R. v. McMillan, 2019 ONCJ 249

CITATION: R. v. McMillan , 2019 ONCJ 249 DATE: January 14, 2019 Indictment No. 180518 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. MICHAEL SCOTT MCMILLAN D E C I S I O N BEFORE THE HONOURABLE JUSTICE J.P. WRIGHT on JANUARY 14 TH , 2019, at PERTH, Ontario

APPEARANCES : K. Ryan Counsel for the Crown M. McMillan Self January 14 th , 2019 D E C I S I O N WRIGHT, J. (Orally): Mr. McMillan is now present. The trial for Mr. McMillan took place on the 19 th of December, and the matter was put over to today’s date for a ruling. Mr. McMillan was placed on probation by the Honourable Justice John Waugh on the 24 th of June, 2016. One of the terms was that he attend and complete the P.A.R.S. program to the satisfaction of the probation officer. From the evidence, Mr. McMillan is a serial domestic offender.

The court heard from two witnesses, Louise Clairmont, the assigned probation officer, and Jamie Hodgson, the director of the P.A.R.S. program in this jurisdiction. Ms. Clairmont testified that she felt Mr. McMillan was a high risk to re-offend, and accordingly made the referral to participate in the P.A.R.S. program. There is a long convoluted series of events, including an appeal of conviction by Mr. McMillan, applications before me to vary the terms of probation, to delete the requirement, and ultimately Mr. McMillan appears before Mr. Hodgson for his intake, and to begin the P.A.R.S. program.

He is rejected from participating because of his insistence that he has not committed an offence. Mr. Hodgson testified that there was a lot of denial, and nothing to work with. That participants have to acknowledge an offence of some kind. And, as a result, Ms. Clairmont was advised that Mr. McMillan would not be accepted into the P.A.R.S. program, and he was subsequently charged. It is clear the Mr. McMillan was required to attend and complete the P.A.R.S. program, and that he did not do so.

It is also apparent that he was not permitted by the director of the P.A.R.S. program to proceed for the reasons which have now been explained to the court. The question is whether as a result of Mr. McMillan’s refusal to acknowledge his guilt the offence is made out. The Crown relies on two cases. One is the decision in R. v. Walkus , a decision given on the 21 st of November, 2016, by Justice Flewelling of the British Columbia Provincial Court. In the R. v. Walkus case Mr. Walkus was to participate in a similar program to the P.A.R.S. program.

One of the rules was that he not attend having been under the influence of drugs or alcohol. This was acknowledged, and Mr. Walkus understood that if he did he would not be permitted to participate, and according, because of his own actions, the court found that he was guilty of the offence of breach.

The other case relied upon the Crown is a local decision in R. v. Palumbo , a decision of Justice Ray of the Ontario Superior Court sitting as a

summary conviction appeal judge in relation to a decision by Justice Nicholas. That decision focuses on the obligation of the Crown to prove the element of mens rea , and is not overly helpful in relation to any issue that I need to decide. Mr. McMillan relies on a decision of my brother Justice Fairgrieve in R. v. Nash , 2004, but did not indicate to me the decision of Justice Fairgrieve was overturned by Justice Danbrot on Certiorari. In R. v. Sookochoff , 1999, Saskatchewan, The Queen’s Bench, the accused had been required to attend at Batterers Program as a result of conviction for domestic violence.

On appeal, the appellant Judge found that the sentencing Judge had erred in imposing this condition because the accused denied that he was a batterer. In R. v. Harris , 2001, British Columbia, Provincial Court, the accused was required to attend for sex offender counselling. He attended the program but he was discharged because he refused to accept responsibility for his offences.

For reasons best known to the designers of the Kamloops Adult Sex Offender Treatment Program, they require that if not at the outset, that eventually every participant admit to the details of the sexual offending of which he or she has been convicted. If a person persistently refuses to do so he or she is discharged as unsuitable. That is what happened to Mr. Harris. And while those operating the programs have every right to terminate Mr. Harris’s involvement, they have no right with the decision in R. v. Sookochoff in mind to bring criminal charges against him as a result. The Crown points out that Mr.

McMillan’s guilt of the underlying offence should not be at issue. Not only was he found guilty at trial, but the conviction was ultimately upheld apparently on appeal. With the greatest of respect, the issue is not whether Mr. McMillan is guilty of the original charge, the issue is whether having been so found he is then entitled to maintain his innocence, and in doing so, whether he should suffer penal consequences as a result. From the Charter, Fundamental Freedoms, s.2(

B) of the Charter, “F reedom of thought, belief, opinion, and expression, including freedom of the press, and other media of communication.” So, while we have seen that some freedoms are not unfettered, such as the prohibition against the promotion of hate for Charter protected rights, such as freedom of thought, we should be loath to confine the scope of freedom as it does not, per say, infringe on others. No matter how unreasonable, or out of step with common sense these thoughts may be. To convict Mr. McMillan would, in a sense, amount to a legislation against his thoughts.

It is inappropriate for the state to force an individual to admit their guilt. This would be contrary to the Charter. It is one thing for a court to make a finding, it is all together a different matter for the state to insist on an accused person admitting their guilt. Programs for abusers must be able to accept deniers of that abuse who are probably those who are most in need of assistance and correction. Accordingly, Mr.

McMillan was discharged from P.A.R.S. because he refused to admit his guilt, and he was there​fore unable to comply with the probation requirement and as a result he should be found not guilty of the offence that is before the court. There will therefore be a finding of not guilty. Thank you, sir. MR. MCMILLAN: Thank you. M A T E R C O N C L U D E D ********