R. v. Fallowfield Date:, 2016 BCPC 299

Citation: R. v. Fallowfield Date: 20160920 2016 BCPC 299 File No: 41462-2-KC Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOHN WILLIAM FALLOWFIELD ORAL REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. J. BRECKNELL Counsel for the Crown: A. Norlund Counsel for the Defendant: K. Jones Place of Hearing: Prince George , B.C. Date of Hearing: September 20, 2016 Date of Judgment: September 20, 2016 [ 1 ] THE COURT: On June 7th, 2016, after a trial, I found Mr. Fallowfield not guilty on Counts 1 and 5 on Information

41463-2-KC and found him guilty on Counts 2, 3, 4, 6 and 7 of the same Information. The events that the Information describes and the circumstances of that Information were a result of a relationship Mr. Fallowfield had with the complainant, J. S. The criminal behaviour exhibited by Mr. Fallowfield arose from the disintegration of that relationship. [ 2 ] Any case that comes before the criminal courts involving inter-spousal discord amounting to criminal behaviour is a complex case.

Any communication between two people in a relationship has its complexities and those complexities sometimes result in the parties having disputes, saying things to each other they regret or taking actions that they might regret. It is when those domestic disputes arise to the point of criminal behaviour that the court must become involved, because at that point the behaviour of one party to the other exceeds what the community accepts as the appropriate level of dispute resolution. [ 3 ] Domestic dispute cases always have more sides to them than the court is capable of entertaining.

There are no doubt things that Mr. Fallowfield feels Ms. S. did during the relationship that caused him distress or grief or hurt. But, as long as that behaviour does not surpass what the community accepts as appropriate or inappropriate but not to the point of criminality, we do not get involved. [ 4 ] Mr. Fallowfield provided some of his views of how the relationship did not work out from his perspective. In the presentence report, he acknowledged that he has a temper, and that when he had difficulties in his relationship with Ms.

S., he would turn his anger towards the men she was with even though he was mad at her. He says, as well, that although he tried anger management at one point, he stopped participating because he felt despondent. [ 5 ] He acknowledges in the presentence report that perhaps he even has the mental health condition of depression, and he acknowledges that he was, at least in the past, and hopefully not so going forward, a jealous person. He acknowledges that he and Ms. S. picked on each other, and even in the trial Ms. S. acknowledged in cross-examination that there were things that she said from time to time to Mr.

Fallowfield that are not conducive to a cordial spousal relationship. [ 6 ] A presentence report was prepared on Mr. Fallowfield. It is, in my view, for the most part quite a positive report. It sets out Mr. Fallowfield's past which is that for a majority of his life he has been a pro-social contributing member of our community. He has employment. He does not have an extensive criminal record. He has one conviction from some 20 years ago when he was in possession of drugs and a weapon at a time he would have been a very young man. He maintains the necessary financial payments for his children.

He earns a good income and provides well for them. [ 7 ] The Crown mentioned some aggravating and mitigating factors that the court should consider in imposing an appropriate sentence, and I accept and adopt those factors as being relevant in this case. The aggravating factors include the impact on Ms. S., Mr. Fallowfield's limited insight to how his behaviour affected her, the statutory aggravating factors set out in s. 718.2(a)(ii) and s. 264(4). The mitigating factors include that Mr. Fallowfield for all intents and purposes has no criminal history. He is fully employed. There is a positive presentence report.

He has not committed any further offences since these matters came to light and he has some limited insight. [ 8 ] Now it may seem somewhat paradoxical to say that having limited insight is both an aggravating and mitigating factor. The aggravating point being, of course, that it would be of some assistance to Mr. Fallowfield going forward if he had greater insight and understanding of the dynamics of his disintegrating relationship with Ms.

S., but it is a positive fact that he has some insight and perhaps he can build on that going forward. [ 9 ] The Crown proceeded summarily in this matter, which means the maximum sentence is six months jail and a $5,000 fine. A conditional sentence order is also available and, indeed, the Crown advocates for a conditional sentence order in these circumstances. The Crown points out that Mr. Fallowfield has been on bail for the better part of 18 months now and there have been no incidents.

