R. v. Tardif Date:, 2014 BCPC 366

Citation: R. v. Tardif Date: 20140304 2014 BCPC 0366 File No: 76562-1-K Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MELISSA ANN TARDIF ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: N. Barber Counsel for the Defendant: A.E. King, Q.C. Place of Hearing: Nanaimo , B.C. Date of Hearing: March 4, 2014 Date of Judgment: March 4, 2014

[ 1 ] THE COURT (Orally): Before me is Melissa Ann Tardif. Ms. Tardif has entered a plea of guilty on Count 3 to an information that alleges that on or about the 22nd day of February 2013, at or near Nanaimo, in the province of British Columbia, did without lawful excuse, store a firearm in a careless manner or without reasonable precautions for the safety of other persons, contrary to s. 86(1) of the Criminal Code . Ms.

Tardif has entered a plea of guilty with respect to that particular offence. [ 2 ] As I understand the submissions that I have heard, the agreed facts are set out on page 4 of a pre-sentence report authored by Dr. Scott Prior, a consulting psychiatrist, Forensic Psychiatric Services Commission, Nanaimo Regional Clinic. On page 4 of his report, under the heading "Legal Narrative," and the third paragraph from the bottom states [as read in]: Melissa stated that she found a firearm that was in the home and tucked it into her pants. She described the firearm as a 9mm calibre pistol.

When asked about her ability to access firearms, Melissa stated that she and Linsey (who is Linsey Warren) had purchased a number of firearms over the years. She stated that she had acquired an interest in collecting weapons and target shooting primarily due to the influence of Linsey. Moreover, she stated that Linsey insisted one firearm be accessible and loaded in the event of any trouble at home. Melissa indicated that while the firearm was legally purchased and registered, it was in fact kept loaded and accessible at Linsey's insistence. Melissa stated that she found this firearm and kept it on her person.

Melissa recalled that she went to the residence where Linsey was supposed to be residing. Linsey was not there, but Melissa had a conversation with at least one lady who also lived in that residence. Melissa did not recall that she brandished, produced or otherwise made anyone aware that she had a firearm on her possession. [ 3 ] I take it those are the facts that have been agreed to and are before me as the agreed statement of facts. As I understand it, it is also acknowledged that in fact the firearm was made visible to at least one of the individuals at the house where Ms.

Tardif appeared, and so the knowledge of the existence of the firearm was established. [ 4 ] The Crown's sentencing position is that this is a serious offence and that it should attract a suspended sentence with a three- year period of probation, a s. 110 weapons prohibition for a period of 10 years, and under the terms of a probation order, various protective conditions for Ms. Warren. [ 5 ] The position set forward by defence is that this is a matter where it would be appropriate to grant her a conditional discharge, given the information that is before me and given the lack of any criminal record of Ms.

Tardif. [ 6 ] It is common ground, I believe, that this matter arose out of a failed domestic relationship between Ms. Tardif and Ms. Warren. That relationship had been of a fairly lengthy period, something in the range of around four to five years. There has been, as I understand it reading the reports, (and I do not think that is contested) a very acrimonious breakup of that relationship. [ 7 ] The two reports that I have before me are the aforementioned report prepared by Dr. Prior; I also have a further report titled Pre-Sentence Report.

This report is prepared by Jenna Beck, a probation officer with Nanaimo Community Corrections. [ 8 ] The background of Ms. Tardif is set out in the

summary found in the Pre-Sentence Report. She is 33 years of age. She has no prior criminal record, nor does she deny the current offence. She has no history of substance misuse. She maintains a supportive network which comprises her parents, daughter, current partner and psychologist. [ 9 ] She claims to feel remorse about her actions and reported that she had no intent of hurting anyone. Melissa stated that her PTSD and financial situation at the time were the primary factors for her offending behaviour.

She realizes that continuing counselling is necessary in order to work through the past and present emotional turmoil and to enable her to build on her self-confidence and self- esteem. Melissa continues to see her psychologist biweekly and is willing to participate in additional counselling. [ 10 ] Madam Clerk, may I have the exhibit letters, please. Thank you. [ 11 ] The report prepared by Dr. Prior is comprehensive in nature. It delves more deeply into some of the psychological issues that relate to this particular matter. The assessment contained within the report makes the following points.

First of all, there is no evidence of an active mental disorder for Ms. Tardif. There are identified a number of contributing historical factors in terms of Ms. Tardif's risk for committing a similar offence in the future. She has had, according to the report, a longstanding vulnerability in terms of relationships. She has had a number of relationships which have ended in failure. She has, in terms of clinical risk factors, I quote [as read in]: It is difficult to conclude anything with certainty about her mental state at the time of the offence. It is clear that Ms.

