detachment.

Constable Katic was relatively unfamiliar with the surroundings and, accordingly, provided backup to Constable Furlong who took the lead in terms of dealing with the complaint investigation. [ 8 ] The complaint that had been received was from an individual who had made observations from across the street from the Salvation Army location. The observations that were reported to the police were to the effect that two individuals with power tools were seen approaching the Salvation Army facility.

The concern that had been expressed in that report was that it may be in the nature of a break and enter at that particular location. [ 9 ] Accordingly, Constable Furlong and Constable Katic approached the location having parked their vehicles some 200 metres from that location. They silently approached and from Constable Furlong's evidence, were able to make observations of the dumpsters.

It was Constable Furlong who indicated that he was able to view a blue dumpster with a male figure or a figure inside, apparently wearing a hat; that individual was in the process of lifting items above his head and throwing them out of the dumpster. [ 10 ] Also, both constables had heard at least two voices in an exchange. There were several questions put to each as to whether or not there were more than two individuals.

Their evidence was not identical, but each indicated that it was possible, but there were certainly no less than two voices, but they could not ascertain nor did they see more than two individuals when they were at the scene of this particular event. [ 11 ] As a result of the observations made by Constable Furlong, he saw the individual whom he had seen in the dumpster exiting the dumpster from the far side. He immediately came around the corner and observed an individual. That individual, as it turns out, was the Accused. [ 12 ] The evidence of Constable Katic was less precise.

I would suggest it was somewhat limited by his lack of familiarity with the area in which the events were taking place and given the fact that he was essentially performing a backup role and an observation role for Constable Furlong during the arrest of the two individuals who were found to be at the scene of the dumpsters. [ 13 ] Following what was described as a “hard takedown” of the Accused by Constable Furlong, based on Constable Furlong's safety concerns and as well his impression that the Accused was about ready to try to run away, the Accused was guided to the ground by Constable Furlong’s boot being placed on the back of the Accused and then handcuffed.

Thereafter, the evidence of both constables was that the Accused was both compliant and cooperative.

[ 14 ] At the outset of the trial, there were three admissions made by defence.

First of all was the admission of the Accused’s identity; the second was that the Accused was outside of his residence at the alleged time of the offence, that is, being somewhere around 3:30 a.m. on November 27th, 2016; and the third admission was that the Accused was outside his residence beyond the curfew period contained in the probation order of the Honourable Judge Cutler, that is, a period of a curfew between 11 p.m. and 7 a.m. each day. [ 15 ] The evidence of Kirk Sharpe, a probation officer, confirmed the fact that he had met with the Accused for the purposes of reviewing and discussing the terms of the probation order which bound the Accused [ 16 ] MR.

SHEETS: Your Honour, I just wanted to raise something that I just noticed or observed, and I know you are in full flood, as it were, in terms of a decision, but it just struck me when Your Honour reviewed Count 2 that the -- there was no evidence in relation to a bail -- from a bail supervisor referenced in Count 2 -- or the conditions. [SUBMISSIONS RE WORDING OF COUNT 2] [ 17 ] THE COURT: Continuing. The probation officer had past frequent periods of supervision of the Accused for a considerable number of years.

He also indicated that he had the opportunity of meeting with the Accused in order to review the terms and conditions set out in the probation order. [ 18 ] He indicated that he did not have an independent recollection of everything that he had done in terms of reviewing the probation order, but did indicate that it was his common practice to go through the various conditions, to point them out, to explain them on the basis of what was contained in the wording, and also his practice was to have the person bound by the probation order sign at the bottom of the terms and conditions within a stamp that he had placed there; it was pointed out to him, and reads as follows, and I quote: I am Bryce McKay, the person named in this order.

The order has been read to me by Kirk Sharpe, probation officer, and I understand the contents and agree they are correct. [ 19 ] A completed signature line appeared there, which was identified both by Mr. Sharpe as well as by the Accused in his testimony as being that of the Accused. The witness signature of Mr. Sharpe appeared, and it was dated August 17, 2015. [ 20 ] Mr. Sharpe was also asked to provide evidence as to the various consents that he had provided to the Accused under the Probation Order.

