R. v. Manahan, 2018 BCPC 332

Citation: R. v. Manahan 2018 BCPC 332 Date: 20181126 File No: 40057-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KELLY EARL MANAHAN ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: J.I. Patsch Counsel for the Accused: J.R. Arndt Place of Hearing: Duncan , B.C. Date of Hearing: November 26, 2018 Date of Sentence: November 26, 2018

Introduction [ 1 ] THE COURT: Kelly Earl Manahan is before the court. Mr. Manahan was tried on a charge contained on a single-count information that, in committing the assault of Henry Ogden, he did cause bodily harm to Henry Ogden on or about July 9, 2017. That is an offence contrary to s. 267 (

b) of the Criminal Code . Crown had proceeded summarily with the charge. [ 2 ] The matter was heard before the court on April 5 and July 24, 2018. An oral judgment was rendered on September 18, 2018. That decision is cited as R. v. Manahan , [2018] B.C.J. No. 3391 , 2018 BCPC 246 . The task of this court is to determine a fit and appropriate sentence, having regard to all the circumstances surrounding this offence. Circumstances surrounding the offence [ 3 ] The oral decision cited above, R. v. Manahan , sets out the circumstances surrounding the offence in some detail.

I do not intend to review all of those circumstances in any depth. As I indicated, they are clearly set out in the decision. Essentially, as a result of the circumstances, Mr. Manahan was found guilty of assaulting Mr. Ogden, who was an employee of the drinking establishment at which the offence occurred. Mr. Ogden suffered resulting bodily harm. [ 4 ] Mr. Manahan had been drinking for several hours in the pub facility. He became somewhat abusive with other patrons in the pub around closing time. That resulted in intervention by other patrons, which then led to confrontations between Mr.

Manahan and three other males at various times and with Mr. Manahan at separate times pushing each of those three males. That precipitated Mr. Ogden's intervention, who the court found to have entered into the matter in order to try to calm the situation. [ 5 ] As a result of a pushing match between Mr. Manahan and Mr. Ogden, consisting of one push by Mr. Manahan against Mr. Ogden and a return push by Mr. Ogden against Mr. Manahan, the parties were separated by a female staff member. It was during that portion of the interaction that Mr.

Manahan threw a single sucker punch and connected with the face and nose of Mr. Ogden. [ 6 ] Mr. Ogden went immediately to the floor. He suffered significant facial injuries and that resulted in surgery having to be performed on his face. It also resulted in Mr.

Ogden enduring ongoing pain and suffering, and a loss of time at work. [ 7 ] The events giving rise to the assault were captured on the pub’s security video and, accordingly, a good deal of the court's time was spent reviewing and then summarizing what was visible and taking place on the pub’s security video recording. [ 8 ] The incident itself took place in a very short period of time and the events starting from the first intervention by a patron who approached Mr. Manahan, until the time that the final altercation occurred and Mr.

Ogden was struck in the face took slightly over one minute. [Discussions re: the exhibits] THE COURT: Impact of the assault on the complainant [ 9 ] The complainant, Henry Ogden, has filed a victim impact statement which was apparently prepared originally in September 2017, and it appears to have been updated on July 30, 2018. Mr. Ogden is a senior citizen. At the time of this offence he worked several jobs on a part-time basis. His job at the pub at the time of this offence was that of a shuttle driver.

He was responsible for driving individuals to and from the neighbourhood pub where the events giving rise to the charge took place. [ 10 ] In his victim impact statement, Mr. Ogden indicates that as a result of the assault and the injuries he sustained he lost approximately three to four weeks of wages from his three part-time jobs. He indicated that he had significant recovery time from the injury that he sustained. He had difficulty sleeping. He had previously suffered a fairly serious facial injury from an industrial accident.

That previous injury, of course, caused problems for him once he had been struck by Mr. Manahan. He was required to undergo some surgery. However, at the time of the trial and as I read the victim impact statement, there is still some uncertainty about the timing of future surgeries or medical interventions on his face. [ 11 ] There is a suggestion in the victim impact statement that the next series of medical intervention will be significantly more than what has taken place in the past.

However, I do not have anything in the nature of a medical report that specifies exactly the views of the treating physician as to what will be required in the future. [ 12 ] Nonetheless, it is clear that there are some significant residual injuries flowing from the impact of the injuries received by the complainant in the course of this assault. The complainant indicates that he has had reoccurring problems with headaches since receiving the injuries to his face as a result of the assault. [ 13 ] There is also an indication in the victim impact statement that Mr. Ogden has fears for his safety.

