2015 BCSC, 2015 BCSC 1212

THE SUPREME COURT OF BRITISH COLUMBIA THE LAW COURTS MEMORANDUM TO: The Parties and Legal Counsel CC: All Legal Publishers FROM: Superior Courts Judgment Office DATE: July 15, 2015 RE: Case Name: R. v. Bigcharles Neutral Citation: 2015 BCSC 1212 Docket: 162623-2 Registry: Victoria Please be advised that the attached oral Reasons for Sentence of Mr.

Justice Johnston dated June 26, 2015, have been corrected at paragraph 22 in the last two sentences and paragraph 23 in the first sentence as follows: [22] She currently owns and operates a business in an island community and is involved in the business community and in the larger community. For that, Ms. Chinn is to be commended. [23] One of the initial terms of Ms. Chinn's release was a 10:00 p.m. curfew, and that lasted until October 2014, when it was relaxed to a 12:00 a.m. curfew. A copy of this memorandum and attached oral Reasons for Sentence will be placed in the court file.

The original Reasons for Sentence which were previously distributed will be retained in the court file. Please direct any enquiries to the Superior Courts Judgment Office at: scpublishing@courts.gov.bc.ca . RTCJ, J. IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Bigcharles, 2015 BCSC 1212 Date: 20150626 Docket: 162623-2 Registry: Victoria Regina v. Peter Daniel Bigcharles Amanda Jacqueline Chinn Before: The Honourable Mr. Justice Johnston Corrected Judgment: This judgment is corrected at paragraphs 22 and 23 on July 15, 2015. Oral Reasons for Sentence Re Accused Amanda Jacqueline Chinn

Counsel for the Crown: S. Hulko Counsel for the Accused Chinn: M. Allen Place and Date of Hearing: Victoria, B.C. June 25, 2015 Place and Date of Judgment: Victoria, B.C. June 26, 2015 [ 1 ] THE COURT: Ms. Chinn has pleaded guilty, along with Mr. Bigcharles, a co-accused, to three offences. Mr. Bigcharles has also pleaded guilty to additional charges. [ 2 ] Ms.

Chinn has pleaded guilty to knowingly obtaining or possessing identity information of other persons in circumstances leading to a reasonable inference that the information was intended to be used to commit an indictable offence, including fraud, deceit, or falsehood as an element. That offence under s. 402.2(1) of the Code carries a maximum sentence of five years' imprisonment. [ 3 ] Ms. Chinn has pleaded guilty to possession of identification documents of other persons knowing those documents were obtained by the commission of an offence, contrary to s. 355 of the Criminal Code .

That offence carries a maximum sentence of two years' imprisonment. [ 4 ] Ms. Chinn has pleaded guilty to forged or falsified credit cards, that is possession of them, knowing they were obtained by the commission of an offence, contrary to s. 342(1) (

c) of the Criminal Code . That offence carries a maximum sentence of 10 years' imprisonment. [ 5 ] I mention the maximum penalties provided in the Criminal Code to indicate the seriousness with which Parliament has approached these three offences. [ 6 ] The circumstances are that on December 4, 2012, after obtaining some information from a fortuitous discovery of a computer storage device, police obtained a warrant to search a residence occupied by Ms. Chinn and Mr. Bigcharles. Both were arrested at the residence.

Found by the police in the course of their search were various items including, I am told, hundreds of payment cards, some genuine, some false. Some of these cards appeared to be experimental in that they were the product of trial runs, attempts to create false documents. Some of them, for example, had a photograph of one or the other of Mr. Bigcharles or Ms. Chinn without a name filled in. Police found two genuine passports in the names of persons other than Mr. Bigcharles and Ms. Chinn.

One of those passports had been stolen five weeks earlier, another stolen a year earlier. [ 7 ] In addition to the cards, the police found equipment that was usable to manufacture fraudulent payment cards, that is credit or debit cards. They found a scanner with a card on the screen waiting to be scanned, apparently. They found rolls of foil, a card printer, a magnetic stripe reader or writer, a laminating machine.

In short, all of these discoveries would give every indication of a fairly sophisticated and fairly large-scale operation designed to produce fraudulent or false identification documents or credit/debit cards. [ 8 ] Police also found drug paraphernalia in the residence, and I mention that only because Ms. Chinn, at the time of the search, was on bail conditions prohibiting her from having in her possession drug paraphernalia. There is nothing that directly connects Ms. Chinn to the drug paraphernalia located; it simply was found, I believe, in the kitchen of the suite or condominium where Ms. Chinn and Mr.