He indicated that he believed there to be two occasions on which he had granted the Accused permission to be outside of his residence during the curfew period. Those were for the purposes of permitting the Accused to attend at his mother's cottage with her. He indicated that in accordance with his practice, he not only called her, but he phoned the local RCMP to inform them that Mr. McKay, the Accused, would not be in his residence should a curfew check be conducted. [ 21 ] The probation officer, Mr.

Sharpe, was vigorously cross-examined and, as I indicated, had a recall of certain aspects of his dealings with Mr. McKay on this particular probation order. Not only did he indicate that he spoke with Mr. McKay and reviewed it on August 17th, 2015, but had a further recollection that he once again reviewed the order with the Accused sometime in February of 2016 which was subsequent to the offence that is the subject matter of these proceedings. [ 22 ] Mr.

Sharpe, also did indicate in his evidence that he was aware that the Accused was an individual who had suffered a brain injury some years ago and that brain injury had caused some problems for the Accused in recalling certain dates and in attending in a timely fashion to the probation officer when there were requirements for him to do so. In other words, Mr. Sharpe did indicate that he had on occasion used his discretion to provide an appropriate amount of latitude for Mr. McKay owing to what was observed by Mr. Sharpe to be something in the nature of an active disability. [ 23 ] The evidence of Mr.

Sharpe was unshaken about not providing any form of consent for Mr. McKay to be outside of his residence at the time in question of the alleged offences on the 27th of November 2015, and that he had neither given consent for Mr. McKay to be outside his residence, nor had he approved any other individual in writing to be with Mr. McKay while outside of his residence during the curfew period. [ 24 ] In addition to the evidence that he provided in chief, on cross-examination, he did testify that it was his belief, not only based on the signature of Mr.

McKay that appeared on the Exhibit 2, being a copy of the probation order bearing the stamp that I have previously referred to, that he did discuss the curfew conditions and the exceptions that related to the curfew with the Accused. Defence Evidence [ 25 ] The evidence called by defence, first of all, related to that of Susan McKay, mother of the Accused. She indicated that her son had been the victim of a very serious traffic accident when he was approximately 18 years of age. This resulted in a period of hospitalization for him.

She said that when the Accused was a young man that he evidenced behaviour which, at that time, she interpreted as being simply rebellious; but after a period of some 10 years, she, and I gather other family members, came to the conclusion that there was something more serious affecting the Accused. [ 26 ] She said that there were significant disabilities evidenced by her son. That included the memory loss. It also impacted on his ability to follow up with appointments and to deal with things like banking.

She said that she found herself in the role of helping with the shortcomings of the Accused and eventually was able to have the Accused designated as a disabled person for the purposes of both income tax matters, but also to be able to become the recipient of what was referred as a “registered disability pension”. [ 27 ] As I understand it, from her description, a registered disability pension permits a payment by the government of $1,000 per year. There can be $500 per year amounts donated from other sources which can boost the amount by matching funds by a multiple of three.

The disability pension amount is not able to be received by the disabled person until they reach a certain age. She said that she was uncertain about what that age was. [ 28 ] On cross-examination, she did indicate that her son was also sometimes unaware of the time that it was. She described him as

being something in the nature of “a night owl”.

He would approach her at two o'clock in the morning, trying to engage her in discussions apparently unaware of the exact time or the fact that it was two in the morning versus a time where she was more likely to engage in a discussion with him. [ 29 ] She also did confirm that he understood time and he certainly understood the difference between middle of the night and noon, but that he did have, in her words, trouble settling down and he would get himself, and I quote, "wound up" such that he would become quite active in the evenings. [ 30 ] She also testified that many of the missed appointments were usually with physicians or were medical-type appointments and that it became her practice to assist the Accused in rebooking some of these appointments. [ 31 ] I also heard evidence from the Accused.

He indicated that he is now 37 years of age. He is presently dealing with some significant medical issues. [ 32 ] He did indicate that he was, in fact, at the Salvation Army facility in Mill Bay at the time in question. His explanation for being there was that he had recently moved to new quarters on Cowichan Lake Road.

He had recently met an individual who he described as "Steve." He said that Steve had gotten off work and had assisted him in taking some items down to the Mill Bay Salvation Army, several kilometres away from his new residence, in order to make a donation. [ 33 ] He indicated that he had woken up and believed it to be somewhere in the earlier part of the evening, certainly prior, as I understand it, to his curfew period; he then departed in the company of his girlfriend who is named on Count 3 of the Information, being Ms.

