R. v. Hughes Date:, 2011 BCPC 381

Citation: R. v. Hughes Date: 20111109 2011 BCPC 0381 File No: 76021-1-K Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BERNARD GEORGE HUGHES ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R.R. SMITH Counsel for the Crown: M. Nadon Counsel for the Defendant: D. Johnson Place of Hearing: Kelowna , B.C. Date of Hearing: November 9, 2011 Date of Judgment: November 9, 2011 [ 1 ] THE COURT: Before me today for sentencing is 49-year-old Bernard Hughes. He is charged with the common assault of his common-law, T.C., on the 22nd of October 2011.

He is also charged with an assault causing bodily harm of T.C. on the subsequent day of the 23rd of October 2011. [ 2 ] By way of criminal record, he has four criminal convictions, most of which is pretty old. In 1982, in Nova Scotia, break and enter times two, dealt with by way of a two-month jail sentence and two years probation. The third conviction was in 1993, in Kelowna, possession of marihuana, a $150 fine.

The fourth more relevant conviction was on the 25th of May 2010, an assault on his common-law, T.C., dealt with by way of a suspended sentence and one-year probation, and a term that he not drink, among other things. I will deal more with that in a moment. [ 3 ] In this sentencing, the Crown has made multiple allegations of prior assaultive behaviour, in circumstances where there were no criminal convictions for that alleged assaultive behaviour.

There are limits with regards to how much that type of information can be used, but, in domestic matters, the higher courts have stated that the courts ought to look at the overall history between the parties, as best as the courts can. [ 4 ] To that end, I will summarize the seven alleged incidents:

(1) The 6th of May 2005, the accused was actually charged with assaulting Ms. C., but on the 30th of January 2006, there was a stay of proceedings. From the Crown perspective, that stay occurred because Ms. C. was telling the Crown something different than what she had initially told the police and the Crown thought of her as an uncooperative witness.

(2) On the 5th of November 2008, the accused was arrested for assaulting Ms. C., in circumstances where she had a goose egg on her forehead and other fresh bruises. Again, no charges were approved, in circumstances where Ms. C. refused to cooperate with providing any formal statement, after having initially indicated having been assaulted.

(3) On the 31st of July 2009, police investigated an abandoned 9-1-1 call, and the police attended at the residence and found the couple still verbally arguing, but both were denying any physical assault. The police eventually left the residence on that 31st of July 2009, in circumstances where no charges were laid.

(4) On the 4th of September 2009, Ms. C. called 9-1-1 to complain about being assaulted by Mr. Hughes, in circumstances where he was kicking her in the back and locking her out of the residence, but yet again the police attend and investigate, but when it came time for any formal statement, Ms. C. yet again refused to provide any such statement. In those circumstances, no charges were laid.

(5) On the 27th of November 2009, police attend yet again at the residence, for yet another abandoned 9-1-1 call. Ms. C. had bruises on her arms and bumps on her head and initially stated that the accused had slammed her head into the wall three times. However, she yet again refused to provide a formal statement, thus no criminal charges were laid.

(6) The 2nd of February 2010, Mr. Hughes assaulted Ms. C., in the process breaking three of her ribs. Mr. Hughes was charged initially with assault causing bodily harm but subsequent to the charging, Ms. C. wrote repeatedly to the Crown, wanting the matter not to proceed. Eventually, the Crown chose to proceed, but accepted a guilty plea on the reduced charge of common assault and that sentencing occurred on the 25th of May 2010. So that is the one of all of these incidents where there was actually a conviction which led to the 25th of May 2010 suspended sentence, with a one-year probation order.

(7) However, on that 2nd of February 2010 matter, the accused had been released in early February on some type of a bail condition, not to attend at the residence of Ms. C. It is unclear to me who complained, but somebody complained that Mr. Hughes was at the residence, hence number seven in this list of one to seven. [ 5 ] On the 9th of February 2010, the police again are at the residence investigating whether or not Mr. Hughes is there, in breach of his bail conditions. Ms. C., who was recently out of a hospital, is there and claims that Mr.

