R. v. E.A.M., 2020 BCPC 20

Citation: R. v. E.A.M. 2020 BCPC 20 Date: 20200212 File No: 9475-1-K Registry: Burns Lake IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. E.A.M. Publication Ban Pursuant to s. 486.4(1) of the Criminal Code of Canada RULING ON APPLICATION OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: S. Avery Counsel for the Defendant: K. Strimbold Place of Hearing: Burns Lake , B.C. Date of Hearing: February 11, 2020 Date of Judgment: February 12, 2020 Introduction

[ 1 ] E.A.M. is before the court on Court File 9475-1-K, responding to allegations he breached his September 10, 2019 Conditional Sentence Order (CSO), as amended. This was his fourth breach. When he admitted the first breach, which occurred on September 16, 2019, the Court changed the optional conditions of the CSO to assist E.A.M. in complying with its terms. When E.A.M. admitted the second breach which occurred on September 26, 2019, the Court took no action.

When E.A.M. admitted the third breach which occurred on October 4, 2019, the Court changed the optional conditions of the CSO to permit E.A.M. to attend Vision Quest, a residential treatment facility in Savona, BC. Yesterday, E.A.M. admitted to breaching three conditions of the CSO on December 27, 2019. The Crown asks the court to terminate the CSO, on which E.A.M. has 83 days left to serve. E.A.M. asks the Court take no action beyond confirming the CSO was suspended between the date of his arrest on the December 27, 2019 and the CSO breach hearing on February 11, 2019.

Issue [ 2 ] The question the Court must answer is, “What should be done about E.A.M.’s breaches?” [ 3 ] This matter came before me for hearing on February 11, 2020 in Burns Lake Provincial Court. At that time, I heard submissions of counsel and E.C.

I also received into evidence the following four exhibits: Exhibit 1: Allegations of Breach of Conditional Sentence (19 pages) Exhibit 2: E.A.M.’s Justin Conviction list (3 pages) Exhibit 3 : E.A.M.’s Letter of Acceptance to College of New Caledonia (5 pages) Exhibit 4: Variation orders to the September 10, 2019 CSO (9 pages) Background Information [ 4 ] On September 10, 2019, Judge C. Malfair sentenced E.A.M. to two consecutive three month conditional sentences followed by 18 months’ probation and some ancillary orders (Exhibit 4).

These sentences were imposed following E.A.M.’s guilty pleas on Information 9475-1-K to two different assaults against his intimate partner, K.C., one in early December 2018, and one on December 29, 2018. On the first assault, K.C. said that while intoxicated, E.A.M. followed her into her parent’s residence. When her father tried to get E.A.M. to leave, he assaulted K.C. On December 29, 2018, while intoxicated E.A.M. pushed K.C., grabbed her by the hair and punched her in the arm. [ 5 ] On December 31, 2018, the RCMP arrested E.A.M. and released him on a Promise to Appear and an Undertaking to a Peace Officer.

That Undertaking prohibited E.A.M. from communicating directly or indirectly with K.C. or from going to her residence, school or workplace. He also undertook to abstain from the consumption of alcohol or other intoxicating substances. [ 6 ] On March 4, 2019, E.A.M. applied to vary his bail conditions to replace the prohibition he not have contact with K.C. to a “leave upon request”. E.A.M.’s application to vary his bail conditions came before Judge Jackson in Burns Lake Provincial Court on March 27, 2019.

At that time, the Court replaced his December 31, 2018 Undertaking to a Peace Officer with an Undertaking to a Judge allowing E.A.M. to communicate with K.C. in certain restricted conditions: Condition 2: You must have no contact or communication, directly or indirectly, with K.C. The exceptions are as follows: a. In writing, including email and text messaging, if K.C. invites you in writing to do so. You must immediately stop communication with K.C. upon her request. If this happens you must have no further written communication with K.C. unless she again invites you to do so in writing; b.