Joseph, with full boxes in order to make the donation. [ 34 ] In his evidence, he indicated that he did not go into the dumpster. He indicated that there were other people present who he suggested were in the dumpster. He then found himself being confronted by the police and being arrested. He indicated that he had some inability to get down on the ground as directed by the police owing to significant metal additions to one of his legs which is presently infected. Accordingly, it took him longer to get down. He also indicated that his lady friend, Ms.

Joseph, had not gone into the dumpster. [ 35 ] He did confirm under examination in direct that he understood that he was bound by a curfew for a period of six months.

He prefaced many of his answers with words such as, "I don't remember" or, "I don't know," or other words to indicate some lack of certainty about various things that he was being asked, but, he did indicate in his evidence that he thought he was at Mill Bay between the hours of somewhere between 7 and 8 p.m. in the early evening of what would have likely been November 26th, 2015, being the day preceding the alleged offence. [ 36 ] Also, his evidence in cross-examination was that he did, as I indicated before, recognize his signature on the form of the probation order that was witnessed by his probation officer, Mr.

Sharpe. He indicated that he understood the nature of curfew times. He understood the exceptions to the curfew. He understood the notion of having written consent. [ 37 ] He also understood the curfew exceptions that he had to be in the company of his mother. He also understood he would not have to be in his residence if he was either in the presence of his mother or with a person approved by his probation officer. He indicated that at the time in question that his mother was not with him and nobody had been approved by the probation officer for him to be out at the time in question.

When questioned by Crown whether he understood that, he indicated with the term, "Yeah." [ 38 ] He was also pressed in cross-examination about what steps he took to determine what time it was before he left the residence. He said that he does not wear a watch; secondly, that he did not check the clock; and thirdly, he did not make any independent inquiries with anybody else in order to determine what time it was. He simply said that he thought he woke up around dinnertime and that he then departed with his friend, Steve, and his lady friend.

Defence Submissions [ 39 ] It was drawn to my attention following the conclusion of submissions and in the process of dealing with the reasons in this particular matter that there is an oddity about the curfew exception terms of condition number 9 which is reflected in the wording of Count 2 on the Information.

First of all that there is a reference requiring the written consent of the probation officer to being outside of his residence or second, while in the company of his mother; it was drawn to the attention of the court by defence counsel that in the final exception rather than saying, "A person approved in advance in writing by the probation officer ," the words "bail supervisor" have been utilized.

It is suggested that there is no evidence on whether or not there was any approval by a bail supervisor and that is, in fact, a point that I have to take into account, namely whether or not Crown has actually proven all the required elements of the breach. [ 40 ] It is also suggested that I have evidence that is sufficient to raise a reasonable doubt as to whether or not there was a failure to abide by the terms of the curfew.

In other words, there was a reasonable doubt regarding a lawful excuse for non-compliance raised by the evidence. [ 41 ] It is suggested that the evidence that I have heard from the police officers does not satisfy the inference that I am asked by Crown to draw namely that Mr. McKay was outside his residence for suspicious purposes and not because of his mistaken notion of time.

Rather and more importantly that there is not sufficient evidence upon which I can conclude that he was in the dumpster at the time that the police approached and thereby find a suspicious purpose for his presence. [ 42 ] Hence, the defence position is the Crown has not proven all of the essential elements of the offence. Crown Submissions [ 43 ] The submissions on behalf of Crown are to the effect that I should reject the evidence of Mr. McKay as being unreliable and that I should not accept it and that it is self-serving. In fact I should find that the evidence of Constable Furlong should be preferred,

rather than accepting the contention of the Accused that he was not in the dumpster. I should find that the only reasonable inference isthat the Accused, in fact, was the individual in the dumpster and that reasonable inference can be drawn from all of the observationsmade by Constable Furlong. [44] Crown says that to the extent that it is necessary, those observations made by Constable Furlong are buttressed and supported insome fashion by that of the backup officer, who was also in attendance, namely Constable Katic,. [45] What Crown is asking me to do is to make an explicit finding to the effect that Mr.

McKay was, in fact, in the dumpster andthat this finding, although it is not criminal behaviour, it is certainly suspicious behaviour which undermines any notion that there was areasonable excuse for the Accused to be there and actually buttresses the Crown's argument that what I really have here is recklessbehaviour on the part of Mr. McKay in failing to take adequate steps in order to ensure that he was in compliance with the curfewconditions. [46] Furthermore, I am being urged to not accept that the brain injury provides him with an adequate excuse in the circumstances ofthis situation.