As I understand it, he has concerns about encountering or being confronted by Mr. Manahan in the future. [ 14 ] There is no indication that any civil proceedings have been instituted by the complainant against Mr. Manahan; however, that remains a real possibility. Circumstances of the accused [ 15 ] The accused is 55 years of age. He is before the court with no criminal record. [ 16 ] Crown has made reference to the fact that Mr. Manahan had previously been convicted under s. 144 of the Motor Vehicle Act on a charge of careless driving. However, that goes back to 2002.

It is unrelated to the circumstances of this case and Crown is not in any

way relying upon that prior conviction with respect to the disposition in this matter. [ 17 ] Mr. Manahan was raised on Vancouver Island from about age two. He graduated from high school. He initially started working at one of the local pulp mills and continued to work there for a period of about two years. He followed that job with a position working as a bartender for a period of about a year and a half, somewhat ironically at the same pub facility where the events took place. [ 18 ] After that bartending job, Mr. Manahan had a career working for various group homes.

He was dealing with people who had some mental capacity issues and, as I understand it, also people who had suffered from sexual or physical abuse. He did that work, both on Vancouver Island and also up in north eastern British Columbia for a period of time, eventually rising to a position as a supervisor in these group homes. [ 19 ] He then changed his career path and became a commercial and industrial painter. He was able to challenge the apprentice exam and he received certification as a journeyman painter.

He became a union member of the International Brotherhood of Painters and Allied Workers in 1996 and thereafter worked on a series of projects. He became a member of the local union executive. He was chosen to attend a course in the United States which led to his certification with something known as an engineering certificate relating to corrosive painting. [ 20 ] He then had employment with a firm called [omitted for publication], who I understand are industrial and commercial coating applicators and painters. He has worked with them for a period of years, specifically dealing with corrosion painting issues.

As I understand it, his employer has contracts with various shipyards which work on Canadian military vessels. This requires a security clearance certificate in order to deal with the type of vessels which are used by the Canadian military. [ 21 ] He has risen to a position as a supervisor. He is described in a letter from his employers and I quote, as "one of our top supervisors and is a valued employee." [ 22 ] The letter from his employer confirms the security clearance requirement and also indicate that a criminal record could have some negative effects on Mr.

Manahan's career with this particular employer. [ 23 ] The submission I have received, in fact, is that if Mr. Manahan were to be prohibited from obtaining or maintaining his security clearance, then he could in fact lose his significant value to his employer and also lose the ability to act as a supervisor on a full-time basis, given the large reliance of his employer on the military and dockyard contracts. [ 24 ] Mr. Manahan has lived in common law relationships. He does have a child who is now a young adult. He remains close to her. He earns a significant amount of income each year.

His indication is that his gross earnings are somewhere in the range of some $90,000 per annum. [ 25 ] He also has a significant record of contributions to the community. He has worked as a volunteer with a number of the agencies which provide resources and support to people with various barriers. He has done volunteer painting in some of the facilities of these agencies. He has dedicated other time to community service. However, it is acknowledged that his work-related commitments are very demanding. He puts in a significant number of hours of work each week.

He does indicate an intention to return to doing more community work as his work

schedule permits. [ 26 ] Mostly through his defence counsel is an indication that Mr. Manahan is distressed about the results of his altercation with the complainant. Mr. Manahan indicates that it was never his intention to cause injury to the complainant as a result of their encounter in the pub that night. There is an acknowledgment, again through counsel, that this was an event, which from Mr.

Manahan's perspective, was fuelled by his over-consumption of alcohol and his anger. [ 27 ] Defence counsel submits that the situation giving rise to the assault upon the complainant can be characterized as "fluid" and "explosive", and that part of the contributing factors to the eventual altercation with the complainant was the intervention by other patrons who Mr.

Manahan was required to deal with when they each approached him within a short period of time. [ 28 ] Defence submits that this particular altercation with the complainant cannot be seen to be other than a situation where one punch was administered by Mr.

Manahan and that there was no further attempts on his part to cause injury to the complainant. [ 29 ] It is acknowledged by defence that, in addition to the alcohol and anger which fuelled this particular event, it really amounts to poor judgment on the part of an individual who, prior to this event, had never been subject to any criminal proceedings and therefore could be described as a good citizen, who helps both his community and helps other people who may be disadvantaged.

