R. v. A.P.J. Date:, 2015 BCPC 149

Citation: R. v. A.P.J. Date: 20150512 2015 BCPC 0149 File No: 61007-1-K Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A.P.J. ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DYER Counsel for the Crown: C. Longworth Counsel for the Defendant: V. Rizzuto Place of Hearing: North Vancouver , B.C. Dates of Hearing: January 22 and 30, 2015 Date of Judgment: May 12, 2015 [ 1 ] THE COURT: The accused is charged, if I can properly put it that way, under s. 810(1) of the Criminal Code of Canada . That

provision states: An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person (

a) will 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 ] It is alleged that his wife, from whom he is now separated, has reasonable grounds to fear and does fear him because he will cause personal injury to her and/or their children. The information was sworn on September 5, 2014. This came about by reason of an incident which occurred on September 4, 2014, in the mother's apartment in North Vancouver, wherein she essentially alleges he assaulted her in the presence of both their children.

I will deal with this incident more fully later in these reasons. [ 3 ] The accused father is the biological father of two children, A., a female aged seven, and L., a male aged three. Hence, the two children are properly described as "their children" and not "her children". I will refer to the complainant as "the mother" and the accused as "the father" in these reasons. [ 4 ] They commenced living together in February 2007 and were married in July 2007.

They separated, after about five years of cohabitation during which time the two children were born, in or about the month of September 2012. [ 5 ] The mother says the separation resulted from the father becoming aggressive during a psychotic or bipolar episode relating to his having been diagnosed in late 2006 with Bipolar Disorder I. She said at the time she was advised by a doctor that he was dangerous and had to move out, which she did. [ 6 ] The father denies that this was the cause of their separation, asserting he had never been violent with the mother and that he is not a violent person.

He says the separation occurred not because he got angry with her in a manic episode, a term frequently used in this matter but never defined by either Crown or defence or any witness, but because in late 2011 and early 2012 he had been hospitalized for three months in the Lions Gate Hospital psychiatric ward and "she did not want to deal with it." I assumed he meant his mental health issues. [ 7 ] The separation occurred when the mother and children moved out of the family residence. [ 8 ] I should also state that the term "psychosis" has been used in the evidence before me, but also not defined by counsel. [ 9 ] The word "manic" is defined in Stedman's Medical Dictionary , 25th Edition, to mean "maniacal", which word in turn is defined to mean "manic - related to or characterized by mania." "Mania" itself is defined therein as follows: An emotional disorder characterized by euphoria, increased psychomotor activity, rapid speech, flight of ideas, decreased need for sleep, distractibility, grandiosity, and poor judgment.

Usually occurs in bipolar disorder. [ 10 ] The term "episode" is not defined in Stedman' s. Psychosis is defined in part therein as follows: "A severe emotional illness." One example given of a psychosis is manic depressive, with reference to bipolar disorder. [ 11 ] The terms "manic episode" and "Bipolar I and II Disorder" are described at some length under mood disorders in the Diagnostic and Statistical Manual of Mental Disorders , 4th Edition, or DSM-4, published in 1994 by the American Psychiatric Association (APA).

I understand this is now out of date by one edition, in that a DSM-5 now exists; however, this edition is the one now available to me. The DSM is described by the APA as follows: The Diagnostic and Statistical Manual of Mental Disorders (DSM) is the standard classification of mental disorders used by mental health professionals in the United States. It is intended to be applicable in a wide array of contexts and used by clinicians and researchers of many different orientations (e.g., biological, psychodynamic, cognitive, behavioral, interpersonal, family/systems).

The [DSM] Fifth Edition. . . is the current edition and has been designed for use across clinical settings (inpatient, outpatient, partial hospital, consultation- liaison, clinic, private practice, and primary care), with community populations. It can be used by a wide range of health and mental health professionals, including psychiatrists and other physicians, psychologists, social workers, nurses, occupational and rehabilitation therapists, and counselors. It is also a necessary tool for collecting and communicating accurate public health statistics.

The DSM consists of three major components: the diagnostic classification, the diagnostic criteria sets, and the descriptive text. [ 12 ] I understand that the DSM is widely used as well in Canada by, among others, psychiatrists, at least in the diagnosis and description of various mental illnesses. The DSM, of course, was not referred to by either counsel who appeared before me, notwithstanding the fact that at least in the DSM-4 there is an extensive discussion of the term "manic episode" with general observations as to symptoms, severity and, to some limited extent, risk factors.

