R. v. R.D.C. Date:, 2016 BCPC 388

Citation: R. v. R.D.C. Date: 20161026 2016 BCPC 388 File Nos: 16655-1-K; 16659-1-K; 16655-2-KA; 16655-3-KA; 16655-4-KA Registry: [deleted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.D.C. REASONS FOR SENTENCE OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: A. Taylor

Counsel for the Defendant: J. Watt Place of Hearing: [deleted for publication] , B.C. Date of Hearing: September 7, 2016 Date of Judgment: October 26, 2016 [ 1 ] After a thirteen year relationship Mr. C and Ms. H separated in August 2015 when Ms. H asked him to move out of their home citing his drug use and her concern for the safety of their children. They have four children aged seven to twelve years of age. [ 2 ] Mr. C is charged with criminal harassment of Ms. H over an eight-month period between August 1, 2015 and April 1, 2016. His behaviour began after their separation and became increasingly obsessive.

He sent denigrating text messages sometimes up to fifty times per day at all hours of the day and night accusing her of being unfaithful during their relationship, calling her a slut and whore; he confronted her publically at her place of employment with the same accusations; he followed her and entered her home during the day or night without her permission including when she was sleeping. [ 3 ] He threatened to, in his words, “expose” her for “what and who we both know who you really are” to her children, to her employer and co-workers. [ 4 ] He accused her of being an unfit mother and referred to their children as “4 wonderful children who are gonna hate you” and would be embarrassed by her.

This conduct worsened and culminated in his taking up residence across the street from her home where he set up a camera to watch and record her actions. [ 5 ] Mr. C’s behaviour escalated in other ways that are concerning. Sometime between December 1, 2015 and January 1, 2016 Ms. H went to Mr. C’s apartment. He called her a "lying whore” and as she started to walk away, Mr. C pushed her from behind causing her to strike the closet. She held her arms up to protect herself and was pushed again by Mr. C this time causing her to strike the end table beside the bed.

He grabbed her by her shirt and jacket collar and held her down as he searched her pockets. These events resulted in the charge of assault of Ms. H. [ 6 ] Between March 1 and April 1, 2016 Mr. C entered Ms. H’s home while she was sleeping. He was verbally abusive and called her a lying whore. As a result of these events, he is charged with being in her home without lawful excuse with intent to commit an indictable offence. [ 7 ] In one of his text messages he said “…you know (what) kind of power I have...now you have nothing”. This was clearly meant to intimidate Ms.

H and to make her feel powerless. [ 8 ] On another occasion at night she parked in her vehicle down the road from her home and called the police for assistance to escort her safely into her home. As she sat in her vehicle waiting until they could help her, Mr. C approached her vehicle and struck it with his hand. She was forced to drive away and was finally able to return home with police assistance. [ 9 ] The harassment continued. [ 10 ] On April 11, 2016 Mr. C called the RCMP wanting a “Peace Bond” against himself saying that he was a danger to Ms. H. [ 11 ] On April 11 or 12, 2016, Mr.

C was arrested and charged with criminal harassment and being in Ms. H’s home without a lawful excuse. Mr. C was released on April 13, 2016, placed on a $2000 cash recognizance and given strict conditions to have no contact directly or indirectly with Ms. H. The only exception was to be through an agreed upon third party for the purpose of facilitating access to his children or for the purpose of providing financial support. Those conditions were explained to Mr. C. [ 12 ] Mr. C was also required to report to his bail supervisor as soon as he was released from custody.

On April 14, 2016 he failed to do so and is charged with failure to comply with that condition of his Recognizance of Bail. [ 13 ] On April 14, 2016 at 10:10 pm, in complete disregard of the condition of his recognizance that he have no contact with Ms. H unless it related to certain exceptions, he called Ms. H on her landline. As a result, he is charged with failure to comply with the non- communication condition. [ 14 ] On April 15, 2016 the RCMP received an anonymous call at approximately 9:45 pm reporting that Mr. C was in Ms. H’s home. [ 15 ] Earlier that evening, Ms. H arrived home after work. Mr.

C came up behind her, wrestled her keys away and forced her into the house. He may have been hiding in or near a shed located at the front of the house. He once again accused Ms. H of being unfaithful. At some point when she tried to retrieve her phone, he would not allow her to leave. These actions resulted in charges of being in a dwelling house unlawfully and confinement of Ms. H and the second breach of the no contact condition of his Recognizance of Bail. [ 16 ] When the police arrived with their emergency lights activated, Mr. C fled through the back door. He was arrested later that evening.

