R. v. Paul, 2022 BCPC 50

Citation: R. v. Paul 2022 BCPC 50 Date: 20220314 File No: 42331-KB-2 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANDREW FRANCIS ALLEN PAUL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: J. Petty Counsel for the Defendant: D. Marion, Q.C. Place of Hearing: Campbell River , B.C. Date of Hearing: November 30, 2021 Date of Judgment: March 14, 2022 A Corrigendum was released by the Court on March 23, 2022. The changes have been made to the text and the Corrigendum is appended to this document. Introduction:

[ 1 ] Mr. Paul is charged with failing to comply with a condition of a probation order made December 19, 2019. Specifically, the charge is failing to attend, participate in and successfully complete the Respectful Relationships Program on February 12, 2020 and March 4, 2020. [ 2 ] The issue before me is whether the Crown has established, beyond a reasonable doubt, the requisite elements of the offence that, on the facts in this case, include whether or not Mr. Paul was reckless to the extent required under criminal law. The Evidence: [ 3 ] Mr.

Paul was required, by the conditions of his two year probation order, to “attend, participate in and successfully complete any intake, assessment, counselling or program as directed by your Probation Officer”. This followed a conviction for assault with a weapon and uttering threats which involved an intimate partner. In colloquial terms, this is known as a “K” file. This “K” designation was established many years ago as a way to identify and manage cases involving domestic violence.

I am aware that part of this approach includes programs for men who are convicted of domestic violence offences. [ 4 ] The program with which I am most familiar is the Relationship Violence Prevention Program (RVP Program). It is operated by trained probation officers and involves two components:

Part 1 is the Respectful Relationships Program;

Part 2 is the Relationship Violence Program.

Part 1 requires attendance for 10 weekly 2.5 hours sessions.

Part 2 requires completion of an additional 17 weekly sessions. In total, if an individual is directed to attend both parts of the RVP Program, he will be required to attend 27 weekly sessions. That requires attendance, every week, for a little over 6 months -about half the year. [ 5 ] Mr. Paul was directed to attend the

Part 1 RR program over an 11 week period between February 12, 2020 and April 22, 2020. The 11 weeks was due to a statutory holiday during one of those weeks. Each session was 2.5 hours in length, in person, and held on a Wednesday evening. [ 6 ] Ms. C. Steiman has been a senior probation officer with Campbell River Corrections for almost 14 years. She testified that she has a dual role: to help clients and to enforce court orders. On a day to day basis, she meets clients, reviews the court orders and the circumstances of the case, including the Report to Crown Counsel.

She will then “figure out a plan to work them through the system without incurring new charges and address other criminogenic things occurring.” In other words, the goal is to assist offenders with the underlying issues that may be causing or contributing to their offending and in a way that does not lead to more offending. I infer that her concern also relates to working with a client in a way that prevents criminal charges for breaches of court orders. [ 7 ] Her evidence is that because this was a ”K” file, Mr. Paul was required to attend the RVP Program.

In other words, it is mandatory. [ 8 ] The sessions are held in the Adult Probation Office and, normally, are in person. Clients are told that if they miss two sessions, they will be expelled from the program and the probation officer will submit a Report to Crown Counsel recommending that the individual be charged with failing to comply with a condition of probation (commonly referred to as a breach charge”), pursuant to s. 733.1 of the Criminal Code .

To be clear, it is a criminal offence and this can have serious consequences for an individual, including jail, a fine, additional conditions for another period of time, and another criminal conviction. [ 9 ] Mr. Paul agrees that he was bound by the condition to attend programs to which he was directed by his probation officer. He admits that he was directed to attend the Respectful Relationship Program on February 12 and March 4, 2020 and that he did not attend either session. [ 10 ] Ms. Steiman advised that on February 4, 2020, she and Mr. Paul met and discussed the RR program. Mr.

Paul essentially expressed concerns about being able to attend the program along with his employment. However, she testified that Mr. Paul wanted to complete the program as soon as possible and, when directed by Ms. Steiman, agreed to attend the program with the first session taking place on February 12, 2020. [ 11 ] She testified that on February 10, 2020, Mr. Paul left a voice mail for her advising that he had secured employment and was required to work on February 12, 2020.

She testified that in his message, he indicated that he knew he had to attend all future sessions and that his employer would ensure he would be in town for every session afterwards. She testified that Mr. Paul did not make any other requests to be excused. Ms. Steiman permitted him to miss the session on February 10, 2020 and did not submit a charge approval request for failing to comply with his probation order. She did do so when he failed to attend the session on March 4, 2020. [ 12 ] Mr. Paul also testified. He is a 44 year old Indigenous man and is employed as a crew member on a tugboat.

