Regina v. Richardson Date:, 2012 BCPC 438

Citation: Regina v. Richardson Date: 20121105 2012 BCPC 0438 File No: 88614-3KAC Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LARRY LEE TRAVIS RICHARDSON ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE BULLER BENNETT Counsel for the Crown: P. Benning Counsel for the Defendant: J. Dunne Place of Hearing: Port Coquitlam , B.C. Date of Hearing: November 5, 2012 Date of Judgment: November 5, 2012

[ 1 ] THE COURT : Mr. Richardson pleaded not guilty to the following charge: that on the 10 th day of August, 2012 to the 12 th day of August, 2012 inclusive, at or near Maple Ridge, in the Province of British Columbia, he did without lawful excuse disobey a lawful order of the Court, an order made by the Honourable Judge Dossa on August 9 th , 2012, contrary to s. 127 of the Criminal Code . [ 2 ] The facts are agreed upon by the Crown and defence. The facts are as follows: Mr. Richardson sought bail on a charge of assault on a Ms. Mason. The two of them lived together at the time of the charge. Mr.

Richardson was granted bail by The Honourable Judge Dossa on August 9, 2012. Bail was in the form of a recognizance in the amount of $300.00 with a cash deposit of the same amount. [ 3 ] The recognizance of bail contained a condition that Mr. Richardson have no contact directly or indirectly with Ms. Mason. Later on the same day, Mr. Richardson signed the recognizance before a justice of the peace. [ 4 ] On August 10 th and 11 th , 2012, Mr. Richardson contacted Ms. Mason by telephone seeking her assistance in raising the $300.00 required to perfect his bail. Mr.

Richardson was still in custody at the time that he contacted Ms. Mason. [ 5 ] Defence submits the following: the purpose of a recognizance and conditions is to govern the accused person’s conduct after release. Further, given the wording of the reporting condition on the recognizance, Mr. Richardson could not be bound by conditions of his recognizance until after his release. The recognizance was not intended to govern his conduct while he was held in custody until he perfected his bail because Mr.

Richardson obviously was not at large in the community. [ 6 ] Defence further submits that there are six steps in a release. The first step is release on conditions as ordered by a justice. The next step is when the document of recognizance is signed in front of a justice. However defence counsel submitted the order is conditional or contingent as the bail has not yet been perfected.

Once the bail is perfected, the accused is released and then bound by the conditions attached to the recognizance. [ 7 ] Alternatively, if the conditions on the recognizance apply before the bail is perfected then the Crown has a remedy under s. 524 of the Code rather than s. 127 of the Code . [ 8 ] Crown counsel submits that a recognizance becomes binding on an accused when it is pronounced in Court. That recognizance remains in effect until the charges are concluded. Therefore, there cannot be different stages at which the recognizance comes into force.

The recognizance cannot come into force only when the bail is perfected. That does not reflect the wording of the recognizance and could not have been the intent of Parliament. [ 9 ] Alternatively, Crown submits that when a judge orders a person released on any type of bail, those words alone amount to the Court order that Mr. Richardson has breached. [ 10 ] Turning now to my analysis. [ 11 ] Mr. Richardson is charged with breaching a Court order, specifically a term or condition of his recognizance. [ 12 ] The first issue then is to determine the Court order. Is the recognizance document a Court order?

I should point out for the record that there is no wording on the face of the document that resembles the wording of a Court order. [ 13 ] Crown referred to the decision of Judge Romilly (as he then was) in R. v. Doyle , [1992] B.C.J. No. 2694 for the authority of the effect of the recognizance. However, Judge Romilly wrote: It would appear from the authorities that were drawn to my attention by Crown counsel that a recognizance is merely an acknowledgement of indebtedness and becomes binding when it is made.

A Recognizance of Bail simply records the debt. [ 14 ] So I am satisfied that the document marked as an Exhibit in these proceedings being the recognizance records Mr. Richardson’s $300.00 debt and it also sets out conditions. When a judge says words to the effect of "I order you released from custody on a recognizance with the following conditions" is that a Court order that binds Mr. Richardson? I suppose it is obvious that Mr. Richardson cannot release himself from jail, however he does have to comply with or perfect the order before he is released.

The relevant sections of the Criminal Code are as follows: 515(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released ... (b) ... in such amount and with such conditions, if any, as the justice directs ... and on his depositing with the justice such sum of money or other valuable security as the justice directs. [ 15 ] And s. 515(4):

(4) The justice may direct as conditions under subsection (2) that the accused shall do any one or more of the following things as specified in the order: (

d) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order….[I will just add that allows the no contact provision] [ 16 ] When an accused person does not immediately perfect a recognizance, s. 519 of the Code applies. Subsections (1) and (2) state: 519

(1) Where a justice makes an order under subsection 515(1), (2), (7) or (8)...

