R. v. Lempke Date:, 2016 BCPC 344

Citation: R. v. Lempke Date: 20161005 2016 BCPC 344 File No: 39866-3-B Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSHUA ALEXANDER LEMPKE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: K. Morrison Counsel for the Defendant: S. Runyor Place of Hearing: Campbell River , B.C. Date of Hearing: March 2, 2016

Date of Judgment: October 5, 2016 INTRODUCTION: [1] Mr. Lempke is charged with breaching a condition of a probation order made June 16, 2015 by failing to report to his probationofficer as directed by a corrections officer between August 13, 2015 to August 17, 2015, contrary to 733.1 of the Criminal Code. [2] It is common ground that he did not report on those dates. [3] The issue that I have been asked to address is whether, as submitted by defence counsel, this offence requires the crown toprove, beyond a reasonable doubt, full proof of mens rea for conviction. This is based upon whether or not Mr.

Lempke’s non-reportingwas intentional, reckless (with knowledge of the facts constituting the offence) or wilfully blind. This is usually described as subjectivemens rea. [4] Crown counsel, on the other hand, takes the position that after the wording of the

section was amended in 1995, Parliamentintended to require a lesser degree of mens rea based upon what a reasonable person would have done. This is usually described asobjective mens rea. THE ISSUES: [5] Crown counsel's view is that the decision in R. v.

Ludlow, 1999 BCCA 365, although it deals with section 145 (2) of theCriminal Code - breach of an undertaking or recognizance - is applicable to the offence before this Court and that, likewise, in the wordsof Hall, J.A. for the majority at paragraph 30: "…when the crown establishes non-attendance by an accused contrary to an undertaking or recognizance the accused should be foundguilty unless he can point to some evidentiary basis supportive of lawful excuse for his failure to appear". [6] The Ludlow decision has also been followed in this jurisdiction as well as in courts across Canada. [7] Crown counsel's argument as summarized in her written submissions is that: ...the Criminal Code was amended to remove "wilfully" and insert "without reasonable excuse".

This should be viewed as an intentionalmove by Parliament to alter the offence. The analysis in Docherty was heavily focused on the word "wilfully" and the crown submits itshould not be considered binding law for the modern s. 733.1. [8] Crown argues that it only need establish an objective mens rea.

In other words, that the accused failed to act reasonablyregarding his obligation to report. [9] Defence counsel's argument is that: …the line of authority requiring proof of subjective or full mens rea holds in essence that the absence of "willful" in s. 733.1 does notremove the legislative presumption applicable to all criminal code offences but the crown must prove subjective mens rea beyond areasonable doubt.

Instead, the addition of the phrase "reasonable excuse" refers to matters that lie outside the elements of the offence andfunctions to provide an accused with an extra statutory defense. [10] She submits that R. v Docherty, (1989) (SCC), 51 CCC (3d) 1 (SCC), has been followed by courts in thisjurisdiction as well as across Canada and remains persuasive and good authority. [11] Following the amendments in 1995, the provisions of

Section 733.1 (1) of the Criminal Code contained the following words: An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term not exceeding eighteen months, or to a finenot exceeding two thousand dollars, or both.[1] [12] Prior to 1995, the predecessor

section s. 666 (1) of the Criminal Code contained the following words: An accused who is bound by a probation order and who wilfully fails or refuses to comply with that order is guilty of an offencepunishable on

summary conviction. [13] The Crown’s position is that there is very little difference between s. 145 (which makes a breach of an undertaking or arecognizance an offence) and s. 733.1 and that by operation of s. 794 (2) - which applies in this case because crown proceeded bysummary conviction - the accused must prove that the exception, exemption, proviso, excuse or qualification applies in the case beforethe Court.

The standard of proof is on a balance of probabilities. [14] Section 145 (3) contains the following words: Everyone who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to complywith a condition of that undertaking or recognizance… and who fails, without lawful excuse, the proof of which lies on them, to complywith the condition, direction or order is guilty of

(

a) an indictable offence and liable to imprisonment for a term not exceeding two years, or (

b) an offence punishable on

summary conviction. [15] Section 794 (2) provides that: The burden of proving that an exception, exemption, proviso, excuse or qualification prescribed by law operates in favour of thedefendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption,proviso, excuse or qualification does not operate in favour of the defendant, whether or not it is set out in the information. [16] This

section is applicable to all

summary conviction offences. [17] Therefore, she argues that given the similarities (between the s. 145 and s 733.1), the cases interpreting s. 145 can be used tointerpret s. 733.1 and that they support a lesser degree of intention required to be proven by the crown. THE LAW [18] Counsel provided the Court with a number of cases from courts across Canada.