I am loath to include or rely on any of these materials in these reasons where they have not been placed before me by counsel and canvassed in argument by both lawyers. [ 13 ] I am, I think, entitled, as any judge is, to look to a proper medical dictionary, in this case I have chosen Stedman's , to ascertain the meaning of a term or terms used by the witnesses in their evidence, absent counsel doing so themselves, and clearly I have done so. [ 14 ] I return to the parties' background together following separation. [ 15 ] The 37-year-old mother currently resides with the two children in an apartment in North Vancouver and is now employed as an early childhood educator.

I was given little evidence as to where the father resides. He did, following separation, live in Vancouver, and then apparently moved to Calgary in 2013, but I understood in January 2015, on the dates of the hearing, he then resided in British Columbia and somewhere locally.

[ 16 ] The mother is physically much smaller than the father, being five foot six inches in height and weighing 128 pounds, whereas he testified he was six foot two inches tall and weighed 290 pounds. [ 17 ] I was not provided with a lot of background information concerning, for example, the father's interaction with the mother and children following their separation in September 2012. However, I did understand and the mother testified that since separation, she and the children had what she described as a close relationship with him.

Notwithstanding the events on September 4, 2014, referred to in the information, which I shall come to, and his arrest that day and release on bail on September 5, 2014, he has had some contact with her thereafter, which I find for the most part was probably initiated by her. This involved, for example, his attendance at a Christmas concert in 2014 and a dinner at his mother's home on or about December 25, 2014.

She said he was not aggressive with her at these events. [ 18 ] He admitted insofar as he was with her or spoke to her, that he understood he was potentially in breach of his bail terms, which initially provided for no contact between the two of them. Later, on January 9 and 10, 2015, the mother invited the father to attend their daughter's birthday party and a laser tag party, both of which invitations he refused.

It was my understanding that, had he gone to either, she would have been present. [ 19 ] There is some disagreement in the evidence as to whether or not the father ever overnighted with the mother following separation. He said he did, but was vague on details. She denied that he had ever done so. Nonetheless, in the approximately two weeks prior to September 2, 2014, the evidence is that he did spend several nights with her and the children at her apartment.

They also then went to California for approximately two weeks with their children on a family holiday, and then on their return, seemingly he spent two more nights with them at her apartment, namely September 2 and 3, 2014. [ 20 ] I find all this time together was consensual. Thus, he was at her apartment on September 4th initially with her consent. [ 21 ] I have no evidence as to the regularity of his parenting time with their two children, either following separation to September 4, 2014, or from that date to the date of the hearing before me.

I do, however, understand that since September 4th, he has seen his children with the assistance of his mother, B.M., who has acted as a form of intermediary with the mother so that, for example, drop-offs and pickups could be done without the father being in breach of any no-contact order or no-go provision in his bail orders. [ 22 ] The mother testified that after September 4, 2014, the father had, I assume contrary to the bail orders, contacted her twice. One week after September 4th, he called her by telephone.

Thereafter some three to four weeks later, when he was on a day pass from Lions Gate Hospital, he came over to her apartment at about 8:30 to nine o'clock p.m. It was not made clear to me just how or where he met up with her that evening, but I assume it was in her apartment. Nor was it made clear to me that he was not invited in or permitted to attend once the mother knew he was there. Certainly this attendance was unannounced on his part and seemingly contrary to his bail order, subject always of course to his state of mind at the time. [ 23 ] The mother said their children were asleep on this visit.

He was not violent, but in the 20- to 30-minute visit was talking nonsense; for example, stating that he was God. [ 24 ] The mother called the police, who attended and, I believe, took him back to Lions Gate Hospital, telling her that they would ask his medical caregivers to rescind his telephone privileges and cancel his day passes. I do not know whether or not this occurred. [ 25 ] There is no other evidence before me, beyond that set out above, that he might have breached his bail conditions at any time.

Certainly there was no evidence presented at the hearings before me that he was ever charged with a breach of same. [ 26 ] I turn now to the evidence I have been given as to his mental health status, either by him or the mother.

I have been given no evidence from any medical caregivers as to his precise diagnosis, likely symptoms, his treatment, the use of medications and, very importantly, as to the risk he might present to others, including his wife and two children, at any future date, whether he remains on or off his medications. [ 27 ] I would have found such evidence extremely helpful in this matter, but do appreciate it can often be a challenge for counsel to obtain same from medical caregivers not professionally involved in a case in court. [ 28 ] As I have said, the mother testified that he has Type I Bipolar Disorder and that, as a result, he could have psychotic episodes leading to depression, and that she had been so advised in 2007 by a psychiatrist, Dr.