Bigcharles were living. [ 9 ] Police found apparently legitimate credit cards, American Express, CIBC bank cards in the names of other individuals, some of whom said that their identities or their banking security had been compromised. Police found genuine social insurance cards, two of them apparently had been stolen in the previous year.

Police found genuine British Columbia care cards. [ 10 ] The investigation following the discovery of these items took some time, as the police had to attempt to track down the owners of some of these documents, driver's licence and the like, and the investigation involved not only police, but in-house investigators, for example, in ICBC, trying to deal with the driver's licences, or the financial institutions whose credit cards were located in the residence. [ 11 ] The RCMP have analyzed the equipment and material found in the search and have concluded, and I recognize that this is merely an opinion, a ready-made inference, if you like, that what was located in the search indicated an extensive forged credit card operation. [ 12 ] Police found computers.

Those computers, some of them, contained data that would appear to have not belonged to either Ms. Chinn or Mr. Bigcharles. Some of that data, I am told, came from compromised computer systems of third parties. Police found sophisticated forensic software that appears to have been used to retrieve access data from janitorial companies. Police found alarm codes from an alarm monitoring company in the City of Victoria. Police found driver's licences or their facsimiles on the computers, some of them with Ms. Chinn's name and photograph.

Some of the computers disclosed Internet chats or communications originating from an account styled "Mandy", and some of the information there included obtaining keys for merchant accounts. [ 13 ] I will pause here to say that the fact that somebody sets up a chat site or a communication facility under the name Mandy does not indicate in any way that the person doing that is female, because one of the unfortunate features of the Internet is one can pose or pretend to be almost anything or anybody. But the police have concluded that the primary users of these computers were both Ms. Chinn and Mr.

Bigcharles. [ 14 ] Police did try to contact victims, or so-called, of these offences without much success, although one or two victim impact statements have been presented. The victim impact statements appear to be more concerned with the manner in which some of the credit

information or identity information was initially obtained, that is by theft, et cetera, and the feeling of violation of the victims, than the consequences, although I note that one of the victims has said that she has had to spend her own time and money dealing with the damage to her credit caused by the misuse of her credit information, and that she has been personally embarrassed when she applied for a mortgage and was challenged by financial information to prove who she really was, apparently as a result of the compromise of her financial information. [ 15 ] So I approach this sentencing on the basis that this was a fairly extensive and fairly sophisticated criminal enterprise, and turn now to the circumstances of Ms.

Chinn as the offender. [ 16 ] She is still young, she is just 24 years old. She apparently has had a good background, a good and unremarkable childhood. She has had the support of two parents. I understand that her biological parents no longer live together, but it appears from the information that has been supplied that both parents care for her, particularly her mother, who has done a great deal to rescue Ms. Chinn from the circumstances she found herself in on her arrest. [ 17 ] It would appear that Ms.

Chinn had a self-image problem as a child and that, when she entered high school, she fell in with bad companions, and that led her to a downward spiral of drug abuse, rebellion against her parents' authority, dropping out of school, and running off to be with her friends. [ 18 ] From the information provided, both of Ms. Chinn's parents, and particularly her mother, made fairly valiant efforts to rescue her from this lifestyle while she was in high school, including arranging a residential treatment program for her up in Cobble Hill.

That had marginal success and success that did not last because, after completing that program, Ms. Chinn returned to the lifestyle from which her mother and father had extracted her. Her mother says that this is attributed to the influence of an older male, I assume, without it having been spoken, that that was Mr. Bigcharles. Ms. Chinn has also indicated, in her rather lengthy written document, that part of her self-image or self-esteem problem led her to being manipulated by older males, and that appears to be consistent with the explanations that I have been provided. [ 19 ] In any event, that led Ms.

Chinn to the circumstances she found herself in when the police came into the apartment she was sharing with Mr. Bigcharles on December 2, 2012. At that time, she appears to have been using methamphetamine. It does not appear, on the evidence before me, that Ms. Chinn has been hopelessly addicted to this or other drugs, but there is no question that she has been a user. [ 20 ] Ms. Chinn has a criminal record, but not a very substantial criminal record. She has one conviction for driving while prohibited in January 2011. She was given a modest fine and prohibited for a further year. [ 21 ] Ms.