I have reviewed every one and will refer tothose I found most helpful. [19] From the case law, I have distilled a number of general principles. [20] There is a presumption that Parliament intends crimes to have a subjective fault element and must be understood to know thatthis presumption will likely be applied unless some contrary intention is evident in the legislation. This presumption incorporates animportant value underlying our criminal law, that the morally innocent should not be punished: R. v.

A.D.H., [2013] SCC 269, para. 23,26 & 27. [21] The word “wilful” is often, although not always, a strong indication that intention (subjective fault) is required: A.D.H., para49. As was said by Cromwell J. for the majority at paragraph 20 in A.D.H.: Discerning the parliamentary intent in relation to the fault element of crimes is often not an easy task. Offences that have long been heldto have subjective fault requirements do not expressly say so and even when Parliament decides to expressly set out fault requirements, itdoes not use language consistently.

As a result the courts must, and often do, infer the fault element. [22] A number of courts in British Columbia and throughout Canada have grappled with this issue. My brother Judge Blake in R. v.Bingley, 2008 BCPC 245, heard similar submissions and summarized the arguments at paragraph 5: The two sides of the argument are, I think, neatly summarized, though in a different context, by Cory. J. in R. v. Wholesale Travel GroupInc. (1991), (SCC), 67 CCC (3d) 193 at page 252: It should not be forgotten that mens rea and negligence are both fault elements which provide a basis for the imposition of liability.

Mens rea focuses on the mental state of the accused and required proof of a positive state of mind such as intent, recklessness or willfulblindness. Negligence, on the other hand, measures the conduct of the accused on the basis of an objective standard, irrespective of theaccused's subjective mental state. Where negligence is the basis of liability, the question is not what the accused intended but ratherwhether the accused exercised reasonable care.

The application of the contextual approach suggests that negligence is an acceptablebasis of liability in the regulatory context which fully meets the fault requirement in

section 7 of the Charter. [23] Judge Blake considered a number of case authorities including Ludlow (supra) and Docherty (supra). [24] Docherty has been followed by a number of courts for the assertion that a subjective mens rea must be proven by the crown forthe offence of breaching a probation order. The court there was concerned with an offence under the provisions of s. 666 (1). As notedabove, in 1995 the word wilfully was removed and the phrase "without reasonable excuse" was added. [25] The decision of the court in Docherty is encapsulated in paragraphs 13 to 19: (

a) The Literal

Interpretation [13] Section 666(1) is clearly framed so as to require guilty knowledge in order to constitute a breach. The sectionprohibits an accused from wilfully failing or refusing to comply with a probation order. The word "wilfully" is perhaps the archetypalword to denote a mens rea requirement. It stresses intention in relation to the achievement of a purpose. It can be contrasted with lesserforms of guilty knowledge such as "negligently" or even "recklessly".

In short, the use of the word "wilfully" denotes a legislativeconcern for a relatively high level of mens rea requiring those subject to the probation order to have formed the intent to breach its termsand to have had that purpose in mind while doing so. [14] The requirement of "refusing" to comply with a probation order, although less obviously importing a mens reaelement than the requirement of wilfully failing to comply, also denotes some form of guilty knowledge. In order to "refuse" to complywith something it is necessary to know what you are not complying with.