Termansen. This, of course, is hearsay evidence but is a basis for any belief she might have had as to his condition. He was uncertain as to whether or not he had Type I or II Bipolar Disorder. [ 29 ] The mother was aware that he took certain medications to manage his condition, but said he did not take them continuously and could be off them, based on her experience living with him, for six to 12 months at a time. She said when he was not taking his medications, he was not always himself and that he might then have episodes.

At times when off them, he would be okay and would act normally and not be angry but peaceful. When he experienced an episode when not on his medications, he could hear voices, see things and, for example, think he was God. At times he would be paranoid and believe people were chasing him. When having an episode, he could be unpredictable as to what he was thinking or what he was going to do. [ 30 ] Thus, in essence, her evidence was that when he was off his medications and experiencing or in a psychotic state, he was then not himself.

From her perspective, the voices he heard made him both fearful and unpredictable. [ 31 ] She testified that while living with him and prior to their separation in September 2012, she experienced what he was like many times when he had gone off his medications and recalled he then heard voices, saw things, believed people were chasing him, and he would at times again think he was God. [ 32 ] As to the frequency of his paranoia and episodes, all of which occurred when he was off his medications, she testified that they occurred in the beginning of their relationship about twice a year and later, in 2011 and 2012, about once a year.

She understood that because the medications he took to control the symptoms of his bipolar condition were very strong and could damage his organs,

including his liver, that he had to go off them from time to time, and that when he did so, he needed to be supervised by a doctor. [ 33 ] She said in January 2015, when the hearing before me occurred, she assumed he was taking his medications, as he appeared to have normal routines.

The mother said in her direct evidence that she was not afraid of the father when he was taking his medication, only when he was not, and then was concerned for her own and her children's safety. [ 34 ] In cross-examination, she admitted that on January 9, 2015, she was not fearful of him. [ 35 ] On re-examination, she was asked if, in relation to the September 4th event, was she afraid of him and again responded, "Only when he's not on his medications." She was asked who was she afraid for and responded, "Me and my kids." Then she was asked, "What are you afraid he will do if a similar circumstance arose in future, in essence as occurred on September 4, 2014?" She answered that he would get more physical and more aggressive with her, but not with the children. [ 36 ] When asked how did his mental health, his bipolar disorder, impact her fear of him, she said when he is not on his medications and in psychosis, he is not himself and hears voices that make him feel fear and be unpredictable as to what he is thinking or going to do. [ 37 ] The father was cross-examined somewhat extensively as to the manner in which his bipolar condition and its symptoms affected him and as well, gave some brief evidence as to his hospitalizations.

He agreed that he was now on a new medication which he receives once a month via an injection. He did not provide the name for this new medication. He was unsure if at some point, as with certain of his other medications, he would have to be taken off it. [ 38 ] He said he sometimes got manic when he was on his medications, and that this state could likewise also occur when he was off them. This evidence relates to the effect of his old medication and not his new one.

This evidence was not challenged. [ 39 ] Thus, based on his evidence, there is no clear path of logic that will allow me to find as a fact that the father only suffers from a manic state when he is off his medications and thus if his taking same can be controlled and policed, so to speak, he will not suffer from such a state. [ 40 ] He recalled being readmitted to Lions Gate Hospital psychiatric ward about October 15, 2014, and staying there for several weeks. He was unsure if he voluntarily admitted himself or was taken in, for example, as a result of a manic episode which he then had.

He was pretty sure it was a voluntary admission. When having such an episode, he testified he could not control whether or not he would have delusions. These episodes could occur at any time. He could not control when they occurred. [ 41 ] He seemed to suggest that when having such a manic episode, he was not agitated, was usually very awake and alert, and did not get upset, but agreed he was not then thinking clearly. He also agreed he could not recall a lot about his manic episodes when he had such an episode.

While he said he was not on September 4, 2014, he was aware something was going on. [ 42 ] Shortly later in his cross-examination, he said, I think inconsistently, when having a manic episode, he did not really know what was going on. There were things he could not recall.