Tardif has felt helpless in most of her relationships and the stressor of discovering that her possessions had been removed likely intensified this feeling of helplessness. As such, Ms. Tardif looked for ways to empower herself to deal with conflict in confronting her ex-partner. Ms. Tardif disclosed that the main motivation for carrying a firearm was to feel confident in her anticipated encounter with her ex-partner. There is no clear evidence that she intended to harm her partner. To the contrary, there is some evidence that Ms.

Tardif might have had some intent to harm herself if she had intent to harm anyone at all. The report goes on to indicate, at the bottom of page 5, and I quote as follows: Finally, there seem to be a number of relevant factors in terms of risk management and risk specific factors. As discussed above, there was an acute and overwhelming stressor. The offence clearly happened in the context of a troubled relationship. Ms. Tardif indicated that she has been aware of her condition and that she has not tried to contact her ex-partner in any manner. In addition, Ms.

Tardif seemed to have a plan should she have a chance encounter with her ex-partner. Ms. Tardif also presented with no discernible intent to seek retaliation or revenge or otherwise harm her ex-partner. Ms. Tardif is also established in a therapeutic relationship and has found it quite beneficial.

The conclusion of Dr. Prior on page 7 is as follows: Overall, Ms. Tardif presented with a low short-term risk for committing a similar or another offence. Her long-term risk appeared to below in that Ms. Tardif clearly had insight into the nature of her functioning in her relationship, that she indicated her willingness tocontinue with appropriate treatment and that she indicated her willingness to obey by conditions and seek help with other stressors. [12] In making the sentencing submission on behalf of Crown, the emphasis is on denunciation and deterrence.

Although it is clearin Crown's sentencing position that they, by way of the suspended sentence, are not anticipating that Ms. Tardif presents a significant riskto the community. [13] However, gun offences are serious, as Crown has indicated. They are relying upon, a decision in R. v. Pirart, Nanaimo Docket68889-3, Nanaimo Registry, a decision of Mr. Justice Mackenzie. In that particular decision Mr.

Justice Mackenzie did impose I believeit was the mandatory minimum sentence for a firearm offence under s. 95(1) of the Code. [14] The position that is put forward by defence counsel is that this matter is appropriate for a conditional discharge, and reliance isplaced on R. v. Fallofield, (BC CA), [1973] B.C.J. No. 559. Fallofield is the leading authority with respect togranting of conditional discharges.

The test that is outlined in Fallofield is that the granting of a discharge must, first of all, be in the bestinterests of the accused, and the second leg of the test is that it must not be contrary to the public interest. [15] Fallofield draws the following conclusions with respect to the application of s. 730 for discharges. They are listed as follows:

(1) The

section may be used in respect of any offence other than an offence for which a minimum punishment is prescribed by law orthe offence is punishable by imprisonment for 14 years or for life or by death.

(2) The

section contemplates the commission of an offence. There is nothing in the language that limits it to a technical or trivialviolation.

(3) Of the two conditions precedent to the exercise of the jurisdiction, the first is that the Court must consider that it is in the bestinterests of the accused that he should be discharged either absolutely or upon condition. If it is not in the best interests of the accused,that, of course, is the end of the matter. If it is decided that it is in the best interests of the accused, then that brings the nextconsideration into operation.

(4) The second condition precedent is that the Court must consider that a grant of discharge is not contrary to the public interest.

(5) Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that itis not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, and that the entry of aconviction against him may have significant adverse repercussions.

(6) In the context of the second condition the public interest in the deterrence of others, while it must be given due weight, does notpreclude the judicious use of the discharge provisions.

(7) The powers given by [what is now s. 730] should not be exercised as an alternative to probation or suspended sentence.

(8) Section [730] should not be applied routinely to any particular offence. This may result in an apparent lack of uniformity in theapplication of the discharge provisions. This lack will be more apparent than real and will stem from the differences in the circumstancesof cases. [16] In addition to the two reports that I have before me, I also have a victim impact statement. It is a detailed statement datedFebruary 13, 2014. It has been authored by Linsey Warren, the former domestic partner of Ms. Tardif.

It indicates two importantfactors; one is that there has been, as a result of the whole of the circumstances in this matter, a significant adverse impact on Ms.Warren, which is detailed quite considerably in the victim impact statement. There is also a suggestion in the report that the accused inthis matter did not take the conditions that have been imposed upon her for her release seriously, insofar as she did contact Ms. Warrenby way of Facebook which was contrary, as I understand it, to the no contact provisions that had been imposed upon Ms. Tardif. [17] The personal circumstances and background of Ms.

