R. v. D.C.H. Date:, 2011 BCPC 443

Citation: R. v. D.C.H. Date: 20110711 2011 BCPC 0443 File No: [removed for posting] Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. D.C.H. REASONS FOR JUDGMENT ON

SECTION 810 PEACE BOND APPLICATION OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: R.L. Ellsay Counsel for the Defendant: M.R. Low Place of Hearing: Courtenay, B.C. Date of Hearing: May 17, 2011 Date of Judgment: July 11, 2011 [ 1 ] THE COURT: This peace bond matter came before me on Court File [removed for posting] out of the Courtenay Registry. The matter was heard before me on May 17, 2011. I am about to render my oral reasons for judgment with respect to this matter.

INTRODUCTION [ 2 ] Three applications have been brought by Crown under s. 810 of the Criminal Code against the defendant, D.C.H., based upon a three -count information sworn by a court liaison officer on January 27, 2010, that alleges as follows. [ 3 ] I will pause here for a moment. You will note that throughout my reasons for judgment, given the ages of the complainants, there will be references only to initials and not to their full names.

Similarly, with respect to the witnesses, in order to protect the young persons, I will be referring to those witnesses by way of initials. [ 4 ] So commencing with the reading of the counts: Count 1 [M.D.] has reasonable grounds to fear and does fear that [the accused] will cause personal injury to [M.D.] and her family, by virtue of incidents that occurred from the 1st day of September, 2009 to the 28th day of November, 2009, inclusive, at or near [name deleted], in the Province of British Columbia, pursuant to Section 810(1) of the Criminal Code.

Count 2 [K.C.] has reasonable grounds to fear and does fear that [the accused] will cause personal injury to [K.C.] and her family, by virtue of incidents that have occurred from the 1st day of September, 2009 to the 28th day of November, 2009, inclusive, at or near [name deleted], in the Province of British Columbia, pursuant to Section 810(1) of the Criminal Code .

Count 3 [C.R.] has reasonable grounds to fear and does fear that [the accused] will cause personal injury to [C.R.], by virtue of incidents that haveoccurred from the 1st day of September, 2009 to the 28th day of November, 2009, inclusive, at or near [name deleted], in the Province ofBritish Columbia, pursuant to Section 810(1) of the Criminal Code. [5] Section 810(1) to (3) of the Criminal Code provide as follows: 810.

(1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another personwill cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property.

(2) A justice who receives an information under subsection (1) shall cause the parties to appear before him or before a

summaryconviction court having jurisdiction in the same territorial division.

(3) The justice or the

summary conviction court before which the parties appear may, if satisfied by the evidence adduced that theperson on whose behalf the information was laid has reasonable grounds for his or her fears, (

a) order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for anyperiod that does not exceed twelve months, and comply with such other reasonable conditions prescribed in the recognizance, includingthe conditions set out in subsections (3.1) and (3.2), as the court considers desirable for securing the good conduct of the defendant; or (

b) commit the defendant to prison for a term not exceeding twelve months if he or she fails or refuses to enter into the recognizance. [6] According to the trial notice, this matter was set for trial on October 4, 2010. That trial date was apparently cancelled on May28, 2010. A new trial notice was issued for a trial to commence on March 29, 2011. For reasons I do not know, the matter did notproceed at that time and then came on before me for hearing on May 17, 2011. [7] Each of M.D., K.C., and C.R. are females and were, during the incidents complained of, either preteens or young teenagers.

Thedefendant is a male who, at present time, is 38 years of age. He was formerly in the Canadian military. He has two daughters. One ofthem is J.H., who is approximately the same age as M.D. and K.C. The other is A.H., who is presently 14 years and about three yearsyounger than C.R. The accused is now separated from his wife. [8] Serious sexual misconduct allegations have been made against the defendant with respect to M.D. and K.C. They have beeninvestigated by military police and the RCMP. No charges have been laid.