Hughes has not been there and, accordingly, that investigation ends. [ 6 ] This brings us to the current two charges of a common assault on Ms. C. on October 22nd, 2011, and an assault causing bodily harm on the 23rd of October 2011. On that 23rd of October 2011 date, at five minutes before midnight, police received yet again a 9-1-1 call; this time not from Ms. C., but rather from her neighbour who lived in an apartment down the hall. [ 7 ] That neighbour reported hearing noises consistent with violence going on in Mr. Hughes' and Ms. C.'s residence, and then hearing Ms.

C. come out of that residence and come knocking on the door of the neighbour, in circumstances where Ms. C. was bleeding from the head and had a bloody rag that she was trying to contain the bleeding with. [ 8 ] The neighbour tells police that she said she would call the police, but before that call could be made, Mr. Hughes came out of his apartment and into the hallway, where they were, and grabbed Ms. C. by the hair and pulled her back to his apartment and that the neighbour then called 9-1-1. [ 9 ] Mr. Hughes, through his counsel, states that it did not quite go down that way.

He says that he did not grab her by the hair, but alternatively grabbed her by the arm and pulled her back into the apartment. [ 10 ] What is clear is that the neighbour did call 9-1-1 immediately thereafter, and within five minutes the police arrived and spoke firstly with the neighbour. Police could hear Mr. Hughes' raised voice in Mr. Hughes' apartment. Police overheard Mr. Hughes calling Ms. C. colourful names, such as a cunt, and they could hear Ms. C. crying. [ 11 ] Police knocked on the door of Mr. Hughes'.

Without opening the door, he responded, "What do you want?" And, of course, police said they wanted to come in because, in effect, they were investigating the alleged assault. Police say that Mr. Hughes responded by saying, "No," that he was not going to let him in, but simultaneously they heard Ms. C. in the background saying, "Don't touch me." And in those circumstances, the police simply booted in the door. [ 12 ] Either in the process of booting in the door or the subsequent forceful takedown of the accused, the accused received a gash to his forehead which eventually required three stitches.

With this forceful takedown, the police put a chokehold on the accused, took him to the ground in the direction of the hallway, out in the hallway, and as they were handcuffing him and taking him out, Ms. C. came out into the hallway area and police say that Mr. Hughes blurted out to Ms. C., "Fix this T.. Get me out of this." [ 13 ] After the accused was escorted out, Ms. C. told the police that she had been sleeping when Mr.

Hughes dragged her out of bed by the hair, demanding a cigarette and, in the process, she claims that while she was being dragged, her forehead somehow hit the wall and that she was bleeding; that he also threw her into the wall; that she had fled to the neighbour's door, but that Mr. Hughes had come and pulled her back into the apartment and thrown her into the wall again. [ 14 ] So these are things that she tells the police initially, but, of course, the pattern of the past continued. I do not know if she ever put that formally in writing.

Maybe she did, but I did not hear of her giving any written statement to that effect. That is just what she blurted out to the police initially, without ever formally giving a written statement. [ 15 ] It was obvious that she already had a black eye and she said, "Well, I got that black eye the day prior when he assaulted me by throwing a lighter at me and striking me in the eye with a lighter." Hence, the Count 1 common assault charge on the 22nd of October 2011, and the assault causing bodily harm, Count 2, on the 23rd of October 2011.

She had a pretty nasty gash on her forehead, as well, and was taken to the hospital, where she needed stitches to stitch it up. [ 16 ] So while she is at the hospital, the accused had been taken to the detachment and there yet again re-warning him of his right to

counsel and, in the process, they say that his response to the police was, "Shove it up your fucking ass. You have nothing for evidence." [ 17 ] Police further stated that at one point Mr. Hughes pretended as if he was going to spit on the officer. Shortly thereafter, Mr. Hughes was taken to the hospital so that he could get his cut on the forehead stitched up with three stitches and then he was returned back to custody. [ 18 ] Ms. C. has written a victim impact statement.