He went on to state that if he experienced a heightened psychosis, he did not recall what occurred, in essence, when he was in this state, but seemed to deny he ever got upset or angry in such a state. [ 43 ] He denied he had ever been violent during any episode with the mother or his two children. [ 44 ] He also agreed his mind was distorted when he was experiencing a manic episode, and that he then had difficulty understanding reality. [ 45 ] He returned to the Lions Gate Hospital on November 14, 2014. On admission, as occurred in mid-October, he was heavily medicated.

He believed he voluntarily admitted himself on this occasion. He could not recall how long he stayed.

It could have been a few weeks or up to a month. [ 46 ] No medical evidence was filed by the father as to his condition, diagnosis, limitations, et cetera, nor were any Lions Gate Hospital discharge reports filed that might have helped me assess his current mental state. [ 47 ] Likewise, it would have been of assistance for me to have a brief report from a treating psychiatrist for the father, if there is one and I assume one monitors his monthly injections, stating what he is taking, whether it seems to be working, when he will go off it, if at all, and outlining his potential risk factors if on or off his medications.

This was not provided. [ 48 ] I say this again appreciating, as I do, that an application for a peace bond under s. 810 of the Criminal Code is not one that results in a formal charge and no plea is entered by the accused, and guilt or innocence is not to be determined.

Seen in this light, the strict obligation of Crown to prove its case, and the accused having no obligation to either testify at all or lead evidence, which rights surely exist in a criminal case, do not, in my view, so clearly apply. [ 49 ] That said, the accused in a s. 810 proceeding does typically want to show the court or establish usually that the informant or complainant does not have reasonable grounds to fear him. [ 50 ] I found the evidence as to his exact mental state and how it affects him somewhat difficult to follow, and at times vague and even contradictory. [ 51 ] I turn now to the events of September 4, 2014.

The parties differ as to what occurred on this day. I do not intend to set out all their evidence, but to attempt to summarize it. [ 52 ] I find on September 4th, the father was staying with the mother, as I have said, initially with her consent. The mother testified that following her return with the two children from a local recreation centre where she mistakenly believed they had a gymnastics class to attend, both she and her daughter were essentially cross-examined by the father as to where they had been. The two parents then

commenced arguing. [ 53 ] In direct, she said she asked him to leave and he refused. On cross-examination, she said he did not refuse, but said on the way out he was going to take the TV, which he considered his property, notwithstanding that his two children and the mother were then engaged in watching it.

She said he was irritated at the time and unplugged the television set and took it off its stand. [ 54 ] He said he was not angry but frustrated, as his children were ignoring him when he asked where they had been earlier, and because they were watching too much TV, a refrain he had raised before. [ 55 ] The children started to cry hysterically when the TV was shut down. The mother got up and commenced pulling on the television set. She denied she pulled on him.

He said she was then angry and that she pulled on his left arm, and when he would not let go, started to punch his left arm and the side of his body, he estimated between five to 10 times. The mother denied doing so. [ 56 ] The TV thence fell on the floor, and on the way down it hit his shins and landed, as well, on his right foot and it broke. He then grabbed her cellphone from the TV stand and tried unsuccessfully to break it by twisting it back and forth between his hands. He did so in response to her having broken his television set.

He admitted all his actions with her cellphone were silly, "an absolutely childish thing" for him to have done. [ 57 ] She then chased him around her apartment in the presence of the two children, pulling his arms and clothing, trying to recover her cellphone. During this confrontation, she punched him about five times. She said once he had the cellphone, he went into his daughter's bedroom, and both she and the daughter followed him in. He put her cellphone on the floor and stomped on it several times, breaking its cover, but not the phone itself.

The daughter was on the floor trying to pull the cellphone away at the time. He denies this and says the daughter was then in the living room. [ 58 ] He testified she punched him three to five times while he was stomping on the cellphone. The father said his son was in the living room the whole time and panicked. Both children were crying the whole time. He did not recall seeing his son when he was stomping on the mother's cellphone, but said he could have been in the bedroom and possibly saw what he was doing.

The mother said he was at the bedroom door and crying. [ 59 ] She punched his arm once only while he stomped on her cellphone as she was then scared he would hurt their daughter. He moved back when she asked what he was doing and started laughing. She asked him to leave a second time when he had picked up their son and he refused. He denied he had refused and said he had agreed to go and only picked up the son to say goodbye. She said she tried to grab their son out of his arms. He agreed this had occurred.