You may have incidental contact with K.C. while attending family events provided you are sober and in the company of another sober adult; and c. You must never be in K.C.'s presence if you have any alcohol, intoxicating substance or drugs in your body or in your immediate possession, except in accordance with a medical prescription. Condition 3: You must not go to any place which you know to be any residence, school or workplace of K.C., except you may attend at her residence if: a. K.C.'s residence is also the residence of your immediate relative; b.

You have been invited by your immediate relative to attend the residence; c. Your immediate relative provides K.C. with reasonable notice of your intention to attend at the residence; d. Your attendance is at a reasonable time of day; e. While you are at the residence, you are sober and accompanied by a sober adult. [ 7 ] On June 25, 2019, on the first day of trial of Information 9475-1-K, E.A.M. appeared before me in Burns Lake Provincial Court and pled guilty to Counts 1 and 2 charging him with the two December 2018 assaults against K.C. The sentencing was adjourned to July 23, 2019.

[ 8 ] On July 10, 2019, E.A.M. filed an Application to a Judge requesting more contact with K.C. on the basis they both wanted to be able to spend time together. E.A.M. undertook never to be in K.C.’s presence if [he was] under the influence of alcohol. [ 9 ] On July 23, 2019, E.A.M.’s appeared before Judge Jackson in the Burns Lake Provincial Court. At that time E.A.M. adjourned his sentencing hearing, however, proceeding with his application to vary bail.

E.A.M. entered into a new Undertaking Given to a Judge replacing conditions 2 and 3 of the March 27, 2019 Undertaking with the following condition: Condition 2: You must have no contact or communication, directly or indirectly, with K.C. The exceptions are as follows: a. you may have contact and communication with you may have contact and communication with K.C. but must immediately leave her presence upon her request (or the request of a peace officer).

If this happens, you must have no further contact, or communication with K.C. without her permission; b. you may have contact with K.C. but must never be in her presence if you have any alcohol, intoxicating substance or drugs in your body or in your immediate possession, except in accordance with a medical prescription. [ 10 ] Condition 4 of the July 23, 2019 Undertaking prohibited E.A.M. from possessing or consuming alcohol, drugs or any intoxicating substance except in accordance with a medical prescription. [ 11 ] As indicated above, E.A.M.’s sentencing hearing on Counts 1 and 2 of Information 9475-1 proceeded before Judge Malfair on September 10, 2019.

On that date, E.A.M. was sentenced to two consecutive three month CSOs. E.A.M. breached the first CSO three times and the second CSO once. [ 12 ] The first breach occurred on September 16, 2019, when the Burns Lake RCMP received a dropped 911 call from [omitted for publication] Burns Lake, BC. This is where E.A.M. was residing with K.C. The RCMP officers went to Room 202, where they encountered E.A.M. and K.C. The investigating officers were of the view that both E.A.M. and K.C. exhibited signs of intoxication. The motel room was strewn with open liquor containers and marijuana paraphernalia.

The officers spoke to E.A.M. and K.C. separately. Both denied there was any dispute. K.C. told the police officer she and E.A.M. had been consuming alcohol prior to the member’s arrival, which E.A.M. later denied. That day the police took E.A.M. into custody for breaching the abstention provision of the CSO. [ 13 ] After a contested bail hearing on September 17, 2019, I released E.A.M. on a Recognizance of Bail in the amount of $500 without deposit, with his sister K.M., as a named surety. The terms of the Recognizance of Bail mirror the terms of the CSO.

E.A.M. was released from custody when he perfected his bail on September 18, 2019. [ 14 ] On September 20, 2019, E.A.M. filed an Application to a Judge to substitute his father, E.C. as surety instead of K.M. [ 15 ] The CSO breach hearing also heard on September 26, 2019. E.A.M. admitted to possessing empty liquor bottles, but asserted he collected them for the refund. He also asserted that while K.C. was intoxicated, he was not.

He only smelled like alcohol because he had been recycling alcohol containers. [ 16 ] E.A.M. was released on the morning of September 26, 2019, after the Court varied the CSO to avoid any repetition of the earlier breaches. The amended CSO, included the following provisions: Condition 6: You must have no contact or communication, directly or indirectly, with K.C., except you may have contact with K.C. but must leave her presence upon her request or the request of a peace officer, if this happens you must have no further contact or communication with K.C. without further order of this court.