If you read that victim impact statement, it reads like a love letter, where she loves this guy and wants him back, and thinks he is a great guy, and he is her primary supporter. Evidently, she has Hep C and Attention Deficit Hyperactivity Disorder, and is receiving other types of medications and needs to eat regularly and take medications regularly and needs a caretaker, according to the letter from her doctor, and sees Mr. Hughes as her primary caregiver.

He is also her employer when she is working in the construction business, because he is self-employed with construction and a ticketed carpenter and does concrete work and is basically a jack-of-all trades when it comes to construction and renovation. [ 19 ] The accused has now been in custody 17 days. The Crown says that when I take into consideration the 17 days of custody time pre-sentencing, I should now impose a fine and probation.

I am a bit surprised at that submission given the seriousness of all of this. [ 20 ] Defence counsel submits that I should deal with it by way of a nominal one-day jail in recognition of the time served. Both Crown and defence agree that a lengthy probation order should follow. I just think I see this a whole lot more seriously than counsel are seeing it.

I think this is an awful set of circumstances, with an accused who does not have a lot of record, fair enough, but part of his record is assaulting this very same lady, and we have a lady who for whatever reason, notwithstanding a fairly significant history of physical abuse, wants him back, sees him as her primary caregiver. [ 21 ] I did not make a note of it, but at some point I was told that she had told the police that all she wanted to do was to be able to live long enough to -- you know, keep living in order to be able to see her daughter and grandchild, and wanted the police intervention to make sure that she would be able to live enough to do that.

I think that is an intuitive and accurate assessment. She is doing everything she can do to try putting as much support for Mr. Hughes as she possibly can, because she says she wants him back and loves him. [ 22 ] There is a lot of fundamental sentencing principles here that I have to consider.

Section 718 and 718.1, of course, talks about a lot of those general principles and other fundamental principles of sentencing. My sentence has to denounce unlawful conduct, and it needs to create both specific and general deterrence. Where necessary, the sentence needs to separate offenders from society. The sentence ought to look at assisting in the rehabilitation of an offender and provide reparations to both the victim and the community. It ought to promote a sense of responsibility in offenders and acknowledgement of the harm done to a victim and to the community.

I am to consider the proportionality of the sentence to the gravity of the offence and how it fits with other sentences. And I am to look at the totality of consecutive sentences when there is two counts like this, and I am to look at the aggravating and mitigating circumstances and give emphasis on community sanctions whenever appropriate. [ 23 ] There are both aggravating and mitigating circumstances. The mitigating circumstances include the guilty plea. He truly has pled guilty in circumstances where it is not too likely the Crown would have had much cooperation with Ms.

C. with regards to giving evidence and would had to have relied a lot on the observations of the neighbour and the observations of the police, somewhat after the fact. So weight does need to be given to a guilty plea in these circumstances. That is mitigating. It is also mitigating that he has now done 17 days of dead time. [ 24 ] However, there are aggravating circumstances. The fact that he has a prior conviction for assaulting this very same complainant is extremely aggravating.

The fact that it involves two separate assaults and not just one -- one on the 22nd and another on the 23rd -- is aggravating. [ 25 ] And it is this next point that I wanted to pause on, that it is aggravating that it is a domestic assault. The courts always, always, always say it is an aggravating factor because of the position of trust in family relationships, and then one wonders if it is just lip service because it seems to inevitably end up in a softer, as opposed to a harder sentence, when it is involving a domestic assault, in spite of everyone saying it is an aggravating factor.

That is confusing to everyone. [ 26 ] I think it is somewhat understandable when someone is first time before the courts for some type of a domestic dispute like this or a domestic assault. Of course, if the parties are wanting to reconcile, the courts have an obligation to, with some care, craft orders that could facilitate rehabilitation and re-integration of the family.

