R. v. P.V.R. Date:, 2011 BCPC 417

Citation: R. v. P.V.R. Date: 20110913 2011 BCPC 0417 File No: 75814-2, 31504-B-1 Registry: Williams Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. P.V.R. RULING ON APPLICATION OF THE HONOURABLE JUDGE E. L. BAYLIFF Counsel for the Crown: S. Thompson Counsel for the Defendant: B. Smith Counsel for : Place of Hearing: Williams Lake , B.C. Date of Hearing: July 22, August 8, September 8, 2011 Date of Judgment: September 13, 2011 [ 1 ] P.V.R. applies to amend the residency clause of his s. 810.2 Recognizance. There is also the matter of his bail status to be decided.

P.V.R. has been in jail since the evening of July 19 th , 2011 on charges of breaching his residency clause and failing to report as directed. He also faces a charge of uttering a threat to the R.C.M.P. as a result of some things he said in a state of anger following his arrest. As well he faces charges of assaulting and obstructing a peace officer last week on September 6 th at police cells here in Williams Lake. I heard evidence on the bail hearing on July 22 nd and August 8 th . I heard further evidence on the application to amend on September 8 th and reserved judgment until today.

When I refer to exhibits I will use the numbers assigned on September 8 th . [ 2 ] I will begin by telling you what I have decided. [ 3 ] I have decided to grant the amendment to the residency clause sought by P.V.R.. Instead of requiring that he reside in a residence “approved” by the probation officer, the condition will now require that he maintain his residence at the home he and his wife own in Horsefly.

If he decides to move away from that location then he will be required to obtain the approval of his probation officer for any proposed new place of residence. [ 4 ] I will also amend the recognizance in certain other ways with the goal of encouraging P.V.R. to take responsibility for his own future and for his own good conduct. It is true that he will continue to be subject to many rules and guidelines under this Recognizance and he will be expected to obey them.

However, as he himself said, the best guarantee of his good conduct is if he decides that he will live well; in his own words, if he decides each day that “there will be no more victims”. He is correct to be thinking in this way and I have made a few small changes to other terms in the Recognizance to encourage and promote this effort by him to take responsibility to keep each and every member of his community – male and female, young and old – safe. And, of course, not only will this help the community, it will also help him.

It is only in this way that he will be able to spend the second half of his life outside of jails and halfway houses and bit by bit re-integrate into society. [ 5 ] As it concerns bail, I will release P.V.R. on an undertaking to appear back in court here in Williams Lake on a future date, convenient to counsel, to deal with his current charges. Alternatively, he may wish to deal with those charges in some sort of final

manner today. [ 6 ] I will now give my reasons for the decisions I have made in P.V.R.’s case. [ 7 ] P.V.R.’s background is fairly well understood I believe by most members of this community. It is well summarized in the public notification published in local media by the RCMP on or about June 21 st of this year (Exhibit 13). P.V.R. is now 44 years old. He has a criminal record involving violent sexual offences. He committed two crimes of this sort. The first was when he was 17 years old. This was back in 1986. The second was when he was 22 years old, in 1989.

The victims were teenage girls that he knew, either as a friend, or in the second case, as a sexual or romantic partner. The third and final major sexual crime committed by P.V.R. was in 1998 when he was 32 years old. He sexually assaulted his 10 year old daughter by fondling her private parts. This occurred within his home over a 2 month period while the child’s mother was out shopping or doing errands. [ 8 ] In 2002 P.V.R. was designated a “long term offender” pursuant to s. 753.1(3) of the Criminal Code and placed on a long term supervision order for a period of 8 years.

P.V.R.’s long term supervision order came to an end on June 20 th of this year. Up to that date he was supervised by federal parole officers. With his federal order expiring, the Province of British Columbia became involved. The province applied for a 2 year Recognizance pursuant to s. 810.2 of the Criminal Code with similar conditions to those in the federal supervision order.

This application was brought in Abbotsford rather than Williams Lake because, I believe, the High Risk Recognizance Advisory Committee (HRRAC) is based in Abbotsford. [ 9 ] P.V.R. knew that the provincial Crown would probably seek such a Recognizance and, after discussing the matter with a lawyer, he voluntarily entered into the order on June 17 th , 2011 in front of Judge Young in Abbotsford.

Although the residency term – condition #4 - provides that P.V.R. shall live in a residence “approved” by his probation officer it is clear that everyone involved in the Abbotsford proceeding – the lawyers representing the Crown and the Defence, P.V.R., the HRRAC representative or coordinator (a police officer) who was present in the Abbotsford court that day and Judge Young – understood that the plan was for P.V.R. to live with his wife, K.R., at a specific address, namely the trailer home which they owned together in Horsefly, a small community about 45 minutes to 1 hour drive east of Williams Lake.