With respect to C.R., there are allegations that the defendantinappropriately bestowed his unwelcome romantic attentions upon her. [9] As summarized in the 2011 Martin's Annual Criminal Code Judicial Edition at page 1572: The inquiry is to determine whether evidence indicates the informant had reasonable grounds for fear, not guilt or innocence of accused. Committal is for failure or refusal to enter recognizance. No plea is entered. [10]

Section 810 of the Criminal Code is directed at prevention of harm and does not create an offence. The remedies being soughtby the Crown are therefore characterized by various authorities as being "preventative justice": see R. v. P.A.O., 2002 BCPC 560, 2002Carswell B.C. 3198, where the former Chief Judge Stansfield reviews the cases that support this proposition: R. v. Compton (1978), (BC SC), 42 C.C.C. (2d) 163 (B.C.S.C.); R. v. Parks (1992), (SCC), 75 C.C.C. (3d) 287 (S.C.C.); andMacKenzie v.

Martin, (SCC), [1954] S.C.R. 361 (S.C.C.). [11] In this type of application, since it is a different kind of hearing than a prosecution of an offence, information that may not beadmissible evidence in a conventional criminal case may form part of the evidence that the judge hearing the matter can take intoaccount: see R. v. Patrick (1990), 7 C.R. (3d) 222, a decision of the B.C. County Court. In my view, this principle will extend to someforms of hearsay. [12] Neither M.D. nor K.C. testified at the inquiry before me. The mother of M.D. testified about the circumstances surrounding thecomplaints of M.D.

The mother of K.C. testified about the circumstances surrounding the complaint of K.C. C.R. did testify about thecircumstances surrounding her own complaint. [13] I will now review the evidence. EVIDENCE WITH RESPECT TO THE COMPLAINTS OF C.R. [14] C.R. is presently 17 years of age. In her testimony, she confirmed that during the period October through November of 2009,when she was 15 years old, she held a part-time job working in a Subway sandwich shop in [location deleted], British Columbia.

Sheprepared sandwiches and operated the cash register, all at the front counter of the store and in plain view of many customers. Sheusually worked with another young female employee. [15] The defendant became a very regular customer, and she saw him frequently in the shop.

His stays in the shop were of asignificantly longer duration than was required to complete meals, and these ranged for periods from 45 minutes to one and a half hours. [16] He always sat directly in front of the counter about 10 feet from her rather than in seats that would not afford him a view of thefront counter or her. [17] He tried to engage C.R. and other female staff in conversation while they were serving other customers. He provided overlygenerous tips to C.R. and her co-workers starting the first time C.R. served him.

Eventually, he started giving her tips that were notintended to be shared with C.R.'s co-workers. She indicated that these gratuities were both unusual in her work and were highlydisproportionate to the food or beverages he purchased insofar as they were equal or significantly greater than the cost of the items.

[ 18 ] On the first occasion, he brought his daughter, who appeared to be about 13 years of age, with him to the shop. Notwithstanding her request to leave after eating and drinking, he extended the stay to between an hour and an hour and a half. [ 19 ] The regular visits by the defendant continued to the sandwich shop. C.R. estimates that there were four to seven visits over a six- week period. On one occasion, he offered her a ride home after work. She declined, saying that her mother was going to pick her up and always did so.

Then she called her mother while he was there to confirm in order to dissuade him from his offer. He asked her out on a dinner date for the next evening after work. She again declined the invitation. [ 20 ] On a subsequent occasion, the defendant overheard C.R. speaking to her mother and asked her to bring C.R. her brand of cigarettes. Within 25 minutes, the defendant left and returned to the shop with her requested brand. He invited her outside to smoke, notwithstanding that he had previously told her he was a non-smoker.

During the short period of time spent outside, he did not smoke but he passed her a cigarette to place in her mouth and made comments to the effect that since the cigarette had been in his mouth, it was the only way he could "legally kiss her." [ 21 ] He asked her her age, to which she replied she was 15 years. She asked him how old he was, and he replied to the effect, "How old do you want me to be?" She told him that since he had a daughter who was about her age, she thought he was about 35.

He told her that she was too young for him right now, but when she turned 16, he wanted to take her on vacation to a party destination and suggested that she could bring her own tent or share one with him. She declined the offer. [ 22 ] He asked her if she was flirting with him at the counter or just being nice. She indicated that she was just being nice. She found this approach by an older gentleman who she knew had a military background and was presumably trained in self-defence techniques, that could be used for untoward purposes, to be upsetting. She felt very vulnerable in this situation.

