R. v. Thomas Date:, 2015 BCPC 236

Citation: R. v. Thomas Date: 20150424 2015 BCPC 0236 File No: 79504-2-KC; 79765-1-K Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRIAN JOSEPH THOMAS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: J.A. Gaudet Counsel for the Defendant: M.J. Ritzker Place of Hearing: Nanaimo , B.C. Date of Hearing: April 24, 2015 Date of Judgment: April 24, 2015

[ 1 ] THE COURT (Orally): Brian Joseph Thomas is before me. Mr. Thomas has been charged on two indictments and has chosen to have the charges on those indictments dealt with by the Provincial Court by way of his election. [ 2 ] On Information 79504, he has entered a plea of guilty on Count 1, which is an allegation of committing assault on Jillian White, who is his spouse, on or about April 3rd, 2015. Count 2 is an allegation of a breach of a condition of abstaining from communicating directly or indirectly with Jillian White on April 3rd, 2015. He has entered a plea of guilty with respect to that count.

The third count on that Information by way of indictment has been stayed by Crown. [ 3 ] With respect to 79765-K-1, Mr. Thomas has entered pleas of guilty on two counts. One is again a charge of committing assault of Jillian White on the 20th of February 2015, and on Count 3, which is an allegation that he breached his prohibition against the use of any alcohol or any controlled substance as set out in a probation order made by the Honourable Judge Gouge on the 12th of January 2015. [ 4 ] Crown has outlined the circumstances with respect to all of these offences.

No issue is taken with respect to those circumstances. I find them to be the facts, and they are sufficient to support the pleas and findings of guilt with respect to each of these matters. [ 5 ] Mr. Thomas comes before the Court as a relatively young man. He is 33 years of age. He is of First Nations heritage. He and Ms. White have been in a lengthy relationship that has produced five children. Those children are all presently in care with the Ministry of Children and Family Development. [ 6 ] The issue that both Mr. Thomas and Ms.

White suffer from is a very serious addiction to alcohol and it sounds like to a lesser extent to drugs. But the alcohol issue has come to the point where not only is it toxic to them in a physical sense, it rules their relationship. As a result, Mr. Thomas has been before the courts on charges involving domestic assaults, for the most part against Ms. White, since about 2002. [ 7 ] According to Crown's calculations, he has eight prior assaults during the 18-year relationship with Ms. White. He has 16 breaches of probation or bail orders.

He has other charges, including unlawfully being at a dwelling house and use of a weapon dangerous to the public. All of these charges and convictions have an underlying theme; that is the domestic violence that is very much a part of his relationship with Ms. White. [ 8 ] Mr. Thomas has had access to significant resources over the years. He has attended a number of programs that have been made available to him. He has been through programs such as Respectful Relationships. He has been through follow-up programs to deal with violence in relationships.

He has been through substance abuse management programs on three or four occasions. He has attended residential treatment. [ 9 ] In the words of Crown counsel, Ms. Gaudet, the service providers that have helped him or attempted to help him over the years "simply do not know what to do for him". [ 10 ] What I am told, by both Mr. Thomas as well as by his counsel and by Crown, is that the Guthrie House program at Nanaimo Regional Correctional Facility is really "his only chance".

I characterize it as his best last chance for him to try to deal with several of the matters which trigger his behaviour. [ 11 ] There is also another concern. Notwithstanding the fact there have apparently been several presentence reports done on Mr. Thomas, there is a concern that he may have suffered a form of brain injury which may account for part of the issues of his reoffending. He apparently hasn't had a neuropsychological assessment done on him, although I am told that there are a number of presentence reports which support Mr. Ritzker's submissions that Mr.

Thomas comes from a tragic background where violence, alcohol, and poverty, all came together to produce what has been described by Mr. Ritzker as a "horrific upbringing". [ 12 ] Mr. Thomas is supported by family members who are here in court. He has a number of people who are seeking to help him. He has a number of people who are supportive of him. He has the ability to work. He just recently went back to work, working on a crab boat and working as a butcher.