This is the subject of the charge that he obstructed Cst. Wilson in her duties. [ 17 ] He has been in custody since. [ 18 ] While I do not have a victim impact statement from Ms. H, I am advised by Crown counsel that as a result of Mr. C’s actions and his unrelenting and repeated harassment, Ms. H has been under the care of her doctor. She requires medication and has trouble sleeping. She is depressed and has undergone counselling. She describes that she is in a state of not feeling anything.

I did not hear any submissions regarding the impact of this conduct upon their four children but I expect that these events have been to their emotional

detriment. [ 19 ] Crown counsel seeks incarceration for two years less a day, followed by three years’ probation with a curfew condition. He emphasizes that sentencing objectives of denunciation and deterrence must be primary considerations. He provided me with a number of case authorities: R. v. Hunter 2006 BCCA 433 ; R. v. Rush , 2010 BCCA 293 ; R. v. Taylor , 2012 BCSC 2209 ; R. v. Campbell , 2012 BCSC 904 ; R. v. Kohl , 2009 ONCA 100 ; R. v. Hawkins , 2005 BCSC 247 .

Those involved cases in which custodial sentences for criminal harassment were imposed ranging from two years less a day ( Hunter, Rush, Campbell ) to three years ( Hawkins) and in one case, four and a half years ( Taylor ). [ 20 ] The cases provided by Crown counsel generally involved more serious or prolonged conduct ( Hawkins, Rush ) or a more significant prior criminal record ( Hawkins, Kohl, Campbell, Taylor ). [ 21 ] The Hunter case did not involve criminal harassment.

There, the Defendant was sentenced to an effective sentence of two years less a day plus three years’ probation for assault, uttering a threat to cause death or bodily harm and breach of a probation no contact condition. The sentencing judge concluded that there was a persistent background of harassment and violence by this offender which played an important role in the sentence. This was the second assault on the victim who had been in a 22 year relationship the defendant. He was assessed as a medium risk to re-offend. He demonstrated little remorse or insight into his conduct, blaming his behaviour on alcohol.

The lengthy period of probation was to ensure that he had adequate counselling. [ 22 ] He appealed the sentence but while awaiting the appeal hearing, completed a number of counselling programs while in custody which were not before the sentencing judge. The sentence was upheld on appeal. The court noted that he would be assessed by the parole board in approximately one month after the appeal and the steps taken toward his rehabilitation would properly be before them. [ 23 ] In Mr.

C’s case, there is evidence of his efforts to rehabilitate himself and I have no evidence of a persistent and ongoing pattern of violence and harassment over the course of his relationship with Ms. H although he was convicted of assault with a weapon, uttering threats and forcible confinement of Ms. H in 2008. [ 24 ] In Rush , the defendant received a two year less a day sentence followed by three years’ probation for two serious assaults including a break and enter. All involved his former spouse.

He had a prior record for offences of violence against his former spouse and was assessed at high risk for future violence against an intimate partner because of sexual jealousy. He had a significant record for other assaults and criminal offences and was referred to by the court as a repeat offender. [ 25 ] Mr. C’s prior record for violent offences is not comparable. [ 26 ] Counsel for Mr. C argues that an appropriate sentence is one year incarceration followed by two years’ probation. He emphasizes that the sentence Crown is seeking is excessive and amounts to what is, essentially, a five-year sentence.

He provided the court with case authorities: R. v. Pieszkor , 2005 BCPC 640 ; R. v. Brake , [2007] N.J. No. 359 ; R. v. Sobhani , 2011 BCSC 67 ; R. v. Blake , 2016 ONCA 508 . Those cases involved cases in which custodial sentences were imposed ranging from six months ( Pieszkor) to one year ( Brake, Sobhani ) all of which were followed by three years’ probation. [ 27 ] The sentencing judge in Blake imposed a sentence of two years less a day and probation for three years for criminal harassment of an intimate partner which was upheld by the Ontario Court of Appeal.

The harassment in that case involved repeated phone calls and text messages over a period of five days. The Defendant there had a lengthy criminal record including five prior convictions for criminal harassment for which he had been sentenced to four, six and seven months for three of those prior convictions. He argues that Mr.

C does not have a prior record for criminal harassment or a record even closely approximating that of the defendant in Blake and it was provided as an example of the circumstances which would attract a sentence of that severity. [ 28 ] The defendant in Pieszkor pleaded guilty to criminal harassment and two breaches of an undertaking by having contact with the victim which whom he had been in a relationship. He had a prior record including seven offences involving some degree of violence against women with whom he had been in relationships.