She is only about 5'3" and weighs only about 110 pounds. She is substantially smaller than the defendant. She described herself as being "really scared, nervous, and pretty terrified" by this experience. [ 23 ] Her break ended. She left the defendant. She immediately reported to her manager what she characterized as the defendant's inappropriate behaviour. The manager indicated that the defendant would not be allowed to return to the shop, and if he did, the police would be called.

She was told by the manager to retreat to the back room if the defendant should make an appearance. [ 24 ] C.R. did not see the defendant again until sometime in or around December of 2009. She became alarmed when she observed him in her high school, [name deleted] Secondary, about 15 to 20 feet away speaking with some grade 11 boys about computer games. She had what she described as a panic attack triggered by the fact that she had now encountered the defendant who had previously caused her great emotional distress not only outside of Subway but now in her own school. [ 25 ] She called her mother in distress.

She then saw her school vice-principal and reported the situation to him. He intervened and told the defendant to leave the school and only to return if he reported to the school office. [ 26 ] C.R. said that during the course of this panic attack, she "blacked out" and found herself sitting on the floor. Although she had previously suffered panic attacks triggered by stress and confrontation with other people, this was the first time this loss of memory had occurred.

Notwithstanding that the events occurred over a year in the past, she testifies that she is still very worried about encountering the defendant and is fearful about what could happen to her. [ 27 ] In cross-examination, she testified at the outset that when she first met the defendant, she had dealt with the defendant at the shop on a customer-friendly basis. She denied being flirtatious with him or sexually provocative. She also indicated that based upon the advice of her manager, she intended to ignore the defendant.

She said that she told the defendant to leave her alone. [ 28 ] Significantly, the defendant's conduct towards C.R. occurred after the serious allegations made against him in connection with M.D. and K.C. EVIDENCE OF THE DEFENDANT WITH RESPECT TO THE COMPLAINTS OF C.R. [ 29 ] In his testimony, the defendant indicated that since he was such a regular customer, C.R. was able to provide him with his usual fare without even any instructions, which service he thought warranted the generous tips.

He testified that C.R. was very flirtatious with him on a couple of occasions and described what he apparently interpreted as sexually provocative behaviour on her part by putting the tips down her top or into the top of her pants. He admits buying her a package of cigarettes but denies making any comments about kissing her. [ 30 ] He thought she was 16 years of age. He thought she was interested in him but did think she was young for him. He did ask her to a date at a music fest.

He concedes that he indicated to her that in another year she would be "legal" and that they could "date." [ 31 ] He suggested that C.R. has misunderstood his comments to her and overreacted when she found out he was older than she thought. He admits to being at [name deleted] Secondary School on a regular basis to pick up his older daughter or to take her out for lunch as a treat. He made an unplanned visit, spoke to some of her friends near her locker about computer games, was approached by the school administration and told to leave and not return, all without any explanation.

At this point, he learned his older daughter A.H. was away ill. He says he did not see C.R. EVIDENCE WITH RESPECT TO THE COMPLAINTS OF M.D. [ 32 ] D.D., the mother of M.D., testified with respect to the complaints of M.D., who is now 12 years of age. At the time of the alleged sexual incidents with the defendant, she was age 10. M.D. was the friend and is the same age as the defendant's younger daughter J.H. [ 33 ] D.D. and her family lived in the same neighbourhood in military housing as did the defendant's family and the family of K.C.

[ 34 ] M.D. and J.H. had attended kindergarten and the same elementary school. That school, [name deleted] Elementary, is in the middle of this neighbourhood. [ 35 ] M.D. had been invited to sleep over with J.H. at the defendant's residence four or five times. Such an invitation was extended to M.D. on February 28th, 2009. M.D. returned home the next morning. She seemed very quiet, sad, and withdrawn to D.D. [ 36 ] D.D. was called later that evening by a neighbour who said that she should come over and see something that had been exchanged between their daughters on MSN. She did.

In the messaging, M.D. expressed concern and fear about going to the defendant's house because during her previous overnight stay there had been inappropriate sexual touching of her by the defendant. [ 37 ] D.D. then briefly spoke to M.D. about her experience. M.D. told her mother that she had been sleeping downstairs in the defendant's house with A.H. and J.H. and she woke up to find that the defendant had hold of her hand and was rubbing her hand against his genitals.