Only in that event can your actions constitute a "refusal". Youknow the strictures you are under but deliberately flout them. [15] I would conclude therefore that on a literal construction of the

section a relatively high level of mens rea is requiredfor the offence. (

b) The Contextual

Interpretation [16] Is the requirement of a relatively high level of mens rea under s. 666(1) consistent with the wider context of the

legislation? [17] Since s. 666(1) creates a criminal offence it should be presumed that some mental element is required in the absenceof clear words to the contrary. In the case of s. 666(1), far from having clear words to the contrary, we have clear words denoting amental element. It would appear to be significant also in this connection that the general punishment provision, s. 722 of the CriminalCode, applies in the case of a conviction under s. 666(1) and under that

section imprisonment is a permitted sanction. Since s. 666(1)creates an offence under the Code for which imprisonment is a permitted sanction it makes eminent good sense, in my opinion, toconstrue it as requiring a mental element. [18] Moreover, the purpose of s. 666(1) is clearly to achieve compliance with probation orders. Section 663(4) requiresnot only that a copy of the probation order be given to the accused but also that it be read to him or her. The accused must also be toldthat breach of it constitutes a distinct offence under s. 666(1).

Lower courts have held that the Crown must prove that this occurredbefore a conviction can be obtained under the section: R v. Piche (1976), (SK KB), 31 C.C.C. (2d) 150 (Sask. Q.B.); R.v. McNamara (1982), (ON CA), 66 C.C.C. (2d) 24 (Ont. C.A.); R. v. Bara (1981), (BC CA), 58C.C.C. (2d) 243 (B.C.C.A.). Indeed, the courts in R. v. Piche and R. v. Bara also ruled that an accused is not "bound by a probationorder" within the meaning of s. 666(1) unless and until the court has complied with s. 663(4).

Given the pains that Parliament has takento ensure that the accused is fully aware of the terms of his or her probation order, it would be strange if an accused could be convictedunder the

section without knowing that he or she was violating it. [19] Other considerations seem to be relevant to the contextual approach to the

interpretation of s. 666(1). For example, inR. v. Sault Ste. Marie, (SCC), [1978] 2 S.C.R. 1299, Dickson J. suggested that the deterrence rationale advanced infavour of absolute liability offences is in most cases overblown. Put simply, it makes little sense to think that a person will be deterredfrom wrongdoing in situations where that person does not believe and has no awareness that he or she is doing anything wrong.

Theappellant submitted to the Court, however, that the whole purpose of putting a person found guilty of criminal conduct on probation is to"heighten his or her awareness of the consequences of criminal activity". I am sure that is correct. However, in the context of this casethe conviction of the accused under s. 666(1) would have little or no deterrent effect given (as was accepted by the trial judge) that theaccused did not know he was doing anything wrong.

A decision requiring a distinct mens rea element for the offence under s. 666(1)would not, in my view, undermine the effectiveness of probation orders as the appellant alleges. The requirement that persons onprobation keep the peace and be of good behaviour would still apply to those wilfully breaching their parole.

It is, I think, consistentwith the overall content and purpose of the probation provisions in the Criminal Code that those who unknowingly violate the terms oftheir parole not be convicted but only those who wilfully breach such terms or deliberately refuse to obey them. [26] In holding that s. 666 (1) required a subjective mens rea, the unanimous Court at paragraph 29 stated: As I have stated earlier, the mens rea of section 666 (1) requires that an accused intend to breach his probation order.

This requires at aminimum proof that the accused knew that he was bound by the probation order and that there was a term in it which would be breachedby his proposed conduct. The accused must be found to have gone ahead and engaged in the conduct regardless. The onus, of course, ison the crown to prove that the accused had the requisite mens rea. To the extent that direct evidence of intent is almost always difficultto obtain, the crown may ask the court, absent any evidence to the contrary, to infer intent from the fact of the conduct.

Any doubt,however, as to whether the accused intended to do what he did must be resolved in favour of the accused. [27] Like Judge Blake, the issue I have been asked to decide is whether change in the wording has affected the mens rea requirementruled on in Docherty. [28] I have carefully reviewed the Ludlow decision and do not find it particularly helpful in this case. That case dealt with an appealfrom conviction for failing to attend court without lawful excuse pursuant to s. 145 of the Criminal Code. Counsel for Mr. Ludlowargued that the offence required subjective mens rea.

Crown counsel argued that as the offence was designed to regulate conduct it wasan offence "quasi-regulatory in nature, importing objective rather than subjective mens rea." [29] In its ruling that an objective mens rea was applicable, the court declined to follow other case authority supporting a subjectivemens rea on the basis that they had been overshadowed by more recent authorities from the Supreme Court of Canada. Reference wasspecifically made to R. v. Hundal (SCC), [1993] 1 SCR 867, R. v. Creighton, (SCC), [1993] 3 SCR 3and R. v.