Chinn was granted a conditional discharge on one year's probation terms in December 2013. That arose out of a charge of possession of stolen property under $5,000, an offence that occurred in November 2011, before these offences took place, but that did not come to disposition until December 2013. I am told by counsel, and I accept, that the background to that offence was that Ms. Chinn was found motoring around in a parking lot on a scooter, and that the possession charge really arose out of her possession of the keys, if not perhaps the scooter itself. [ 22 ] Ms.

Chinn was in custody for some 44 days following her arrest on these charges. She was released in January 2013, largely through the intervention of her mother, who put forward a release plan that was acceptable to the Crown. One of the conditions of Ms. Chinn's release was that she live with her mother. Ms. Chinn has, since her release, done what I think I can fairly say is a fairly remarkable job of rehabilitating herself, upgrading her education, gaining some skills, establishing her own business, and becoming, from all appearances, a productive and useful member of society.

She currently owns and operates a business in an island community and is involved in the business community and in the larger community. For that, Ms. Chinn is to be commended. [ 23 ] One of the initial terms of Ms. Chinn's release was a 10:00 p.m. curfew, and that lasted until October 2014, when it was relaxed to a 12:00 a.m. curfew. She was also under a term that prohibited her from being in a liquor, beer, or wine store, a bar, pub, lounge, or night club. She was prohibited from possessing credit cards in any name but her own.

The restriction from going into licensed establishments or places where liquor is sold was obviously a restriction on Ms. Chinn's social life, and the restriction on possessing credit cards appears to have been a significant complication in the operation of her business, largely because most businesses these days do operate on credit or debit cards, and Ms. Chinn has had to be very careful not to put herself in a situation where she can be accused of having in her possession, however briefly, somebody else's credit or debit card while she is receiving payment for the services she provides. [ 24 ] Ms.

Chinn's 44 days in custody will be credited to her on a one-and-a-half-to-one basis following the authority of R. v. Summers . That entitles her to 66 days, as I understand it, credit for pre-trial custody. [ 25 ] Crown's position on this sentencing is that ordinarily for the offences to which Ms. Chinn has pleaded guilty, a fit sentence would be between six and nine months in jail, but in recognition of Ms.

Chinn's very significant rehabilitation efforts, a fit sentence would be a conditional sentence of between 12 and 18 months. [ 26 ] The defence submits that a suspended sentence with a period of probation would be a fit sentence, although the defence does raise the possibility of a conditional discharge. When I say raise, the defence floated that possibility, I think I can say, without pushing it too hard.

The basis of the defence submission is that this is an extraordinary accused in extraordinary circumstances, notwithstanding the very serious offences to which she has pleaded guilty. [ 27 ] Each counsel has tendered authorities suggesting what they urge is a fit sentence or range of sentences. The Crown's decisions show sentences ranging from a 15-month conditional sentence for stealing and using a credit card to obtain over $70,000 in value, that is Gonzalez-Urena , to one year in custody for an offence under the same

section to which Ms. Chinn has pleaded guilty, that is Thobani , to 18 months in jail for a drug-addicted accused with a criminal record described in the case as substantial, who was arrested with false driver's licence while on bail, one of the conditions prohibiting him from just that thing.

[ 28 ] In one of the cases, Rowe , a sentence of three years was imposed after credit for time served, but there the accused was a chronic offender and drug abuser. [ 29 ] A common thread running through not only the Crown's authorities but the authorities proffered by the defence, Proulx , Nghiem, if I can pronounce that correctly, and Woroby , is that where the offences involved have been offences involving identity theft, denunciation and deterrence are of very great importance in the consideration of the court in arriving at a fit sentence. [ 30 ] I am mindful that no matter what the sentence or what the circumstances, none of the objectives of sentencing can completely obliterate those others.

That is, denunciation and deterrence may rise to the fore in any particular circumstance, but does not make consideration of the other objectives under s. 718 academic or inappropriate. [ 31 ] The range of sentences established by the authorities put forward by both counsel is very broad. As far as I recall, none of the authorities has provided for a suspended sentence for the offences set out or provided for here. That does not mean that a suspended sentence is beyond consideration.