However, at times when the relationship between the two becomes too toxic, the focus needs to move away from some order that might reconcile the family and to deal simply with keeping the peace. [ 27 ] The Crown says that they concede that regardless of what order is made today, it might be difficult for these two to stay apart in circumstances where it is pretty clear that Ms. C. has no intention of staying away from Mr. Hughes, even if I were to put terms on Mr.

Hughes for him to stay away. [ 28 ] So, just to summarize, I do not take it as a given that there were all of these earlier multiple assaults that were alleged. They have not been proven in a court of law, but that having been said, it is pretty clear that there is a pattern here of violence in the relationship that is far broader than just the one prior conviction and now the ones that I am sentencing here. Putting fault aside, there is clearly a pattern of violence in the relationship, such that the state becomes involved.

All of these 9-1-1 calls, and police forces having to spend their time going and investigating, and the time at the hospital, the court time, the time working with the probation officer; clearly society has a vested interest in the outcome of this, not just the parties themselves. [ 29 ] I am told that when Mr. Hughes was on probation, a year and a half ago -- that would have been on the 25th of May 2010 when Ms. C. refused to make the statement, but there was sufficient evidence that it proceeded and he pled guilty to that lesser offence of common assault, in circumstances where her three ribs were broken.

When he was on probation for all of that for the year, starting the 25th of May, I am told they maintained sobriety. And, you know, that might be true, because when I look at all of these events, they seem to have stopped for the last half of 2010 and the first half of 2011, which would have been the window of time of that one-year probation order. But then a few months after that probation order ends, we have this ugly situation in October of 2011.

[ 30 ] I acknowledge that a significant factor here is the fact that there is a joint submission to deal with it, by way of the time served and not more jail, and if that is within the range of what would be appropriate here, then I ought to follow that joint submission. [ 31 ] In this case, when I look at all of this history, I do not think it is within the proper range to properly address the general sentencing principles of denouncing the unlawful conduct, and the specific and general deterrence, and improper acknowledgement of the harm done to the whole community, as well as to Ms.

C. who seems unable to pull herself out of this relationship which is clearly toxic. [ 32 ] Taking into consideration all of those mitigating factors that I earlier stated, the guilty plea which is huge here and the 17 days of the dead time, I now impose a further three-month sentence. I waive any victim fine surcharge, primarily because I am incarcerating you. [ 33 ] Following the incarceration, there will be an 18-month probation order on the following terms. The first terms are called statutory terms, that everybody gets that is placed on probation.

(1) You shall keep the peace and be of good behaviour.

(2) You shall appear before the court when required to do so by the court.

(3) You shall notify the court or your probation officer in advance of any change of name or address and promptly notify the court or your probation officer of any change of employment or occupation. And that was condition 200, Madam Clerk, and 201(a). [ 34 ] Within 72 hours, after completion of your jail sentence in this matter, you shall report in person to the probation office, located at 1355 Water Street, Kelowna, British Columbia. And, after that, you shall report as and when directed by the probation officer. [ 35 ] I listened carefully to what you said about the possibility of a move to Prince Rupert.

I do not have any trouble with that, but I assume that you are initially going to be back here in this community, because this is your home base, and so the initial reporting will be here and then, of course, it is potentially able to have it transferred to whatever community you are going to be residing in. [ 36 ] Given this is something that happened at the residence, I make it a term of the order that you shall reside where directed by your probation officer, and you shall not change your place of residence at any time without first obtaining the written consent of your probation officer.

That is somewhat like term 203(

c) but a little bit different. [ 37 ] And the next term -- again, I am being creative with it. There is no precedent term for it. It is articulated as follows. You shall have no contact with T.C. before such time as you have successfully completed the Respectful Relations program or some other similar domestic violence prevention counselling program. [ 38 ] If you two are going to get back together, you need to do something about this, this time. Now, do I think that that is the only answer? No. I think she needs to do the same thing, but she is not the one that I am putting any terms on here.