At the time of these events, he had been hired by a skipper to assist in the operation of a large tug – The Bear 1– towing a 73 foot barge to deliver harvest equipment to Mowi. The tug contract with Mowi involved servicing seven or eight sites in the Broughton Archipelago and Port Hardy. There were only two crew members – the skipper and Mr. Paul. [ 13 ] He was at sea when he called and left the message for Ms. Steiman that he couldn’t attend the February 12, 2020 session. [ 14 ] On March 3, 2020, he was once again working at sea.

He and the skipper were on The Bear 1 in Bull Harbour which is located at, and across from, the northern tip of Vancouver Island. It is about three and a half to four hours due west from Port Hardy. The weather had worsened on that day with a forecast of increasing winds and which were expected to last three to four days. He described that Bull Harbour is U shaped and provided protection from the easterly and westerly winds. The area near and outside Bull Harbour is very shallow which causes wave size, and frequency, to increase.

As he described it, these conditions cause ocean waves to become like standing waves, which are a major problem for a tug boat to manoeuvre. There is a risk of breaking the tow cable and, if that occurs, coast guard assistance would be required to prevent the vessel and the barge from becoming beached on rocks in a shallow area of the ocean. [ 15 ] On March 4, 2020, he was still on the Bear 1 and in Bull Harbour where they were forced to remain for three days due to the velocity of the winds. He recalled that he contacted Ms. Steiman as soon as he was back in cell service and left a voice message for her

telling her he was storm bound and unable to leave for at least 3 days. Ms. Steiman was not confronted with this evidence during hertestimony which was provided before Mr. Paul testified. She testified that Mr. Paul did not ask to be excused from any sessions otherthan the first on February 12, 2020. [16] Mr. Paul testified that he did not intend to miss the March 4, 2020 session and he was supposed to be on the Bear 1 for a shortshift to drop off supplies and be back in time for the session. He testified in cross-examination that his shifts were usually from seven to twenty-one days but nothing was set.

This particular shift began somewhere around the end of February – the 27th or 28th. He agreedthat he did not control when the shift ended. When it was suggested in cross-examination that he started his shift knowing that he wouldlikely miss the March 4, 2020 session, Mr. Paul testified that some shifts were four to five days. He maintained that he did not think hewas going to miss the March 4, 2020 session and that his skipper was going to get him from Port McNeil (where the tug was normallymoored) to Campbell River. [17] He agreed that February and March is winter storm season with its attendant bad weather.

He agreed that in poor weather hemight not be able to get from one point to another on a vessel due to bad weather. When Crown suggested to him that he took the shiftbecause work was more important than taking the course, Mr. Paul’s response was that he was trying to change his life. The Legal Framework: [18] The relevant provision of the Criminal Code is s. 733.1 which states: Failure to comply with probation order 733.1

(1) An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that orderis guilty of (

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

b) an offence punishable on

summary conviction. [19] This criminal offence requires a subjective mens rea to establish a breach of conditions: R. v. Zora, 2020 SCC 14, at para. 50,citing R. v. Docherty, (SCC), [1989] 2 S.C.R. 941. Adopting the explanation of subjective mens rea in Zora, the facts ofthis case require that the Crown prove, beyond a reasonable doubt, the following: • Mr. Paul had knowledge of the conditions of his probation order, or was wilfully blind to those conditions; and either knowinglyfailed to act according to the probation condition or was wilfully blind to those circumstances; or • Mr.

Paul recklessly failed to act according the conditions in that he perceived a substantial and unjustified risk that his conductwould likely fail to comply with the condition and he persisted in this conduct. [20] Crown asserts that it has established all the elements of the offence and, in particular, that Mr. Paul’s conduct was reckless bygoing out to sea on a vessel knowing he would likely miss the March 4, 2020 session, because he was on the vessel under the control of,and at the whim of, his skipper, compounded by the fact that Mr.

Paul knew he was going out in winter weather and storm season. [21] Recklessness does not involve an inquiry into whether Mr. Paul ought to have seen the risk in question here – that his vesselwould be stranded by stormy weather and/or that he wouldn’t be able to return to Campbell River in time – but whether he saw the riskand continued to act despite, and with disregard, to the risk: Zora, para. 117. Furthermore, at para. 118: The risk cannot be far-fetched, trivial, or de minimis.

The extent of the risk, as well as the nature of harm, the social value in the risk, andthe ease with which the risk could be avoided, are all relevant considerations. Although the trial judge will assess whether a risk isunjustified based on the above considerations, because recklessness is a subjective standard, the focus must be on whether the accusedwas aware of the substantial risk they took and any of the factors that contribute to the risk being unjustified. (cites omitted). [22] I have cited Zora but am mindful that the court was clear that the general principles of recklessness set out in R. v.