M.D. also said that she had been told by another friend, K.C., that the defendant had done a similar thing to her. [ 38 ] D.D.'s husband, C.D., went to the residence of the parents of K.C. and reported this information to K.C.'s parents. [ 39 ] The military police were called and they met with both M.D. and K.C. and their respective parents.

Formal statements were taken by the military police from M.D. and K.C. on or about March 1st or 2nd of 2009. [ 40 ] Around March 3rd of 2009, the daughters of the defendant, A.H. and J.H., confronted M.D. and K.C. on the [name deleted] Elementary school ground and passed along a warning from the defendant to the effect that if he got into trouble, that they would also get into trouble. This was very upsetting to M.D. and K.C. They retreated into the school. [ 41 ] The alleged incidents of sexual touching caused a great rift between the girls.

The defendant's house was directly across the street from [name deleted] Elementary School. M.D. and K.C. were afraid to encounter the defendant while at [name deleted] Elementary. M.D. was scared to go to school and afraid to go outside while she was at school so long as the defendant continued to occupy his residence across from the school.

M.D. walked around on a route to avoid going near or by the defendant's residence or seeing the defendant. [ 42 ] The defendant apparently subsequently moved from the neighbourhood around February of 2011. [ 43 ] M.D. has suffered from sleep problems since the alleged incident with the defendant. She has also experienced other significant health problems. Shortly after the alleged incident, she started suffering epileptic seizures and they continue to present. M.D. now needs a very regimented

schedule to ensure adequate sleep. [ 44 ] Requests had been made of the defendant through the military police to stay away from D.D.'s family home. During Halloween of 2009, M.D. and K.C. insisted that their parents not take them trick or treating in the vicinity of the defendant's house. Later in the evening, while M.D. and K.C. were in front of D.D.'s house, the defendant appeared on the street near the family home of D.D. with his children. The sight of him close by caused both M.D. and K.C. great fear. They were greatly upset and ran away. [ 45 ] M.D. continues to have a fear of seeing the defendant.

This fall she will start school at [name deleted] Secondary. It is the same school that the defendant's daughters will likely be attending. This has heightened her fear. [ 46 ] Since the alleged incident, D.D. herself has had unwelcome encounters with the defendant at a junior ranks mess bingo evening around November 28th, 2009. It was the first time since the alleged incident had occurred. The defendant apparently used to work at this mess. D.D. did not realize this. He saw her and approached her and appeared to want to sit near her and W.M., the mother of K.C., who was also in attendance. He paced near them.

He stared at them. He appeared to be very smug. D.D. was upset by this behaviour. THE EVIDENCE WITH RESPECT TO THE COMPLAINTS OF K.C. [ 47 ] W.M., the mother of K.C., testified about circumstances relating to the complaints of K.C., who is now 12 years of age. Like M.D., her daughter K.C. was a friend with the defendant's daughters and K.C., and her family were long-time neighbours of the defendant and his family.

The girls also attended elementary school together at various times. [ 48 ] On March 1st, 2009, W.M. and her husband spoke to the father of M.D. regarding the information that he and D.D. had received from their daughter about K.C. being an alleged victim of sexual touching by the defendant. W.M. briefly spoke to K.C. K.C. told her mother that she was at a sleepover and at the defendant's house with the defendant's daughter J.H. in or around July of 2008. K.C. would have been almost nine years of age at the time. During the night, she was awoken by the defendant.

She stated that the defendant made her pull his pants down and then made her play with his genitals. [ 49 ] W.M. corroborates the testimony given by D.D. about the reporting of the matters to the military police and the subsequent involvement of the RCMP. [ 50 ] K.C.'s version of the defendant's children confronting K.C. and M.D. in the schoolyard in early March of 2009 to convey what was taken as a threat from the defendant was the same as that conveyed by M.D. to D.D. The event was very upsetting to K.C.

According to W.M., this event took place shortly after the defendant's arrest by the military police. [ 51 ] W.M. testified about K.C.'s continuing adverse reaction about seeing the defendant and the circumstances surrounding it. Their houses were in close proximity. Instead of driving in another direction on an equidistant route to depart from the neighbourhood and thereby avoid passing W.M.'s home, the defendant continuously drove by their residence very slowly. On a couple of occasions when K.C. was outside her home playing, he would turn his vehicle around and drive by again.