(

b) if the accused does not thereupon comply with the order, the justice who made the order or another justice having jurisdictionshall issue a warrant for the committal of the accused and may endorse thereon an authorization to the person having the custody of theaccused to release the accused when the accused complies with the order (

i) forthwith after the compliance, if the accused is not required to be detained in custody in respect of any other matter, or (ii) as soon thereafter as the accused is no longer required to be detained in custody in respect of any other matter and if the justice so endorses the warrant, he shall attach to it a copy of the order.

(2) Where the accused complies with an order referred to in paragraph (1)(

b) and is not required to be detained in custody in respectof any other matter, the justice who made the order or another justice having jurisdiction shall, unless the accused has been or will bereleased pursuant to an authorization referred to in that paragraph, issue an order for discharge in Form 39. [17] Mr. Richardson was held in custody on a warrant of committal until he complied with the order requiring him to make the cashdeposit. In other words, until he perfected the bail. [18]

Section 3.1 of the Criminal Code states that an order of the Court is effective from the moment it is done whether or not it isreduced to writing. So the words uttered by the justice in my view do not have to be reduced to writing and the words uttered by theJudge Dossa in releasing Mr. Richardson were an order of the Court. [19] Next, from what time was Mr. Richardson bound by the terms of his recognizance? [20] In R. v. Pellerin, [1981] B.C.J. No. 2218, the Court considered an error on a recognizance. The facts can be summarized asfollows.

The accused was released on bail with a recognizance in the amount of $50,000 with sureties. The conditions of bail includedan appearance before the Court and a reporting condition to a bail supervisor. Upon his failure to appear, the Crown applied forforfeiture and the sureties objected citing a technical flaw in the recognizance of bail. The Court in this case drew on the reasoning fromBietel v. Ouseley, (SK CA), 14 Sask.

L.R. 216, [1921] 3 W.W.R. 70, 61 D.L.R. 313, 35 C.C.C. 386, affirming (SK KB), [1921] 1 W.W.R. 441, 58 D.L.R. 239, 34 C.C.C. 176, amongst other cases to conclude that the Crown’s forfeitureapplication ought to be heard. [21] In Pellerin, supra, the Court noted that Tremeear's Annotated Criminal Code, 6th ed (1964), states: ... A recognizance is an acknowledgment of indebtedness, made orally before a Court of record ... and becomes binding immediatelyupon its acknowledgment.

The formal document heading 'Recognizance of Bail' is merely the record of that recognizance, and technicaldefects in that document do not discharge the obligation, or constitute a defence if the obligor is subsequently charged with an offencearising out of a breach by him of that recognizance. [22] Further, in determining the time the Court order comes into effect, s. 3.1 of the code as I have already referred to, applies to thispart of my analysis. [23] So considering the authority of Pellerin, supra, and s. 3.1 of the Code, I conclude that Mr.

Richardson was bound by therecognizance and the condition that he not contact Ms. Mason when Judge Dossa spoke to him in Court. Therefore, whenMr. Richardson contacted Ms. Mason while he was in custody, he breached a condition of his recognizance and the Court order not tohave any contact. [24] However, defence counsel admitted the breach of a recognizance is specifically addressed in s. 524 of the Code. Withoutreading in the entire section, I will summarize it. 524.

(1) Where a justice is satisfied that there are reasonable grounds to believe that an accused (

a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance thatwas issued or given to him or entered into by him, or (

b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance wasissued or given to him or entered into by him, he may issue a warrant for the arrest. [25] Subsection (2) allows a peace officer to arrest without a warrant. [26] Subsection (3) requires that the accused who has been arrested with or without a warrant be taken before a justice and thejustice will hear from the prosecutor, Crown witnesses, the accused and any defence witnesses. [27] Subsection (8) sets out that:

(8) Where an accused described in subsection (3), other than an accused to whom paragraph (

a) of that subsection applies, is takenbefore the justice and the justice finds (

a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertakingor recognizance, or (

b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearancenotice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him,

he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10). [ 28 ] Subsection (9) allows the justice to release the accused person on bail again under s. 515 with conditions that are described in the subsection (4) that the justice considers desirable. [ 29 ] Subsection 11 states that:

(11) Where the justice does not make a finding under paragraph (8)(

a) or (b), he shall order that the accused be released from custody. [ 30 ] In my view, s. 524 of the Code sets out a legislative scheme for the actual or anticipated breaches of recognizance and other forms of release. This

section does not require that the accused be at large in the community. [ 31 ] It is a general rule of statutory

interpretation that the specific overrules the general or the specific is preferred over the general. [ 32 ] In my view therefore, Mr. Richardson ought to have been arrested under s. 524 of the Code . I am satisfied therefore that he has made out a defence to the charge against him on the basis of statutory

interpretation and as a result I find Mr. Richardson not guilty. (ORAL REASONS FOR JUDGMENT CONCLUDED)