You may have contact with K.C. but you must never be in her presence if either you or her have any alcohol or intoxicating substances or drugs in your body or in your immediate possession except in accordance to a medical prescription. … Condition 9 : You must not possess or consume any intoxicating substance except in accordance of a medical prescription and without limiting you must not be in possession of any empty alcohol containers. [ 17 ] That very afternoon, on September 26, 2019, K.C. called the police saying E.A.M. was intoxicated and attempting to come into [omitted for publication].

K.C. asked the police to remove E.A.M. from the area. RCMP officers responded to this complaint. They found K.C. standing outside her motel room. She was not intoxicated. E.A.M. was in the motel room, exhibiting several signs of intoxication. The police officers arrested him and found an empty bottle of Polar Ice Vodka in his front pocket. [ 18 ] K.C. told the police officers that she had observed E.A.M. consuming alcohol, but refused to provide them with a formal statement. [ 19 ] The following day, on September 27, 2019, E.A.M. attended court and admitted to the September 26, 2019 breach of this CSO.

The Crown agreed to take no action, and the Court released E.A.M. on the same CSO as had been amended on September 26, 2019. [ 20 ] The third breach occurred eight days later on October 4, 2019. Shortly after 11:00 pm, the Burns Lake RCMP received a call from K.C., who was in [omitted for publication]. K.C. told the 911 operator her boyfriend, E.A.M., was at the [omitted for publication], intoxicated, knocking loudly and repeatedly on the door of [omitted for publication] trying to gain admission. RCMP officers responded to K.C.’s complaint.

They arrived to see E.A.M. loudly banging on the door of [omitted for publication]. K.C. said E.A.M. had been banging on the door for an hour or so. She spoke to him through the screen window and observed that he was intoxicated. She denied E.A.M. entry and asked him to leave, which he refused to do. K.C. reminded E.A.M. of his conditions under the CSO. From their observations, the responding officers believed E.A.M. to be intoxicated as he emanating a strong odour of alcohol. The police arrested E.A.M. at the scene on October 4, 2019, and transported him to the Burns Lake RCMP detachment.

Once again, K.C. refused to provide a formal recorded statement of the incident.

[ 21 ] E.A.M. appeared before me in Provincial Court on October 7, 2019, for a bail hearing. At its conclusion, I detained E.A.M. in custody pending the CSO breach hearing which was subsequently scheduled for October 21, 2019. On October 21 and 22, 2019, E.A.M. admitted he had returned to K.C.’s residence before being invited to do so, but maintained he was sober. The Court again varied the CSO, this time to allow E.A.M. to be transported and reside at the residential treatment centre of Vision Quest Recovery Society in Savona, BC, until the expiration of the first CSO.

E.A.M. remained at Vision Quest until December 19, 2019. [ 22 ] As a result of his admission to the October 4, 2019 breach, E.A.M.’s CSO was suspended from October 7 to October 21, 2019, and that time had been served in custody. The CSO was suspended for a further three days after October 21, 2019, pending E.A.M.’s release to the representatives of Vision Quest at Kamloops Regional Correction Centre. Circumstances of the current breach allegations [ 23 ] E.A.M. returned to Burns Lake on or about December 19, 2019. The second CSO (on Count 2, 9475-1-

K) commenced on December 21 or 22, 2019. Six days later, on December 27, 2019, E.A.M. was arrested for the breach currently before the court. In his witness statement of Allegations of Breach of CSO from Corporal Ryan Blood sets out the circumstances giving rise to E.A.M.’s December 27, 2019 arrest (Exhibit 1). [ 24 ] On December 27, 2019, the Burns Lake RCMP received a third party complaint from M.S. that K.C. was a victim of an assault. K.C. sent her cousin, T.S., a photo-message depicting herself “getting beaten up.” T.S., who lives elsewhere, contacted his wife, M.S., and asked her to contact the police.