K.C. was fearful of seeing the defendant. She ducked down to avoid seeing him even if they were in passing vehicles, and retreated away to avoid any encounter with him. When there was any sighting of the defendant, K.C. was fearful and upset. She remains so at present.

[ 52 ] K.C. will be attending [name deleted] Secondary School this coming September. [ 53 ] W.M.'s testimony corroborated the Halloween events and the fear and the stress caused to both M.D. and K.C. W.M.'s testimony also corroborates the encounter that she and D.D. had with the defendant on the bingo night in November of 2009. EVIDENCE OF AND FOR THE DEFENDANT WITH RESPECT TO THE COMPLAINTS OF M.D.

AND K.C. [ 54 ] The defendant testifies that he did not remember K.C. staying at his family's home overnight, and due to various concerns he had about K.C. and her behaviour, he did not encourage and, in fact, actively discouraged the friendship between K.C. and his daughters. [ 55 ] He also indicated that he found her mother, W.M., to be a very difficult person with whom to have any degree of a friendly relationship or any other dealings, especially in connection with their children.

Accordingly, he denies that the alleged sexual incident ever took place. [ 56 ] The defendant acknowledges that M.D. did stay for an overnight sleepover on February 28th, 2009. He returned from a social event around 2 a.m. He went to the basement where his two daughters and M.D. were sleeping to check on them. J.H. was pretending to sleep. A.H. was asleep. M.D. woke up and indicted she did not feel well. The defendant picked her up and started to carry her upstairs to the main floor. J.H. started to follow them but he told her to go back to bed and that he would deal with M.D.'s illness.

J.H. complied. [ 57 ] On the main floor of the residence, he had M.D. call her home. There was no answer. He offered some medications. He then left her on the couch and covered her with a blanket. He then proceeded to go to his upstairs bedroom. He denies that the alleged sexual incident took place. [ 58 ] Following the allegations, the defendant has been discharged from the military and lost his job. He and his wife have separated. [ 59 ] Both A.H., the 14-year-old daughter, and J.H., the younger daughter, were called to testify on behalf of their father, the defendant.

A.H. could not remember about K.C. spending a night at their family home. She could not remember any events or circumstances surrounding M.D.'s sleepover on February 28th, 2009. She said that she followed the directions of her parents and never spoke to M.D. about the alleged incidents. [ 60 ] J.H. could not remember K.C. spending a night at their family home in 2008. She thought there was such an occasion several years before that. She remembers nothing about that occasion.

K.C. was seldom in her house after that since K.C. apparently did not like J.H. and bullied her. [ 61 ] J.H. did recall some aspects of M.D.'s sleepover in February of 2009. She said that she was awake when her father came downstairs to the basement. She had been playing an electronic game. She saw her father carry M.D. upstairs because, in her words, M.D. "apparently felt sick." She did not proceed upstairs with them. From the basement, she could hear her father speaking to M.D. when they tried to call M.D.'s parents.

She does admit to speaking to both M.D. and K.C. following the police involvement and then questioned them how they, as friends, could make such serious allegations against her father. She did not indicate that she had threatened them. Rather, she says that in response, M.D. smirked at her and K.C. gave her an evil grin. [ 62 ] The defendant confirms that he did take his children out trick or treating in the neighbourhood on Halloween of 2009. He was wearing a full costume with a helmet that restricted his vision.

He was being led around by his daughters, and they took him down the road towards where M.D. lived to see his children's old babysitter. En route, W.M. drove by him and shouted at him to stay away from her children. He denied knowing where M.D.'s house was at the time, notwithstanding that both families had lived in the neighbourhood for several years. He admitted to being within about 80 metres of M.D.'s house. He says that he did not see M.D. or K.C. when he was near M.D.'s house. [ 63 ] With respect to the bingo night incident, the defendant says that he worked from time to time in all of the connected messes.

Although he was there to play bingo, he was also helping out that evening. He denies that he knew D.D. or recognized that he was choosing a place in the vicinity of W.M. and D.D. When D.D. asked him to move, he did so about four tables away. He only made incidental eye contact with them and only smiled in a friendly fashion when he did make incidental eye contact. Any occasion to walk by D.D. and W.M. was associated with helping out in the mess hall.