In Crown's view, if I were to accept defence's argument with respect to that excuse, then it would give Mr. McKay a carteblanche to ignore various court orders. Case Authorities [47] The sole authority to which I have been referred to by both counsel is the decision of the Honourable E.C. Blake, a Judge of ourProvincial Court , in the case of R. v. Bingley, 2008 BCPC 245 , [2008] B.C.J. No. 1680. The Honourable Judge Blake wasdealing with a question of what is the requirement for Crown to establish proof of mens rea for a conviction for a breach under s.733.1(1), being the same

section under which Mr. McKay has been charged. [48] Judge Blake provides a very thorough analysis of that particular issue. Judge Blake concludes at paragraph 18 in the followingterms, and I quote: In my respectful view, the mens rea requirement remains unchanged by the modified legislation. Much of the logical underpinning forWilson, J's decision in Docherty [being a reference to R. v. Docherty (1989), (SCC), 51 C.C.C. (3d) 1 (S.C.C.)] remainsunaffected by the legislative revision. The entire portion of the decision relating to “contextual

interpretation” to which I have referredabove remains unchanged. Indeed, it(sic)[in] some respects the reasoning in that passage appears strengthened by the legislativechanges. [49] At paragraph 40 of the decision in Bingley, Judge Blake says as follows, and I quote: The outcome of this trial, however, does not depend upon a finding of carelessness, but upon whether criminal intent has beenestablished.

To paraphrase the words of Cashman, CCJ in the Shaver case, referred to above, I must address myself to the issue ofwhether it has been established beyond reasonable doubt that the Defendant acted "deliberately and intentionally". Was he "deliberatelydisobedient"? If the answer on that issue is in the negative, I must still consider whether the Defendant was reckless in his behaviour. Icannot see that the issue of wilful blindness arises for consideration in this case. [50] The reference to the Shaver case is Shaver v. The Queen (1977), (BC SC), 4 B.C.L.R. 354.

That is adecision in which Cashman C.C.J., (then of the County Court of Vancouver Island) was examining and defining more precisely thenature of the mental state required for a conviction on a breach of probation charge. In that particular decision, Cashman, C.C.J. definedthe mental state as involving the performance of acts done "deliberately and intentionally and not by accident or inadvertence." Presumption of Innocence and Reasonable Doubt [51] The obligation is upon the Crown to prove all elements of the offence beyond a reasonable doubt.

If that occurs, then and onlythen can the court convict the accused person. Where reasonable doubt exists on any element of the offence charged, the accused mustbe acquitted. The burden of proof rests upon the prosecution throughout the trial and never shifts to the accused person. [52] Reasonable doubt is not an imaginary or frivolous doubt, nor is it based upon sympathy or prejudice. Reasonable doubt is adoubt based on reason and common sense which must logically be derived from the evidence or absence of evidence. The Crown mustprove more than probable guilt.

However, reasonable doubt does not involve proof to an absolute certainty since then it would be animpossibly high standard. The standard of reasonable doubt falls much closer to absolute certainty than to proof on a balance ofprobabilities (see R. v. Lifchus, (S.C.C.), [1997] 3 S.C.R. 320; and R. v. Starr, 2000 SCC 40 , [2000] 2 S.C.R.144.

The W.(D.) Formulation [53] I must instruct myself that in the trial of criminal matters, it is not a question of which witnesses' evidence or versions of theevents I believe, but rather whether, on the totality of the evidence, Crown has proven each essential element of each offence beyond areasonable doubt. [54] Where there is evidence of an accused that raises a defence as in the case in this matter, then I must further instruct myself and Imust apply to this evidence the well-known process of analysis set out in R. v. W.(D.), (S.C.C.), [1991] 1 S.C.R. 742,found at paragraph 28. That analysis is as follows.