A very recent Court of Appeal decision, Voong , 2015 BCCA 285 , involved four separate sentences by four separate accused who had been convicted or pleaded guilty to dial-a-dope drug offences. At paragraph 61, the court said: A suspended sentence can achieve a deterrent effect, as noted above, as well as a denunciatory effect. And, as Esson J.A. stated in Chang [that is R. v. Chang , 2002 BCCA 644 ] the fact of being arrested, tried and convicted, can also address these principles.

In other words, the stigma of being a convicted drug trafficker and the consequences of that conviction—for example, restricted ability to travel outside of Canada and exclusion from many forms of employment—may also play a deterrent effect. [ 32 ] The context of those remarks were dial-a-dope drug offences, but the reasoning is equally applicable to these offences because, given Ms.

Chinn's circumstances, that is someone who is establishing herself as a businesswoman and doing a creditable job of joining mainstream or rejoining mainstream society, the consequences of a conviction for identity theft, credit card offences, and the like are going to be significant. [ 33 ] The Code requires that I consider aggravating and mitigating factors. There are not many of either. It is an aggravating factor that when these offences occurred, Ms. Chinn was on bail on the possession of stolen property charge. In mitigation, Ms.

Chinn has pleaded guilty and it is mitigating that she has made substantial progress toward her own rehabilitation and reintegration into society. [ 34 ] Denunciation and deterrence, as I have said, are of very great importance here, although do not overbear the other considerations. The reasons denunciation and deterrence assume importance for these offences include that the use of credit cards, debit cards, et cetera, are of very great importance to the commercial lifeblood or the commercial enterprises of society.

Personal identity information can be misused for a number of ways, and the misuse of one's personal identity or identifying information can be both a profound violation of that person's integrity, but also an indirect or direct attack on the reliance and trust that the institutions of society can place and should be able to place on the identity information being proffered from time to time. [ 35 ] Some of the submissions I heard from Mr. Allen, who did his usual very good job on behalf of his client, tended to minimize Ms. Chinn's moral blameworthiness for these offences. While I accept that Ms.

Chinn was and perhaps remains easily led, and that with respect to these offences she was the follower rather than the leader, I still conclude, on the basis of the information provided by the Crown, that Ms. Chinn was a participant in these offences and not simply a knowing bystander. [ 36 ] I will approach what is a fit sentence in the absence of pre-sentence custody and I bear in mind here the restrictive bail conditions that Ms.

Chinn has lived with since January of 2013, albeit relaxed in October of 2014. [ 37 ] The Court of Appeal in Nghiem , authority proffered by the defence, indicates that, at paragraph 20, restrictive bail conditions might appropriately be considered a mitigating factor, but also says that they can be taken into account to show that some of the objectives of sentencing have already been achieved.

In this case specific deterrence is one that may well be considered to have been achieved by the restrictive bail conditions. [ 38 ] I will say now that I do not view a conditional discharge as a fit sentence in a case such as this. I have not been shown that a conviction would present a significant repercussion to Ms. Chinn, at least any more repercussion to her than a conviction would present to anyone else. I have not been satisfied that a discharge on these offences would not be contrary to the public interest.

In short, the test for a discharge, absolute or conditional, has not been met. [ 39 ] I also conclude that a suspended sentence accompanied by probation would not satisfy the purposes of general deterrence and denunciation for these serious offences. I agree with the Crown's submissions that the range of custodial sentence would ordinarily be nine to 12 months. I also agree with the Crown's concession that Ms. Chinn does not need to go to jail.

She has achieved a great deal toward her own rehabilitation. [ 40 ] I am satisfied that a sentence served in the community would not put the safety of the community at risk and would be consistent with the fundamental purposes and principles of sentencing.

I have also been satisfied that none of the disqualifying conditions set out in s. 742.1 of the Criminal Code are present in this case. [ 41 ] A conditional sentence, in my view, will best reflect the objectives of denunciation and general deterrence, as well as another factor that I consider to be important in this case, and that is the promotion of a sense of responsibility and acknowledgment of harm done by Ms.

Chinn. [ 42 ] Bearing in mind the restrictive bail conditions, the substantial progress made by this young woman toward her own rehabilitation, I consider a term at the lower end of the range suggested by the Crown appropriate. [ 43 ] Ms. Chinn, would you stand up, please. I sentence you to 12 months to be served conditionally, that is in the community. From that 12 months, you will have credit for 66 days spent, 44 of them awaiting trial and the rest being the one-and-a-half-to-one credit.