He confirmed that the military police had previously suggested to him that he should avoid contact with the families of K.C. and M.D., and it was his intention to follow that advice. [ 64 ] The defendant admits to having five prior criminal convictions that came to light during the course of the investigation of the alleged incidents with K.C. and M.D. These convictions related to theft charges, attempted theft, possession of stolen property and housebreaking tools. He had served time in jail for some of these offences.

His criminal record was in the surname of [name deleted], being his stepfather's name. [ 65 ] He initially contended in his testimony that he was released from the military because of the allegations made against him by K.C. and M.D. and the public relations issue caused to the military by those allegations, and then the more in-depth investigations that gave rise to the discovery of his criminal record. [ 66 ] On cross-examination, he indicated that he had "missed" filling in the question on his military application concerning having a criminal record.

He denied that he intentionally failed to disclose his criminal record to the military. He would not admit that he lied under oath when he had completed the military application. He denied that he knew that the military would reject him for his criminal record. CREDIBILITY OF WITNESSES [ 67 ] Next I intend to deal with the important issues of the credibility of the witnesses who testified before me. [ 68 ] I find that C.R., D.D., and W.M. were all credible witnesses. They were able to observe and recall events with accuracy. The

evidence of W.M. and D.D. was consistent with each other and was consistent on cross-examination. The evidence of C.R. wasconsistent on cross-examination. There was no exaggeration or embellishment in any of their evidence. Their evidence made sense. Allof their evidence has a ring of truth about it. [69] I believe A.H. when she says that she does not remember much of anything. J.H.'s recollection of events was slightly better.

Shewas only partially able to observe what may have taken place during M.D.’s sleepover. [70] I must take into account that both of these children have been very negatively impacted both within their family and within thebroader community by the sexual misconduct allegations surrounding their father. [71] Overall, I find the defendant to be less than credible on a number of issues. His testimony in connection with C.R.'s complaintsstrikes me as completely oblivious to the serious nature of even his admitted conduct towards C.R. and its complete lack ofappropriateness.

Essentially, he thinks C.R. has overreacted to his approaches, which he suggested were prompted by her flirtatious andeven provocative behaviour. He attempts to negate both the seriousness of his conduct and its very negative effect upon a 15-year-oldchild. [72] This lack of insight continues in his testimony when he attempts to rationalize and justify the events at [name deleted] Secondary,his necessity to drive by K.C.'s house, the Halloween events, and the events at the bingo night.

He demonstrates a marked lack ofappreciation of the potential impact his contact with or presence around M.D. and K.C. or their parents may have had after the serioussexual allegations that have been made against him.

He acknowledges receiving advice from the military police about the advisability ofavoiding that contact but does not seem to appreciate its importance or to have followed it. [73] The fact that he would face serious allegations of sexual misconduct with young children and then within about seven monthsbehave in the way he did towards C.R., another young girl, is alarming. [74] He was not credible or consistent at all when it came to the issue of the circumstances surrounding his failure to disclose hiscriminal record on his military application.

He initially underplayed the extent of his criminal record in his examination in chief. Thefull extent of that record only became more apparent in cross-examination. [75] Overall, on the important issues before me, the defendant's evidence lacks a sense of reality and the important ring of truth. ANALYSIS [76] The issues I must decide (

a) with respect to all three complainants is whether in each complaint there is sufficient evidence beforeme to support that there are reasonable grounds of fear of harm, and (

b) in balancing the rights of the complainants and the defendant, isplacing the defendant on a recognizance an available and appropriate remedy for each of these complaints? [77] I am guided by the Honourable Judge Stansfield's comments in R. v. P.A.O. where he concludes that the onus of proof under s.810 of the Criminal Code is the civil burden of balance of probabilities. I am further guided by Judge Stansfield's analysis and hisapproval of the decision of former Chief Judge Stuart of the Yukon Territorial Court in Haydock v. Baker, 2001 YKTC 502 ,[2001] Y.J.

