R. v. Boissonneault, 2019 BCPC 230

Citation: R. v.

Boissonneault 2019 BCPC 230 Date: 20190918 File No: AH65877949, AH65912844, AH58714538, AH64765476, AH63682473, AH63688300, AH48233423, AH64851902, AH61735688, AH63613642, AH58710768, AH54457380, AH56968913, AH35106914, AH51468083, AH55126835, AH51454925, AH44069088, AH48273750, AH48189006, AH48242177, AH48243779, AH44110310, AH44235944, AH30366563, AH39800083, AH39860970, AH35204411, AH27323443, AH30223549, AH27272806, AH21247516, AH15616470, AH27381318, AH15684188, AH23855317, AH16112451, AH16127806, AH15634381, AH16073215, AH15980700, AH15657648, AH08149892, AH08025357, AH12056661, AH12018497, AH03988906, AG44846923 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: REGINA AND: MICHEL WILLIAM LEO BOISSONNEAULT RULING ON CHAMBERS APPLICATIONS RE: S. 16(2) OFFENCE ACT OF THE JUDICIAL JUSTICE Z.

MAKHDOOM

Appearing for the Applicant: J. Riddle, Articled Student Place of Hearing: Vancouver , B.C. Date of Adjudication: September 18, 2019 INTRODUCTION [ 1 ] Mr. Michel William Leo Boissonneault received 48 violation tickets mostly for the offence of “failing to present proof of payment” pursuant to s.4 (2) of the Transit Conduct and Safety Regulations RSBC 1985, c.377, that is 44 out of the total 48 violation tickets (VTs).

The remaining four for the offences of either being intoxicated or for consuming liquor in a public place in contravention of the Liquor Control and Licensing Act RSBC 1996, c.267 . [ 2 ] None of the aforementioned violation tickets were addressed or disposed in time. The applicant now owes the Crown $7,598 in total fines. Consequently, he cannot obtain a driver’s licence thus limiting his ability to engage in a meaningful occupation or volunteer work. He applies for the aforementioned VTs to be put back on the active Court docket pursuant s.16 (2) Offence Act RSBC 1996, c.338 .

In assembling his materials for the consideration of this office, the applicant has been assisted by the UBC Indigenous Community Legal Clinic, specifically by a Temporary Articled Student, Julia Riddle.

FACTS [ 3 ] The applicant, currently a resident of Vancouver, BC, is a 50 years old Ojibway from the Ebametoong First Nation of Ontario. [ 4 ] Under the guidance of his father, the applicant has been a Journeyman electrician since 1999. [ 5 ] From about 1993, when he considered himself as a “functioning alcoholic” to 2015, his life has revolved around multiple addictions to alcohol and hard narcotics, such as cocaine. Culminating in homelessness from 2012 to 2015 and the attendant mental health issues, as well as abject poverty, dispossession, and hopelessness. During those days of his malaise, Mr.

Boissonneault’s main concern detoured from the regular concerns that an individual would have for their safety, security, food or shelter. It is during that time that he accumulated all the material VTs. He writes of those times as thus: “If I did have $3 in my pocket, I would spend it on a beer or on cocaine, which were far more important to me than anything else” . (Italics are mine). THE LAW [ 6 ] Section 4(2) of the Transit Conduct and Safety Regulations , read: 4

(2) A person shall, while he is in a fare paid zone, retain the proof of payment and produce it for inspection at the request of a transit employee. [ 7 ] Sections 40(1) and 41(1) of the Liquor Control and Licensing Act , read: 40

(1) Except for liquor purchased and consumed in accordance with a licence that permits consumption in a public place, a person must not, in a public place, consume liquor or possess liquor in an open container. 41

(1) A person who is intoxicated must not be or remain in a public place. [ 8 ] Section 16(2) of the Offence Act , reads:

(2) Subject to subsection (3), if a person who (

a) is served with a violation ticket, and (

b) is convicted under

section 15 or deemed to have pleaded guilty under subsection (1) wishes to dispute the allegation or the amount of the fine, the person must apply to a justice and the justice, on being satisfied of the matters in subsection (2.1) by affidavit in the prescribed form and with or without hearing from the applicant, may make an order striking out the conviction, if any, and allowing the person to dispute the allegation or the amount of the fine portion of the ticketed amount in accordance with sections 15 to 15.4.

ANALYSIS & RULING [ 9 ] Section 16(2) Offence Act , affords an applicant person to apply for their previously decided cases to be placed back on the active Court docket.