He had little insight into his behaviour and the impact on the victim and was assessed as a high risk of re-offending. The sentencing judge imposed a sentence that was close to the maximum available as the crown had proceeded summarily and accordingly sentenced the defendant to sixty days in addition to the four months of pre-sentence credit for a total effective sentence of six months. [ 29 ] That case is distinguishable in that in Mr. C’s case, the Crown proceeded by way of indictment and the offence of criminal harassment carries a maximum penalty of ten years.

Furthermore, there were no details in the Pieszkor decision regarding the nature or duration of the criminal harassment. [ 30 ] Brake is a decision from the Newfoundland and Labrador Provincial Court. There the defendant pleaded guilty to criminal harassment of his wife from whom he had separated. He called her land line telephone over a hundred times and showed up at her workplace. He had a lengthy prior record of approximately fourteen pages, including multiple convictions for assault and uttering threats.

The latter conviction resulted in his being sentenced to four months and it involved his former wife - the same victim. [ 31 ] The messages that were left by the defendant in the Brake case were, on their face, described as innocuous in that they were messages to call him back, to return her wedding rings and in one case her friend should watch his back. However, the court concluded that in the context of their relationship, the complainant felt threatened and was fearful for her safety. Mr.

Brake received a sentence of one year and three years’ probation - a reduced sentence to reflect the guilty plea. [ 32 ] I conclude that the harassment by Mr. C is more serious. Not only is the language used by Mr. C in his text messages more abusive and denigrating, he entered Ms. H’s home whenever he felt like it and verbally abused, assaulted and confined her in her own home. He showed up at her workplace and denigrated her in front of others. He moved into a house across the street from her residence and set up a camera to continually monitor her activities.

He also threatened to turn her children against her by “exposing” her and telling her children about, in his words, who she really was.

[33] The defendant in the Sobhani case pleaded guilty to criminal harassment of his wife, two breaches of recognizance and a breachof a probation order. He had a considerable prior criminal record including two counts of assault on his former wife that had occurrednot long before the current charges. [34] The sentencing judge did not provide a

summary of the kind of conduct at issue in the proceedings but noted that the casesprovided by Crown involved offenders with more serious records and circumstances. He noted in particular that there were no assaultcharges before him and that the circumstances before him were less serious and the offender less incorrigible. [35] He sentenced Mr.

Sobhani to one year less credit for pre-sentence custody, followed by probation for three years and included acurfew for the duration of the probationary period. [36] While the cases are of general assistance, I must determine a fit and appropriate sentence taking into account the circumstancesof these offences and this offender - Mr.

C. [37] Defence counsel submits that there are significant mitigating factors: • his guilty plea; • his underlying drug abuse which he says was a significant factor in his behavior; • his steps in his own rehabilitation while in custody which involved attending narcotics anonymous, alcoholics anonymous, seeinga trauma counselor; • his exemplary conduct while in custody in that he has worked extensively with other individuals to help them in their ownrecovery; • his plan on released to attend residential treatment or continue to obtain counseling including possible attendance at vision quest. [38] He also emphasizes that Mr.

C is of First Nations heritage and reminds the Court that I must consider the principles enunciatedby our Supreme Court of Canada in R. v. Gladue, (1999) (SCC), 1 SCR 688. He points out that First Nations peopleare overrepresented in Canada's jails and that I must consider all other options other than custody in imposing a fit and proper sentence. [39] Mr.

C has a prior record and I set it out in full: • March 20, 1990: Theft over $1000; break and enter; • May 25, 1995: possession of a narcotic; • December 8, 1998: possession of property obtained by crime under $5000; • November 3, 1999: two counts of possession of a

schedule to substance for the purpose of trafficking; • January 11, 2007: two counts of possession of a controlled substance; • March 12, 2008: uttering threats; assault with a weapon; unlawful confinement. Ms. H was the victim of these offenses; • March 19, 2008: breach of an undertaking or recognizance. This involved Ms. H; • March 22, 2008: assault with a weapon; uttering threats; breach of an undertaking or recognizance. Ms. H was the victim of thoseoffences; • April 3, 2016: possession of a controlled substance. [40] In determining a fit and proper sentence for Mr.

C I am mindful of the fact that it is my duty to consider the circumstances ofthe offense as well as Mr. C's own unique circumstances. Counsel advised that he was well able to provide the Court with sufficientinformation about Mr. C’s unique circumstances such that a pre-sentence report or Gladue report was unnecessary. [41] Mr. C is a member of the [deleted for publication] Nation and he, along with his community, have suffered the consequences offorced relocation and the residential school system. Both his mother and grandparents attended residential schools and Mr.