So he has a skill set, but he obviously has to deal with a number of the issues which continue to plague him and to toxify the relationship that he has with Jillian White. [ 13 ] The sentencing positions are as follows. Crown is suggesting that what is necessary here is 18 months of jail with a two-year probation order, with the various conditions being asked for and agreed to by defence counsel, Mr. Ritzker. He says that custodial time is certainly appropriate. Last time Mr. Thomas had an equivalent sentence of about seven-and-a-half months. Mr.

Ritzker is suggesting something in the nature of a 12-month sentence would be more in order, to allow Mr. Thomas to qualify and then participate and successfully complete the Guthrie House program. [ 14 ] I am of the view that a step up will serve two benefits. One is it will offer protection to Ms. White. The second is that it will permit Mr. Thomas to access as many resources and get the full benefit out of the Guthrie House program. That, in my view, is going to be very important for Mr.

Thomas, if there is any prospect that he will be able to successfully complete the program, get the full benefit of the program, and then return back to society and, hopefully, to his children, as an individual who is ready to assume responsibilities and to start leading his life in a more pro-social manner. [ 15 ] Therefore I am of the view that, with respect to these matters, there should be a sentence of 15 months.

I am of the view that it be 15 months on each assault, to be served on a concurrent basis. [ 16 ] With respect to the breaches, I am going to suggest that it be two months on each breach, to be served concurrently with all of the other sentences.

[ 17 ] The terms of the probation order are going to be important, and I will spend a moment or two making sure that these conditions are clear to Mr. Thomas. [ 18 ] Mr. Thomas - I am not singling you out, as Crown counsel and defence counsel will tell you I say this to everyone. When you are under a court order, it is not a suggestion.

With the number of breaches that you've incurred, obviously when you are drinking, you start considering this stuff to be in the nature of suggestions; you just can't do that. [ 19 ] If you get into that Guthrie House program, you can't treat the rules of their program like they are suggestions because, as I said to you, it is sure an easy program to be punted out of, you know, if you start treating rules like suggestions. You can't do that. Nor can you do that with respect to court orders. [ 20 ] I am going to impose a two-year probation order.

The terms of the probation order shall be -- I will follow the picklist numbers. [ 21 ] Number 200: You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court. You shall notify the court or your probation officer in advance of any change in name or address and promptly notify the court or the probation officer of any change of employment or occupation. [ 22 ] The reporting conditions.

Within -- I will make it 72 hours after completion of your jail sentence, you shall report in person to the probation office at Nanaimo, British Columbia, at the address that will be provided to you. You shall report in person and thereafter as directed.

I am going to make a provision that for the first six months of your probation order you shall report no less than one time per week. [ 23 ] 205: When first reporting to the probation officer, you shall inform him or her of your residential address and telephone number, if you have one. [ 24 ] 206: You shall not change your address or telephone number, if you have one, without first obtaining the written consent of the probation officer. [ 25 ] 208: You shall obey all rules and regulations of your residence. [ 26 ] 209: You shall remain in the Province of British Columbia unless you have received the written consent of the probation officer to go elsewhere. [ 27 ] 219: You shall have no communication, directly or indirectly, with Jillian White. [ 28 ] I am going to pause here for a moment.

I notice that in Judge Gouge's order he had a provision for counselling, but I think in these circumstances, there is always the opportunity to come back and seek to have a variation of that -- [ 29 ] MS.GAUDET: Well, there isn't -- [ 30 ] THE COURT: Okay. [ 31 ] MS.GAUDET: -- anymore because that -- [ 32 ] THE COURT: Oh, of course, yes -- [ 33 ] MS.GAUDET: -- yeah, because it's the mandatory. I'm hoping someone comes to their senses about that, but -- I'm in Your Honour's hands.