Tardif are important in this case. Presently she is employed as a civilianwith the Royal Canadian Mounted Police in Port Alberni, British Columbia. She has been in that position since 2008, as I understand it. She has continued her education, both online and through Thompson Rivers University in the interior of the province of BritishColumbia. She has undertaken a significant amount of volunteer work within the community. She serves in a volunteer capacity as acritical incident peer counsellor in the City of Port Alberni. She has a young child, approximately 12 years of age.

She is a singlemother, although she has entered into a new domestic relationship in recent years. [18] There are several letters of support that have been entered before me, both from friends and from family. They are extremelysupportive. The general theme throughout those letters is the high level of remorse on the part of Ms. Tardif. They speak in verypositive terms of her being a compassionate and caring individual who helps others and is a person who has acted completely out ofcharacter in this matter. [19] The charge is an unsafe storage of a firearm.

There are two other counts to which pleas of not guilty have been maintained; Iunderstand Crown will be dealing with those separately following the conclusion of the sentencing. [20] In this matter, I must determine whether or not Ms. Tardif should be entitled to a conditional discharge. There is nothing thatindicates that she may lose her job as a result of this matter. But given the fact that she is in a position of trust with the RCMP, I think itis fairly safe to assume that there could be, although not definitely going to be, some potential impact on her career advancement and her

continuing ability to perform all of her functions at the RCMP station in Port Alberni, should she end up with a criminal conviction. [21] Most recently, my brother Judge Gouge rendered a decision in R. v. Atleo, 2014 BCPC 15 , 2014 BCPC 0015. That isa Nanaimo case. Mr. Atleo is a serving member of the RCMP. He pleaded guilty to an offence of forging a document. The question asto whether or not he should be entitled to a conditional discharge was canvassed in very useful details by Judge Gouge. Judge Gougemakes the following comment, relying on two decisions of Egerton v.

Brownlow, (1853) 4 HLC 1 at page 123, and Fender v. Mildmay,[1937] 3 All ER 402, quoted with approval in Hobbs vs Robertson, 2004 BCSC 1088. Those cases deal with what the phrase "publicinterest" is. Judge Gouge concludes as follows at paragraph 34: The question, in my view, is not what an individual judge may consider to be in the public interest, but rather what Parliament intendedby the phrase. In addressing that question, I should be guided, not by my individual views, but rather by the language of the statute andby principles established by the existing jurisprudence.

Judge Gouge then goes on to rely upon Fallofield and then notes as follows at paragraph 35: As noted in Fallofield, the public interest most commonly mentioned in relation to the grant or refusal of a discharge is the publicinterest in the denunciation and deterrence of crime. However, Fallofield cautions against giving undue weight to denunciation anddeterrence. I find in that brief remark an appealing solution to the uncertainty created by the existing jurisprudence.

It seems to mereasonable to conclude that the factors which Parliament intended judges to consider in determining whether a discharge would not becontrary to the public interest must be those identified as the objectives of sentencing in sections 718ff of the Criminal Code. Put anotherway, it seems to me that, in any individual case, a discharge would not be contrary to the public interest unless it would materially inhibitthe achievement of one or more of those objectives.

Only in that way can a judge adjudicate the question by reference to the publicinterest as defined by Parliament. [22] Judge Gouge then relies upon R. v. MacFarlane, 1976 ALTASCAD 6 , 3 Alta. L.R. (2d) 341 at paragraphs 14 to 20,for further guidance. [23] I have read Judge Gouge's consideration of the factors in Atleo, and I have applied them to the case before me. I haveconcluded that in this case a discharge for Ms. Tardif is certainly to her advantage.

I am also satisfied when I take into account the testas to whether or not it is contrary to the public interest. [24] I do note that of some concern is that there was a potential for a violent offence here. However, the charge that Ms. Tardif hasentered a guilty plea to is the careless storage of a firearm, not any of the more serious charges contained on the information. [25] When I take into account the nature of that offence and the fact that Ms.

Tardif has no prior convictions, I am satisfied that shemeets both the test of a conditional discharge not being contrary to the public interest as well as the test of it not being contrary to herinterests. [26] Accordingly, notwithstanding the fact that this is a charge where the circumstance could have given rise to a very seriousmatter, I am satisfied on balance that a conditional discharge is an appropriate disposition. [27] However, the conditional discharge will come with some significant conditions attached to it. [28] I am going to ask Ms. Tardif to please stand. [29] Ms.