I understand M.S. resides in Burns Lake. The complainants suspected E.A.M. was the perpetrator. Corporal Blood went to Room 202 at [omitted for publication] to investigate. E.A.M. opened the door. There was a small amount of blood under E.A.M.’s nose. The [omitted for publication] room appeared as though a significant altercation had occurred, with several smashed items, fresh holes in the drywall and bloodstains in the carpet and a pile of blood stained towels. There were liquor containers throughout the unit. [ 25 ] Corporal Blood detained E.A.M. and K.C. returned to the motel room from outside.

On each of her left and right cheeks she had a fresh large laceration of approximately 3 centimetres in length with exposed flesh and weeping blood. K.C. refused to cooperate with the police then or since. [ 26 ] Corporal Blood opined that E.A.M. emitted an odour of alcohol when placed inside the police car. [ 27 ] E.A.M. was taken to the hospital for his injuries, which consisted of a split lip and a black eye. [ 28 ] E.A.M. was released on bail by on December 28, 2019. Admissions [ 29 ] E.A.M. admitted to the following allegations: a.

He failed to keep the peace as required under Conditions 1 of the September 10, 2019 CSO as amended, in that he did engage in an altercation with K.C.; b. He failed to abide by the abstain conditions in the presence of K.C. Specifically, he says that although he was sober, K.C. was not. He acknowledges he should not have been in her presence because she was intoxicated; c. He also acknowledges there were empty alcohol containers in Room 202 contrary to the terms of CSO as amended on September 26, 2019. Circumstances of Offender [ 30 ] E.A.M. is 27 years old.

He is a member of the [omitted for publication] Nation . He has lived in Burns Lake since in 2014. [ 31 ] E.A.M. has been in a relationship with K.C. for almost four years. [ 32 ] E.A.M. admits to abusing alcohol and marijuana for 11 years. E.A.M. states that he has been sober since he was arrested on October 7, 2019. He found Vision Quest a great learning experience. E.A.M.’s father, E.C., indicates he noticed a marked positive difference in his son’s behaviour since E.A.M. returned from Vision Quest. [ 33 ] While at Vision Quest, E.A.M. participated in but did not complete the Respectful Relationships Course.

He did complete an anger management course. From his counselling, E.A.M. has come to realize he used his anxiety as an excuse for drinking alcohol. [ 34 ] E.A.M. says on December 27, 2019, he confronted K.C. about the fact that she was intoxicated and there was alcohol in their [omitted for publication] room. This confrontation resulted in an altercation in which K.C. punched E.A.M. in the face multiple times and threw a can of alcohol at him.

This is why the police officer could detect an odour of alcohol emanating from E.A.M. while he was in the police vehicle. [ 35 ] E.A.M. was taken to the hospital where he received three stiches to his lower lip. E.A.M. denies he had been drinking on December 27, 2019 and denies assaulting K.C. He offers no insight into how K.C. ended with the injuries to her face. [ 36 ] E.A.M. declined the RCMP member’s offer to provide a statement or to pursue charges against K.C. [ 37 ] After the December 27, 2019 incident K.C. stopped drinking around him.

To the best of E.A.M.’s knowledge, K.C. has been sober since January 3rd, 2020. Last week they learned K.C. is pregnant with E.A.M.’s child. [ 38 ] There have been no allegations of breaches since December 27, 2019.

[ 39 ] E.A.M. has been accepted into the Skilled Labour Program at the Lakes District campus of the College of New Caledonia from February 3, 2020 to April 9, 2020. It is a ten week full time program (see Exhibit 3). [ 40 ] E.A.M. says that on his completion of the Skilled Labour Program, he is hopeful of earning a scholarship into the full-time trades program at the College of New Caledonia. [ 41 ] K.C. is no longer working as a result of complications associated with her pregnancy.

Although he is on social assistance, E.A.M. will receive enhanced benefits because he is enrolled in the Skilled Labour Program. [ 42 ] By allowing E.A.M. to complete his education program, it will enable him to provide for his family. [ 43 ] E.A.M.’s father, E.C., addressed the court and advocated on his son’s behalf. He himself had abused alcohol, although he has been sober since 2014 and works steadily. He attempts to be a role model to his son. E.C. believes if E.A.M. maintains his sobriety and employment, he will overcome his criminal past.