He served seven days in jail prior to receiving bail for which the Crown said he should receive 11 days of credit. [ 10 ] With regard to Counts 6 and 7 on the Information which are charges of breaching a family court order, the Crown suggests concurrent sentence of time served would be appropriate and defence counsel agrees with that suggestion. On Counts 2, 3, and 4, being the three counts of harassment for which Mr. Fallowfield was found guilty, being Count 2, repeated communication; Count 3, watching and besetting; and Count 4, threatening conduct.

The Crown says an appropriate sentence would be three to six months of house arrest under a conditional sentence order followed by 24 months of probation with various terms and conditions. The Crown also points out that Counts 2, 3 and 4 attract an automatic s. 109 firearms prohibition for ten years, and that they are secondary DNA offences for which Mr. Fallowfield should be required to provide a DNA sample. [ 11 ] On those counts, 2, 3 and 4, defence counsel says that a conditional sentence order is not necessary; that Mr.

Fallowfield could benefit from a period of probation and that there is no need to put strict terms on that probation order in some respects, because Mr. Fallowfield continues to see his children under the terms of a family court order that he has been adhering to, that any reference to Mr. B. should not be included in the probation order because Mr. Fallowfield was found not guilty of the charges regarding Mr. B.; but, that Mr.

Fallowfield could benefit from some counselling that could be imposed as part of a probation order. [ 12 ] I have considered the submission of counsel on the various counts, and I agree in part with each of them on Counts 2, 3 and 4. However, I disagree with counsel on Counts 6 and 7. In my view, to say to Mr. Fallowfield that the brief time he has served in custody, some 18 months ago, is the only penalty, does not address the deterrent aspects, both from the perspective of Mr. Fallowfield and from the perspective of others who may choose to consider to breach family court orders. [ 13 ] Mr.

Fallowfield, please stand up, sir. Sir, on Counts 6 and 7 of the Information which is the two breaches of the family court order, on each of those two counts, there will be a fine of $200 plus the victim fine surcharge of $60 for a total of $260. So it is a total of $520, 260 times 2. I will give you till April 30th, 2017, to pay those fines. [ 14 ] On Counts, 2, 3 and 4, I treat them as one series of events, sir, as opposed to three separate events. In doing so, I think there should be concurrent sentences for those three counts.

I agree with the Crown that there needs to a conditional sentence order, but I disagree with the Crown with regard to the length of it and I take into account you have served some time in custody. There will be a 60- day conditional sentence order and I will get to the terms of that in a minute, Madam Clerk, followed by an 18-month probation order

and I will get to the terms of that in a minute, Madam Clerk. There will be no reference in the conditional sentence order or the probation order with regard to Mr. B. for the very reasons Mr. Jones has set out: (

a) you were found not guilty of any offences concerning him, and (

b) quite frankly, Mr. B., given his occupation or profession, can quite easily take care of himself if he feels he has some issues with you. [ 15 ] I want to deal first with the ancillary orders. There will be an order under s. 109 of the Criminal Code prohibiting you from possessing any firearms for ten years. It is a mandatory provision. I will speak to you in a moment about how you can go about getting licenced again if you choose to. Madam Clerk, it is number 164, so that is on Counts 2, 3 and 4, Mr.

Fallowfield, you are prohibited from possessing any firearm, other than a prohibited firearm or restricted firearm, any crossbow, restricted weapon, ammunition, explosive substance for a period of ten years and (

b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 16 ] Now, sir, I must inquire, do you own any firearms? [ 17 ] THE ACCUSED: I did, yeah. [ 18 ] THE COURT: Okay. But you do not have them in your possession now? [ 19 ] THE ACCUSED: No, they took them. [ 20 ] THE COURT: Okay. You -- if you wish, I will make an order requiring the police to hold those firearms for a further 90 days to allow you to present somebody to take possession of them who is duly licenced rather than have them destroyed.