First, if I believe the evidence of the accused, then obviously I must acquit; second,if I do not believe the testimony of the accused, but I am left in a reasonable doubt by it, I must acquit; third, even if I am not left in doubtby the evidence of the accused, I must ask myself whether on the basis of the evidence which I do accept, I am convinced beyond areasonable doubt by the evidence of the guilt of the accused. [55] I am also guided by the following comments of the Prince Edward Island Court of Appeal in R. v. J.M.H., 2012 PECA 6, [2012]P.E.I.J. No. 10, at paragraph 30 to 31; quoting paragraph 30:

[30] Our courts have stated that proof beyond a reasonable doubt is not satisfied by belief of a complainant coupled with disbelief ofan accused. Correct application of the principle in W.(D.) involves going on from step one to step two to analyze and consider whetherthat evidence nevertheless raises a reasonable doubt, and if not, then going on to step three and determining whether the evidence takenas a whole raises a reasonable doubt…[citation omitted].

Proper application of the third step involves moving the focus from theevidence of the accused to the Crown’s evidence and assessing it in its own right (in relation to all the evidence) on the criteria ofcoherency, reliability, credibility. This goes toward the issue of whether the Crown has satisfied the burden of bringing evidence that canprove guilt beyond a reasonable doubt…[citation omitted]. The Supreme Court of Canada recently stated in R. v.

J.H.S. 2008 SCC 30, at 8, that a series of decisions has affirmed and reaffirmed that where credibility is a central issue in a jury trial, the judge mustexplain the relationship between the assessment of credibility and the Crown’s ultimate burden to prove the guilt of the accused to thecriminal standard. [31] The third step in W.(D.) stresses that the onus is on the Crown to prove the guilt of the accused beyond a reasonable doubt. It ispossible that the trial judge would disbelieve the accused but still find the Crown had not proved guilt beyond a reasonable doubt.

Analysis [56] I am being asked by Crown to make a determination of fact that Mr. McKay, the Accused in this matter, was found by theRCMP in the dumpster at the hours of approximately 3:30 a.m. on November 27, 2015. Based on the evidence that I have heard fromthe police officers, I am satisfied that Mr. McKay was, in fact, observed in the dumpster at the time in question. [57] The Accused denies that he was there.

However, given the observations of an individual being in the dumpster and thetimeframe that elapsed between the individual in the dumpster throwing items out, slipping over the far side of the dumpster, and thevery quick arrival of PC Furlong within a very brief number of seconds, I have no doubt that the individual that was then observed by thePolice Constable Furlong, was, in fact, the Accused who had just been in the dumpster. Hence, I disbelieve Mr.

McKay when he saysthat he was not in the dumpster and, on that basis, I reject his suggestion that he had never entered into the dumpster. [58] There is a question as to whether or not there were other individuals around. However, none were observed other than theAccused and Ms. Joseph. I am of the view that Mr.

McKay's suggestion that the person that he could only identify as “Steve” uponwhom he relied to transport items several kilometres from his residence in order to make a charitable deposit in the form of unrequiredkitchen items and clothing to the Salvation Army box at that particular time lacks a ring of truth. [59] I am satisfied also on the evidence that I have heard and accepted that Crown has satisfied the test that is laid out in Bingley,relying on the decision in Shaver which sets out the requirements which Crown must meet.

I accept Crown's argument that there is inthis case evidence of suspicious, but not illegal activity being conducted by Mr. McKay, and that this is sufficient evidence upon which Ican rely to conclude that there was a deliberate and intentional disobedience of the curfew condition by the Accused. [60] I am satisfied on the whole of the evidence that the exceptions which could have applied, even with the inconsistent reference toa bail supervisor in the curfew exception conditions, that on the whole of the evidence before me that there were no present exceptionsthat permitted Mr. McKay to be outside his residence.

That is based partly on the evidence of Probation Officer Sharpe as well as theadmissions of the Accused himself and his testimony. [61] It is clear that the Accused understood the nature of the probation order and the curfew conditions contained within it;furthermore that the excuse that he has raised in his evidence is that he simply did not know what time it was. [62] However, I do accept the submissions made by Crown that in this case there is little to suggest that any reasonable steps weretaken by the Accused to satisfy himself of the actual time in question and that I can regard that lack of any sort of due diligence as at thevery least recklessness and something that approaches and amounts to a deliberate disobedience of the curfew; accordingly the Accuseddoes not have any lawful excuse. [63] I therefore find all of that to be the case.

Crown has satisfied its burden of proof. Disposition [64] Accordingly, I convict Mr. McKay on Count 2 of Information 38345-1. [REASONS FOR JUDGMENT CONCLUDED]