R. v. C.D.M. Date:, 2015 BCPC 260

Citation: R. v. C.D.M. Date: 20150903 2015 BCPC 0260 File No: 79682-1-K Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. C.D.M/ ORAL REASONS FOR JUDGMENT RE

SECTION 810 PEACE BOND OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: L. Mascolo

Counsel for the Defendant: D. Berntsen Place of Hearing: Nanaimo, B.C. Date of Hearing: September 3, 2015 Date of Judgment: September 3, 2015 Introduction: [1] THE COURT (orally): An application has been brought by Crown in order to obtain a peace bond pursuant to s. 810(1) of theCriminal Code with respect to C.D.M..

The allegation contained in count 1 of Information 79682-K-1 reads as follows: A.M. has reasonable grounds to fear and does fear that C.D.M. will cause personal injury to her, by virtue of an incident that occurredfrom the 1st day of March, 2015 to the 6th day of March, 2015, inclusive, at or near Nanaimo, in the Province of British Columbia,pursuant to Section 810(1) of the Criminal Code. [2] A.M. and C.D.M. are the mother and father of a child who is approximately 13 months old and was born [DOB].

Therelationship between A.M. and C.D.M. has been a very stormy one, with various incidents, both alleged formally to the police as well asprivate matters of highly emotional conduct occurring between them for a considerable period of time. Accordingly, A.M. is seeking theprotection of a s. 810 peace bond. Nature of the Application and of a

Section 810 Peace Bond: [3] Sections 810(1) to (3) of the Criminal Code read as follows: 810.

(1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another personwill cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property.

(2) A justice who receives an information under subsection (1) shall cause the parties to appear before him or before a

summaryconviction court having jurisdiction in the same territorial division.

(3) The justice or

summary conviction court before which the parties appear may, if satisfied by the evidence adduced that the personon whose behalf the information was laid has reasonable grounds for his or her fears (

a) order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for anyperiod that does not exceed twelve months, and comply with such other reasonable conditions prescribed in the recognizance, includingthe conditions set out in subsections (3.1) and (3.2), as the court considers desirable for securing the good conduct of the defendant; or (

b) commit the defendant to prison for a term not exceeding twelve months if he or she fails or refuses to enter into the recognizance. [4]

Section 810, in essence, authorizes this court to require an individual to enter into a peace bond or recognizance where groundsexist to believe that he or she will cause injury or damage to the property of another person or will injure the spouse or child of thatperson. An application under this

section must be supported with the filing of an Information. [5] As summarized in 2015 Martin's Annual Criminal Code, Judicial Edition, at page 1645: The inquiry is to determine whether evidence indicates the informant had reasonable grounds for fear, not guilt or innocence of accused. Committal is for failure or refusal to enter recognizance. No plea is entered. [6]

Section 810 of the Criminal Code is directed at prevention of harm and does not create an offence. The remedies being soughtby the Crown are therefore characterized by various authorities as being "preventative justice". See R. v. P.A.O., 2002 BCPC 560, 2002CarswellBC 3198, where the former Chief Judge Stansfield reviews the cases that support this proposition: R. v. Compton (1978), (BC SC), 42 C.C.C. (2d) 163 (B.C.S.C.); R. v. Parks (1992), (SCC), 75 C.C.C. (3d) 287 (S.C.C.); andMacKenzie v. Martin, (SCC), [1954] S.C.R. 361 (S.C.C.). [7] This type of application is a different kind of hearing than a prosecution of an offence. Information that may not be admissible

in evidence in a conventional criminal case may form part of the evidence that the judge hearing the matter can take into account: see R.v. Patrick (1990), (BC SC), 75 C.R. (3d) 222, a decision of the B.C. County Court. [8] In this matter, only the complainant, A.M., testified on behalf of the Crown. C.D.M. did not testify on his own behalf. However, his common-law spouse, L.L., did appear and did provide evidence for the defence. [9] In R. v. Lin, 2013 BCSC 1023, [2013] B.C.J. No. 1218, Mr.