In other words, do you have a brother or a friend you can -- like to see them have that? [ 21 ] THE ACCUSED: Sure. [ 22 ] THE COURT: Okay. There will be a term of the order as well, Madam Clerk, that the RCMP are to maintain possession of the firearms seized from Mr. Fallowfield until December 31st, 2016, and that if a person presents themselves to the RCMP detachment here in Prince George at 455 Victoria Street with the necessary authorizations and registration documents to possess firearms and a signed consent from Mr.

Fallowfield to take possession of the firearms, the RCMP are to deliver those firearms up, to that person. If no steps have been taken in that regard by December 31st, 2016, the firearms will be destroyed pursuant to s. 491 of the Criminal Code . So you have until Christmas time to get a friend lined up and sign a consent saying he can have all your guns. He takes the paperwork and his registrations down to the RCMP and they will give the guns to him. [ 23 ] Now, sir, you can make application to get the prohibition shortened.

You will not be able to do that tomorrow, obviously, there has to be some period of time. You have to make an application to the chief firearms officer of the province and you have to provide them with good reason why you want to have the firearms returned to you, for example, because you require them to hunt for food or things like that. That is up to you and the chief firearms officer. [ 24 ] There will also be a DNA order on Counts 2, 3 and 4, Madam Clerk. It is a secondary DNA order, but I agree with the Crown it is necessary in these circumstances.

Number 162, Madam Clerk, pursuant to s. 487.051 of the Criminal Code , I make an order in Form 5.04 authorizing the taking of a number of samples of bodily substances by any peace officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration from John William Fallowfield by October 7th, 2016. [ 25 ] And 163, Madam Clerk, pursuant to s. 487.051(4) of the Criminal Code , I make a further order in Form 5.041 that you shall attend on or before October 7th, 2016, between the hours of nine a.m. and four p.m. at the RCMP detachment at 455 Victoria Street, and submit to taking of such samples. [ 26 ] Now, sir, let us get to the conditional sentence order which is going to be for 60 days. 100C, Madam Clerk, you shall keep the peace and be of good behaviour.

You shall appear before the court when required to do so by the court. You shall report in person to a conditional sentence supervisor no later than 4:00 p.m., today, September 20th, 2016, at the probation office at 101-250 George Street, Prince George, British Columbia, and you shall thereafter report as and when directed by the supervisor and in the manner directed by the supervisor. You shall remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the supervisor.

That means you have to stay in B.C., sir, unless you get permission to go outside of B.C. [ 27 ] You shall notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change in employment or occupation. [ 28 ] 103C, Madam Clerk, after first reporting to the supervisor, further reporting may include reporting by telephone at the discretion of the supervisor. [ 29 ] 105C, Madam Clerk, when first reporting to the supervisor, you shall inform him or her of your present residential address and phone number, and you shall not change your address or phone number at any time without first providing written notice to the supervisor. [ 30 ] Number 111C, Madam Clerk, you shall obey a curfew by being inside of your residence or on the lot on which your residence is located between the hours of 9:00 p.m., and 6:00 a.m., each day except as follows: (

a) with the written consent of the supervisor given in advance. Such consent is to be given only for compelling personal, family or employment reasons; (

b) when travelling directly to or returning directly from your place of employment or while in the course of your employment you shall provide the supervisor with written proof of employment; and (

d) in the event of a medical emergency and then only when travelling directly to or returning directly from a hospital emergency ward. [ 31 ] Number 114C, Madam Clerk, you shall present yourself at the door of your residence when any peace officer or supervisor

attends there for the purpose of determining your compliance with the curfew conditions of this order. There will be no telephone reporting. [ 32 ] Number 116C, Madam Clerk, you shall have no contact or communication, directly or indirectly, with J. S., except as follows, subparagraph (

c) for the purpose of arranging, facilitating or exercising access to your children in accordance with a family court order and in such cases pursuant to the terms of that family court order. [ 33 ] Number 120, Madam Clerk, you shall not attend at or be within 25 meters of [omitted for publication], Prince George, British Columbia. [ 34 ] Number 121, Madam Clerk, you shall not attend at or be within 25 meters of any place which you know to be the residence, school or workplace of J.