She said she was successful in retrieving him, and then testified that, in an angry state, he pushed her backwards about a foot into a wall, calling her a "fucking bitch" in an angry, loud voice. [ 60 ] He said while their son was still in his arms and while she was pulling at one of their son's arms, he pushed her away in a medium-hard way to get her to let go of their son's arm, as he felt she was harming their son.

He agreed he may have sworn at her as she pulled at their son in his arms. [ 61 ] She testified that during the push back, he grabbed her by the neck with his left hand while facing her and pushed her up against the wall, but not too hard. Their son was then in her arms. He then held his right hand in a closed fist, as if he was going to hit her, while still holding her neck and her against the wall. He then made a pinching motion towards her face, but did not connect. He did, however, on a second attempt, hit her in her forehead, and his hand slid down her face and nose as she leaned back.

She described this contact to be a touch, not a real punch, and said she was not hurt. [ 62 ] He agreed he had tried to grab her nose, when she held their son in her arms, using his thumb and index finger, and felt that for less than one second he had succeeded in doing so, and that in doing so, he caused her to move backwards about one foot into a hall wall near the TV stand.

For a third time, she told him to leave and he did so immediately after touching her forehead. [ 63 ] He agreed in cross-examination there was no reason to grab her nose, which he said he did while frustrated but not angry, and felt it was not a violent act on his part. He believed he left the apartment at about 7:30 p.m. He saw the police, whom the mother had called, arrive. He went back to speak to them and was later this evening arrested and spent the night in jail, and was released on bail the next day. [ 64 ] There is no evidence alcohol was involved in these events on September 4th.

He said the whole confrontation lasted only several minutes, and I accept that as an accurate time estimate. [ 65 ] The mother testified that on September 4th, she felt afraid for herself, including being fearful that he would become more physical with her and was sorry that the children were exposed to violence. [ 66 ] During cross-examination, the father testified that he was not, on September 4th, taking his medications and had been off them for some 10 months with his doctor's agreement.

The medication he was not on was therefore his old medication and not his new medication, which he now takes monthly by way of an injection. He believed he was not, on September 4th, manic or having a manic episode. Position of the Parties The Defence [ 67 ] Mr. Rizzuto argues that the Crown has not established, on the balance of probabilities, that the mother has a current fear of the father. He submitted that in her direct evidence, her fear of him was qualified and that she now feared him only if he did not take his medications. Mr.

Rizzuto argued, therefore, that her fear of him is not that he goes on and off his medications. [ 68 ] In cross-examination, she agreed she was not now fearful of him. There is no evidence that currently he goes on and off his

medications of his own volition. Rather, he does so under the direction of his medical caregivers. I note this is not strictly correct. I have precious little evidence as to his new or current medication regime. What he said, which is the only evidence I have on point, is that he is unsure whether he will have to go on and off what he is now taking. [ 69 ] Now he is on medication and takes a monthly injection, and hence his mental health is now well managed and will not be a threat to her.

Since September 4th, there is no evidence he has threatened her or the children, and he pointed out the contact the mother initiated with him recently at Christmas and early in the New Year, 2015. [ 70 ] The circumstances of September 4th no longer exist. This was an historical event that, in essence, is not evidence of current aggression and cannot support an 810 peace bond, which requires a current fear of physical harm, in his view. [ 71 ] He was, on September 4th, not on his medications at the direction of his doctor.

Even if the September 4th event is felt to be relevant, he argued I should find his actions were in response to physical behaviour on her part. She hit him as well. Further, his actions on September 4th were not such that in any way resembled those symptoms that he said he could have when experiencing an episode, and hence could not be attributed to his failure or inability to manage his mental health with fear-inspiring consequences for her. [ 72 ] The physical aggression on September 4th was not significant, in any event. There is no evidence he has been violent or aggressive with her in the past.

Because he has mental health challenges does not mean he is a dangerous person, and having mental health challenges did not equate to his being a violent person. Since September 4, 2014, there has been no trouble. The Crown [ 73 ] Ms.

Longworth argued that the fear in s. 810 could be both of a physical or a psychological nature, and that I need make no finding of or prediction of future harm, but only need to assess on the balance of probabilities the likelihood of future harm to her or the two children in order to make an order. [ 74 ] She emphasized that the complainant mother's true position was not as succinctly testified to in cross-examination, when she agreed at this current time she did not fear him, but rather as clarified by her in her re-examination of the mother, which evidence I have attempted to fully set out above. [ 75 ] Here, in essence, she said she was afraid for herself and children when he was not on his medications, and was afraid if a similar circumstance occurred in future, as happened on September 4, 2014, whatever that means, that he would become more physical and aggressive.