Justice Greyell, at paragraph 14 of that decision, stated as follows: [14] The tests to be applied by the Provincial Court judge under s. 810 were described by MacCarthy, PCJ in R. v. D.C.H., [2011]B.C.J. No. 2648, at paras. 78 and 79: 78 Judge Stansfield and Chief Judge Stuart both agree that in the application of a s. 810 peace bond, there should be a relativelyliberal approach which errs on the side of caution in restraining conduct which might be potentially harmful.

In their views, that appliesespecially in the context of domestic violence and especially where it gives rise to much risk at all of harm, especially if that harm couldaffect children adversely. I respectfully agree with this approach. Further, I am of the view that children and other young persons whomight be at such risk beyond a domestic violence situation should be afforded the same type of protection by the courts. Thecircumstances here call for that approach. 79 I must deal with the question of the existence of reasonable grounds for fear.

The authorities that deal with s. 810 and analogoussections of the Code in ss. 810.1 and 810.2 suggest that a twofold test applies. First, the subjective test: Is the fear of the complainantreal? Then the objective component: Is that fear based on reasonable grounds?: see R. v. Hawkins, 2002 BCPC 590 , [2002]B.C.J. No. 3014 (B.C.P.C.), which cites the Ontario Court of Appeal decision in R. v. Budreo (1996), (ON SC), 45C.R. (4th) 133, with approval.

Summary of the Evidence: [10] According to A.M., who is aged 25, she and C.D.M. were not involved in a lengthy relationship before she got pregnant withtheir child. They first met in 2012 and were friends. They got together with each other prior to the birth of their child and saw each otheron weekends. That started roughly in May of 2013. When she became pregnant, she testified that the relationship between herself andC.D.M. changed significantly. She says that after the child was born, there was violence and physical abuse rendered upon her byC.D.M.

She indicated that she at times found herself faced with C.D.M. who she described as being angry and violent and threateningsuch that she was required to walk around him (using the analogy) “on eggshells”. [11] Notwithstanding the dysfunction in their relationship, they continued to see each other on a relatively regular basis, whichcontinued up to around December of 2014. That period was a tumultuous period in their relationship. She states that, on severaloccasions, C.D.M.

"blew up", became angry, called her names and threatened her, with expressions such as he was going to "cave in herhead". [12] In December of 2014, an incident occurred. In her testimony before me, she indicated that C.D.M. had come to the window ofher ground-floor apartment following a telephone argument that had occurred. She became alarmed when she saw him at the window. She called 9-1-1. However, she says that he got into the apartment and, while she was holding their child, he hit her in the face andbroke her cell phone.

As a result of this altercation, neighbours called the police, who attended at the scene. [13] A.M. offered a statement to the police; that resulted in C.D.M.'s arrest. I understand he was released on bail conditions. Andthen a letter was written by A.M. to Crown counsel, and received in their offices on January 12, 2015. In that letter, she stated that shewas withdrawing the various allegations that she had made against C.D.M. In the letter she offered various explanations as to why shehad done that. She also testified before me today as to some of her motivation to do so.

Included in those excuses were that she waspressured by family members of C.D.M. to withdraw the allegations and she was pressured by C.D.M., who offered her inducements thatthey would work towards having a stable relationship which would benefit their child.

The letter made specific reference to certain ofthe complaints that she had initially made to the police against C.D.M. and provided various alternative excuses and explanations as towhat had actually occurred. [14] As a result of receiving that letter, the Crown did not proceed with the charges, and so far as I am aware, stays of proceedingwere entered with respect to those matters. [15] The relationship following that event did not improve between A.M. and C.D.M. The relationship continued to be very rocky.

She alleges that during the period from January through to March, there were incidents where he physically manhandled her andcontinued to verbally abuse her. She indicated that on occasion she was pushed around by C.D.M. She also indicated that she did notreport these incidents to the police. She states that, in her estimation, there were at least three or four incidents of violence, together witha large number of other incidences in which there were angry exchanges and arguments taking place. In one of the incidents in whichthere was actual violence she alleges that she was grabbed by the hair.

She also indicates that she was pushed by C.D.M. such that shefell against or was hit against the wall, sustaining minor injuries which did not require medical attention. [16] In or around March of 2014, and approaching the events that have given rise to the matter before me, she came to theconclusion that she could no longer continue to live in fear of physical violence or being yelled at.

