R. v. J. S. H. Date:, 2017 BCPC 12

Citation: R. v. J. S. H. Date: 20170126 2017 BCPC 12 File No: 83502-2C Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. J. S. H. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: B. R. Anderson Counsel for the Defendant: B. Coleman Q.C. Place of Hearing: Abbotsford , B.C. Dates of Hearing: January 25-26, 2017 Date of Judgment: January 26, 2017

[ 1 ] The Crown asks for an order under 810.2 of the Criminal Code against the Defendant, J.S.H. Mr. H is not charged with committing any criminal offence and will not acquire a criminal conviction as a result of these proceedings. But if the Crown is successful in its application, he will be subject to a court order monitoring his behaviour in the community, and he could be arrested and charged with a criminal offence if he was to breach any term of such an order. This hearing was conducted to determine if Mr. H should be put on such an order. [ 2 ] There are a number of things that must be proven by the Crown, on a balance of probabilities, before an order under

section 810.2 can be made. Firstly, it must be shown that the informant, Corporal Fox, has grounds to believe that Mr. H will commit a serious personal injury offence, as that expression is defined in

section 752 of the Criminal Code . Corporal Fox has testified that she has such grounds, and has set those out. Mr. H has a criminal record composed of a number of convictions as a youth and some as an adult that include serious personal injury offences as that term is defined in

section 752 of the Criminal Code . Corporal Fox lists among her concerns the Defendant’s previous history of drug abuse and relapse, as well as his failure to take adequate programs to manage his risk of reoffending or to support his recovery from his addiction. [ 3 ] Everyone concedes that Corporal Fox has the requisite subjective grounds to support this application and that her belief is subjectively valid and honestly held. The issue is whether or not those grounds are reasonable.

This is an objective test, and it must be proven on a balance of probabilities that Corporal Fox’s belief is objectively reasonable before the order the Crown requests can be made. [ 4 ] Orders of this nature call for a balance of competing but equally important considerations. Many individuals who have a violent past continue to pose a serious risk to the safety of others, and society is entitled to be protected from such individuals even after they have served their sentences for previous crimes.

On the other hand, persons convicted of crimes who have paid their debt to society and who are not likely to pose an ongoing risk to others are entitled to move on with their lives and put their past behind them. Applications of this nature are very difficult because they call for a type of crystal ball gazing; an exercise in which the line between what is reasonable and what is speculative can sometimes become very blurry. [ 5 ]

Section 810.2 (3) says that if the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonable grounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour. In the circumstances that Mr. H finds himself in, the Crown takes the position that the order may be for a period of up to two years in length, as permitted under subsection (3.1) because the sentence he finished serving was for a serious personal injury offence.

His counsel takes the position that the last offence he was serving doesn’t count in this calculation. He says that there would have to be a previous serious personal injury office before the sentence Mr. H last finished serving for subsection (3.1) of

section 810.2 to apply. [ 6 ] The Defendant has a busy criminal record of convictions that were acquired between 2006 and 2012. Most of these are convictions for offences that the Defendant was sentenced for in Youth Justice Court. Both counsel agree that, because of

section 82 of the Youth Criminal Justice Act , those convictions should not be taken into consideration as part of this application.

Section 82 directs that, having completed those sentences, Mr. H is “deemed not to have been found guilty or convicted of those offences” except in certain situations, none of which apply here. [ 7 ] The Defendant has three entries on his adult record, each time for multiple offences. In October of 2011 he was sentenced for two counts of assault, two counts of breach of recognizance and single counts of flight while pursued by a police officer and possession of stolen property over $5,000. In October of 2011, he was sentenced for theft under $5,000 and breach of recognizance.

The circumstances of the theft offence are presented as such that they more closely resembled a robbery, although the Defendant did not plead guilty to that offence. The last time he was sentenced was in March of 2012 when he was sentenced for robbery as well as for two counts of breaching court orders (in one case a recognizance, and in the other a probation order made in Youth Court). [ 8 ] The Defendant is a young man. He was born in October of 1992. His last conviction took place five months after his nineteenth birthday.