Legal Framework Duration of the Conditional Sentence Order [ 44 ] Sections 742.6(10) to (17) outline how the duration of the CSO is measured in the case of a breach allegation.

Section 742.6(10) suspends the running of a CSO from the time the warrant or summons is issued or the offender is arrested on the breach, until the court determines if the offender has breached a condition. In this case, E.A.M. was arrested on December 27, 2019 and released on December 28, 2019. [ 45 ] When an offender is ordered detained in custody pending the hearing of the allegation of breach of the CSO, the CSO will start to run again on the date of the detention order: s. 742.6(12). [ 46 ] In E.A.M.’s case, he was arrested and taken into custody on December 27, 2019.

He was released on bail on December 28, 2019. When the offender is not detained in custody pending the hearing of the allegation of breach of the CSO, the CSO will not start to run again, but the conditions of the CSO continue to apply (s. 742.9(11)). [ 47 ] The CSO was suspended on December 27, 2019, when the arrest warrant was issued. It resumes running at the determination of E.A.M.’s CSO breach hearing, which was February 11, 2020. [ 48 ] E.A.M.’s CSO hearing commenced on February 11, 2020.

He gets no credit until its conclusion, which is today, February 12, 2020. [ 49 ] I understand that of the 90 day second CSO, there are 83 days yet to be served. [ 50 ] Where an alleged breach is withdrawn, dismissed, or the court finds the existence of a reasonable excuse”, the offender will receive credit for time served towards the time remaining on the CSO (s. 742.9(15)). [ 51 ] Where the court is satisfied that the offender has breached the CSO without “reasonable excuse”, the court may still order, in exceptional circumstances and in the interests of justice, that some or all of the period of suspension be deemed to be time served under the CSO (s. 742.6(16)). [ 52 ] As he has admitted the three allegations of breaches, I am satisfied that on the December 27, 2019, E.A.M. breached the CSO without reasonable excuse.

There are no exceptional circumstances which to allocate any portion of the period of suspension be deemed time served under the CSO. Position of the Parties [ 53 ] The Crown’s position is that E.A.M. breached three different conditions of his CSO. Given E.A.M.’s history of breaches, the CSO ought to be terminated and E.A.M. serve the remaining time in actual jail. E.A.M. admits the breaches and does not adduce evidence of reasonable excuse. He submits the appropriate penalty is for the Court to characterize the period between December 28, 2019 and today (February 11, 2020), as a period of suspension.

It will resume today, on February 12, 2020. Issue: What should be done about E.A.M. breaches? [ 54 ] As set out above, s. 742.6(9) of the Criminal Code , gives the Court four options available if an offender breaches any of the conditions of a CSO:

(9) Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may: (

a) take no action; (

b) change the optional conditions; (

c) suspend the conditional sentence order and direct; (

i) that the offender serve in custody a portion of the unexpired sentence, and; (ii) that the conditional sentence order resume on the offender’s release from custody, either with or without changes to the optional conditions; or

(iii) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence. General principles governing Conditional Sentence Orders [55] CSOs were introduced into the Criminal Code in 1996. Four years later, the Supreme Court of Canada, in R v Proulx, 2000 SCC5, enunciated the principles underpinning CSOs and set out the approach for determining their availability. The Court held that CSOswere created to achieve two objectives: (1) to reduce the use of prison as a sanction and (2) to expand the use of restorative justiceprinciples in sentencing.

These restorative justice principles included rehabilitation, reparations to the victims and to the community, andthe promotion of a sense of responsibility in the offender. [56] Under s. 742.1 of the Criminal Code, an offender can serve their sentence in the community where the offender would notendanger the safety of the community and where the CSO would be consistent with the fundamental purpose and principles ofsentencing outlined in ss. 718 to 718.2 of the Criminal Code. [57] A CSO is not purely rehabilitative.