When he was not on his medications, and experiencing or in psychosis, he was not himself, heard voices that made him fearful, and that it was unpredictable what he was thinking and what he was going to do. [ 76 ] Crown agreed there was no evidence that he had ever gone off his medications contrary to the advice of his medical doctors. Crown also noted that the accused admitted when he had manic episodes that he lacked control. [ 77 ] The honest, actual, and current fear required for a s. 810 recognizance could, Crown submitted, be a conditional or qualified fear.

Even if I only accepted his evidence as truthful and reliable, there was, in her view, a basis therein for me to find her fear of him was objectively reasonable. He repeatedly refused to admit he was angry on September 4th, when clearly he was, and would only state he was frustrated. This affects his credibility, in Crown's view. [ 78 ] Seemingly, I should therefore believe her and not him, where their evidence differed. The Law [ 79 ] Counsel rely on three cases: 1) R. v. Vanderkerkcove , [1998] Q.J. No. 4520 , a judgment of the Municipal Court of Quebec in Montreal, Judge Philippe Clément; 2) R. v.

Soungie , 2003 ABPC 121 , Alberta Provincial Court, a judgment of His Honour Judge Allen; and 3) R. v. Estacio , 2010 ABCA 69 , a judgment of the Alberta Court of Appeal, which decision is in fact an appeal from sentence. [ 80 ] Crown relied on Soungie , which case stands for the following propositions, I think:

a) the purpose of a s. 810 order is preventative and not penal in nature, and its purpose is to maintain order and preserve the peace; (paragraph 5)

b) two competing interests must be balanced: (

i) the defendant's right to privacy or to be left alone; and (ii) the right of the informant to protective intervention in appropriate circumstances; (paragraph 11)

c) there are subjective and objective grounds, both of which must be established before an order can be made against the defendant: (

i) the informant actually fears that the defendant will cause personal injury to her or her child, the subjective ground; and (ii) reasonable grounds exist for the informant's fears, the objective ground, that is to say what would a reasonable person in a similar situation feel;

(paragraph 12 and 19)

d) the onus of proof is on the Crown on the balance of probabilities; (paragraph 12 and 39)

e) it is preferable for the complainant to articulate her subjective, honest, and accurate fear, but failure to do so does not mean that such fear does not exist, it can be inferred from surrounding circumstances; (paragraph 18)

f) finding a likelihood of future conduct by reference to the strength and quality of the evidence is not the same as predicting future harm, which a judge need not do: (paragraph 22 and 26). It would seem that this likelihood is a necessary finding of fact for a judge to make hearing a s. 810 Criminal Code of Canada application if a recognizance is to be ordered; (see paragraph 24)

g) the court has a discretion as to whether or not to order the defendant to enter into a s. 810 recognizance: (paragraph 42-3) even where the two-part test is made out. Judge Allen said this on point in paragraph 44: In s. 810 the Judge is asked to use his or her discretion to determine that a recognizance is required. There may be some circumstances where the objective and subjective of the fear has been proven on the balance of probabilities where the recognizance is not warranted. One example that comes to mind is where the hearing is delayed.

In that case, the fears might have warranted an order at the time of the swearing of the information but the passage of time does not support the issuance of the order. [ 81 ] Mr. Rizzuto relies on R. v.

Vanderkerkcove as an example in the context of a landlord and tenant dispute, where the presiding judge believed at an earlier date a s. 810 order might have been made, but could not find that there still existed, on the trial date, the required criteria, a subjective and objective fear. [ 82 ] Judge Clément said this on point at paragraphs 23 to 25 and 27 of his reasons: 23 One year later, can we espouse the theory of the defence to the effect that to intervene, the judge must be convinced that at the time the evidence is adduced before him, there STILL exist the criteria which may have given rise to his intervention a year ago, that is to say, the subjective and objective fear? 24 To put it another way, is it necessary for the firemen to hose down a fire that is already completely out?

Obviously, the answer to that is no! If there is no need to intervene, the court should normally abstain. 25 However, with a great deal of respect for the opposite view, once it has been established that there existed grounds to intervene in the past, the simple elapsing of time without an incident is insufficient to permit a conclusion that the intervention of the court is no longer necessary. The defence must show that these grounds no longer exist as a result of a change of heart, and a mending of the ways.