If she does not go and do it, it is still not going to work. I hope that she can find the inner strength to go and do the same thing. You both need to do it if you really want this relationship to continue at any time in the future. But right now, until that counselling is done, no contact.

It is just too toxic the way it is, such that someone is going to die if you two are left together and that is not right for anyone. [ 39 ] The next term of the order will say that after you have completed the aforesaid program or counselling, then you can have contact and communication with T.C., but -- then it is number 208(b) -- but you shall immediately leave the presence of T.C. at her request or upon the request of a peace officer or the probation officer; and after that, you shall have no contact or communication with T.C. or return to T.C.'s presence without first obtaining the written consent of the probation officer. [ 40 ] And then 208(c).

You shall not be in the presence of T.C. if you are consuming alcohol or if you have consumed alcohol within the preceding 24 hours. [ 41 ] And number 223, but I will start it a little bit differently. You must not possess any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. And you shall not reside in a home where another person keeps or stores any such item. [ 42 ] 227.

You shall attend, participate in, and successfully complete any assessment, counselling, or program, as directed by the probation officer, without limiting the general nature of this condition. Such assessment, counselling, or program may relate to anger management and/or spousal abuse prevention. [ 43 ] Mr. Hughes, no doubt you got the message. You have sat there very quietly, and actually almost stoically, and I respect that. I mean, like you have listened to what I have had to say, even though no doubt you do not like hearing what I am saying.

I do respect that and I appreciate that. [ 44 ] But, look, I do not know you, but when I hear this kind of a history, I am really worried that if things do not change dramatically, someone is going to end up dead with all of that. Like it is just not good. And if you really love this lady, then you have got to make some real changes here, to make it in the best interests of the two you, you know, to get back together down the road. You know, you could do that, but, ma'am, there is going to have to be some real big changes made.

And you could look at the sentence that I have just made and you could say, "Oh, this is a stumbling block," or you could look at it and say, "This is a stepping stone to actually making some changes," such that you could have a healthy relationship as opposed to a toxic one. [ 45 ] I do need to make just a couple of other brief orders. The DNA order will follow that you provide a sample of your DNA.

I do not know if you had to do that with the last time, but I will just say that that happen forthwith and the police will arrange for that to happen with the DNA order. [ 46 ] And, lastly, on Count 2, I make the firearms prohibition order. [ 47 ] THE ACCUSED: Can I have a request, Your Honour?

[ 48 ] THE COURT: Yes. Just one sec. Let me just finish with that, and then I will hear what else you would have to say on it. [ 49 ]

Section 110, a 10-year firearms prohibition order with all those items listed therein. [ 50 ] Yes, you say you wanted to ask a question or make a statement? [ 51 ] THE ACCUSED: Yes. Could I have my bank cards and my credit cards given to my wife? [ 52 ] THE COURT: You know, that makes a lot of sense, and I will tell you what I will say. You know when I said no contact, I think I am going to just change that a little bit to facilitate that kind of thing happening, because you make a good point with what you are saying there. [ 53 ] So when I said the no contact, just add to that part of it this.

Say, "The only exception is indirect contact through your probation officer for the limited purpose of arranging and facilitating" . . . [ 54 ] THE ACCUSED: I can't write her? [ 55 ] MR. JOHNSON: Your Honour -- [ 56 ] THE COURT: Just a minute. Just let me finish what I was saying.

And -- can you repeat that last part that I said, Madam Clerk, or -- [ 57 ] THE CLERK: "Indirect contact through your probation officer for arranging and facilitating" . . . [ 58 ] THE COURT: Any transfer of personal property or for any other such similar domestic reasons. [ 59 ] THE ACCUSED: So we can't write to each other either? [ 60 ] MR.

JOHNSON: If I can -- [ 61 ] THE COURT: I will further make it a term of that -- when I said the no contact, I will make it a further term that says, "You are also allowed to correspond by letter with T.C., provided that letter is deemed appropriate -- the contents of that letter is deemed appropriate by your probation officer." So there could be some exchange that way, through the probation office. [ 62 ] I do not do this lightly in a situation where the two of you have been together over eight years in the past, but I am quite clear that this is the right order to make in this unique set of circumstances and I do wish you success at trying to rehabilitate in this regard with regards to how you treat your wife.