It is also punitive and capable of achieving the objectives of denunciation and deterrence:Proulx, para. 22. It is for this reason that CSOs generally include punitive and liberty constraining conditions, such as house arrest:Proulx, para. 36. Unlike actual jail, where inmates are monitored by prison guards, the offender subject to a CSO is monitored in thecommunity: Proulx, para. 21. In other words, “conditional sentences were designed to permit the accused to avoid imprisonment, but notto avoid punishment”: Vancise J.A., in dissent, in R. v. McDonald, (SK CA).

Principles applicable to CSO breaches [58] The punitive nature of a CSO informs the treatment of CSO breaches. In order to effectively enforce CSOs, committal to prisonmust be a real threat. The Supreme Court of Canada stated in Proulx at para. 39: [39] More importantly, where an offender breaches a condition without reasonable excuse, there should be a presumption that theoffender serve the remainder of his or her sentence in jail.

This constant threat of incarceration will help to ensure that the offendercomplies with the conditions imposed: … It also assists in distinguishing the conditional sentence from probation by making theconsequences of a breach of condition more severe. [59] In a nutshell, where an offender breaches a CSO without reasonable excuse, there is a presumption that the offender will spendthe remainder of the sentence in jail. [60] In R. v. Langley, 2005 BCCA 478 at paras. 6-7, the B.C.

Court of Appeal held the presumption of terminating a CSO isrebuttable and the court has the flexibility to fashion a disposition appropriate to each offender: [6] Moreover, not every unexcused breach can result in termination of the conditional sentence. Otherwise, as the Supreme Court ofCanada recognized in Proulx, by creating a rebuttable presumption of termination upon breach, Parliament would not have provided theoptions of taking no action, changing the optional conditions, and suspending the conditional sentence order… [7] The absence of specific guidelines for the exercise of the discretion given by this

section of the Code provides flexibility for courts tofashion a disposition appropriate to each offender and the circumstances of the breach so that the mandated purposes of sentencing canbe achieved and the public protected from further criminal activity. With that flexibility comes the obligation to explain the factors takeninto account in exercising the wide-ranging discretion and the reasons for selecting the particular disposition.

So too comes theobligation on the offender in breach to establish that sentencing principles can be met with a disposition other than termination. [61] The appellate court in Langley gave the Courts guidance on the appropriate adjudicative process at para. 13: [13] This brief review of the appellate authorities following Proulx, suggests the task of the court at a disposition hearing is to considerthe nature of the offence; the nature, circumstances, and timing of the breach; any subsequent criminal conduct and sentences for thatconduct; changes in the plan for community supervision; the effect of termination on the appropriateness of the sentence for the originaloffence; and the offender’s previous criminal record, in determining whether the presumption of termination for breach is to be applied.If the presumption is rebutted, the court then is to ask itself which of the other three options is appropriate, having regard to those samefactors.

I do not understand the list of factors to be closed. [62] In R. v. Ramsaran, [2008] OJ No 3163 at para 65, Hill J. added to the list of factors set out above, other considerations set out inPart XXIII of the Code, including denunciation, specific and general deterrence, risk to community safety, and rehabilitation. R. v.Filippelli, (ON CA), the Ontario Court of Appeal underscored (at para. 26) the need to “to maintain the integrity ofthe conditional sentence regime.

This is accomplished when the community understands that conditional sentences are not just anotherform of probation.” Justice Hill, in Ramsaran, went on to comment, “Breach hearing dispositions should contribute to public confidencein s.742.1 sentences.” [63] The BC Court of Appeal in R. v. Talman, 2005 BCCA 279 at para. 12 the Court must be cognizance of whether terminating theCSO would result in an inappropriate sentence: [12] It is clear from the authorities cited that a conditional sentence may be longer in length than a conventional sentence, consideringthat it is seen as less onerous in nature.

But as noted in Ursel [R. v. Ursel (2000), 96 B.C.A.C. 241], a sentencing judge must considerthat a conditional sentence does not attract reduction through parole, and that the accused is vulnerable to serving the entire sentence injail in the event of a breach. Having said that, I do not think that a rule of thumb exists for the proportionality between an appropriatecustodial sentence and a conditional sentence. That relationship will depend very much on the circumstances of the offence and theoffender.