[ 44 ] The conditions, in addition to the statutory conditions, are a curfew.

You will not be outside your residence between the hours of 10:00 p.m. and 6:00 a.m., unless you have the prior written approval of your sentence supervisor. [ 45 ] You will abstain from any drug scheduled under the Controlled Drugs and Substances Act , unless that drug has been prescribed to you by a physician licensed in the Province of British Columbia. [ 46 ] Insofar as the operation of your business is concerned, you may handle credit and debit cards tendered to you by your customers, but you will handle debit or credit cards belonging to a third party only for the purposes of carrying out your business and on your business premises for the duration of the conditional sentence order. [ 47 ] Is there anything arising, counsel? [ 48 ] MS.

HULKO: My Lord, my understanding from my friend is that the system that is set up in Ms. Chinn's business right now means that she does not have to handle them, and that has been somewhat beneficial for her moving forward and rehabilitating herself. The Crown's request for a condition with respect to credit cards is a variant on what's in the bail conditions right now, with the caveat that that information can remain on the business premises, personal information as in the names of -- [ 49 ] THE COURT: I understand your position, Ms. Hulko, and I did consider it.

It seems to me that in part this is fish or cut bait time for Ms. Chinn. I do not see the need to prevent her from touching a customer's credit card or debit card, and I do not want her to worry as a result of a condition I impose that if she touches it, she has to start to think about just how much touch becomes possession in law. If Ms. Chinn is going to play a game with somebody else's credit or debit card, she is going to be discovered, and she is going to understand leaving this room today that she is going to go to jail the next time. It is as simple as that.

I do not see the need to go any further than I have done. [ 50 ] MS. HULKO: Certainly, My Lord, and my note is that she may handle cards -- was it payment cards? I'm not sure what Your Lordship specifically said in -- [ 51 ] THE COURT: Payment card, being credit or debit cards. [ 52 ] MS. HULKO: Thank you. [ 53 ] THE COURT: But only for the purposes of transacting business in her business and only on her business premises. [ 54 ] MR.

ALLEN: I only had one comment, not to do with conditions, My Lord, but just referring back to an earlier point in your reasons when you mentioned the name of a municipality in terms of Ms. Chinn's residence, and I am wondering, given remarks that I made in my own submissions about the written materials that were filed that have been sealed. [ 55 ] THE COURT: Yes. [ 56 ] MR. ALLEN: Whether in the published version of the reasons, that could be edited? [ 57 ] THE COURT: The name of the municipality will be replaced in any written reasons by "an Island community". [ 58 ] MR.

ALLEN: Thank you, My Lord, I appreciate that. [ 59 ] THE COURT: All right, we will adjourn. [ 60 ] MS. HULKO: Oh, My Lord -- [ 61 ] THE SHERIFF: My Lord -- [ 62 ] THE COURT: Yes. [ 63 ] MS. HULKO: Sorry. [ 64 ] THE SHERIFF: Just to determine, may Ms. Chinn sign her documents out of custody? [ 65 ] THE COURT: Oh, yes. [ 66 ] THE SHERIFF: Thank you. [ 67 ] MS. HULKO: My Lord, if I could make further submissions on this? I thought Your Lordship had further terms that you were going to be imposing on the conditional sentence. [ 68 ] THE COURT: No, I was done. [ 69 ] MS.

HULKO: I do have a handful of other submissions then, with respect to that. While she is being given that permission to handle cards, could there be a term that she is otherwise prohibited from having in her possession any identification document or information for parties other than herself?

It's similar to what is on the -- because otherwise she's being given express permission on her business premises, but without another condition on the conditional sentence order that she can't otherwise have them, there's really no need for that, because she's not being prohibited from handling third parties' identification or having in her possession third parties' identification. [ 70 ] THE COURT: Educate me on the offences. I gather it is not an offence for her to have in her possession her mother's credit card?

[ 71 ] MS. HULKO: No, My Lord, not without that -- the further either inference or -- [ 72 ] THE COURT: With an intent. [ 73 ] MS. HULKO: -- knowledge of prior criminal act. [ 74 ] THE COURT: And so you think that it is required here, given the relationship I have heard between mother and daughter and the support that mother has provided daughter, that I should impose a term that mother cannot lend her credit card to her daughter for some legitimate purpose? [ 75 ] MS. HULKO: My Lord, it's not the mother specifically, it's third parties generally.

