R. v. M.Q. Date:, 2012 BCPC 391

Citation: R. v. M.Q. Date: 20121025 2012 BCPC 0391 File No: 94126-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.Q. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Ms. K. Bouchard Counsel for the Accused: Mr. R. Begin Place of Hearing: Kamloops , B.C. Date of Hearing: October 2, 2012 Date of Judgment: October 25, 2012

[1] Mr. M.Q. is charged with failing to attend and successfully complete a Sex Offender Treatment Program and Sex OffenderMaintenance Program. The requirement was a term of the Probation Order made by Madam Justice Fenlon on September 1, 2009. Theprecise wording of the condition as set out in the order was “you are to attend and successfully complete a Sex Offender TreatmentProgram and Sex Offender Maintenance Program”. [2] Mr. M.Q. attended for intake assessment on February 1, 2012 as directed. However, after arriving at the appointment, Mr.M.Q. left and refused to participate again until April 25, 2012.

The appointment he attended on February 1, 2012 was not a counsellingsession, but an interview which was a prerequisite to entering into the program. Without conducting the interview and being assessed, hecould not participate in the program. [3] Mr. Begin argued, on behalf of Mr. M.Q., that Mr. M.Q. did not refuse to attend or participate in a Sex Offender CounsellingProgram, only the intake interview. Crown argued that the intake is a required prerequisite to the Counselling Program and therefore ispart of it.

As such, it does not matter what his reasons were or when he formed the position that he would not attend this intakeinterview. It only matters that he did not attend it. [4] Mr. Begin provided a number of cases which do not precisely address the issue of whether the intake interview constitutes partof the counselling program. However, the cases go to show that these components have been treated differently by the court. [5] Ironically, the first decision provided to me is R. v. M.D.Q., 2009 BCSC 1950 , 2009 B.C.S.C. 1950, a decision ofJustice Fenlon dated September 1, 2009, which is, in fact, Mr. M.Q.’s case.

The exchange occurs at paragraph 80 as follows: 80 MS.

FRIESEN: The only other term that I was wondering about, I wasn't able to write everything down that Your Ladyship said,with respect to the sex offender program, there's assessment and treatment, it's two stages, and I just want to ensure the word treatmentwas part of the order, that he would have to take treatment, attend for treatment and -- assessment and treatment. 81 THE COURT: Yes, that should be included in the order, Madam Registrar, and I have signed this – [6] Despite the court specifically saying that assessment and treatment should be included in her order, the word assessment neverappeared in the Probation Order.

More particularly, it appears that the court agrees with the Crown Prosecutor that assessment andtreatment are two stages. Certainly Mr. M.Q. ought to have known that he was required to attend for assessment pursuant to the ordermade by Justice Fenlon, but the Probation Order does not specify it. Consequently, when he was referred to assessment three years later,there was no such requirement contained in his Probation Order. [7] In R. v.

J.B., 2004 BCCA 525 , 2004 B.C.C.A. 525, the Court of Appeal specifically included a term for assessmentfor determination of referral to a Sex Offender Treatment Program. [8] In R. v. A.J.P., 2010 BCPC 361 , 2010 B.C.P.C. 361, there were three specific terms imposed for a sex offender. Inone term, he was to participate in and complete all counselling as directed. In the next term he was to attend for physical testing in orderto assess the variety and severity of his sexual interests, and then he was to attend for treatment as directed by that assessment.

Finally,he was directed to attend for psychiatric assessment for the Sex Offender Program, and to comply with the assessment as directed by theProbation Officer. The court specifically addressed assessment, counselling and treatment as specific categories. [9] Even absent this helpful, albeit non-binding, commentary contained in these cases, the fact that assessment, counselling andtreatment are distinctly specified gives them distinct meaning. To that end, Mr. Begin provided an excerpt from the Oxford Englishdictionary defining both assessment and counselling: Counselling, -eling (kaunsilin), vbl. sb. [f.

COUNSEL v. + -ING] The action of the verb COUNSEL; giving or taking of counsel;advising; spec the giving of advice on personal, social, psychological, etc., problems as an occupation; in Pschol., a form ofpsychotherapy in which the counsellor adopts a permissive and supportive role in enabling a client to solve his or her own problems. Also attrib. Assessment (e’sesment). Also 6-7 assessment. See aphet. SESSMENT. [f. ASSESS v. + -MENT, prob. AF. Assessment.] The action ofassessing; the amount assessed. [10] Consequently, I am bound to find that, regardless of the motivation behind Mr.

M.Q.’s failure to remain at the assessmentsession, I can find no requirement in the Probation Order reviewed and signed by him that compels him to attend for a separateassessment. [11] I am therefore not satisfied that the Crown has proved beyond a reasonable doubt that Mr. M.Q. breached the Probation Orderand I acquit. _________________________ S.D. Frame

Provincial Court Judge