If there was cause for alarm at one time, we must ascertain that this cause has been removed. . . . 27 If the intervention of the court under

article 810 of the Criminal Code were a question of punishment, the mere elapse of time would not prevent the court from dispensing the punishment. However, this is not a question of punishment but rather of prevention. Therefore, should prevention become unnecessary through the passage of time, no intervention should be made. [ 83 ] It would seem the requirement of the defence establishing that grounds no longer exist would contradict Soungie that the onus of proof lies with the Crown on a s. 810 application on the balance of probabilities.

No recognizance was ordered in this Quebec case. [ 84 ] The Estacio case is of little assistance to me in the case at bar, save for the cryptic obiter comment made by the Alberta Court of Appeal in a youth sentencing matter that s. 810 requires proof of a current fear. Discussion [ 85 ] The September 4 event is the reason the information before the court was sworn out the next day. Immediately prior to this event, the mother and father had been living together, both at the mother's apartment in North Vancouver, however briefly, and on holiday in California.

The precise details of this event were not provided to me; for example, whether or not there was any intimacy between the two parents on this break, and exactly where they stayed and so forth. [ 86 ] The defendant was at her apartment on September 4th, again with the full consent of the mother and tenant in the apartment. [ 87 ] Under these circumstances, but for the argument which occurred on September 4th, it is difficult for me to perceive that her application would have been made at all.

This is not a case where Crown charged a common or an aggravated assault on an earlier date and elected later in time to resolve it with a peace bond application, as frequently occurs in these courts. [ 88 ] I find that on September 4th, both the mother and father laid hands on one another in anger. I am not of the view that the mother should be seen as an innocent victim of untoward physical aggression on the part of the father. [ 89 ] I do reject his evidence that he was frustrated, not angry, and acted as he did merely out of frustration.

I think it highly likely he was suspicious as to where she had been late in the afternoon and got annoyed, both with the mother and the daughter, when they

appeared to him to be unresponsive to his queries as to their earlier whereabouts. [ 90 ] He then made a dumb decision to take his TV, to make some sort of a statement about his children's overindulgence and overdependence in constantly watching it.

This single action only exacerbated an already somewhat tense situation, and was only made worse by their joint infantile conduct in wrestling over it in the presence of their then crying children, resulting in his legs and foot being harmed to some minimal extent and the TV being broken in the presence of the children. [ 91 ] His decision to attempt to break her cellphone in retaliation was perhaps the icing on the cake of stupidity and childish misbehaviour.

I accept that in the course of this event, he pushed her away, not very hard, squeezed her nose for approximately one second, and made a fist in her face and touched her forehead and nose briefly in so doing, and that likely the two children saw all or some of these actions. [ 92 ] I accept that he likely called her a "fucking bitch" in the process.

It would be unreasonable for me to think she did not use some strong language as well at the time, although of course there is no evidence that she did. [ 93 ] Without in any way making light of what the defendant did on September 4th, it is conduct that the next day did not result in a criminal charge being laid, and if one had been laid, might well have been found following a trial to have been in the de minimus category, if the charge had been proven beyond a reasonable doubt. [ 94 ] The circumstances of the September 4th event include his leaving, I find likely within less than five minutes of the wrestling over the TV, and after she had thrice demanded he do so.

She was physically unharmed, as were the two children, although no doubt everyone was upset. [ 95 ] I accept, as well, that there would have been some minimal psychological harm suffered by the mother and the two children, although the upset of the children I think can be substantially attributed to the fact that the television was not only turned off, but broken in their presence. It seems obvious to me that the children would have been upset by the father when he elected to take the TV away, and I suspect the only television in the apartment, and certainly at the time they were watching it.

They would have been further upset seeing their two parents wrestle over it. [ 96 ] Each must bear some responsibility for this event. Thus, the children's upset, in my view, cannot be laid entirely, from a causation standpoint, at the defendant's feet. It is likely what occurred on September 4th could be seen as family violence, as the same is defined in s. 1 of the B.C. Family Law Act . [ 97 ] As I have said, I find that the mother and children, merely by being upset, suffered some small, I think fleeting, amount of psychological harm on September the 4th.

I also find that both prior to and after September 4th, there has been no further event like it. His attendance at her apartment in October 2014, I find, was without an invitation and depending on his rational state at the time, which is far from clear to me in the evidence, possibly a breach of the bail order then extant, although no charge was ever laid. [ 98 ] There is no evidence as to how he gained access to her apartment if he did so: for example, was it with a key or was he buzzed in?