Following an event that occurred inthe charge period between March 1st and March 6th, 2015, she reported the matter to the police and sought to get this peace bond. [17] In that period, the allegation that she makes in her evidence was that, in the early hours of the morning, she and C.D.M. hadbeen engaged in an argument over the phone. That resulted in him showing up at her apartment. In anticipation of his arrival, she hadphoned the police to report her concerns. She testifies that he managed to enter into the apartment building by telling her that he was theRCMP.

She then encountered him at the door to her apartment, at which point she had a brief exchange with him, told him the policewere coming, and he departed.

[ 18 ] The evidence also supports that, in addition to the dysfunctional personal relationship between A.M. and C.D.M., that a source of their issues is the child. The evidence seems to suggest that both of them have made threats to each other about the child and seeking to deprive each other of the company of the child or to restrict and control access to that child. [ 19 ] At the present time I understand that there may be Family Court proceedings pending with respect to the matter of the child.

I also understand that the Ministry of Children and Family Development have been contacted and that they have some involvement in the relationship between A.M. and C.D.M. as it relates to the child. [ 20 ] In cross-examination, A.M. admitted that when the police came to take her statement following the events of March of 2015, that she did not explain to them that the letter recanting the allegations made concerning the events of December 2014 was false. She did not clarify any inaccuracies or misstatements of the truth contained within the letter.

She did however report the incident that had just occurred involving C.D.M. [ 21 ] She indicated that she was not truthful with the police on that occasion about the lies contained in her letter recanting the December allegations, because she was fearful that C.D.M. may learn of her disclosure to the police and then cause her harm. [ 22 ] In cross-examination, A.M. also did confirm that she had communications at various times with L.L., who is now the spouse of C.D.M.

She does admit that in the context of those discussions that she did report on matters in which there was an insinuation that C.D.M. was not in a monogamous relationship with L.L. and suggesting infidelity on his part. [ 23 ] In cross-examination, A.M. also indicated that she felt hurt by C.D.M.'s infidelity throughout the course of their relationship.

She felt concerned about his attempts to control her, and she says that she continues to be fearful of him today, and especially if matters do not proceed in such a fashion as he would anticipate, once this matter ultimately proceeds to Family Court. [ 24 ] In L.L’s evidence, she confirmed that there were communications between her and A.M. L.L. takes the view that this is all about attempts on the part of A.M. not to gain protection for her fears, but rather to restrict C.D.M.'s ability to have contact with the child which he has fathered with A.M.

Crown's Submissions: [ 25 ] Based on the evidence before me, Crown suggests that the test of subjective fear on the part of A.M. has been established by the evidence. Crown also suggests that the fear is objectively reasonable, based on the conduct that has occurred on the part of C.D.M. throughout the relationship and, in particular, surrounding the events of March of 2015. [ 26 ] Crown indicates that I should not be unduly swayed by the fact that A.M. recanted her original allegations and now says that her recanting was itself a falsehood and that what actually occurred was as originally reported to the police.

Furthermore notwithstanding her false recanting of allegations and her continuation of that falsehood when she was providing a statement to the RCMP in March 2015, I should, on the basis of the evidence I do accept, find that there are reasonable grounds for her fear.

Defence's Position: [ 27 ] On behalf of C.D.M., it is indicated that I should not accept the evidence of A.M. as being reliable, and I should analyse that evidence on the basis of her admitted lies that she provided in the letter recanting the original allegations. [ 28 ] It is also suggested that there are inconsistencies in the evidence that A.M. has provided today and based on that, there is not sufficient reliable evidence for me to make a determination that there are reasonable grounds for there to be a s. 810 peace bond ordered with respect to C.D.M.

Analysis: [ 29 ] Although there are concerns that arise when an individual dealing with both the police and Crown counsel makes false or misleading statements, I still must consider, on the whole of the evidence before me, whether or not those previous false or misleading statements remove the entire basis for the application being brought on behalf of A.M. against C.D.M.