This is certainly the impression left by the HRRAC Case Review prepared in May of this year which says on its front page: “Proposed Release Plan: P.V.R. has stated that he will reside in Horsefly, British Columbia.” [ 10 ] The P.V.R.’s had purchased their home in Horsefly about 8 months earlier - in October, 2010 - in anticipation of the ending of his federal supervision order. K.R. had received a settlement from ICBC and they looked around for something that was affordable. Both had lived most of their lives in Squamish and the Lower Mainland. Neither had ever before had the money to buy their own home.

Although the psychologist expresses skepticism about P.V.R.’s reasons for purchasing property in Horsefly I am, by and large, not able to share in that skepticism. I think it is understandable that a man and a woman who have lived all their lives in relative poverty in rented accommodations in urban areas should dream of owning their own home in a quieter and more beautiful setting. I am sure that P.V.R. and K.R. also hoped that by moving away from the Lower Mainland they might escape some of the rules and constraints of urban life.

They would certainly not be the first people to move the Cariboo with this in mind. However, I cannot find that it has in any sense been established that their move was a calculated attempt to find a location where P.V.R. could pursue criminal sexual behavior far from the eyes and ears of the authorities. [ 11 ] The federal parole authorities knew that P.V.R. had been regularly spending weekends in Horsefly ever since buying the home in the fall of 2010. The RCMP in Williams Lake also knew P.V.R. had been regularly spending time in the area.

P.V.R. says he met a number of times with an officer at the local detachment, at their request, so that they could get to know who he was and make a current photograph of him. [ 12 ] Throughout this period – from the fall of 2010 when the P.V.R. and K.R. began looking for a place to buy, through the selection and purchase of the Horsefly trailer home on October 17 th , through winter 2010 and spring 2011 – no one from either the federal parole agency, the HRRAC, or the police, told the P.V.R. and K.R. that P.V.R. could not or should not live at that location.

No one sounded a caution about the fact that this location might not be considered acceptable by the provincial probation authorities even though it was apparently acceptable to the federal parole authorities. As P.V.R. said, “if we had known it was not going to be approved we probably would not have bought at all or we would not have bought there”. [ 13 ] To complicate matters, Mr. Johnson, who does parole supervision in this area on a contract basis for the federal agency, also works as a provincial probation officer.

Wearing his ‘federal hat’ he visited the P.V.R. and K.R. at their residence in Horsefly on many weekends over the 8 months between when they bought the property in October of last year and the end of the federal order on June 20 th of this year. Although I am quite satisfied that Mr. Johnson did everything he could to make it clear to P.V.R. and K.R. that he was supervising them in his federal capacity and that he had no authority to “approve” the Horsefly residence pursuant to the provincial s. 810.2 Recognizance, P.V.R. and K.R. and their lawyer certainly seemed to have formed the expectation that because Mr.

Johnson worked for both levels of government this somehow guaranteed that the province would “approve” their home in Horsefly as a suitable residence for P.V.R.. [ 14 ] With this history in mind it becomes easier to understand why all parties concerned in the June 17 th court appearance before Judge Young in Abbotsford proceeded on the understanding that P.V.R. would be living at his home in Horsefly and that this was a matter of agreement by both the provincial Crown and P.V.R. and K.R.. Here is what was said on the subject before Judge Young: “ Judge Young : …Whereabouts is P.V.R. going to live? Mr.

Birch, Defence Counsel : Yes, Your Honour, he and his wife actually live in a community called Horsefly, B.C. which is – I believe its about 70 kilometres north-east of Williams Lake, yes, and the Crown and the police are – they’re all quite aware of that. He’s been living up there.

He has been at Harbour Light Community Residential facility, or halfway house, in downtown Vancouver for years, but as he’s come closer to the end of his long-term supervision order term, he has been getting passes to go up and live in Horsefly with his wife for the past eight months, and so really this is – and that – he’s been meeting with the federal parole officer for that region up there as well.

The home has been screened by federal and provincial, I believe – it’s the same person, actually, Corrections officials , and this is really a transition to the next phase, I suppose for P.V.R., in that it’s – it’s kind of an inevitability that he – he’s known this for years that at the end of the long-term supervision term that the Crown would undoubtedly bring an 810 type application to keep some form of conditions on him until he’s at least proven that he can succeed in the community for a period of time, and my friend and I have negotiated out these conditions at some length and they’re largely what the—they’re about 95 percent exactly what the police asked for, so –“ [emphasis added] (Exhibit 1, p. 2, ll. 10-41) [ 15 ] Defence counsel was not correct, of course, in stating to Judge Young that “The home has been screened by federal and provincial, I believe – it’s the same person actually – Corrections officials…”.