Customarily, these applications are adjudicated by a Judicial Justice (JJ) in chambers. [ 10 ] A JJ adjudicating these applications has a duty to balance an individual’s right to have their day in Court as well as the Crown’s right to have these matters disposed of in reasonable time. [ 11 ] S.16(2) of the Offence Act affords an applicant person an opportunity to seek the following remedies: (1) replacing the matter on the docket list for hearing either to dispute the allegation or the fine amount, or, (2) the Court seizing the jurisdiction, that had devolved to the Crown as a consequence of a deemed conviction, to adjudicate the applicant’s application for reduction in the fine amount and/or extension in the time to pay pursuant to s.15.4

(1) Offence Act . Regarding the latter, the applicant may be permitted to either (

a) make an application on a prescribed form which would then be adjudicated by a JJ in chambers, or, (

b) a JJ may seize the matter requiring the applicant and the Crown to attend a sentencing hearing before them in order to determine whether sufficient grounds to reduce the fine amount exists pursuant to s. 88 Offence Act . [ 12 ] A person served a VT pursuant to s. 14(1) or eTicket s.14.01, or has been served outside of the province, s.14.1 Offence Act , and has been deemed to have plead guilty by failing to dispute within 30 days of service, may seek the foregoing remedies by swearing or

affirming an affidavit on a prescribed format within 30 days of the missed hearing or offer further details or reasons if the hearing missed was longer than 30 days ago. On this format, the applicant deposes that (

a) through no fault of their own they missed the deadline despite harbouring a genuine intention to dispute, (

b) have an arguable defence to the allegations outlining its parameters, (

c) believes that no undue prejudice will result from the extension of the dispute period, and finally, (

d) believes that allowing the dispute to proceed will be in the interests of justice. [ 13 ] Mr. Boissonneault was served the material VTs during the times of his physical or cognitive inability to cope with the existential demands that fell outside his need for finding a “fix” to satisfy his addictions. He had lost his money and possessions to his addiction. He was homeless and vulnerable to the atrocities, inconveniences, and indignities of the street life.

To him obtaining his next fix in all probability carried a greater physical or cognitive satisfaction compared to the consequences of accumulating large number of convictions. Finding a fix bore greater satisfaction when compared to the consequences of disobeying a regulation. He was incapable of projecting or even discerning what would happen should he find his way out of his addictions into a life of a productive member of the society.

Gainfully employed, as well engaged in volunteer opportunities to repay, one would guess, his debt to the society, to his community, to his Church or to other institutions that supported him when he was down and offered him a hand-up when he decided to prop himself up. [ 14 ] The chronology of these VTs is problematic. Allowing these to be placed back on the active Court docket would no doubt be prejudicial to the Crown. There would be issues regarding the record keeping going back 2010.

There’s also greater likelihood that a number of members of the South Coast British Columbia Transportation Authority Police Service (SCBCTAPS) may have retired rendering prosecution of these VTs highly challenging to say the least. Justice is served when logical and natural consequences follow one’s acts of commissions or omission. Mr. Boissonneault facing the consequences of his disregard for the regulations is a reasonable expectation of our society.

Brushing aside that expectation judicially would likely bring administration of justice into disrepute [ 15 ] Justice without compassion likely renders it meaningless. In the context of public welfare offences where allegations of a wrongdoing do not have an identifiable victim but the later is the aggregate of the society. Breaching a public welfare law violates the society as whole. In our technologically advanced, free and democratic society, regulations have come to occupy a burgeoning space in our social contract.

Disregarding the regulations that seek efficient operations of a public transit system have far-reaching consequences. Erosion of these services render us all impoverished. Would our society demand a pound of Mr. Boissonneault’s flesh, or to be exact $7,598.00 in total fines that became due and payable immediately upon a deemed conviction? Apart from serving the principle of general deterrence as articulated by Immanuel Kant what more that is socially beneficial would be achieved?

Would the impact of losing in excess of $7,500 from his income have deleterious effect on the hitherto effective trek towards wellness that the applicant has embarked upon? [ 16 ] Mr. Boissonneault has made a thorough progress towards his own wellness. He has completed a Twelve Week Addictions Rehabilitation Program of the Salvation Army, he has been serving at the Strathcona Vineyard Church as a volunteer.

His volunteer work and engagement has been praised by many community leaders such as Dawn Humphreys, Lead Pastor of Strathcona Vineyard Church, Vienne Chan, Chaplain and Events Coordinator at the Salvation Army’s Grace Mansion, and Aaron White, the national leader of 24-7 Prayer Canada. He has readily accepted his responsibility for his actions and is seeking appropriate penalty.

He needs to get out of the indebtedness to the ICBC so that he may have his privileges to drive a vehicle restored. [ 17 ] Considering all of the foregoing, I respectfully allow all these 48 applications subject to the following conditions: (

a) there would not be any trials on finding the fact, the applicant has in effect plead guilty to all charges, (

b) there will be a sentencing hearing before me at the Provincial Court of BC, Robson Square. The Crown must be notified. Instead of causing so many officers to attend the proceedings they may choose to send in one agent or a counsel. Likewise, while the applicant’s presence is necessary, he may bring in any agent or witness. _____________________________ Judicial Justice Zahid Makhdoom Provincial Court of British Columbia