It is clear that A.M. has not improved her position by making the false recanting of the original allegations. [ 30 ] However, the events of December of 2014 are not the basis for the matter that is presently before me. [ 31 ] I am of the view, having heard all of the evidence, there is nothing that contradicts A.M.'s suggestion that C.D.M. showed up in a threatening manner in an early morning period between the 1st of March and the 6th of March. [ 32 ] Given the past history between them and the conduct that they found themselves embroiled in after the original dispute of December 2014, I am of the view that the test for the making of a s. 810 peace bond has been met and the necessary circumstances do exist. [ 33 ] The evidence that I do accept is that there was an uninvited attendance by C.D.M. at A.M.'s apartment following an argument that they had over the phone and that his mere arrival at the apartment was essentially to intimidate her and cause her to feel threatened by that attendance, which in my view is a form of psychological harm. [ 34 ] Even if there was not a physical confrontation between A.M. and C.D.M. that occurred during the course of the period from January through to March of 2015, I note the decision of The Honourable Judge Rounthwaite of the Provincial Court in the decision of R. v.

Louis , [2013] B.C.J. No. 2905 . At paragraph 29, she states the following proposition with respect to psychological harm , which I think is apposite to the matter before me: [29] I accept the reasoning in Haydock v. Baker , 2001 YKTC 502 ( followed in R. v. P.A.O. 2002 BCPC 560 and R. v. D.C.H. 2011

BCPC 443) that "personal injury" in s. 810 includes both physical and psychological injury: 18 Does personal injury include physical and psychological injury? S. 810 speaks of personal injury, not physical harm. Althoughoften not as apparent, psychological harm can be as devastating as any physical injury. For the following reasons the protective reach ofa peace bond encompasses psychological injuries:

a) The dictionary definition of injury is not restricted to physical injury. "Injury" means: "Wrongful action or treatment, violation or infringement of another's rights, suffering or mischief wilfully or unjustly inflicted ... Also awrongful act, a wrong inflicted or suffered

(2) Intentionally hurtful or offensive speech or words: insult, calumny or taunt, an affront"(Shorter Oxford Dictionary (1973) at 1075). The primary and secondary

definitions of injury encompass both physical and psychological injuries. The wrongful act can be by actionsor words. The suffering caused by a wrongful act can be physical, mental or emotional.

b) The Criminal Code, in defining "bodily harm," includes "any hurt or injury to a person that interferes with the health or comfortof the person and that is more than merely transient or trifling in nature" (Section 2, Criminal Code). Psychological damage can be theprincipal non-transient injury of a physical or sexual assault (R. v. McCraw (1991), (SCC), 7 C.R. (4th) 314 (S.C.C.).).

c) In defining the scope of a peace bond, the Legislature chose quite different terminology than in defining the scope of assaults. The use or threat of physical force is necessary to constitute an assault under the Criminal Code, but the use of physical force is notnecessary to cause psychological injury. Nothing in s. 810 restricts the protective reach of a peace bond to matters that constitute anassault or a crime. The basis of an information for a peace bond need not allege a crime - only reasonable fear of personal injury.

Toread any less into the scope of a peace bond would ignore the plain language of the provision and ignore the significant practicalprotection a peace bond provides in circumstances that do not involve the fear of physical harm. 19 If psychological harm were excluded from the reach of a statutory peace bond, a very savvy respondent could wage a campaignof vengeful, injurious acts causing significant psychological injury without stepping over the legal line that brings their actions within theprotective reach of a peace bond. A psychological injury can be as serious a personal injury as most physical injuries.

Peace bondsprotect against both kinds of personal injuries (R. v. Hujdic, [1997] S.J. No. 779 (Prov. Ct.) at para. 15.). Conclusion: [35] Based on the cases that I have cited and the tests that are laid out in those cases, I am of the view that this is an appropriatematter for a s. 810 peace bond to be granted and imposed upon C.D.M. [36] That concludes my reasons.

Terms of the Peace Bond: [37] I am now open to submissions on the terms of the peace bond. (SUBMISSIONS BY COUNSEL) [38] THE COURT: Here is what I am considering, wording to this effect: You are not to have any contact, directly or indirectly,with A.M. except through legal counsel, a family justice counsellor or other person approved of by the court for the purposes ofarranging or exercising access to the child -- and I will name the child -- as permitted by a Family Court order made subsequent to today -- I take it there is no order at this point -- [39] MR.