The home had been screened only by the federal officials and not by the province. However, I am quite satisfied that no one who was present that day realized this and this is why neither the Crown prosecutor nor the HRRAC coordinator spoke up to correct what Defence counsel said. The expectation of all was, as P.V.R. and K.R. have stated, that P.V.R. would be able to continue to make his home in Horsefly while subject to the s. 810.2 Recognizance.

Put another way, everyone expected that P.V.R. and K.R.’s residence in Horsefly would be “approved’ by the provincial probation office as it apparently had been by the federal parole office. [ 16 ] June 17 th was a Friday. P.V.R. and K.R. drove back up to the Cariboo over the weekend and on Monday, June 20 th P.V.R. reported in for the first time to the Williams Lake Community Corrections (Adult Probation) office. Mr. Miller gave P.V.R. conditional approval to reside at the Horsefly address. The following day Mr. Miller travelled out to P.V.R. and K.R.’ home to see it for himself.

He had P.V.R. sign a “Residence Approval” document (Exhibit 5) but did explain to P.V.R. that he was not yet fully familiar with P.V.R.’s file and that the approval of residence was conditional and could be withdrawn if further information was received. [ 17 ] During the course of that week several things happened. The R.C.M.P. published the public notification concerning P.V.R.. Many people throughout the Cariboo who read or heard this notice were frightened and angered to learn of P.V.R.’s presence in Horsefly.

The probation office and the police received an unprecedented number of complaints from members of the public and political representatives. There was threat of vigilante action. At the same time, Mr. Miller received a copy of P.V.R.’s file from Abbotsford and reviewed the psychological risk assessment and other documents. By Friday, June 24 th , in consultation with his superiors, Mr. Miller decided that he would have to revoke the approval he had earlier granted for P.V.R. to reside at his home in Horsefly.

He wrote a letter to P.V.R. to this effect on June 24 th and dropped it off at P.V.R. and K.R.’s home the following Monday, June 27 th . [ 18 ] Over the next three weeks there were a number of heated meetings between the probation officers and P.V.R.. They insisted he find another residence but those he proposed (his mother’s and brother’s residences in Squamish plus some motels) were not deemed appropriate due to the proximity of children. On July 18 th the charge of breaching the “approved residence” term of his Recognizance was laid against P.V.R.. A warrant issued for his arrest.

He refused to turn himself in so the R.C.M.P. went out to his residence in Horsefly on the evening of July 19 th and arrested him and he has been in custody since then. [ 19 ] It is against this backdrop that P.V.R. brings his application to delete the “approved residence” term and substitute a term that requires him to reside at a specific address, namely, his home in Horsefly. As I said at the beginning, I have decided that I must allow P.V.R.’s application. [ 20 ] I reach this conclusion for several reasons.

First, given the history of the matter, P.V.R.’s belief that he could continue to live at his residence in Horsefly was reasonable. It was never suggested to him at any stage that the residence might not be approved. As he said, if this had been raised he and his wife might not have used her settlement money to buy a place – they might have decided it was safer to continue to rent - or they might have bought elsewhere.

Second, there is no clear evidence that P.V.R. has actually done anything wrong or that anything has changed since he has been living in Horsefly such that he should now not be permitted to live there. I respect the fact that the province has different policies and guidelines than the federal government. I also accept that the decisions that have been made in P.V.R.’s case have been made for the reasons stated, in accordance with policy guidelines, and not because of some veiled attempt to “run him out of town”. However, the court must also look at these things from the point of view of the citizen.

P.V.R. feels that he has been treated inconsistently by the two levels of government and that feeling is reasonable in the circumstances. Third, and most important, the evidence fails to establish that P.V.R. poses a greater risk residing at his home in Horsefly than he would residing in some more populated location such as Williams Lake, Squamish or even Vancouver. [ 21 ] I will say more about this last point. [ 22 ] It is true that the nearest police detachment and probation office are located about an hour’s drive from Horsefly.

However, there has been a public notification and I am satisfied that P.V.R.’s conduct will actually be scrutinized more closely in a small community like Horsefly than it would be in a larger centre because in small communities it is still possible to “know your neighbor”. [ 23 ] It is true as well that the trailer park where P.V.R. and K.R.’s mobile home is located is not an “adults only” facility. I have assumed, in reaching my decision, that the family with three children referred to by Mr.