No. 37, a decision of the Yukon Territorial Court, which accepts that "psychological harm can be as devastating as physicalinjury" and that "the protective reach of a peace bond encompasses psychological injuries." The rationale is clearly laid out, and in hisdecision, Judge Stansfield refers to paragraph 18 of former Chief Judge Stuart's decision and says: He points out that were that not the case, there could be insidious harm caused to persons without a capacity on the part of the court torestrain that harmful conduct. [78] Judge Stansfield and Chief Judge Stuart both agree that in the application of a s. 810 peace bond, there should be a relativelyliberal approach which errs on the side of caution in restraining conduct which might be potentially harmful.

In their views, that appliesespecially in the context of domestic violence and especially where it gives rise to much risk at all of harm, especially if that harm couldaffect children adversely. I respectfully agree with this approach. Further, I am of the view that children and other young persons whomight be at such risk beyond a domestic violence situation should be afforded the same type of protection by the courts. Thecircumstances here call for that approach. [79] I must deal with the question of the existence of reasonable grounds for fear.

The authorities that deal with s. 810 and analogoussections of the Code in ss. 810.1 and 810.2 suggest that a twofold test applies. First, the subjective test: Is the fear of the complainantreal? Then the objective component: Is that fear based on reasonable grounds?: see R. v. Hawkins, 2002 BCPC 590 , [2002]B.C.J. No. 3014 (B.C.P.C.), which cites the Ontario Court of Appeal decision in R. v. Budreo (1996), (ON SC), 45C.R. (4th) 133, with approval. [80] In considering an application under s. 810.1(3), my brother Judge Seidemann, in R. v.

Firth, 2004 BCPC 449, 2004 Carswell B.C.2906, at paragraph 26 and 27, offers the following guidance: [26] It is my view that the question of the presence or absence of reasonable grounds for the fear held by the informant in cases likethis requires the judge to apply the perception of a reasonable member of the community having the information which has been placedbefore the judge. The judge must use logic, common sense, and common experience. Notwithstanding that he found the ultimate test tobe "harm more likely than not to occur", Judge Bellefontaine in Tausendfrende (Citation added see: R. v.

Tausendfrende [2003] O.J.3739 (Ont. C.J.)) expressed an opinion on one aspect of this procedure with which I am in complete agreement. At paragraph 18, he says: "I should note that there are a number of potential components to determining whether a fear is reasonable. Most significant will be thelikelihood of the feared event happening. Additionally, the nature and seriousness of the anticipated harm that may be suffered if theevent occurs, in my view, should as well be an appropriate factor to evaluate. I do not view the Supreme Court of Canada decision in Regina v.

Parks (Citation added see: (SCC), [1992] 2 S.C.R. 871

(S.C.C.) ) to be inconsistent with that proposition. Indeed, without considering all relevant factors, including the seriousness of the potential harm, I do not see how the reasonableness of the applicant's fears can be evaluated." [27] I am of the opinion that a reasonable member of the community would look at the likelihood of a harm and the seriousness of a harm and take both elements into account when considering whether a fear was reasonable. If told that the risk of getting hit by a car was one in four if a person were to jaywalk, the reasonable person might well have a fear of jaywalking.

On the other hand, if told that the risk of sunburn was more than fifty percent, the same reasonable person might not have a fear of going out on a sunny day. I find that the finding of reasonable grounds for a fear held by an informant does not in all cases require proof on a balance of probabilities that the harm feared is more likely than not to occur. It may be that, if the potential harm is minor, for the fear to be reasonable, the risk must approach certainty.

On the other hand, if the potential harm is serious, a fear may still be reasonable even if the probability is only that of a very real risk, and much less than a likelihood on the balance of probabilities, although Parks tells us that it must be a real risk, and not simply a possibility. The harm contemplated by

Section 810.1 is a serious harm and I am satisfied that a reasonable member of the community may well have a fear of that conduct if there is a significant, known, risk, even if the risk of the conduct occurring is less than a probability. [ 81 ] I find this approach to be very helpful. [ 82 ] Based on my findings of credibility, I have accepted the evidence of C.R. in its entirety as being factually accurate and the basis for her complaint.

I have accepted the evidence of both D.D. and W.M. with respect to the circumstances surrounding the complaints that they received from their respective daughters. [ 83 ] Under s. 810(1) of the Criminal Code , I need not determine whether the defendant actually committed a sexual offence against either of these children or that it is even probable that he might do so. I am not making any such findings. I do find that based upon the evidence, all three of the complainants actually do have a subjective fear of seeing the defendant or of being in his presence.