Purposes, objectives, and principles of sentencing [ 30 ] The purposes and principles of sentencing are found in ss. 718 to 718.2 of the Criminal Code . These sections codify those purposes and principles and plainly state the intention and rationale for imposing particular sentences. [ 31 ]

Section 718 of the Code outlines the fundamental purpose of sentencing as follows: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary;

(

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [32]

Section 718.1 directs that a sentence must be proportionate to the gravity of the offence and the degree of the offender'sresponsibility. [33]

Section 718.2, under the heading "Other sentencing principles", states in part that: 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, . . . (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, includingtheir health and financial situation, . . . shall be deemed to be aggravating circumstances; (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. Framework for sentencing General application [34] Sentencing is an individualized process which requires the court to take into account both the circumstances of the offence andthe specific circumstances of the offender (see R. v. Shoker, 2006 SCC 44 at paragraph 14; R. v.

Angelillo, 2006 SCC 55 at paragraph22). [35] As the sentencing judge, I must direct myself to consider all the principles of sentencing contained in the Criminal Code, butalso be mindful that, depending on the nature of the offence committed, certain principles will receive more emphasis than others. [36] As noted by Romilly J. in R. v. Ralph, [2014] B.C.J.

No. 485, when considering the requirements of s. 718.2(b), that a sentence"should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances", it requires ananalysis of what is commonly referred to as the range of sentence for a specific offence (see paragraph 26). [37] However, because of the proportionality principle in individualized sentences, the parity principle does not preclude disparitywhere warranted by the circumstances. There is no such thing as a uniform sentence for a particular crime (see R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163).

Sentencing positions by Crown and defence Consideration of Crown's position [38] In this matter, Crown's position is based on the lack of a criminal record of the accused. Crown submits that a suspendedsentence with a period of probation for a term of something in the range of some 12 months is warranted, especially given the seriousnatures of the injuries sustained by the complainant. [39] In addition, Crown is seeking that there be a $1,000 fine imposed against the accused.

Crown also seeks a mandatory DNAorder. [40] With respect to the submission for a suspended sentence, in that regard I am mindful that a suspended sentence and the natureof a suspended sentence has been carefully reviewed by our Court of Appeal in R. v. Voong, [2015] B.C.J. No. 1335, 2015 BCCA 285.

In reviewing the nature of a suspended sentence, the Court of Appeal at paragraphs 19 and 20 said as follows: Nature of the Suspended Sentence [19] Where no minimum sentence is required, the Criminal Code permits a court to suspend the passing of a sentence, rather thanimpose a sentence (s. 731(1)(a)), and to place a person on probation for a maximum of three years (s. 732.2(2)(b)). If an offender who ison probation is convicted of an offence, the suspension of the sentence may be revoked and the offender may be brought back before thecourt for sentencing.

At that point, the judge may impose any sentence that could have been imposed at the time the sentence was

suspended (s. 732.2(5)(d)). [20] If probation is ordered, the judge must impose certain mandatory conditions found in s. 732.1(2) and may also impose optionalconditions (s. 732.1(3)(a)-(g.2)). Under s. 732.1(3)(h), the Court may also impose any other "reasonable condition . . . for protectingsociety and for facilitating the offender's successful reintegration into the community". [41] In Clayton Ruby, Sentencing, 8th Edition ("Ruby") at pages 434-436, the use of a suspended sentence and accompanyingprobation is canvassed in further detail.

Ruby states that a suspended sentence and probation are especially useful in cases that do notrequire a period of incarceration or deterrence or denunciation. The learned author further notes that imposition of a suspended sentenceis not confined to offences that do not require deterrence. [42] The suggestion is made where a suspended sentence and probation are imposed, general deterrence by way of a period ofimprisonment remains a possibility if the offender chooses to avoid the controls selected by the court for his rehabilitation.

Thus, theoffender who "chooses to avoid the controls" by breaching may very well end up in prison (see Ruby, pages 434-435 at paragraph 10.5). [43] Ruby notes that the most obvious use of a suspended sentence and probation order is in the case of first offenders who havecommitted crimes that are not too serious. In such situations, the court should explore other dispositions which are open to it and imposea custodial sentence only where "circumstances are such or the offence is of such a gravity that no other sentence would be appropriate"(see Ruby, pages 435-436 at paragraph 10.7).