The proportionality, additionally, may bear upon the severity of any disposition of the court in response to breach of theconditional sentence. I would suggest that the greater the length of conditional sentence, the less may be a response to breach of theorder.

[64] In R v Cochrane, 2016 ABQB 535 , Mr. Justice W.A. Tilleman, states at para. 65: [65] The Supreme Court in R v Proulx, 2000 SCC 5 outlined a three-fold purpose for CSOs: (1) reduce the incarceration rate; (2) expandthe use of restorative justice principles and (3) create a punitive sanction capable of denouncing and deterring the crime. Implicit in thesereasons, and explicitly outlined in s 742.1(

a) of the Criminal Code, is a fourth consideration: ensuring the safety of the community. In asense, this fourth consideration is a constraining parameter on reducing the incarceration rate. The incarceration rate should not bereduced to the point of negatively impacting the safety of the community. In other words, the goal of reducing the incarceration rate canbe stated in terms of the safety of the community.

As such, when assessing the proper remedy for a breach of a CSO, the followingfactors should be considered: (1) whether the offender poses a threat to the safety of the community, (2) whether restorative justiceprinciples, including rehabilitation, reparations to the victims and to the community, and the promotion of a sense of responsibility in theoffender, can be achieved through the continued use of a CSO and (3) whether the current CSO is sufficiently punitive to denounce anddeter the crime.

If all these factors weigh against the offender, there is a very strong presumption that the CSO should be terminated.These three factors measure the pulse of a CSO’s effectiveness. Therefore, a court should examine these factors when trying todetermine whether a CSO is still an effective sentence. Application of the law to this case [65] As set out above, there are a plethora of factors a judge must consider when determining the appropriate response to a CSObreach. I have considered below those factors cited in Langley as well as others I deemed relevant. (

a) the nature of the original offence [66] I have set out above the nature of the original offence and its circumstances. Spousal assaults are serious offences and theprinciples of denunciation and deterrence are heightened. In R. v. Donnelly, 2010 BCSC 1786, Mr. Donnelly was convicted of theassault causing bodily harm of his wife by striking her in the face with his elbow after she bit him, and the assault of his child who triedto intervene to help his mother.

Justice Joyce states at paragraph 28: Spousal assault is a very serious matter, and a sentence for a serious spousal assault must impress upon the offender and others theabhorrence with which society ought to view violence committed [in] a person's home. All persons have a right to feel safe within theirhome, from their spouses as well as from strangers.

If it is to act as a deterrent to others, the sentence for a serious spousal assault mustimpress upon others who might be inclined to engage in similar conduct that, if they are convicted, they will receive a punishment that ismore than simply a partial denial of one's liberty. [67] For this reason Justice Joyce declined to impose a conditional sentence where it would not adequately address the principles ofdenunciation and general deterrence: [32] It is my view that conditional sentence in this case would not adequately address the principles of denunciation and generaldeterrence.

A conditional sentence that would enable the offender to carry on with his daily life, going to work, watching his television,sleeping at home, subject perhaps to a curfew forcing him to remain in his home during the evening and night-time hours, would not, inmy view, send the message that spousal assaults are considered serious. Even a condition akin to house arrest would not, in my view,serve as an adequate deterrent. [33] In my view, this case demanded a sentence that informs others that if a spouse allows a domestic dispute to develop into physicalviolence, that spouse will face serious consequences.

I believe that a sentence of incarceration was appropriate. [68] Mr. Donnelly had no criminal record and had taken various rehabilitative steps prior to sentencing. Ultimately, Justice Joyceconcluded the appropriate sentence for the spousal assault was effectively six months imprisonment followed by one year probation. (

b) timing of the breaches [69] Generally, the shorter the length of time between the imposition of the sentence and the breach, the more severe the sanctionwill be. In this case E.A.M. committed four breaches of his CSO, three on the first CSO (Count 1, Information 9475-1-K), whichoccurred in rapid succession, and one on the second CSO (Count 2, Information 9475-1-

K) within a week of its commencement. Underthe first CSO, E.A.M. also breached its conditions shortly after their imposition. (

c) any subsequent criminal conduct and sentences for that conduct [70] It goes without saying that breaches of a CSO will be considered more serious when they involve the commission of a furthercriminal offence, as opposed to a simple failure to comply with a prescribed condition. The Crown has not charged E.A.M. with anyoffence arising from the December 27, 2019 breach allegations. Despite the manifest violence of the altercation, neither E.A.M. nor K.C.have provided a statement to the police about the circumstances of the incident.