Finlay (SCC), [1993] 3 SCR 103 for the proposition that as long as an accused was able to establish a defenceof due diligence conviction for certain offences on the basis of negligent conduct was constitutionally permissible. [30] In A.D.H. (supra), Cromwell J. for the majority reviewed the five primary types of objective fault offences in the CriminalCode and explained why subjective mens rea or fault was applicable to s. 218, the

section at issue in that decision. The Hundal decisioninvolved the offence of dangerous driving. There were a number of factors in that case that justified an objective rather than a subjectivefault requirement: driving was a regulated activity; the actual wording of the offence focused on the manner of driving - markeddeparture from that expected of a reasonable person in the same circumstances. Because the manner of driving could only be comparedto a standard of reasonable conduct along with the other factors, their analysis supported an objective fault element.

There is no similarlanguage in s. 733.1. [31] Creighton involved what are called predicate offences such as unlawful act manslaughter. Those offences were found to requirethe mental element for the underlying offence but only objective foresight of harm flowing from it (for example, foreseeability of bodilyharm). The rationale underlying the objective element in those offences does not apply to s. 733.1. [32] Finlay dealt with the offence of careless storage of firearms.

The actual provision required the crown to establish that thefirearm was used "in a careless manner or without reasonable precautions for the safety of other persons". Therefore, the use of theexpress language in the

section was, in the view of the court, a clear marker of objectively assessed fault. [33] The current s. 733.1 contains the phrase “reasonable excuse” but I find that this is not analogous to the language in the sectionof the Criminal Code dealt with in Finlay.

[34] Lastly, and importantly in my view, the court in Ludlow did not have the benefit of hearing argument about the applicability ofthe Docherty decision. [35] Returning to my original question, has the change in the wording of s. 733.1 changed the applicability of the ratio in Docherty? In my view, it has not. Removal of the word “wilfully” does not necessarily indicate that Parliament intended a fundamental shift fromsubjective to objective mens rea. I find support for this in Wilson J’s contextual analysis in Docherty and the fact that s. 733.1 creates acriminal offence.

In the absence of clear words to the contrary, it should be presumed that some mental element is required. [36] Furthermore, the amendments to the Criminal Code in 1995 increased the sanctions that an accused faced for breaching aprobation order. Whereas classified as a

summary conviction offence, following the 1995 amendments a charge under s. 733.1 could beprosecuted by indictment resulting in a potential term of imprisonment of up to two years. If Crown proceeded by way of a

summaryconviction offence, an accused faced a fine up to two thousand dollar; a possible term of imprisonment up to eighteen months, or both.[2] [37] A record of breaches of probation orders can have serious consequences for an accused who is seeking bail. The ability tofollow and abide by conditions is one of the factors that the court must take into account when considering whether to release someoneprior to trial.

It is very conceivable that someone would be denied bail on the basis of a record of breaching probation orders. [38] I adopt the words of Judge Blake at para 20 of Bingley: In circumstances where increased criminal sanctions now apply, it seems to me that very clear legislative language would be required forthere to be a departure from the long-standing principle of the criminal law regarding mens rea to which I have referred, and whichWilson J. adopted so clearly and specifically in Docherty.

It therefore seems appropriate to me to continue to insist upon full proof ofmens rea before imposing conviction, notwithstanding the removal of the word "wilfully" from the legislation. The inclusion orexclusion of that word is not conclusive, as I have already noted.

The increased penalty provisions only serve to highlight and reinforceWilson J.'s general assessment (at paragraph 19) that it is "consistent with the overall content and purpose of the probation provisions inthe Criminal Code that those who unknowingly violate the terms of their probation not be convicted but only those who wilfully breachsuch terms or deliberately refuse to obey them". [39] The elements of a subjective mens rea was described succinctly by Justice Dickson in R. v. City of Sault Ste.

Marie (SCC), [1978] 2 SCR 1299 at page 1309-1310: Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited actdid so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Merenegligence is excluded from the concept of the mental element required for conviction.

