R. v. L.P. Date:, 2014 BCPC 171

Citation: R. v. L.P. Date: 20140728 2014 BCPC 0171 File No: 39377-1 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. L.P. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: D.L. Fitzsimmons Counsel for the Defendant: A. Penhall Place of Hearing: Campbell River , B.C.

Date of Hearing: July 28, 2014 Date of Judgment: July 28, 2014 [ 1 ] Ms. P applies, pursuant to section 503(2.3) of the Criminal Code , to vary an undertaking which she gave to a police officer on July 12, 2014. [ 2 ] Ms. P was arrested on July 12, 2014, on an allegation of assaulting her intimate partner, Mr. S, and was released by the arresting officers upon entering into an undertaking pursuant to

section 503 of the Criminal Code . No information has yet been sworn. [ 3 ] Among the terms of Ms. P’s undertaking were to have no contact with Mr. S and to refrain from attending at any place of residence, education or employment of Mr. S. Ms. P and Mr. S are the parents of three young children, who have been in Mr. S’s care since her arrest. Ms. P wishes to obtain assistance from the Ministry of Children & Families, and perhaps others, to effect a reunification of her family and to address the underlying issues which led up to the incident on July 12, 2014.

As a practical matter, that cannot be achieved unless she can have contact with Mr. S. [ 4 ] In family violence cases, the paramount objective is to secure individual safety, and particularly the safety of children. The secondary objective is to facilitate healthy family relationships, including, where possible, family reconciliation and reunion.

If, by the imposition of appropriate bail terms, the secondary objective can be advanced without material risk to the primary objective, the court should impose appropriate terms to achieve that result. [ 5 ] In this case, counsel agree that the following terms, if imposed as a replacement for the existing terms of Ms. P’s undertaking, would assist in the pursuit of the secondary objective without creating a material risk to the primary objective. a. Ms. P is to keep the peace and be of good behaviour and attend court when required to do so by the court. b. Ms.

P is to reside at a place approved by her bail supervisor and not to change that place of residence without the permission of her bail supervisor. c. Ms. P is to have no contact, directly or indirectly, with Mr. S, except with the written permission of her bail supervisor, and then only in accordance with such conditions as her bail supervisor may, in writing, impose. d. Ms. P is not to attend at any place of education, residence or employment of Mr. S, except with the written permission of her bail supervisor, and then only in accordance with such conditions as her bail supervisor may, in writing, impose. e. Ms.

P is to attend at the Family Justice Centre in Campbell River, British Columbia no later than 4:00 p.m. on Friday, August 1, 2014 and seek the assistance of the Family Justice Centre in arranging family mediation and counselling for Ms. P and Mr. S. She is to attend, participate in and successfully complete any family mediation or counselling programs to which she is referred by her bail supervisor. f. Ms. P is to have no contact, directly or indirectly, with J.E.. g. Ms. P is not to possess or consume any alcohol, and is not to possess any weapons, as defined by the Criminal Code , or any imitations thereof. Ms.

Penhall asks that I vary Ms. P’s undertaking by substituting those terms for the existing terms. Mr. Fitzsimmons says that, but for one impediment, he would join in that submission. [ 6 ] The impediment identified by Mr. Fitzsimmons is that, in his experience, bail supervisors have declined to exercise the authority which would be conferred by terms “c”, “d” and “e” if those terms were imposed. [ 7 ] Ms. P’s application arose during a busy criminal remand day, with the result that neither Mr. Fitzsimmons nor Ms.

Penhall had the opportunity to research the point discussed below, or to argue it in any depth. [ 8 ] I have encountered a similar response from a probation officer in a case which I have been hearing over the past 7 months: R vs S.N.P. #34558-1 (Port Alberni Registry). In S.N.P. , I amended a probation order to allow S.N.P. to be in the company of young children if and only if accompanied by a supervisor approved by his probation officer. After I made that order, S.N.P. applied for a further variation of the probation order, to approve specific individual supervisors whom he proposed.

The reason for the application was that S.N.P.’s probation officer informed him that no supervisor would be approved. On the latter application, I heard evidence from the supervisor of the Port Alberni probation office, who told me that: a. The Corrections Branch is in receipt of a legal opinion, to the effect that probation officers have no authority to approve supervisors, even when (as in S.N.P. ) there exists a probation order which can be operative only if the probation officer discharges that responsibility. b.

Because of that legal opinion, his superiors have instructed him that no probation officer is to approve a supervisor for S.N.P., no matter who might be proposed for that role. After hearing submissions from Crown counsel and from counsel for S.N.P., I formed the conclusions that: c. The legal opinion provided to Corrections Branch is mistaken, and that probation officers have both the authority to approve supervisors for S.N.P. and the duty to consider, fairly and in good faith, any supervisor whom he may propose;

d. I should not approve (or disapprove) any particular supervisor (as S.N.P.’s counsel urged me to do), because: (

i) that discretion should be exercised by the probation officer; and (ii) I have no jurisdiction to, in effect, hear an appeal of that exercise of discretion. The appropriate remedy for the probation officer’s refusal to consider the individual supervisors proposed by S.N.P. is an application to the British Columbia Supreme Court for an order in the nature of mandamus , not an appeal on the merits to the Provincial Court.

I would have pronounced judgment to that effect at the conclusion of argument (at the end of April, 2014), were it not for the request of S.N.P.’s counsel that I refrain from pronouncing judgment to allow him time to prepare and serve an application for a publication ban. I acceded to that request.

The application for a publication ban is scheduled for hearing on August 29, 2014. [ 9 ] I wish it to be clear that, before the end of April, 2014, I heard all of the evidence put forward by the parties on the issue of the probation officer’s authority and responsibilities, and all of the submissions of counsel on that issue. I have considered the issue carefully, and have prepared a written judgment deciding the issue.

That judgment would have been rendered in May, 2014, were it not for S.N.P.’s request that I refrain from publishing it until the application for a publication ban has been argued and decided. [ 10 ] Out of deference to counsel in S.N.P. , I do not think that I should set forth here the reasons for my conclusion that probation officers have both the authority and the responsibility to approve or disapprove any supervisor proposed by S.N.P. Those reasons will be explained in my judgment in S.N.P. , which I expect to render in early September.

Suffice it to say that I am firmly of the view that the legal opinion provided to Corrections Branch is mistaken, and that probation officers have both the authority to implement bail conditions of the kind proposed in paragraph 5 and the responsibility to consider, reasonably and in good faith, any proposal by Ms. P. about how that authority should be exercised in her case. If I am correct in that view, the probation officers can be constrained to carry out their responsibilities only by judicial review proceedings in the British Columbia Supreme Court. [ 11 ] Ms. P’s case should not await the judgment in S.N.P.

Family reconciliation should begin as soon as possible. I hope that her bail supervisor will engage constructively in giving effect to the bail conditions set out in paragraph 5. If that does not occur, Ms. P may wish to consider a judicial review application. It is very likely that my reasons in S.N.P. will be published (with or without redaction) before any such judicial review application can be brought on for hearing. [ 12 ] I order that Ms.

P’s undertaking be amended by deleting its existing terms and substituting those set out in paragraph 5. [ 13 ] I direct that the Registrar provide copies of these reasons to Ms. Proteau, who is Crown counsel in S.N.P. , and to Mr. Watt, who is S.N.P’s counsel. ___________________________ T Gouge, PCJ July 28, 2014