His time in custody had its ups and downs with some periods of progress and other periods of problematic behaviour. Like many young men in the federal prison system, his problem has been a history of violence and a history of drug use. At one point in time he was released to live in a halfway house and showed some progress, until a relapse in his drug use led to his being absent from the halfway house without permission. He was returned to custody to serve out the remainder of his sentence. [ 9 ] While the Defendant was on parole in the community, he met the lady who is now his wife.

They were married in the institution following the revocation of his parole and they have a young son together who was born this past September. At one point it was suspected that the Defendant’s wife may have been bringing him drugs in the institution, but this has never been substantiated. The Defendant’s wife appears to have been a positive influence on him in the time that he has been released from custody. [ 10 ] Mr.

H’s behaviour in the institution is described by his institutional parole officer as being “problematic.” His institutional offences included possession of drugs and drug paraphernalia, acting aggressively toward staff, possessing weapons, and assaulting or intimidating other inmates. He did not complete any programs designed to address his violence, though it is unclear from the evidence whether this was because of his refusal to participate in them or because these programs weren’t available at the institution he was incarcerated at. Mr.

H did testify that he found it stressful, while on parole in the community, to work at a job and then participate in programming at the end of his work day. [ 11 ] Mr. H was released on bail, pending this application, on November 6, 2015. In more than fourteen months since his release, his performance on bail has been exemplary. Corporal Fox concedes this and sees this as a pro-social factor, but still believes that the order requested by Crown is needed. The Defendant’s bail supervisor, Mr. Backra, reports that the Defendant has complied with the terms of his bail and has not breached the order. Mr.

Backra has no complaints about the Defendant’s performance on bail. He reports no breaches of the bail order by the Defendant. An investigation into the Defendant’s home life conducted by the Ministry of Children and Families did not disclose any concerns. The RCMP has also done a check of Mr. H’s home and did not have any concerns, and reports

from other agencies have similarly not found any cause for concern. [12] The Defendant testified on his own behalf and a number of things became apparent. I agree with his counsel’s assessment thatMr. H answers questions frankly, even when the answer was not to his advantage. He sometime gave long answers that did not directlyanswer what he was asked. He was frank about his relapse. He took responsibility for messing up his early release and did not attemptto blame anyone other than himself.

He was very emotional and one concern is his demonstrated difficulty in handling stressfulsituations such as testifying in court. [13] One positive is that Mr. H appeared to show a genuine revulsion for his past wrongs. He certainly did not present as someonewho lacked any feeling or emotion for the things he had done.

Quite the contrary, he appeared to be very ashamed of the things he haddone in his past. [14] At the conclusion of his testimony, the Defendant was told, and it merits repeating now, that it is important for him to know thateveryone wants him to succeed in life, such that his criminal record will end where it does, that no one else will be victimized by him asothers have in the past and that he and his wife and son will enjoy a happy family life, one that breaks the cycle of the past so that his sondoesn’t have to go through what the Defendant did. Mr. H testified that he wants this as well.

Such a result is a win-win for everyoneincluding the Defendant, who would not have to live with the burdens that come from hurting any other people. [15] The Defendant’s recent good conduct while on bail is encouraging. Crown counsel believes that it is the result of Mr. H beingsubject to the structure of his bail order and the good work of his bail supervisor. The Defendant’s counsel attributes the recent goodconduct to maturity and the responsibility that comes to someone who is diligent about wanting to provide a good family life.

No one isready to hang up any sort of “Mission Accomplished” banner in this case, but these are encouraging signs. [16] I asked Mr. H about his relapse prevention plan, and did not get all of the answers I was hoping for. He is managing hisaddiction by keeping busy with his family and with a renovation project. He has attended 12 step meetings in the past, but is not atpresent. His wife had been taking courses to become an addictions counsellor prior to the birth of her child, but it is unclear whether ornot she will do so in future.

She did not testify, which is unfortunate, because I believe that her evidence would have been helpful. [17] It is my sincere hope that the Defendant will find support to prevent a relapse in a 12 step program. The meeting rooms of theseprograms are filled with men and women who have criminal records as bad or worse than Mr. H, and who have put that part of their pastwell behind them in the rear view mirror of their lives. They lead productive and sober lives.