Within the context of a criminal prosecution aperson who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should haveknown, is innocent in the eyes of the law. [Emphasis added] THE EVIDENCE: [40] Mr. Lempke is a First Nations individual. He was adopted by his foster mother Enid O'Hara, a nurse practitioner, and lives withMs. O’Hara, her daughter Victoria and his brother Joshua Lempke in Gold River, BC. [41] Except for a brief period in approximately 2014, Mr. Lempke has lived with Ms.

O'Hara virtually his entire life and came to livewith her when he was only three weeks old. Ms. O'Hara knew Mr. Lempke's mother and gave evidence that, in her view, Mr. Lempkehad been exposed to alcohol during the pregnancy. [42] Ms. O'Hara testified that Mr. Lempke needs a tremendous amount of assistance with organization and memory. She testifiedthat she has taken him to medical specialists and that he has undergone psycho educational assessments.

She maintains a whiteboard intheir kitchen upon which she writes down various appointments including medical and other important appointments such as reporting toa probation officer. [43] Mr. Lempke was placed in an adaptive school program in grade 4 and he was not able to maintain a calendar or follow morethan simple instructions. Her routine at home is that the children know to check the whiteboard. Ordinarily she reminds Mr. Lempke ifhe has appointments and she has also asked her daughter Victoria to assist him with his calendar.

She testified that if he doesn't haveassistance he will frequently forget appointments or other activities. [44] Mr. Lempke also testified that he does not have a particularly good memory and is not very good at remembering appointments. He indicated that his mother, Ms. O'Hara, writes appointments on the whiteboard and assists him with a variety of activities of dailyliving. He needed help in completing a grade 11 to 12 adapted program at school. He is not very well organized. [45] On June 16, 2015 Mr.

Lempke was convicted on a number of theft under charges and sentenced by Judge Doherty to custodyplus a period of probation for one year. That probation order included a term that following his release from custody, he reportimmediately in person to a probation officer in Campbell River, BC and thereafter as directed. [Emphasis added] [46] On June 26, 2015, Mr. Steve Wallace, a probation officer in Campbell River, met with Mr. Lempke and reviewed the terms ofthe probation order with him.

He testified that he would have followed his practice of explaining the conditions of the probation orderincluding the right to very terms and the consequences, in plain language, of - in his words - “wilful noncompliance”. The latter, heusually explains, may result in new charges attracting additional penalties including a maximum fine two thousand dollars and/or twoyears in custody. The probation order was signed by Mr. Lempke on June 26, 2015 acknowledging that the terms had been explainedand he understood his responsibilities. I also note that the same probation order was signed by Mr.

Lempke on June 22, 2015. [47] Mr. Wallace testified that he met Mr. Lempke at his office in July but because he was then back in custody for a period of time,

he did not see him again until August 31 2015. He testified that in July they met on their own but that in August 31 his mother was also present. [ 48 ] He testified that it appeared to him that Mr. Lempke understood the conditions and why he was there. They also had a discussion about counselling and what steps might be taken to help him. [ 49 ] His practice is to provide his phone number (toll free and direct) and advise if the client can’t attend, to call and reschedule the appointment. [ 50 ] I heard evidence from Ms. Potentier who is a corrections officer at Nanaimo Regional Correctional Centre.

She was the corrections officer who released Mr. Lempke on August 12, 2015. She has no specific recollection of Mr. Lempke, but testified as to her usual practice. If someone being released was on probation, she would make sure they have it and that she would have reviewed the probation order with Mr. Lempke. There was no evidence that she had the probation order when Mr. Lempke was released. It was not signed by Mr. Lempke on August 12, 2015. [ 51 ] There was a Referral to Community Referral Notice in evidence. Upon his release from custody on August 12, 2015 Ms. Potentier testified that she would have given Mr.

Lempke a copy of the faxed one page written document called a “Referral To Community Referral Notice” (the Referral Notice). It contained a direction to report to the duty officer at Campbell River Community Corrections in Campbell River on or before August 13, 2015 by 9:00 a.m. It contains Mr. Lempke’s signature acknowledging the document and was dated August 12, 2015. [ 52 ] The Referral Notice indicates that Mr. Lempke’s primary address is in Gold River, B.C. Ms.