It's -- with these sorts of offences, when a conditional sentence is imposed, there tends to be a term similar to the one that was on the bail condition, that the offender not have in her possession the identification, documentation, or information -- [ 76 ] THE COURT: You may sit down, Ms. Chinn. [ 77 ] MS. HULKO: -- of anyone other than herself, so that she can't, over the course of that -- that it's a breach of her conditional sentence order if she has a passport from a third person in her possession. [ 78 ] THE COURT: Right. [ 79 ] MS. HULKO: The sorts of -- [ 80 ] THE COURT: Or your credit card. [ 81 ] MS.

HULKO: -- activity -- or my credit card, yes. [ 82 ] THE COURT: Yes, and such an order or a condition would include prohibiting her mother from loaning her credit card. [ 83 ] MS. HULKO: There could be a line in that, that allows her to have the prior written consent of her bail supervisor or her sentence supervisor, in which case if her mother is of the wish to have that be an option, the supervisor could do that, or Your Lordship -- [ 84 ] THE COURT: Mr. Allen, have you got any -- [ 85 ] MS.

HULKO: -- could qualify it and say that that exempts her mother's, but without any submissions or comments from her mother, her mother might not want that to be an exception. There's no way for us to know that at this stage. [ 86 ] MR. ALLEN: Well, I can advise Your Lordship I have, at this point, quite a longstanding relationship both with Ms. Chinn and Ms. MacIntosh and am well aware of the relationship, business and personal.

My suggestion would be prior written permission is a clumsy way to exempt, but a proviso that simply exempts credit cards, for example, belonging to a close family member would be suitable. [ 87 ] THE COURT: But other than that, you do not have any real concern about a term prohibiting possession of third party identity, credit or debit information? [ 88 ] MR.

ALLEN: Well, I will tell you, My Lord, I actually sort of understood that that was implicit in the -- [ 89 ] THE COURT: Well, I suppose it was, but there is no harm in my saying that expressly. [ 90 ] All right, I am going to add a term that, for the period of the conditional sentence order, Ms. Chinn not be in the possession of identity documents, credit or debit cards, or payment cards, as they are categorized, belonging to any third party except Carole MacIntosh. I will leave it to Ms. Chinn and Ms. MacIntosh to sort out between them any embarrassment or trouble that causes. [ 91 ] MR. ALLEN: I am sure if Ms.

MacIntosh has a problem with that, she will let the court know about it. [ 92 ] THE COURT: She will just lock her purse up, yes. [ 93 ] MR. ALLEN: Yes. [ 94 ] THE COURT: Ms. Hulko? [ 95 ] MS. HULKO: Yes, My Lord, I'm wondering about whether a no-contact condition order with respect to all of the named individuals on the indictment.

Now, ordinarily I wouldn't ask for such a thing, but one of your fellow judges called me on the carpet for not asking recently, because the legislation has changed to a certain extent with respect to named victims of criminal offences, and I believe it's now actually mandatory that such a condition be put in place, that there be no contact with the named individuals. It's a lengthy list. [ 96 ] THE COURT: But we took the names of the individuals out of the indictment to which Ms. Chinn pleaded guilty. [ 97 ] MS.

HULKO: True, but I don't know how extensive the legislative change is and the fact that they were still the underlying complainants in the offences. I don't -- it's a lengthy list, I have typed out the list, thinking this might come up. [ 98 ] THE COURT: So what is the

section that says this is mandatory? [ 99 ] MS. HULKO: That is --

[ 100 ] THE COURT: It is a new one on me. [ 101 ] MS. HULKO: It was new to me as well, My Lord, and I ought to have looked up the specific

section afterwards. If I could just have a moment. [ 102 ] THE COURT: If I have to do it, I will do it, but it seems to me otherwise Ms. Chinn has spent a great deal of time trying to forget the offence ever happened. I suspect there is not much risk that she would voluntarily try to contact any of these people. [ 103 ] MS. HULKO: I would certainly agree with that, My Lord, and as I said, but for having been -- but for having been chastised recently for not making the same request, I would not be asking for it. [ 104 ] THE COURT: On a similar type of offence? [ 105 ] MS. HULKO: Yes, yes.