Thank you. [ 63 ] MR. JOHNSON: Your Honour, just a few comments. First, in regard to taking a Respectful Relationships program or a similar program, that may be something that Mr. Hughes can do while he is in custody? [ 64 ] THE COURT: It might be, and it might be something he could do privately if it is taking too long to get on. That is why I was trying to leave it open. And if there -- and if the probation officer had any trouble with it, just bring it back for review with me, because I likely would approve it. I just want him to do something in that regard, right. [ 65 ] MR.

JOHNSON: Right. [ 66 ] THE COURT: And he just needs to get going with something on it and -- [ 67 ] THE ACCUSED: Well, they have those courses in there, don't they? [ 68 ] MR. JOHNSON: And -- [ 69 ] THE COURT: They -- they might. He might not be there long enough to do that. He might. I do not know. But, yes, that is -- [ 70 ] MR.

JOHNSON: Yes. [ 71 ] THE COURT: You know, I am not saying otherwise than that, but -- and, you know, if for whatever reason the probation officer is not willing to approve it, I am not saying I would automatically approve it, but I would hear you out as to what it was, and say whether or not that would meet the criteria -- [ 72 ] MR. JOHNSON: Right. [ 73 ] THE COURT: -- on review. [ 74 ] MR. JOHNSON: And the condition that indicates he is to leave Ms. C.'s presence upon her request, and then you went on, or upon a request from a police officer or his probation officer.

I was wondering if you could add "or upon the reasonable request of a police officer or a probation officer." I am just concerned that, given the history, somebody -- [ 75 ] THE COURT: Do you want to add the word "reasonable" in there? [ 76 ] MR. JOHNSON: Yes. [ 77 ] THE COURT: Sure. It better be reasonable. If they are asking, it needs to be reasonable, otherwise, on review, it is not going to hold --

[ 78 ] MR. JOHNSON: Yes. [ 79 ] THE COURT: -- any weight, right? So, sure, if you want to add the word "reasonable," I will put that in. [ 80 ] MR. JOHNSON: Thank you. And, finally, the discussion in regard to the bank card, Mr. Hughes has the -- his bank card in his possession. It is over at the RCMP. Ms. C. tried to get it this morning from the police. They wouldn't provide it to her. So, I am just asking that there be a direction that the bank card be provided to her today. She needs it to access funds for family bills, and also to provide some funds to Mr. Hughes while he is in custody. [ 81 ] THE COURT: Yes.

Well, what I will do is just -- I am not making it a term of any order, but I will just in passing state that she has made it clear -- or he has made it clear on record here, through his counsel, that he wants those cards directed. I think once it is on record, that that is what he is consenting to and wanting, I am sure that they will pass it on now. [ 82 ] MR. JOHNSON: Yes. That's fine, Your Honour. That's all I was asking for. [ 83 ] THE COURT: Thank you. [ 84 ] THE CLERK: I [indiscernible] reasonable -- [ 85 ] THE COURT: Where the "reasonable"

part came in? [ 86 ] THE CLERK: Yes. [ 87 ] THE COURT: It was on that term of -- [ 88 ] THE CLERK: So [indiscernible] -- [ 89 ] THE COURT: Yes. No, I will tell you the number. [ 90 ] THE CLERK: Okay. [ 91 ] THE COURT: It was the leave -- it was leave the presence of, 208(b). [ 92 ] THE CLERK: Mm-hmm. [ 93 ] THE COURT: And when it said, "upon the request," it also said "or upon the request of a peace officer or the probation officer or upon the reasonable request of a peace officer or the probation officer." Just add that word "reasonable" in there. [ 94 ] THE CLERK: Thank you. [ 95 ] THE COURT: Thank you. (REASONS CONCLUDED)