Potentier’s evidence was that she reviewed the referral notice with him and would have advised him of the date and time he was required to report to Campbell River community corrections. She also testified that her practice would have been to let him know that if he was going to be late or couldn't attend for the appointment to call the telephone number that was indicated on the referral form. [ 53 ] Mr. Wallace did not receive a phone call from nor did he meet with Mr.

Lempke on August 13, 2015 or indeed August 14, 15, 16 or 17 2015. [ 54 ] The next meeting between them was on August 31, 2015. [ 55 ] Gold River is approximately a two hour drive from Campbell River. There is no regular bus service. Mr. Lempke does not have a driver’s license. He testified that his mother, Ms. O’Hara, picked him up at the ferry terminal Nanaimo. [ 56 ] As part of her duties as a nurse, Ms. O'Hara travels a significant amount of time. On August 13, 2015 she left home at approximately six a.m. and was away until August 16, 2015. She does not recall whether or not she spoke with Mr.

Lempke on August 13 or whether she reminded him that he was required to report to probation. She was home on August 17, 2015 and also did not recall if she reminded Mr. Lempke to report in person to the probation office in Campbell River on that day. [ 57 ] She testified that Mr.

Lempke is always good about calling her when he is going to be home late and that he doesn't usually forget to do so. [ 58 ] In cross-examination she agreed that she accompanied her son to court when Judge Doherty made the probation order and imposed his sentence; that she had read it and was aware of the conditions; and that she understood the condition to report. She also acknowledged that she accompanied Mr. Lempke to probation from time to time. [ 59 ] Ms.

O'Hara has no memory of picking up her son at the ferry terminal in Nanaimo although she indicated that she always picked him up and likely would have done so. She agreed that if he was released on August 12 she would have picked him up. She also agreed that she probably asked her son if any appointments were made and if there had been a direction to report to a probation officer. [ 60 ] She also agreed that there was access to a telephone at the residence. She agreed that she would not have gone three days without speaking with Mr. Lempke by telephone. [ 61 ] Mr.

Lempke, on cross-examination, did not remember if he told his mother that he had to report in person the next day by 9:00 a.m. in Campbell River. He recalled that his mother picked him up at the ferry terminal in Departure Bay and that he gave the referral to his mother. He couldn't recall if he told her that he had to report the next day by 9:00 a.m. and agreed that it was important. He doesn't recall what else he did to remember the date. [ 62 ] He agreed it was possible that he may not have done anything else to try to remember the reporting date.

He did not recall if he wrote anything else down so that he could remember to phone Mr. Wallace. He agreed that he had Mr. Wallace’s after-hours telephone number and that although he has called at that number on previous occasions he has not left a message. [ 63 ] In direct examination he did not recall if he called Mr. Wallace on August 13, 14, 15, 16 or 17 2015 but towards the end of cross-examination he testified that he tried to call Mr.

Wallace after hours on August 13. [ 64 ] He also testified that after his release he wasn't thinking about all the probation conditions he was placed on and that if his mother had not written the date down on the whiteboard or if his mother didn’t call to remind him, he would have forgotten the date. [ 65 ] He testified that he did not deliberately or intentionally fail to report. Rather, he simply didn't remember. As he testified, if his mother forgets to remind him, he will not remember. ANALYSIS: [ 66 ] Mr. Lempke had previously reported to Mr.

Wallace his probation officer in July, 2015, and was clearly aware of his obligations

to report. I also accept, based on Ms. O’Hara’s evidence and also on my observations of Mr. Lempke, that he has considerable cognitive challenges and needs assistance in organization and, in particular, remembering appointments and other events. It appears to me that Ms. O’Hara provides a great deal of structure for Mr. Lempke and that she is the one who makes sure he remembers and attends his appointments. [ 67 ] At the time of these offences, Ms.

O’Hara was away having left early in the morning on August 13 (the day he was to report to Campbell River) to work in Zeballos and did not return until late in the day on August 16, 2015. She was home on August 17, 2015. [ 68 ] It is clear that Mr. Lempke was careless in that he didn’t take steps to deal with the referral given to him by Ms. Potentier when he was released from Nanaimo Regional Correctional Centre. He didn’t communicate with his mother about the direction to report and I accept that she would have spoken with him at some point while she was away.