Miller did, in fact, move into the park in the course of the summer and that he will be living in fairly close proximity to children. However, as Defence counsel has argued, there are not many places where a person could live that this would not be the case. Even “adults only” housing complexes will occasionally have children visiting their grandparents or other relatives. No clear alternative was put forward in the evidence as a place where P.V.R. could live.

He and his wife no longer have the money necessary to get their mobile home moved even assuming it could be moved (K.R. received advice from two different movers that their mobile may be too old to move safely). There was talk of the Jubilee Society facility in the old Jamboree Motel in Williams Lake but my concern with that location is partly, as Defence counsel has pointed out, the proximity of a high school and a park.

Also, as I understand it, that facility specializes in providing housing for vulnerable and “hard to house” citizens and it seems to me this would not be a good placement for P.V.R. given his history of victimizing vulnerable, naïve females. There is also a waiting list to get into the Jubilee and there was no clear suggestion put forward for where P.V.R. might live

until a unit in the Jubilee became available. [ 24 ] On this point – the proximity of children to the Horsefly residence – I do think it appropriate to observe that P.V.R.’s pattern of offending was against young females with whom he already had some sort of relationship – friendship, a romantic or sexual relationship and, in the case of his daughter, a familial relationship. P.V.R.’s pattern has never been to offend against strangers or to seize or kidnap young people. I would also add that it has not been P.V.R.’s pattern to offend in wilderness areas – in parks and secluded areas within an urban setting, yes, but not in the wilderness. In

summary on this point, I cannot find that P.V.R. poses any greater threat residing in his home in Horsefly than he would if he were residing in a more urban location. [ 25 ] I would pause at this point to say that one of the amendments I intend to order to P.V.R.’s s. 810.2 Recognizance deals with obtaining an up to date psychological assessment. P.V.R. testified that it has been about 12 years since he was assessed and agreed that it was time another one was done. It is important to know whether, in the opinion of an expert, P.V.R. in his 40’s poses the same sort of risk as he did in his teens and 20’s.

Such an assessment may also be able to offer useful guidance on how best to ensure P.V.R.’s good conduct in the community from this point forward. [ 26 ] Finally, it is true that, by all accounts, P.V.R. is someone who is extremely difficult to supervise. He is often not honest with his supervisors. He breached his long term supervision order many times and some of the breaches were serious, involving relations with vulnerable females. Although these relationships were consensual and apparently free from violence they amounted to serious breaches of his order and he served jail time for them.

He is quick to anger. When angry he is very hostile and uses foul language. It is often impossible to reason with him. I have seen this side of P.V.R. several times in court. Defence counsel argues that this is partly because P.V.R. is “institutionalized” which is to say that he has spent so much of his life – about 25 years – in federal penitentiaries and half-way houses that he does not know any other way to behave. There is probably some truth to this. But, the evidence indicates it runs deeper than that.

The psychological risk assessment makes it clear that P.V.R. is someone who has very little ability to feel empathy or understanding for the feelings of others. He has taken a number of programs to try to train him to think of others before he acts and he is able to state what he has learned but there is real doubt that he is actually able to feel for others particularly when they are telling him “No” or telling him something he doesn’t want to hear.

Oddly enough, the report does hint that he is able to love and feel for his dogs. [ 27 ] I realize that it would probably be easier for the probation officers if P.V.R. were living closer to their office. However, it is also quite clear that if P.V.R. is forced to move away from his home at this point he will feel, with good reason, that he has been treated unfairly. This will only increase his anger and hostility and will do nothing to protect the public.

In fact, it will have, in my respectful view, quite the contrary effect. [ 28 ] The amendments I have decided to make to P.V.R.’s s. 810.2 Recognizance in light of all of these considerations are underlined in the attached Appendix A. [ 29 ] Turning now to the bail issue – as I said to P.V.R. back on August 8 th , the Crown had a strong case for detention on the “secondary” ground given P.V.R.’s angry statements to S/Sgt.

Brown on the morning of July 20 th (Exhibit 9) to the effect that it didn’t matter what the bail court judge or anyone else said, he was just going to go right back home to Horsefly if he was released. The following is a brief example: p. 7: “…[I]t doesn’t matter what a judge does, what anybody says, as soon as I leave there [court] I’m going home! I own the * thing and I’m gonna live there! …. I’m not * moving out of my home!

I did not pay * ninety thousand dollars to live in a * hotel in Williams Lake!” [* expletive deleted] [ 30 ] However, after calming down a little, P.V.R., with the help of his lawyer, brought on the application to amend the residency clause and I have, for the reasons stated, decided to allow that application. P.V.R. can go back and live at his home in Horsefly although he continues to be subject to 20 other terms and conditions (see Appendix A).