C suffered atraumatic childhood including sexual abuse and exposure to the effects of alcoholism in his family. [42] I am mindful that the primary purpose of sentencing is to contribute to a just, peaceful and safe society by imposing justsanctions that will serve one or more of the following objectives: denunciation; deterrence; removal of an offender from the communitywhere necessary; rehabilitation of an offender; reparation to victims and the community; promotion of responsibility on the part of theoffender and acknowledgment of the harm to victims and the community. [43] A sentence must be proportional to the seriousness of the offence and not be excessive or unduly harsh. [44] The offence of criminal harassment is a serious one.

I adopt the words of Justice Barrow in R. v. Campbell, 2012 BCSC 904 atpara 12:

It is necessary to characterize the gravity of this offence in order to find the appropriate sentence. There is no usual range of sentence for offences of this kind because, perhaps more than most offences, they can be committed in an almost infinite variety of circumstances (see R. v. Kohl , 2009 ONCA 100 at para. 41 ). The cases to which the Crown has pointed demonstrate that clearly.

They also demonstrate that some of the factors that are significant to assessing the gravity of the offence are the length of time over which the harassment has occurred and the motive for it. [ 45 ] I am also mindful of the direction given to sentencing judges by the Supreme Court of Canada in R v. Gladue , (supra.) at para 80 and 81: As with all sentencing decisions, the sentencing of aboriginal offenders must proceed on an individual (or a case-by-case) basis: For this offence, committed by this offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code ?

What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence? How has the offender who is being sentenced been affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown?

Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender and community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances? The analysis for sentencing aboriginal offenders, as for all offenders, must be holistic and designed to achieve a fit sentence in the circumstances. There is no single test that a judge can apply in order to determine the sentence.

The sentencing judge is required to take into account all of the surrounding circumstances regarding the offence, the offender, the victims, and the community, including the unique circumstances of the offender as an aboriginal person . Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large. [Emphasis Added] [ 46 ] I accept that there are mitigating factors here: • Mr. C’s early guilty plea, thus sparing Ms.

H from undergoing further trauma by having to testify in court; • While in custody he has undergone counselling, has been involved in helping other men and he has attended AA and NA meetings. [ 47 ] I also note the gaps in Mr. C’s criminal record between November 3, 1999 and January 11, 2007 and between March 22, 2008 and the offences commencing in August, 2015. [ 48 ] I have been asked to consider his drug use as a mitigating factor. I accept that Mr. C has had difficulties as a result of his drug use, but I am of the view that it is not mitigating in the sense that it explains his conduct. The actions of Mr.

C took place over an extended period of time and his text messages are clear, focused and controlled. He was in custody when arrested on April 11 or 12, 2016 and would have been clear of drugs during that time. Nonetheless, he immediately breached the conditions of his Recognizance of Bail by contacting Ms. H and going to her home. [ 49 ] There are a number of aggravating factors: • This criminal harassment and assaults on Ms. H were in the context of an intimate or “domestic” relationship and was intended to intimidate and control Ms.

H; • He was on a Recognizance of Bail at the time of the offences on April 14 and 15, 2016; • He has little, if any, insight into how his conduct has affected Ms. H. [ 50 ] I also take into account that a home is a sanctuary and place of safety. This is such a fundamental human need that it is often taken for granted. Mr. C, through his actions, destroyed Ms. H’s ability to feel secure in her own home and her own community. Furthermore, the harassment occurred over a lengthy period of time, approximately eight months. [ 51 ] I believe that Mr.

C has taken very important steps towards his rehabilitation but that more work needs to be done. Most importantly, he has to understand that his actions - the harassment, physical assault and intimidation of Ms. H - have caused harm not only to her, but to his children. [ 52 ] During his comments to the Court, Mr. C’s plea that “his people need help” was a cry from the heart. But that also must include the women in his community. First Nations women are entitled to be free from violence and to have the protection of the law.

As are the children. [ 53 ] It is well recognized in the Honouring the Truth, Reconciling for the Future:

Summary of the Final Report of the Truth and Reconciliation Commission of Canada , that First Nations women are at significantly increased risk of violence:

The overrepresentation of Aboriginal women and girls among crime victims is particularly disturbing. Aboriginal women and girls are more likely than other women to experience risk factors for violence. [ 54 ] This has also been recognized by the Public Health Agency of Canada in their recent report entitled: The Chief Public Health Officer's Report on the State of Public Health in Canada 2016: A Focus on Family Violence in Canada. The report recognizes that family violence is a public health issue and that it leads to negative health outcomes.

