R. v. M.L., 2019 BCPC 359

Citation: R. v. M.L. 2019 BCPC 359 Date: 20190725 File No: 85451-1 Registry: Kelowna File No: 103758-2-C Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. M.L. ORAL RULING ON APPLICATION OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R.N. HAMILTON Counsel for the Crown: F. Shiu Counsel for the Defendant: C. Darnay Place of Hearing: Surrey , B.C. Date of Hearing: July 24, 2019 Date of Judgment: July 25, 2019 Introduction [ 1 ] M.L. (“Mr.

L.”) applies to terminate or vary two probation orders that impose protective no-contact conditions and no-go conditions that restrict his freedom to communicate with his ex-wife and their three children, or to be within 75 kilometres of Kelowna, where Mr. L.'s family lives.

[ 2 ] Mr. L. is subject to electronic monitoring on one of his probation orders, but is no longer subject to electronic monitoring on the other probation order. [ 3 ] Specifically, he wants the electronic monitoring conditions deleted and the no-go within 75 kilometres of Kelowna to be varied to simply state he is not permitted inside the city limits of Kelowna. [ 4 ] The first in time of these two probation orders was imposed as part of a sentence handed down on December 9, 2016. The sentence imposed a period of three years of probation following a jail sentence.

I am told, that probation order will end on June 22, 2020, so just over one year from now. That probation order imposed electronic monitoring with respect to a curfew condition, but not the no-go condition to Kelowna. [ 5 ] The curfew condition was deleted on January 16, 2018, and, therefore, the electronic monitoring condition in that probation order was deleted. [ 6 ] The second probation order was imposed November 9, 2017, and runs for two years. That probation will end November 8, 2019, so approximately four months from now. A term of that probation order requires Mr. L. to comply with electronic monitoring.

That electronic monitoring obligation will end in November when Mr. L. has served his period of probation. [ 7 ] The Crown seeks to vary the first probation order to add electronic monitoring back into the probation conditions in order that the protective condition of no-go to within 75 kilometres of Kelowna can be monitored by way of the GPS system used in electronic monitoring. The Crown opposes all of the changes sought by Mr. L. Background [ 8 ] Mr. L. has a lengthy criminal record that includes 22 convictions for breaching either his bail conditions, probation conditions, or conditional sentence orders.

His record relates in part to his former domestic partner, S.F. (“Ms. F.”), and their three children, N.L., S.L., and T.L. [ 9 ] In 2004, Mr. L. sustained a serious frontal lobe brain injury in an accident on an all-terrain vehicle. The brain injury fundamentally and permanently altered Mr. L. He became impulsive and unable to control or moderate his behaviour. [ 10 ] As a result of the brain injury, Mr. L.'s relationship with Ms. F. ended, and a dispute over the parenting arrangements for the three children developed. [ 11 ] On August 10, 2011, Mr.

L. was convicted of criminal harassment with respect to his behaviour and conduct towards Ms. F. Ultimately, he was sentenced to time served and placed on three years' probation, which included protective conditions that he have no contact with Ms. F. Fifteen days after that sentence was imposed, Mr. L. was again criminally harassing Ms. F., and he was convicted of that offence on February 28, 2012.

He was also convicted of breaching his probation imposed on the prior conviction back on August 10 th , and he was also convicted of breaching bail conditions, which I presume were imposed following his arrest on the second criminal harassment charge. [ 12 ] Mr. L.'s record thereafter is littered with convictions of breaching either bail or probation by contacting Ms. F. and/or his children. [ 13 ] On December 9, 2016, Mr. L. was sentenced by Judge McKimm in Kelowna to a jail sentence followed by three years' probation.

That probation order is the first probation order before me on this application. [ 14 ] The electronic monitoring condition on that order only applied to the curfew condition. The no-go condition, which has subsequently been amended, has no electronic monitoring connected to it. The curfew condition with the electronic monitoring provision was deleted from Mr. L.'s probation conditions by Judge Dohm on January 16, 2018. [ 15 ] On November 9, 2017, Judge Gordon sentenced Mr. L. on a conviction for threatening to kill his children to a time-served sentence plus two years' probation.

The terms of that probation order include a general electronic monitoring condition, so both the curfew and the no-go to within 75 kilometres of Kelowna are subject to that electronic monitoring condition. [ 16 ] Mr. L. has been back to court repeatedly seeking to vary some of the conditions of his probation orders. He says the electronic monitoring condition is difficult for him because he enjoys outdoor living and camping, and it is difficult to keep the ankle bracelet charged if he is camping.

It is summertime now, and if he goes out socially to a barbecue or to the beach and wears shorts, the ankle bracelet is in full view of his friends and the public. [ 17 ] In short, Mr. L.'s application to either terminate both probation orders now, or to have them terminate in November when the second probation order expires, is motivated by personal convenience. [ 18 ] Judge McKimm, in his sentencing decision on December the 9, 2016, did not hold back in his description of what Mr. L. has subjected his family, and in particular Ms. F., to since 2011.