This largely resolves the bail concern and I hereby order that P.V.R. be released on his Undertaking to keep the peace and be of good behavior and to return to court on a date convenient for counsel to deal with his outstanding charges. [ 31 ] This concludes my Ruling. In closing I will simply say that I hope P.V.R. will look forward from here and take responsibility for his own good conduct in the community. He told me that he has already been doing this on a daily basis and I rely on him to continue to do so. __________________________ Bayliff, E.L., P.C.J.

Appendix A Condition #1: You shall keep the peace and be of good behavior and you shall comply with the reasonable instructions of your supervising probation officer; such instructions being made to further the purpose of this recognizance which is to secure your good

conduct. Condition #2: You shall report in person immediately to a probation officer at -------------, Williams Lake, B.C. and thereafter as, how and when directed by your probation officer. Condition #3: You shall report in person immediately to S/Sgt. Warren Brown or his designate at the Williams Lake detachment of the R.C.M.P. and request that the provincial 810 coordinator at the Abbotsford Police Department/R.C.M.P. E Division, Criminal Investigation Branch at 32385 South Fraser Way be advised of the amended terms of your Recognizance.

After today you shall report as directed by the R.C.M.P. until the expiration of this order. Condition #4: You shall maintain your place of residence at Site # 1 – 3128 Hooker Road, in the settlement of Horsefly, B.C. and if you intend to move from that place you must first seek and receive the written approval of your supervising probation officer for your proposed new place of residence, or, alternatively, the approval of the court. This approval requirement is a continuing condition of this recognizance.

Condition #5: You shall remain within the Province of British Columbia unless prior written permission to go outside the province is obtained from the court or your probation officer.

Condition #6: You shall choose a qualified psychologist (approved also by your supervising probation officer) and attend upon that person as required so that he or she can prepare a report focusing upon the need to secure your good conduct in the community of Horsefly and elsewhere and recommendations to achieve and sustain that goal. (It is noted that you specifically consented to undergo an up-dated psychological assessment in open court in Williams Lake on September 8 th , 2011. The court recognizes that such professional assessment will only be possible if the cost is borne by government).

Condition #7: You shall attend and participate in counseling or programming as directed by your probation officer with the goal of managing your risk factors so as to secure your good conduct in the community. Condition #8: [formerly # 7] You shall have no contact, direct or indirect, with any of the victims of offences for which you have been convicted or any known members of their immediate families.

Condition #9: [formerly # 8] You shall not attend within 300 metres of any known residence, place of employment or educational facility of any of the victims of offences for which you have been convicted or any known members of their immediate families. Condition #10: [formerly # 9] You shall immediately advise the probation officer of any close, intimate, familiar or familial relationship with a female person, and refrain from continuing with that relationship until that female person has been advised of your criminal record in the presence of the probation officer.

Condition #11: [formerly #10] You shall immediately advise the probation officer of all relationships with the parents or guardians of children and consent to those individuals being informed of your criminal history in the presence of the probation officer. Condition #12: [formerly #11] You shall not possess any knives except for the immediate preparation and consumption of food.

Condition #13: [formerly #12] You shall not possess, own or carry any weapon, including but not limited to any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, and any related authorizations, licenses and registration certificates. Nor are you to possess any imitation firearm or imitation of those other items listed in this condition.

Condition #14: [formerly #13] You shall not consume or possess alcohol or any controlled substances as listed in the Controlled Drugs and Substances Act, excluding prescription medication prescribed for you by a licensed physician or dentist, and you can only consume prescribed medication in the dosage prescribed by the doctor or dentist. Condition #15: [formerly #14] You shall provide the make, model, colour and license number of any vehicle to which you have access to your supervising probation officer.

Condition #16: [formerly #15] You shall have no contact, direct or indirect, with anyone under the age of 16 years, save and except if involved in a commercial transaction in the community. Condition #17: [formerly #16] You must not attend any daycare centre, school ground or playground. Condition #18: [formerly #17] You must not attend at any public park, or swimming area where persons under the age of 16 are present. Condition #19: [formerly #18] You shall not be in any contact with any sex trade workers.

You are not to negotiate for sexual services and you are not to obtain or engage in sexual services for money or other consideration. Condition #20: [formerly #19] You shall not use chat lines, dating services, internet dating sites, introduction services, or any other similar services. Condition #21: You are not to associate with anyone named by your probation officer in writing , who your probation officer has determined to be a detriment to your programming, counseling or reintegration into the community.