S., except for subparagraph (b), Madam Clerk, on the highway in a moving motor vehicle in transit to somewhere else. [ 35 ] Number 123, you shall not possess or consume any alcohol or any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act except as prescribed for you by a physician. [ 36 ] Number 124, you shall not enter any liquor store, beer and wine store, bar, pub, lounge or other business premises from which minors are excluded by the terms of their liquor licence. [ 37 ] Number 131, you shall not possess any weapons as defined in s. 2 of the Criminal Code . [ 38 ] Number 134, you shall not possess any knife outside of your residence except for the immediate preparation or eating of food or for purposes directly and immediately related to your employment. [ 39 ] Number 142C, Madam Clerk, you shall attend, participate in and successful complete any assessment, counselling or program as directed by the supervisor.

Without limiting the general nature of this condition, such assessment, counselling or program may include and relate to (

a) anger management, (

b) alcohol or drug abuse, (

c) spousal abuse prevention. And you shall comply with all the rules and regulations of any such assessment, counselling or program. [ 40 ] Those are all the terms of the CSO I intend to impose, Ms. Norlund, unless you think that there are other terms that are necessary. [ 41 ] MS. NORLUND: I believe that covers the ones that were requested, Your Honour. Thank you. [ 42 ] THE COURT: Thank you. There will be a probation order for 18 months that follows the CSO, sir. Terms of the probation order are similar but less restrictive. [ 43 ] 100P, Madam Clerk, you shall keep the peace and be of good behaviour.

You shall appear before the court when required to do so by the court.

You shall notify the court or the probation officer in advance about any change of name or address and promptly notify the probation officer of any change of employment or occupation. [ 44 ] 102P, Madam Clerk, within 48 hours after completing your conditional sentence, you shall report in person to the probation office located at 101-250 George Street, Prince George, British Columbia, and after that you shall report as and when directed by the probation officer. [ 45 ] 103P, Madam Clerk, after first reporting to the probation officer, further reporting may include reporting by telephone at the discretion of the probation officer. [ 46 ] 105P, when first reporting to the probation officer, you shall inform him or her of your present residential address and phone number and you shall not change your address or phone number at any time without first providing written notice to the probation officer. [ 47 ] There will be no curfew during the probation, sir. [ 48 ] 116P, Madam Clerk, you shall have no contact or communication, direct or indirectly, with J.

S. except as follows, subparagraph (

c) for the purposes of arranging, facilitating and exercising access to your children in accordance with a family court order, and the final words I used before in the CSO, Madam Clerk. [ 49 ] Number 120, you shall not attend at or be within 25 meters of [omitted for publication], Prince George, British Columbia. [ 50 ] Number 121, you shall not attend at or be within 25 meters of any place that you know to be the residence, school, or workplace of J.

S., except for on the highway in a moving motor vehicle in transit to somewhere else. [ 51 ] There will be no alcohol restrictions during the probation order. [ 52 ] There will be no weapons prohibition or knives prohibition during the probation order. The weapons prohibition is covered, in my view, by the s. 109 order. [ 53 ] Counselling will continue, Madam Clerk, number 142. You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the probation officer.

Without limiting the general nature of such condition, such assessment, counselling or program may include and relate to anger management, alcohol or drug abuse, spousal abuse prevention. [ 54 ] I think those are all the terms I was planning to include in the probation order.

[ 55 ] Anything further? [ 56 ] MS. NORLUND: Not from the Crown, Your Honour. [ 57 ] THE COURT: Mr. Jones? [ 58 ] MR. JONES: No, Your Honour. The victim fine surcharge. [ 59 ] THE COURT: Well, he is employed. I think that is enough for those three counts and the other one he has got is built into the fine, so. (REASONS FOR SENTENCE CONCLUDED)