It recognizes the consequences of inter- generational trauma among indigenous people from the residential school system and other systemic factors. The report echoes the findings of the Truth and Reconciliation Commission that indigenous women are at much higher risk of violence but also refers to their increased risk of intimate partner violence. [ 55 ] In all the circumstances of this case, the objectives of denunciation and deterrence must be given primary consideration.

Is there another alternative that will achieve the primary objective of protecting the community which includes the safety and well-being of Ms. H and her children? I do not lightly come to the conclusion that there is no other means currently available to this court to deter Mr. C and others from engaging in this conduct and that would adequately recognize the seriousness of criminal harassment and violence in the setting of domestic or intimate relationships. [ 56 ] On Information 16655 - K1, Count 1 - criminal harassment of Ms. H between August 1, 2015 and April 1, 2016 - Mr.

C is sentenced to a period of incarceration of fifteen months. This will be reduced for his time in pre-sentence custody of 194 days plus enhanced credit of 97 days, for a total credit of 291 days. [ 57 ] On Count 5 of that Information - the assault of Ms. H between December 1, 2015 and January 1, 2016 - Mr. C is sentenced to two months. [ 58 ] On Count 6 of that Information - unlawfully being in a dwelling house with intent to commit an indictable offence between March 1, 2016 and April 1, 2016 - Mr.

C is sentenced to two months. [ 59 ] Based on the principle of totality, although the assault is clearly a separate offence, and arguably the conduct that is the subject of Count 6 arises from the general criminal harassment conduct, all counts will be concurrent with each other. [ 60 ] On Information 16655 - 2 KA, Count 2 - failure to comply with a condition of a Recognizance to have no communication with Ms.

H on April 15, 2016 - the sentence is two months. [ 61 ] On Information 16655 - 3 KA - Breach of Recognizance of Bail by failing to report to a bail supervisor on April 14, 2016 - the sentence is one month. [ 62 ] On Information 16655 - 4 KA - failure to comply with a condition of a Recognizance to have no communication with Ms. H on April 14, 2016 - the sentence is one months. [ 63 ] On Information 16659 -1, Count 1 - unlawfully being in a dwelling house with intent to commit an indictable offence on April 15, 2016 - Mr.

C is sentenced to two months. [ 64 ] On the same Information, Count 2 - unlawful confinement of Ms. H on April 15, 2016 - the sentence is three months. [ 65 ] Count 3 of the same Information - Resist or obstruct a peace officer on April 15, 2016, the sentence is one month. [ 66 ] All counts on Information 16659-1 are concurrent. [ 67 ] I cannot impose a sentence that would be excessive if served consecutively. Accordingly, the sentences for all Informations are concurrent. [ 68 ] He will therefore serve an additional period of custody of 164 days. [ 69 ] It will be followed by a period of probation for 2 years.

This is designed to assist Mr. C in undergoing counselling or other programs relating to drug use, relationship violence and past trauma. It may include a residential treatment program such as that offered by Tswo-Tun-Le-Lum or Round Lake and which are provided by and for First Nations. There is also Vision Quest in which Mr. C has expressed interest in attending. [ 70 ] The conditions of probation are: • Statutory Terms; • Report after release within 3 days to a probation officer in [deleted for publication] and thereafter as directed; • No contact or communication with Ms.

H except through an agreed upon third party or parties to be agreed upon through counsel and solely for the purpose of arranging parenting time with the children or providing financial support or providing information regarding the children; • He is not to attend at any place he knows to be Ms. H’s residence, workplace or school; and • Counselling.

[ 71 ] There will an extended weapons prohibition order pursuant to s. 110 for 10 years. [ 72 ] There will be a DNA order and that he provide a sample of his DNA. [ 73 ] Under s. 743.21 there will be an order that Mr. C is not to have any direct or indirect communication with Ms. H while in custody except through an agreed upon third party solely for the purpose of providing information regarding their children or facilitating contact time with them. [ 74 ] Mr. C professes to be a leader. While in custody he has shown that he can be a leader.

Once he is released, whether he will continue as a leader for his children and his community - to show them by example, that it is possible to overcome past trauma and addiction and to lead a good life - will be up to him. BY THE COURT ______________________________ The Honourable Judge B. Flewelling