Consideration of defence's position [44] Defence submits that this is an appropriate case for a conditional discharge, and in that regard consideration must therefore beplaced on the test outlined by our Court of Appeal in R. v. Fallofield, (BC CA), [1973] B.C.J. No. 559.

Fallofield isthe leading authority with respect to the granting of conditional discharges. [45] The test that as outlined in Fallofield is that the granting of a discharge must, first of all, be in the interests of the accused, andthe second leg of the test is that it must not be contrary to the public interest. [46] Fallofield draws the following conclusions with respect to the application of s. 730 for discharges and they are as follows:

(1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by lawor the offence is punishable by imprisonment for 14 years or for life or by death.

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation.

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, thatit is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry ofa conviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does notpreclude the judicious use of the discharge provisions.

(7) The powers given [by what is now s. 730] should not be exercised as an alternative to probation or suspended sentence.

(8) Section [now 730] should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity inthe application of the discharge provisions. This lack will be more apparent than real and will stem from the differences in thecircumstances of cases. Case authorities relied upon by Crown and defence [47] Counsel did not cite any case authorities with respect to the issue of the application of conditional discharges in matters of thisnature.

However, I have looked at some decisions of this court and taken them into consideration when arriving at my decision. [48] The first decision that I examined was the case of R. v. Jassal, 2007 BCPC 231. This is a decision of the Honourable JudgeM.R. McMillan.

The Jassal decision dealt with a domestic assault situation in which the accused in that case committed an assault of hisspouse in front of a child, a daughter who was two and a half years of age and who repeatedly asked him to stop assaulting the mother. [49] Judge McMillan looked at a series of cases that could have some application to that situation and to determine whether or not aconditional discharge was an appropriate disposition. Starting at paragraph 46, the court stated as follows: [46] The prerequisites for the imposition of a conditional sentence are set out in the case of R. v.

Fallofield [citation omitted] adecision of our Court of Appeal. [47] Those principles are usefully summarized in some of the cases provided by Ms. Tiwana. They are: R. v. Saunders, [1993] B.C.J.2887, a decision of our Court of Appeal allowing an appeal and substituting a jail sentence with a conditional discharge where the chargewas assault causing bodily harm; R. v. Carroll, [1995] B.C.J. 365, a decision of our Court of Appeal, where the Court in that case

reiterated the principle that the public interest in general deterrence does not preclude a discharge; R. v. Tone, [2003] B.C.J. 1688, adecision of Associate Chief Justice Dohm, where the accused pled guilty to an assault causing bodily harm and where the complainantsuffered very serious injury, a conditional discharge was imposed; and R. v. Bertuzzi, (ON CA), [2004] B.C.J.

No.2692, a decision of my brother Judge Weitzel, where he imposed a conditional discharge in a case of an assault causing bodily harm inthe context of a hockey game. [50] At paragraph 59 of the Jassal decision, the court further states as follows: [59] As Mr. Justice Dohm noted in R. v. Tone: It has previously been stated that the need for general deterrence militates against the granting of a conditional discharge in almost allcases involving violence resulting in injury; see R. v. Wood (1975), (ON CA), 24 C.C.C. (2d) 79.

However,conditional discharges have been granted in previous cases of assault causing bodily harm where the circumstances of the case havewarranted it; see R. v. Walker, [1982] B.C.J. No. 1046 (QL) (CA); [and] R. v. Carroll. which I have previously cited, and that is in paragraph 21 of the R. v.

Tone case. [51] In the Jassal decision, the court looked at the individual circumstances and, notwithstanding that there was assault causingbodily harm in that case, did accede to defence submission that it should be dealt with by way of a conditional discharge. [52] I have also had the opportunity of reviewing a recent decision of my own, R. v. Smith, [2018] B.C.J. No. 3510, 2018 BCPC266. That was a case involving a young man who was in the presence of a group of younger people when the accused's former girlfriendbegan socializing with the complainant in that matter. That resulted in teasing of the accused.

The accused lost his temper, confrontedthe complainant, and sucker punched him. There was extensive injuries sustained by the complainant, including extensive requirementsfor dental repair work, the cost of which exceeded some $12,000. [53] In that case, the victim filed a victim impact statement which outlined the significant emotional impact sustained as a result ofthe assault and the injuries that he received. [54] The accused in the Smith case was 20 years of age. He had no prior criminal record. He had left school before Grade 12 andwent to work.