Tardif, I am saying this to you, as I say to most people that appear before me, any conditions that I impose upon you arethings you must do. They are not to be considered anything in the nature of a suggestion. [30] So what I am going to do is I am going to put you on a probation order attached to the conditional discharge.

If you satisfy theterms of that probation order, you will gain the benefit of a discharge, and that is no criminal record. [31] The terms will continue for three years: you must keep the peace and be of good behaviour and attend court when required todo so by the court. [32] You are to report to and be under the supervision of a probation officer.

I am going to require that you report by 4 p.m.tomorrow here in Nanaimo at the address that will be provided to you, as I say, in person and thereafter as directed. [33] You must notify the court or your probation officer of your current residential address, and you are not to change that addresswithout the prior permission of your probation officer. [34] I am going to put you on a condition that -- I am going to pause here for a moment. Is alcohol an issue here? [35] MR. KING: I think if Your Honour looks at the report, there is not an issue about alcohol or -- [36] THE COURT: Or drugs that I saw. [37] MR.

KING: Yeah, right. [38] THE COURT: All right. I am going to put you on a condition that you must have no contact, directly or indirectly, with Ms.Linsey Warren -- with this exception: except that you may have indirect contact with her through any legal counsel involved as a resultor in order to assist in the resolution or trial of any civil matters that may be in existence between the two of you. I am going to alsoindicate that you are not to attend at any place of employment, education or residence of Ms. Warren.

[ 39 ] I am going to indicate that you must complete 200 hours of community work service at the direction and to the satisfaction of a probation officer, and you must do that within the first 30 months of your probation order. [ 40 ] I am also going to require you that you must attend, participate and successfully complete in any assessment and any counselling as directed by your probation officer. [ 41 ] Those, I believe, are the appropriate orders that I will make, except that I will make the order pursuant to s. 110; that is a 10- year ban on firearm possession. [ 42 ] I believe that those are all the conditions that I should be imposing. [ 43 ] Are there any other conditions, Mr.

Barber, that you would be seeking? [ 44 ] MR. BARBER: I think, Your Honour, thank you, that there are going to be a number of firearms that need to be . . . [ 45 ] THE CLERK: We need a surrender time and date and place. [ 46 ] MR. BARBER: Yeah. I don't know if there still are firearms in the home, but there -- [ 47 ] THE COURT: Are there any firearms in the home? [ 48 ] MR. BARBER: -- certainly are firearms in the possession of the RCMP. [ 49 ] THE COURT: Well, what I am going to do is I am going to make -- Mr. King? [ 50 ] MR. KING: May I make a submission? [ 51 ] THE COURT: Please. [ 52 ] MR.

KING: I am not sure whether she owns all these firearms or not, Your Honour. So I wonder if she can have -- usually there is an order saying that you must divest yourself of any firearms in your possession, any in the RCMP that you own, you have 30 days to either sell or transfer to someone who has a firearms permit. [ 53 ] THE COURT: Does she have a firearms permit? [ 54 ] MR. KING: No. So she has to give them to -- not now. So she does not have one now. So usually they let her either give them back to her dad or if they are family heirlooms or sell them. They are in the possession of the RCMP.

If someone comes and she -- [ 55 ] THE COURT: So they are presently in the possession of the RCMP, is that correct? [ 56 ] MR. KING: Yes. [ 57 ] THE COURT: All right. Well, I am going to make an order that if she has any further firearms, she must arrange to surrender those to the RCMP within 48 hours of today's date.

That would be surrendered I am going to make it to the Nanaimo RCMP. [ 58 ] Then the second order I am going to make is that she has 60 days from today's date in order to arrange for the release and disposition of any firearms that are in the possession of the RCMP to persons who are qualified to hold or to receive those firearms. [ 59 ] MR. KING: And thereafter, they are to be destroyed. [ 60 ] THE COURT: Thereafter -- I will make that order, thereafter to be destroyed. Is 60 days going to be sufficient? [ 61 ] THE ACCUSED: It should be. [ 62 ] THE COURT: I will make it 120 -- I will change that to 120 days.

All right, that will give you sufficient time in order to deal with that, and also to resolve any issues that may arise as to the ownership of any of those particular weapons. All right. [ 63 ] MR. BARBER: The victim fine surcharge. [ 64 ] THE COURT: All right. This occurred -- [ 65 ] MR. BARBER: Predates -- predates the legislative changes, Your Honour. [ 66 ] THE COURT: Predates the legislation. [ 67 ] MR. BARBER: Yeah. [ 68 ] THE COURT: I am going to give you six months to pay the victim surcharge that runs with this particular charge. [REASONS CONCLUDED]