BERNTSEN: No orders in place. [40] THE COURT: -- made subsequent to today's date. [41] There will be a further exception that will permit the person approved by the -- or will permit service of any documentation inconnection with any family law dispute to be served by a professional process server or sheriff for the purposes of serving documentsrelating to any Family Court action. [42] MR. BERNTSEN: I think that addresses the concern very well, Your Honour. [43] MS. MASCOLO: Thank you, Your Honour. [44] THE COURT: All right, okay, see if I can remember that. [45] All right.

C.D.M., if you could stand. [46] Here's something I am going to tell you. A s. 810 peace bond, like any court order, those are things you must do. You can'ttreat them like they are a suggestion. Failure to do may give rise to an allegation of a breach. That may give rise to criminal chargesbeing brought against you, okay. So you can't treat this lightly. [47] I am going to say this for the benefit of A.M.

I am not suggesting it is going to happen here -- but when one person is bound bya court order, the other person, who has the benefit of that court order, has got to pay the highest respect to the order also, although theyare not directly bound; but what they do not want to do is put themselves in a position where it could be suggested that they are trying toentice someone into breaking the order. Okay.

[ 48 ] So everyone who is a party to this order, whether they have the benefit or they are bound by the restrictions in the order, is going to have to be very wary about the terms and conditions and to make sure that situations do not arise where the person bound by the order could be put offside, and subject to a breach. [ 49 ] I am not singling you out, but I say that to everyone when I am telling people about court orders and the requirement to follow them strictly. As I say, they are not a suggestion.

Do you understand that? [ 50 ] THE ACCUSED: Yes, sir. [ 51 ] THE COURT: All right, so with respect to the terms and conditions of the s. 810 peace bond, it will be a recognizance in the amount of $1,000, without deposit and without surety. It will be for a duration of one year. [ 52 ] Let me explain something else. The parties need to have room between the two of them.

Any reason to be in each other's lives will be strictly to deal with the child; the Family Court is the better venue in order to come up with the types of terms that should be in place to allow the parties to get their lives on a more stable basis, and then to deal, as they will have to do for many years with each other, in a safe and protected manner and in order to have proper communication to allow them to share the child in their respective lives. [ 53 ] So I am using this as an opportunity to give you both such an opportunity.

A peace bond may be sufficient to prevent or to get rid of the immediate necessity for there to be a Family Law Act protection order, which would normally also have a duration of one year in any event. But I am not saying the court would not grant a protection order. I am not intending that as any assurance to you or making a ruling, but I am just saying that this may be one of the benefits of the s. 810 peace bond.

All right? [ 54 ] So the terms and conditions will be as follows: [ 55 ] You shall keep the peace and be of good behaviour. [ 56 ] You shall have no communication, directly or indirectly, with A.M., except through legal counsel, a family justice counsellor or other person approved of in advance by the court for the purpose of arranging or exercising access to the child -- and I need the child's full name and birthdate. [ 57 ] A.M.: A.M.M. [ 58 ] THE COURT: Can you spell that please? [ 59 ] A.M. [ 60 ] THE COURT: Sorry, A.M.M.? [ 61 ] A.M.: A.M.M. [ 62 ] THE COURT: Okay. [ 63 ] A.M.: M. [ 64 ] THE COURT: Yes. [ 65 ] A.M.: M. [ 66 ] THE COURT: And birthdate? [ 67 ] A.M.: [DOB]. [ 68 ] THE COURT: All right.

So it will be the child, A.M.M., birthdate [DOB], as allowed by a court order made subsequent to today's date. [ 69 ] Except by either direct or indirect contact by a person approved by the court or by a professional process server or by the sheriff's services for the purposes of serving any court documentation in connection with any matter under the Family Law Act . [ 70 ] The next condition will be, you shall not attend at or within 50 meters of any place which you know to be the residence, school or workplace of -- and then we will name -- [ 71 ] MS. MASCOLO: A.M.. [ 72 ] THE COURT: -- A.M..