It may not have occurred to her that he was required to report, but it is not her conduct at issue here. [ 69 ] I do not know if Ms. Potentier actually received the Probation Order to review with Mr. Lempke on his release. While his signature is on the Referral Notice, it is not on a copy of the probation order. The Referral Notice was a faxed copy and was only one page. If the probation order had been included, I expect that the fax likely would have included more pages. [ 70 ] The crown has to prove, beyond a reasonable doubt, that Mr.

Lempke intentionally disobeyed the direction or that he was wilfully blind or reckless with regard to it. The latter would require that at the material time Mr. Lempke was aware of the reporting direction and deliberately chose either to not to deal with it or to be indifferent to it. It does not capture conduct that is accidental, inadvertent or mistaken. [ 71 ] Mr. Lempke was released on August 12, 2015 and directed to report in Campbell River early the next morning.

Without his mother, he had no means of travelling to Campbell River from Gold River which is almost a two hour drive. [ 72 ] I do not believe that Mr. Lempke intentionally disobeyed the direction to report to the probation office in Campbell River. [ 73 ] Was he wilfully blind or reckless?

I am not convinced beyond a reasonable doubt that his failure to report and attend at the probation office between August 13 and 17, 2015 was as a result of deliberate or wilful disregard of the direction such that it constituted wilful blindness or recklessness. [ 74 ] I accept that he has cognitive challenges resulting in poor organization and memory and also poor communication skills, all of which was the cause of his failing to address the direction to report. The fact that Ms. O’Hara was not present when he was released and in the days following, compounded the situation. [ 75 ]

Section 733.1 wording includes the phrase “without reasonable excuse” before “fails or refuses to comply”. [ 76 ] In the event that I am wrong and as my decision may be subject to review, I will also consider whether, on the evidence, Mr. Lempke has a reasonable excuse for failing to report as directed. The crown proceeded summarily. By operation of s. 794 (2), the proof of establishing an excuse on a balance of probabilities rests with Mr.

Lempke. [ 77 ] Obviously, the excuse must be reasonable and my assessment must be based on the evidence before me. “Reasonable” has been described as “not extreme”, “not absurd”, “not excessive”: R. v Eby 2007 ABPC 81 para 106 . [ 78 ] I have found that Mr. Lempke has cognitive challenges. He has difficulties with memory and organization. Furthermore, he had no way of travelling to Campbell River on August 13, 2015 when he was directed to do so. His mother, Ms.

O’Hara, who is normally involved in assisting him with organization, was not home during this time as she was working in the remote community of Zeballos. [ 79 ] While I am of the view that this is very close to the line, I find that on a balance of probabilities, Mr. Lempke has established that he had a reasonable excuse. [ 80 ] It would have been beneficial for someone at the Correctional Centre to make inquiries about how Mr.

Lempke was going to travel to the Corrections office from Gold River as that may have alerted someone to the fact that a reporting requirement early the next morning after his release was impossible. I am not faulting Corrections by any means. I am aware of the tremendous work load they carry and recognize that there is often not enough time to do more than review the terms of conditions when someone is released from custody. [ 81 ] This case also highlights the need to take care when crafting conditions of probation or bail.

Many people before this Court are unsophisticated and are unlikely to question the Court when an order to report is made. It is important that care is taken to ensure that reporting conditions are not impossible to follow. In the appropriate case, it may be permissible to allow someone a period of time to report if they reside some distance from the probation office. Likewise, in appropriate circumstances, reporting by telephone may also be acceptable. [ 82 ] In conclusion, I find Mr. Lempke not guilty of the count of breach of probation. BY THE COURT ____________________________

The Honourable Judge Flewelling [1] Following submissions and subsequent to my ruling, it came to my attention that amendments to the Criminal Code , effective July 16, 2015, increased the penalties following a conviction under s. 733.1. The current wording of the provision is: An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of (

a) an indictable offence and is liable to imprisonment for a term not exceeding four years; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than eighteen months, or to a fine of not more than $5,000, or to both. [2] A significant increase in the sanctions an offender faces as a result of the 2015 amendments, lends further support for my view that a subjective mens rea is applicable to this offence.