He had an excellent work record and his long-term career goal was to pursue a career in the military. There was aconcern that a criminal conviction may have some negative impact on that career goal. [55] In the Smith case, the Crown was seeking a suspended sentence and defence sought a conditional discharge.

Based on themitigating factors of the young age of the accused, his expressed remorse, and the fact he took responsibility, but having regard for theaggravating factors, including the seriousness of the physical and emotional injury and the financial consequences, a conditionaldischarge was granted with 24 months of probation, along with other orders including a provision for restitution to cover the dentalrepairs. Analysis [56] I have taken into account all the factors that are before me when dealing with this particular offender. Mr.

Manahan hasexpressed a significant degree of remorse for the offence and has taken responsibility for it. I accept that as mitigating factors. [57] I must, however, also view the significant injury to the complainant as an aggravating factor.

The complainant has certainlybeen caused significant physical and emotional harm resulting from the assault at the hands of the accused, and there are, of course, whatappear to be some fairly significant financial implications arising out of the sustained injuries and also what appears to be somerequirement for further medical intervention in order to deal with the injuries that were sustained. [58] Clearly another aggravating factor was that the complainant was injured in the course of performing services at the pub inquestion.

Although he did not have a job which required him to deal with security or, in the common vernacular, act as a "bouncer", thecomplainant did intervene for the purposes of attempting to resolve a high-conflict and escalating situation.

Accordingly, this must betaken into consideration and considered as aggravating when an employee receives a serious injury as a result of their intervention andwhile in the course of attempting to protect other patrons in the facility. [59] People working in the hospitality industry should not be subject to abusive behaviour, nor should it be accepted that they shouldsuffer personal injuries of this type when they are performing their job. [60] From a further mitigating perspective, I do accept that Mr. Manahan, prior to this occasion, does have an unblemished record. He has been obviously a hard worker.

He has demonstrated a recognition of social responsibility by taking on jobs in his earlier careerwhich were aimed at helping people who were disadvantaged by a number of barriers. [61] He has continued with a reasonable level of voluntary contributions within the community and expresses the desire to continuein that type of volunteer community work when his work

schedule permits him to do so. [62] I believe there is a level of insight on the part of Mr. Manahan and a recognition that this situation was significantly fuelled byhis over consumption of alcohol, and such was clearly a contributing factor. I accept that to be the case because when it was put todefence as to whether or not counselling would be of benefit, there was an acknowledgment that it would be an appropriate condition thatcould be attached to any conditions; I take that either to be conditions attached to a conditional discharge or to a suspended sentence.

Therefore, I view the accused as having some insight. [63] I am also of the view that, when considering the nature of a conditional discharge, and as to whether or not specific deterrencefor Mr. Manahan is necessary, I can conclude that specific deterrence is a lesser consideration in this case. I am not in any wayconcerned that Mr. Manahan will find himself in the future being in a similar situation in which he is meting out punches at other

individuals. It seems to be a somewhat unique situation and does not appear to be part and parcel of his usual behaviour or his interaction with other members of the community, including hospitality staff. [ 64 ] Having taken all of these circumstances into consideration, I must then determine whether or not the conditions of the test outlined in Fallofield have been met. I certainly am satisfied that the first step of the test is met. Given the security requirements of his job and the potential negative impact on that security clearance, I am quite satisfied that it would be in the best interests of Mr.

Manahan to receive a conditional discharge. Accordingly, I am satisfied that the first step in the test is met. [ 65 ] I must then consider whether or not it would be contrary to the public interest to grant a conditional discharge. On balance, taking into account all of the circumstances, and notwithstanding the aggravating factor of the serious injury that was caused to the complainant, I am of the view that with respect to this particular accused in these set of circumstances, that it would not be contrary to the public interest if a conditional discharge is granted.

However, any conditions that would attach to a conditional discharge in this case will be carefully crafted in order to deal with the ongoing social responsibility of the accused. [ 66 ] Accordingly, Mr. Manahan, will you please stand. The decision that I have reached is that I am going to grant you a conditional discharge. As has no doubt been explained to you by your counsel, a conditional discharge has a significant advantage to you. You will not have a criminal record if you abide by all the terms and conditions. These are and must be considered to be mandatory things that you must do.

You should not be in any way consider them be in the nature of an inconvenient suggestion to you. [ 67 ] If you were to treat them as something in the nature of an inconvenient suggestion and you were to breach any of these conditions, then that could give rise to you facing further charges for breaching of court orders. If convicted or found guilty by way of a plea, you may lose all the advantages that are offered by the granting of this conditional discharge. [ 68 ] So I am going to outline the terms and conditions.