I don't think we need any exceptions to that. [ 73 ] Then I am going to impose the no-weapons provision. It is an appropriate condition, and I don't consider it to be overly restrictive on the rights of C.D.M. So you shall not possess any weapon as defined in s. 2 of the Criminal Code . There is a series of other firearms in that. Is the Crown seeking that or is that -- [ 74 ] MS. MASCOLO: Yes. [ 75 ] THE COURT: You are.

So you are looking for the same thing, so it's the number 7: you are not to have in your possession any firearm, imitation firearm, cross bow, weapon, prohibited -- [ 76 ] THE CLERK: What number is this?

[ 77 ] THE COURT: What's that? [ 78 ] MS. MASCOLO: Number 7 on the bail document. [ 79 ] THE COURT: It's in the bail document. [ 80 ] THE CLERK: Oh, I thought you were reading off the pick list. [ 81 ] THE COURT: Yes, it's not in the picklist -- I don't think.--- It's not in the pick list. So I'll just read it out. [ 82 ] THE CLERK: Can I have it please?

Okay. [ 83 ] THE COURT: You are not to have in your possession any firearm, imitation firearm, cross bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance and any related authorizations, licences, and registration certificates. [ 84 ] I am going to put the no knives provision: You shall not possess any knife outside your residence, except for the purpose of preparing or eating food or for purposes directly and immediately related to your employment. [ 85 ] So those will be the conditions. [ 86 ] MS. MASCOLO: Sorry, Your Honour.

Just on the no communication with A.M. -- could it read no communication or contact. I just heard you say no communication -- I could have missed it, but -- [ 87 ] THE COURT: I thought I said -- [ 88 ] MS. MASCOLO: That's what I wrote down. I'm not sure if - - [ 89 ] THE CLERK: I have directly or indirectly, Your Honour. [ 90 ] THE COURT: -- communication. [ 91 ] MS. MASCOLO: Communication or contact, or just -- [ 92 ] THE COURT: All right. I'll make it communication and contact, directly or indirectly. [ 93 ] MS. MASCOLO: Thank you, Your Honour. [ 94 ] THE COURT: All right. Anything further? [ 95 ] MS.

MASCOLO: No. Thank you, Your Honour. [ 96 ] THE COURT: All right. [ 97 ] MR. BERNTSEN: Your Honour. Sorry, if you're putting the knife thing in, can there be an exception for fishing? Because it's not lawful employment, it's not consumption of food -- [ 98 ] THE COURT: Okay. [ 99 ] MR. BERNTSEN: -- but you need the knife when you go fishing? [ 100 ] THE COURT: All right. Okay, and certainly that’s a reasonable exception. Or for the purposes directly and immediately related to -- is it commercial fishing -- [ 101 ] MR. BERNTSEN: No. [ 102 ] THE COURT: -- or is it recreational fishing? [ 103 ] MR.

BERNTSEN: Recreational fishing. [ 104 ] THE COURT: All right. So the wording will be: "or for purposes directly related to recreational fishing". [ 105 ] MR. BERNTSEN: Thank you very much, Your Honour. [ 106 ] THE COURT: All right. Anything further? [ 107 ] MS. MASCOLO: No, thank you, Your Honour. [ 108 ] MR. BERNTSEN: No, Your Honour. [ 109 ] THE COURT: Okay, so I am going to say this to both mum and dad. I am not here as a Family Court judge. I do sit in Family Court, but the parties have got to be taking some positive steps in order to deal with this matter.

By virtue of the peace bond, it is going to make the necessity to come up with a plan between them that much more important. [ 110 ] If dad hasn't yet consulted a lawyer, he should be doing so. Mum has obviously consulted a lawyer. It would be best to try to get those matters resolved between experienced Family Law counsel in order to try to get a proper plan in place and also to avoid any

anticipated problems with respect to the peace bond that I have imposed on today's date. All right? [ 111 ] Anything further? [ 112 ] MS. MASCOLO: No, thank you, Your Honour. [ 113 ] THE COURT: Thank you. (REASONS FOR JUDGMENT CONCLUDED)