It might -- it might have come through the separate legislative changes to the Victims of Crime Act , My Lord, rather than through the Criminal Code . I can't find the reference, My Lord, so perhaps if Your Lordship isn't going to chastise me as your fellow judge did, I am content to leave it, and perhaps my friend and I can -- if I am able to locate the legislation in question and if I consider that it poses a problem, I can discuss the matter with my friend. [ 106 ] THE COURT: I think I can make this order, and that is if there is legislation requiring me to order Ms.

Chinn to have no contact for the duration of the conditional sentence order with persons whose names appear in the indictment, I will make that order, and counsel can add it later if they can find the authority. If there is no such authority that makes it mandatory, I will not make the order. [ 107 ] If there is an issue as between counsel, whether it is mandatory or discretionary, you can come back and talk to me sometime today, and I will break the tie. Yes, next? [ 108 ] MS. HULKO: Thank you, My Lord. With respect to the remainder of the indictment, if it could be adjourned to the 31st of July, when Mr.

Bigcharles is before the court, and the Crown will deal with stays of proceedings with respect to Ms. Chinn at that time. [ 109 ] THE COURT: All right, the understanding being that any remaining counts that Ms. Chinn is at risk on will be stayed when Mr. Bigcharles is sentenced. [ 110 ] MS. HULKO: That's correct, My Lord. [ 111 ] THE COURT: Any comment, Mr. Allen? [ 112 ] MR. ALLEN: The only comment I had was with respect to this extra condition my friend is seeking, the no-contact condition. The first thing, of course, is that certainly as far as I am aware, Ms.

Chinn has no idea who these people are, and certainly there is no -- it is not an interpersonal kind of situation. [ 113 ] THE COURT: I am only going to do it if I have to, Mr. Allen. [ 114 ] MR. ALLEN: The difficulty is that I am not sure at which point Your Lordship is going to become functus here.

I would hate to think that we would have to end up going in front of the Court of Appeal on a Crown appeal to add a condition like this or something of that sort. [ 115 ] THE COURT: I will adjourn that condition until counsel can either resolve it between themselves or they come back before me, how is that? [ 116 ] MR.

ALLEN: And the registry, I hope, will be able to produce a conditional sentence order in the meantime. [ 117 ] THE COURT: If you both agree to the conditional sentence order, having satisfied yourselves whether this is a mandatory condition or a discretionary condition, I direct the registry to complete the conditional sentence order as approved by both counsel. [ 118 ] MS. HULKO: And I expect, My Lord, I will be able to find the answer for that quite quickly. [ 119 ] THE COURT: Yes, well, I am here all day. [ 120 ] MR.

ALLEN: All right, we will make that our first order of business when we leave here then, My Lord. [ 121 ] THE COURT: All right, thank you. [ 122 ] MS. HULKO: Thank you, My Lord. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED) [ 123 ] THE CLERK: Recalling the matter of Her Majesty The Queen against Amanda Chinn, My Lord. [ 124 ] MS. HULKO: My Lord, my old-fashioned Criminal Code wasn't updated and didn't have the section, but my friend has managed to locate a more current version. [ 125 ] MR. ALLEN: It's a new subsection of 742.3 of the Code , My Lord, which is the

section dealing with the conditions of conditional sentence orders. The new subsection (1.1), actually (1.1) to (1.3), provides a mandatory order of no contact with named complainants or victims in the case, except in two circumstances: one is with the consent of those individuals, which clearly doesn't apply here, and the other is in essentially Your Lordship's discretion, if you feel that "exceptional circumstances" apply, and I don't

believe I have a submission that there are exceptional circumstances here, except so far as these are not victims who were in any kind of personal relationship, the way there would be in an assault case, for example. [ 126 ] THE COURT: Notwithstanding that it seems to me to be a completely redundant order to make, I do not think I have got any choice in this case, Mr. Allen, but to -- [ 127 ] MR. ALLEN: No, it seems to apply, My Lord. [ 128 ] THE COURT: Yes, but to make the order, and so Ms.

Hulko's list, whatever that shall be, is going to be appended to this conditional sentence order and for the remainder of the term of the order, Ms. Chinn is prohibited from contacting those persons on the list that are going to be marked as

Schedule A to the conditional sentence order. [ 129 ] MR. ALLEN: Yes, and Ms. Hulko is providing that now, My Lord. [ 130 ] THE COURT: Yes, all right. “R.T.C. Johnston, J.” The Honourable Mr. Justice Johnston