Conversely, the jails of this county arefilled with people who believed that they could handle their addiction on their own. [18] There are a number of options for how to respond to this application: (

a) It can be denied; (

b) It can be granted as requested bythe Crown; (

c) It can be granted, but for a shorter period of time, and/or on different terms than the Crown is seeking. [19] The Crown’s application is opposed for a number of reasons. The Defendant’s counsel sees it as an unfair restriction on theliberty of the Defendant. I am mindful that under

section 7 of the Canadian Charter of Rights and Freedoms, everyone has the right notto have their liberty deprived except in accordance with the principles of fundamental justice. [20] Mr. Coleman also points out that Mr. H’s situation is unusual, in that his last conviction for a criminal offence was almost fiveyears ago, he is a young man, and he has behaved in an exemplary manner since his release from custody.

This is different from many ofthe defendants in the case law submitted by counsel, where the defendants had longer criminal records, and had demonstrated a greaterresistance to rehabilitation over a longer period of time. [21] Crown counsel has referred me to examples in the case law where orders have been made under

section 810.2 even though theDefendants had similar periods of compliance with their bail orders. In this regard, I was referred to two decisions of this court: R. v.Dorscheid 2005 BCPC 303, and R. v. Firth 2004 BCPC 449; a decision of the BC Supreme Court: R. v. Nikal 2016 BCSC 29; and twodecisions from Saskatchewan: R. v. Carriere 2013 SKPC 36 , 2013 SKPC 036 and R. v. Flett 2013 SKQB 155. One troublingaspect of the cases is that the facts of some of these cases seem to set a very high standard for someone seeking to avoid being thesubject of an order under this section, with little regard for good behaviour.

This observation is not intended as a criticism of any of thosedecisions, where the results of the decision were completely justified. [22] In R. v. Nikal, supra, Justice Rogers of the BC Supreme Court set out the law nicely at paragraph 40 of his decision, when hesaid that “all that is necessary [for the making of an order under

section 810.2] is for the evidence to show that apprehension of the risk isreasonably grounded and is neither speculative nor remote.” That is really what is at the heart of this decision. Has the Crown shown ona balance of probabilities that the risk of the Defendant committing a serious personal injury offence is reasonably grounded and neitherspeculative nor remote? [23] The problem with applications of this nature is that they invite an overly cautious approach to their consideration. Nobodywants to be blamed if something goes badly wrong. Caution is rarely a bad thing, and certainly not within this context.

There arehowever two problems with a one-size-fits-all approach to this problem. Firstly, it presumes that the presence of a court order will fix allproblems. This is not always the case, and at times the order may be so onerous as to add to the stress within the subject’s home,increasing the risk for things to go off the rails. Secondly, it is unfair and discouraging to those persons who are genuinely trying tomove forward in their lives.

For persons in this category, prolonging the time that someone is in “the system” can often impede theprocess of breaking the cycle. [24] If this was a case where the evidence suggested that the Defendant was not making any sincere efforts to become a law abidingcitizen, or that there was ongoing drug use, domestic violence in the home, or if there was good reason to believe that the Defendant wasbeing manipulative, I would not hesitate to grant the order the Crown has requested.

In this case however, the Defendant has been thesubject of a very restrictive bail order for over fourteen months, perhaps as long, or longer, than an 810.2 order might have been if he hadconsented to enter into the order at his first appearance. [25] On a consideration of the evidence presented and of the factors I have set out, I am not satisfied that the Crown has met the

burden of proving, on a balance of probabilities, that the risk of the Defendant committing a serious personal injury offence is reasonably grounded and neither speculative nor remote. I do not fault the Crown for bringing this application. I am also mindful of the fact that, regardless of the outcome of this application, the Defendant will be subject to other monitoring. This is a very close call and reasonable people may differ on its conclusion. Mr. H has done things in his past that will continue to create mistrust on the part of other people.

It will be up to him to live his life in a manner that proves them wrong. [ 26 ] For the foregoing reasons, the Crown’s application to have the Defendant placed on an order under

section 810.2 is denied. [ 27 ] Dated at the City of Abbotsford, in the Province of British Columbia this 26 th day of January, 2017. The Honourable Judge K. D. Skilnick Provincial Court of British Columbia