That fear is accompanied by a very high degree of emotional and psychological distress.

I also find based upon the evidence before me, and in particular, the evidence of the defendant's continuing behaviour from time to time after the complaints were made against him, that there is an objectively reasonable basis for that fear. [ 84 ] Similarly, there is also an objectively reasonable basis for that fear and the harm suffered by each of the complainants continuing in the future, especially if they were to come in contact with the defendant. [ 85 ] Fortunately, the three complainants have not had any recent contact with the defendant for several months.

Whatever the experience of each of these children has been with the defendant, individually, they have been and are continuing to be haunted by it. [ 86 ] So far as I am aware, the defendant no longer lives near M.D. or K.C., nor does he live near C.R. Each of the complainants will be at the same high school starting this September. The defendant's children will likely be at the same school. There is a reasonable likelihood that the complainants may come into contact with the defendant at that school. He has made it his practice to go to the schools at which his children are in attendance.

That contact must be prevented. [ 87 ] The Crown has discharged its burden of proof in this case. Based on the defendant's previous criminal convictions and in the interests of public safety, it is appropriate that there be an order under s. 810(3.1) of the Criminal Code . DECISION [ 88 ] I order the defendant to enter into a 12-month recognizance in the amount of $500 without deposit and without surety. The conditions of the recognizance will be that: (

a) He will keep the peace and be of good behaviour. (

b) He will attend court if called upon to do so. (

c) He will provide the [name deleted] bail supervisors with his current residential address and telephone numbers for his cellular phone, if any, and his landline telephone, if any, and will notify the bail supervisor's office within three days of any changes of that address or those telephone numbers. (

d) He shall have no contact or communication, directly or indirectly, with the complainants M.D., K.C., or C.R. (

e) He shall not attend at or be within 200 metres of any place he knows to be the residence, school, or workplace of any of M.D., K.C., or C.R. (

f) Without limiting the last condition, he shall not attend at or enter into the lands or premises of [name deleted] Secondary School in the [name deleted], British Columbia. (

g) He shall be prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance, and he shall, within 24 hours, surrender for safekeeping to the RCMP detachment in [name deleted], British Columbia, any of the foregoing items in his possession together with any authorization or registration certified for any such item. [ 89 ] That concludes my oral reasons for judgment. Are there any further matters that need be dealt with? [ 90 ] MR. LOW: No, Your Honour, thank you. [ 91 ] MR. ELLSAY: Your Honour, I probably have a little bit to ask Your Honour to consider. [SUBMISSIONS RE REPORTING CONDITIONS]

[ 92 ] THE COURT: Well, I think I see Mr. Ellsay's concern here. I am not going to make any direction with respect to this, but I am going to indicate that he will report to the bail supervisor and report thereafter as required. However, I take it that there may be some communication as between Crown counsel's office and the bail supervisor, and there may, in fact, be an opportunity for them to assess the requirement for further reporting which hopefully will not be an onerous task either for [the defendant] or that office. [ 93 ] MR.

ELLSAY: One of the -- the probation officer is in the courtroom right now, Your Honour, Ms. Jackson. I think she's probably been supervising [the defendant]. Well, she may not have been, but she'll let the office know since she's heard it. [ 94 ] THE COURT: All right. Well, we will include that then. [ 95 ] MR. ELLSAY: Thank you, Your Honour. [SUBMISSIONS RE NO-CONTACT ORDER] [ 96 ] THE COURT: Well, I think that that is a good suggestion, and I think it is a good suggestion both for the benefit of [the defendant] and also for the named complainants.

There may be a totally innocent situation that could occur through nobody's making but just through coincidence, and to have that 10-metre provision apply I think is useful, so I will include that as part of what I referred above to as (d), which was the no contact or communication, directly or indirectly, and did you say and not to be within -- [ 97 ] MR. ELLSAY: Not to be within 10 metres of the person. [ 98 ] THE COURT: Not to be within 10 metres of any of the named complainants. [ 99 ] MR. ELLSAY: Thank you, Your Honour.

Those are all the suggestions I would have. [ 100 ] THE COURT: All right. (REASONS CONCLUDED)