If you think that would be helpful. [ 34 ] THE COURT: Well, I mean if it's going to be -- I think maybe if I do it as Judge Gouge has -- I mean it's counselling that has to be approved by the probation officer so there's -- [ 35 ] MS.GAUDET: And perhaps with the consent of Jillian White and the probation officer. So it gives an out from there. [ 36 ] THE COURT: Okay.

So I'll add in -- except as follows and that is, at counselling sessions approved of by your probation officer and by Jillian White, or except while under the supervision of a person approved by the Ministry of Children and Family Development for the purposes of visitation with any of your children -- or actually I think the term is access rather than visitation -- access with any of your children. [ 37 ] So that will be the only exception. [ 38 ] There will be a no go provision. 223: You shall not attend at or be within 50 metres of any place you know to be the residence, school or workplace of Jillian White. [ 39 ] Do you live on reserve normally, or do you live off reserve? [ 40 ] THE ACCUSED: On reserve. [ 41 ] THE COURT: Does she live on reserve? [ 42 ] THE ACCUSED: Yes. [ 43 ] THE COURT: Okay.

When you're not living together, you're living in proximity to each other? [ 44 ] THE ACCUSED: I was recently staying next door to Jillian, which is very close.

[ 45 ] THE COURT: All right. Well, you can't under the present rules -- under the present order that I'm making. The only exception, I'll make, to that: except while on a roadway in a moving vehicle. That will be the only exception, in case you have to drive by her house. Okay. [ 46 ] 227: You shall not possess or consume any alcohol or any controlled substance as defined in

section 2 of the Controlled Drugs and Substances Act , except as prescribed for you by a physician. [ 47 ] 231: You shall not enter any liquor store, beer and wine store, bar, pub, lounge or nightclub. [ 48 ] 232: You shall not possess any pipes, syringes or other drug paraphernalia. [ 49 ] 236: You shall not possess any weapons as defined in

section 2 of the Criminal Code . [ 50 ] 251: You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the probation officer, which may include (

a) anger management, or (

b) drug or alcohol abuse, or (

c) spousal abuse prevention, or (

d) a full- time attendance program for alcohol or drug abuse. [ 51 ] The next subparagraph (

e) will be forensic assessment, counselling or treatment through the Forensic Psychiatric Centre, Victoria, British Columbia. Next provision subparagraph (

f) will be life skills. [ 52 ] Then I am going to add in, with your consent, a neuropsychological assessment, as arranged and directed by your probation officer. Then I will add again: you shall comply with all rules and regulations of any such assessment, counselling or program. [ 53 ] I think those were all the conditions Crown was seeking. [ 54 ] Victim fine surcharge on these matters, he is not going to be working for a while. Are you seeking an immediate order for payment of victim fine surcharges? [ 55 ] MR.RITZKER: Yes.

An order payable forthwith, a finding that he is in default and time [indiscernible] -- [ 56 ] THE COURT: A day for each, to be served concurrently with his existing sentence time, in accordance with R. v. Bailey . [ 57 ] All right. Mr. Thomas, I sincerely wish you the best in getting into that program and becoming the star pupil; come out and tell others and be a salesperson for that program, both while you're in the program and once you get out.

Hopefully this is the thing that turns you around, and that your family can take pride in what you achieve in that program and what you are going to be doing once you get out. [ 58 ] THE CLERK: Is the probation on -- [ 59 ] THE COURT: It attaches to both -- to both -- [ 60 ] THE CLERK: To the assaults? [ 61 ] THE COURT: To the assaults on -- [ 62 ] THE CLERK: [Inaudible/not at microphone.] [ 63 ] MS. GAUDET: And, Your Honour, the DNA order? [ 64 ] THE COURT: Oh, I'll make the DNA order -- it's primary, is it? [ 65 ] MS. GAUDET: It's -- by indictment it is primary. [ 66 ] THE COURT: Yes, okay.

So the DNA order, and they will deal with that through Corrections, I take it. [ 67 ] MS. GAUDET: Thank you. [ 68 ] THE COURT: Thank you. Okay, Mr. Thomas, good luck to you. (REASONS CONCLUDED)