Generally visitors without invitations cannot enter another's apartment without some cooperation and consent from the tenant occupant. I infer that this was present in October 2014 on the part of the mother to some extent. On this occasion, she was unharmed. [ 99 ] Any later interaction between the father and the mother I find was instigated by the mother and must be seen as some strong evidence that any fear she had of him had, by December 2014, significantly abated. [ 100 ] It is true he was apparently not on his medications on September 4, 2014.

It seems this was so for the prior 11 months; however, with his treating doctor's agreement. It is unclear what medications he was then off; however, the sense of the evidence in this case was that they were different medications from those that he now takes, namely monthly injections under the supervision of his psychiatrist, and likely then self-administered as opposed to now being taken in a clinical setting under supervision. [ 101 ] In late August and early September, he was able to interact with both the mother and children without incident, until the argument occurred on September 4th.

There is no evidence that at any time during this whole period he was either manic or psychotic in his behaviour. Thus, most recently, there is no evidence that his being off his medications, likely different ones from those that he is now on, inexorably led to an episode characterized by symptoms of mental illness; for example, his being in a manic state.

The mother's professed current fear is that he will go off his medications. [ 102 ] The orders that are sought by the Crown in this case are as follows: 1) keep the peace and be of good behaviour; 2) you are not to contact or communicate, directly or indirectly, with T.J., except in public or through your probation officer, legal counsel, family court counsellor, Bozena Novak, or by telephone for the purposes of arranging access or resolving matters of property division, maintenance, or other family court matters; 3) you must not attend within the three block radius of her address in North Vancouver, British Columbia; 4) you are not to be in or attend at any known residence, workplace, or educational facility of T.J., except you may attend a particular address in North Vancouver between the hours of 5:40 p.m. and 7:20 a.m.; 5) you must attend, participate in, and complete such counselling as directed by your probation officer, including for domestic violence and psychological or psychiatric disorders; 6) by consent, you shall take reasonable steps to maintain your mental health, such that you will not likely conduct yourself in a

manner dangerous to yourself or anyone else, and it is not likely that you will commit any criminal offence; 7) at the direction of your probation officer, you will attend as directed at the Forensic Psychiatric Services outpatient clinic or other mental health facility or upon a licensed medical practitioner for the purpose of receiving such medical counselling and treatment as may be recommended, except that you shall not be required to submit to any treatment or medication to which you do not consent; 8) if you do not consent to any form of medical treatment or medication prescribed or recommended for you, you shall notify your probation officer immediately; 9) you shall provide your treating physician with a copy of this order and the name, address, and telephone number of your probation officer.

You shall instruct your treating physician that if you fail to take medication as prescribed by him or her or fail to keep appointments with him or her, he or she is to advise your probation officer immediately; 10) you will not possess any weapons or imitation weapons as defined by the Criminal Code ; and lastly 11) do not possess any knives, except while consuming or preparing food. [ 103 ] I have set these out fully because certainly the Rogers -like orders in numbers 7 to 9 are unusual and not routinely seen or requested in a s. 810 hearing.

As well, I think a great deal of care was taken by Crown in crafting these orders. It may be important for future applications to have a clear record of these types of orders in a case that may be similar to the one at bar. [ 104 ] Should I now make these orders? In my view, I should not. I am not persuaded that Crown has proven, on the balance of probabilities, that this is a case where I should intervene to make the orders sought with a view to prevent some form of harm or family violence occurring to the mother and/or the two children.

I am not of the view that the evidence now supports my making a finding, as I must to make the orders sought, that the applicant mother's fears are now reasonable. [ 105 ] I am not satisfied, based on the evidence led (or not led in the case of medical evidence) that there is now a likelihood of future harm or damage that would be caused by this father to the mother or to his two children. [ 106 ] In the result, the application is dismissed. [ 107 ] In doing so, I want to state that the father should not take this dismissal as some form of licence whereby he can attend at the mother's residence or even workplace without prior invitation as he sees fit.

Both parties would be well advised to immediately structure some form of parenting plan to include how and when this father can continue to see his two children and the mother as part and parcel of such arrangements. [ 108 ] If they cannot agree, of course, an application can be made to this court, to a Family Court judge, to seek appropriate orders in the context of a family law proceeding under the Family Law Act . (REASONS CONCLUDED)