Sansregret, (SCC), [1985] 1 S.C.R. 570, were not changed by the reasons in Zora (para. 119). However, they are very helpful isassisting me to determine how much risk must be foreseen by an individual, such as Mr. Paul, to attract criminal liability. [23] To ground a criminal conviction for reckless conduct, the risk must be substantial. It is not enough to say Mr. Paul should havebeen aware of the risk or he ought to have been aware of the risk. [24] I agree that there was some risk that Mr. Paul might not have been able to return by March 4, 2020 by taking a shift on thetugboat.

At the same time, I accept that he was attempting to manage that risk by making arrangements with his skipper to return him toCampbell River in time to attend the March 4, 2020 session. Ms. Steiman confirmed that on February 10, 2020 Mr. Paul told her that hehad made those arrangements with his skipper. [25] After considering Mr. Paul’s evidence, I accept his evidence that some of his shifts were shorter than others, and I am satisfiedthat he was expecting to return in time for the March 4, 2020 session. I find support for that conclusion by virtue of his previous actions. He called Ms.

Steiman two days before the first session he missed. In other words, he made the effort to reach out to her. He told her,and I accept, that he made arrangements with his skipper to have him back in time to attend his future sessions. He attended the secondsession. Those actions are more indicative of someone who is trying to comply with the counselling condition, than someone whointentionally fails to comply or who is reckless in relation to his obligation to attend the program. [26] One of the factors to consider is the ease with which the risk could be avoided. The only way Mr.

Paul could eliminate all risk,was not to work on the tugboat at all. I have concluded that Mr. Paul was doing the best he could to mitigate the risk of being caught outat sea and unable to return in time for a session of his program.

[ 27 ] It is possible that Mr. Paul eventually would have struggled to balance employment and his mandated program attendance if he was required to work longer shifts of up to twenty one days or if he was mandated to take the full RVP program. I can’t help but reflect upon how programming could be offered to men such as Mr.

Paul, who are required to maintain employment for the support of their families and themselves, and whose employment requires them to work, for example, on a vessel or in camp, and be away for more than a few days at a time. [ 28 ] It is extremely important that assistance is provided to men who are convicted of domestic violence offences and I am aware that, in this jurisdiction, there is a shortage of programs and services to help men understand and change the behaviour that caused the offending. The RVP Program is a worthy program and no doubt assists many men. According to Ms.

Steiman, corrections policy mandates that anyone convicted on a “K” file must attend the RVP program. However, this necessitates that the individual be able to attend a weekly class for two and a half months for

Part 1 of the program, and an additional four months if they are directed to complete

Part 2, a total of approximately six and a half months. Failure to attend more than one session in either

Part 1 or 2, will invariably result in additional criminal proceedings and a possible conviction for a criminal offence. [ 29 ] Mr. Paul raised concerns with Ms. Steiman about his ability to maintain his employment in his capacity as crew on a tugboat and I expect he was concerned about how he would comply with the condition that he attend programming and maintain his employment. Hopefully, other options could be offered to men in Mr. Paul’s situation to give them the benefit of the program, and, at the same time, allow them to maintain gainful employment for the benefit of their families and themselves.

Conclusion: [ 30 ] Ms. Steiman was candid that the only reason she submitted a request for approval of a breach charge relating to the February 12, 2020 session, was because Mr. Paul missed March 4, 2020. She gave him approval to miss that session and he should not be convicted of failing to comply with the probation condition in those circumstances. Accordingly, I acquit him on Count 1. [ 31 ] In relation to Count 2, I have previously indicated my conclusion that Mr. Paul did not intentionally miss the March 4, 2020 session. I accept that Mr.

Paul knew there was some risk that, by going out on his vessel he could be caught in a winter storm, or that his skipper might not let him return for any number of reasons. However, that does not reach the level of establishing that Mr.

Paul was aware that there was a substantial risk he would not be able to return to Campbell River in time to attend the evening session on March 4, 2020, but proceeded notwithstanding that substantial risk. [ 32 ] I acquit him on Count 2. _____________________________ The Honourable Judge Flewelling CORRIGENDUM – Released March 23, 2022 In the Reasons for Judgment dated March 14, 2022, the following change has been made: [1] To amend the cover page to correctly show counsel for the Crown and counsel for the Defendant as: “Counsel for the Crown: J. Petty Counsel for the Defendant: D.

Marion, Q.C.” _____________________________ The Honourable Judge Flewelling