The length of the term of the conditional discharge, given your age and given your other responsibilities, is going to be greater than what was being proposed both by Crown and certainly by defence. The conditions will run for a total of 28 months and I will outline the conditions for you. In that regard, I will use the standard conditions picklist. [ 69 ] 2001: You must keep the peace and be of good behaviour. You must appear before the court when required to do so by the court.

You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. [ 70 ] 2002: You must have no contact or communication, directly or indirectly, with the complainant, Henry Ogden, also known as Toney Ogden. I will rephrase that as Henry Anthony Ogden, also known as Toney Ogden. There will be no exceptions to that. [ 71 ] 2005: You must not go to any residence, school, or workplace of Henry Anthony Ogden, also known as Toney Ogden.

There will be no exceptions to that. [ 72 ] I am going to amend the provision relating to no contact.

There will be one exception to that, and that will be: except through legal counsel in order to defend or otherwise deal with any civil proceedings that may arise out of the assault of Henry Anthony Ogden, also known as Toney Ogden. [ 73 ] 2101: You must report in person to a probation officer at 205B Boundary Road, Duncan, British Columbia, by 3:00 p.m. today -- make that 3:30 p.m. today, Monday, November 26, 2018, and after that you must report as directed by the probation officer. [ 74 ] 2201: When first reporting to the probation officer, you must inform him or her of your residential address and telephone number.

You must not change your residence or telephone number without first informing your probation officer. [ 75 ] 2501: You must attend, participate in, and successfully complete any intake, assessment, counselling, or program as directed by the probation officer. Without limiting the general nature of this condition, the intakes, assessments, counselling, or programs may relate to:

a) anger management,

b) alcohol or drug abuse. [ 76 ] 2509: You must complete 40 hours of community work under the direction of the probation officer. Your community work must be completed within the first 14 months of this order. [ 77 ] Is Crown seeking a no-weapons provisions? [ 78 ] MS. PATSCH: No. [ 79 ] THE COURT: All right. Is there any other condition that Crown would be seeking? [ 80 ] MS. PATSCH: No, thank you. [ 81 ] THE COURT: Are there any of those conditions upon which defence may wish to make some submissions? [ 82 ] MR. ARNDT: No, Your Honour, they are all conditions that Mr.

Manahan can comply with and has indicated to me that he will. [ 83 ] THE COURT: All right. [ 84 ] MR. ARNDT: There is the requirement of the court to make the DNA order. [ 85 ] THE COURT: I will make the order with respect to providing a DNA sample. He must attend at the Duncan North Cowichan detachment of the RCMP in order to provide a DNA sample within the next three weeks. I think there is a particular day that they do it up there, am I not correct, or --

[ 86 ] MS. PATSCH: I can't remember if they changed it to almost any day now. [ 87 ] THE COURT: All right. [ 88 ] THE CLERK: It's -- it's every day, Your Honour. [ 89 ] THE COURT: All right. Well, we will leave it and I will specify within the next three weeks. [ 90 ] THE CLERK: Your Honour, I think the best thing would be for him to call first before he shows up there. [ 91 ] THE COURT: Thank you, all right.

So I will make it that he is to attend and provide the sample on or before December 17, 2018. [ 92 ] THE CLERK: And that's at the Duncan RCMP? [ 93 ] THE COURT: Correct, Duncan North Cowichan detachment of the RCMP. [ 94 ] THE CLERK: Yeah. [ 95 ] THE COURT: Thank you, and so that order is -- it is a primary designated offence, and so that order is being made pursuant to s. 487.051(1). [ 96 ] That leaves the matter of the victim surcharge. [ 97 ] MR. ARNDT: He has the ability to pay a victim fine surcharge. [ 98 ] THE COURT: I will give him the maximum of 60 days -- [ 99 ] MR.

ARNDT: Certainly. [ 100 ] THE COURT: -- in order to complete the payment of the victim surcharge. [ 101 ] Now, again, Mr. Manahan, I am not over emphasizing, but you have to understand that those are all mandatory conditions that are attached to your conditional discharge and will require complete adherence in order to get the full benefit of that conditional discharge. Do you understand that? [ 102 ] THE ACCUSED: Yes, sir. [ 103 ] THE COURT: Thank you. All right, that concludes my reasons for sentencing with respect to this matter. (REASONS CONCLUDED)