I will just refer to a few portions of that decision. [ 19 ] Paragraph 3: The struggle is quite properly classified by learned counsel for the Crown as to balance between the unique personal circumstances of Mr. [L.] on the one hand, which I accept, and the need to protect the public and, in particular, protect Ms.[F.], Mr. [L.]'s partner, from what can only be described as a relentless attack on her sense of privacy and dignity over the last five years. Paragraph 8:

In December 2015, he, Mr. [L.], had been arrested 116 days previously for breaching his probation order and breaching his recognizance, and was convicted of two breaches of his recognizance for having contact with the complainant and a third breach of a probation order for which he received effectively three months in custody plus a two-year probationary term. [ 20 ] I am just going to pause briefly to point out that those convictions referred to at para. 8 relate to offences in terms of breaching the protective conditions for having contact with his wife.

Those offence dates are August 26, 2015; August 28, 2015; August 29, 2015; and September 5, 2015. [ 21 ] Turning to the decision at paragraphs 14, 15 and 16, Judge McKimm is referring to an opinion that was tendered on behalf of Mr. L. from his doctor. And so, Judge McKimm quotes at paragraph 14 briefly from the doctor's opinion. And the doctor says this about Mr. L.: In the decade I have known him, despite his impaired judgment and self-control compared to a healthy individual the same age, I have never had a concern for the safety of his children.

I feel sorry for them that they lost the father they had and that he will act more like a permissive uncle or a goofy big brother but he is not a threat to them. In paragraph 15 Judge McKimm says again: I find that an absolutely astonishing statement from a physician and psychiatrist. This man has terrorized this family and, in particular, has terrorized his children, as I will note further on in my reasons for judgment. To suggest that because he has not laid a hand on the children, that he has not damaged or hurt the children, defies comprehension and certainly is wildly inaccurate.

Judge McKimm then goes on to quote a little further from this doctor's letter. The doctor says: I strongly believe that a court order that restricts access to his children contributes directly to his recurrent arrests and incarceration as he is incapable of staying away from them. While this may appear to be defiant behaviour, I can assure you that even with a gun to his head, he would not turn around once he had made the decision to see his kids.

This is a combination of his grief, having missed out on a large part of their lives, and his tendency to perseverate, which prohibits an individual from shifting from a decided-upon plan, even if one knows it is the wrong course of action. Judge McKimm carries on. He says: The doctor's statement is a statement that this man will do whatever he wants whenever he wants and asks the court to be sympathetic because he is, for some reason, incapable of anything else as a result of his head injury. Paragraph 20, Judge McKimm says: He is not going to comply with court orders. He is not going to rehabilitate.

He is what he is and the doctor's statement suggests that he will continue to be what he is. Paragraph 22, Judge McKimm says: I accept Mr. Jones' able arguments that proportionality, given this gentlemen's mental health struggles, is an important principle. But in the face of that record, the time has come to put an end to this reign of terror that Mr. [L.] is visiting on his family. Lastly, at paragraph 26, Judge McKimm is referring to an occasion when Mr.

L. attended at Kelowna in violation of his probation condition to have a visit with his oldest son, N.L., and they were to have spent a couple of days together. Judge McKimm says this: When it became apparent to the accused, Mr. [L.], that [N.L.], the 14-year-old son, was not going to see Mr. [L.] the following day, Mr. [L.] threatened to go to the house the children and their mother resided in, shoot them all, and burn down the house. [ 22 ] The concern I have is Mr. L.'s extensive history of breaching protective conditions, court orders, and his threats of violence.

The sentence imposed by Judge Gordon in November of 2017 related to Mr. L. telling a correctional officer at the Kamloops Regional Correctional Centre that he was going to strangle and shoot his children to death once released from custody. [ 23 ] It is my view that Mr. L.'s compliant behaviour with respect to these two probation orders that are before me on this application has been achieved largely by virtue of the electronic monitoring program that Mr. L. has been subject to.

He knows that his whereabouts are monitored, and if he ventures inside of 75 kilometres from Kelowna, the authorities will know that. [ 24 ] Judge McKimm felt that imposing the maximum period of probation was needed in order to protect Mr. L.'s family, and to give them the maximum period of peace of mind the judge could under the Criminal Code . I am not prepared to shorten that time on the probation order imposed by Judge McKimm. [ 25 ] Accordingly, Mr.

L.'s applications are dismissed. [ 26 ] With respect to the Crown's application to vary Judge McKimm's probation order to add back in electronic monitoring as a general term, to permit electronic monitoring of the no-go within 75 kilometres of Kelowna, I am granting that application pursuant to s. 732.2(3)(a). [ 27 ] It is my view that the current probation orders have finally been able to ensure Mr. L.'s compliance because of the electronic monitoring. Mr. L. has amply demonstrated in the past that he will flagrantly disobey court orders and contact his family.

He has not done so or attended in Kelowna in breach of his probation since he has been subject to electronic monitoring. [ 28 ] It is my view that this simple but vitally important success is due, in large part, if not entirely, by the imposition of the electronic monitoring provision in the November 2017 probation order.

[ 29 ] Accordingly, I will amend the probation order imposed by Judge McKimm to add the following term to the no-go within 75 kilometres of Kelowna. This term will be monitored with electronic monitoring, and you will comply with all of the requirements of electronic monitoring. That is the probation order on file number – I think it is 85451-1. [ 30 ] MR. SHIU: That's correct, Your Honour. (RULING RE APPLICATION CONCLUDED)