One of the troubling circumstances of E.A.M.’s breachesis K.C.’s steadfast refusal to engage with the police and therefore they cannot fully investigate the circumstances of the incident.Specifically, the police cannot assess whether K.C. is the victim or instigator of a violent altercation between her and E.A.M. (

d) changes in the plan for community supervision [71] The Court has amended the plan for community supervision twice to facilitate E.A.M.’s compliance with the CSO. Neither theCrown nor the Defence proposes any further changes to the existing plan for community supervision, except the Defence proposes anexemption of the house arrest conditions to allow E.A.M. to attend his full-time skilled labourers program at the College of NewCaledonia.

The Crown simply seeks an order terminating the CSO; E.A.M. seeks an order the court take no action for the breach otherthan impose a period of suspension while E.A.M. was on bail. [72] E.A.M. considered and rejected the proposal K.C. separate from him as she has nowhere else to go.

(

e) the effect of the termination on the appropriateness of the sentence [ 73 ] Relying on Donnelly , I am of my view if E.A.M. were to spend the unserved portion of the three month CSO behind bars it would still be a fit sentence for the serious crime for which he was convicted, namely the assault against his intimate partner, K.C. on December 29, 2018. (

f) the offender’s previous criminal record [ 74 ] E.A.M. is 28 years old and has a criminal record which extends back to October 28, 2014, when he 21 years old (Exhibit 2), He has 11 convictions for offences against the administration of justice, which include breaches of probation and bail. He has a prior conviction from 2014, for an assault against an intimate partner, albeit not K.C. He also has a prior conviction for mischief. He now as four breaches of his September 10, 2019 CSO imposed for his two convictions from assaulting K.C. in December 2018. (

g) E.A.M.’s risk to the community [ 75 ] E.A.M. attributes his criminal record to his addiction to alcohol. He assures the court that as a result of his two months at Vision Quest from October 22, 2019 to December 19, 2019, he is able to maintain his sobriety. [ 76 ] In addition to having taken positive steps to overcome his addictions, E.A.M. has also enrolled in a College of New Caledonia’s Skilled Labourer Program to enhance his opportunities for employment (Exhibit 3). E.A.M.’s commitment to sobriety and increasing his opportunities for employment indicate he is gravitating towards a pro-social life.

In this respect, he is heeding his father’s sage advice. [ 77 ] On the other hand, I find it troubling that within a week of leaving Vision Quest E.A.M. is involved in a physical altercation with K.C. in which both are injured. The motel room was trashed, there are liquor containers throughout the room, and both E.A.M. and K.C. are injured and bleeding. E.A.M. says K.C. caused his injuries but does not say how K.C. came to be injured.

E.A.M. is emitting an odour of liquor in Corporal Blood’s police vehicle, which E.A.M. says resulted from K.C. throwing an alcohol container at him. [ 78 ] I am particularly concerned about K.C.’s safety and well-being. In the past she has sought help from the police when she was injured as a result of E.A.M.’s violence against her. Now, she refuses to even speak to the police about the altercation which occurred on December 27, 2019.

Her behaviour toward officer investigating the incident is worrisome (see Exhibit 1). [ 79 ] K.C. is a vulnerable person, now more than ever because she is pregnant and no longer able to work. She is even more dependent upon E.A.M. than previously. E.A.M.’s new found sobriety has not quelled the violence. (

h) whether restorative justice principles can be achieved through the continued use of a CSO [ 80 ] In my view the restorative justice principle of promoting a sense of responsibility in E.A.M. cannot be achieved through the continued use of a CSO. His violent relationship with K.C. persists whether he is intoxicated or sober. (

i) whether the current CSO is sufficiently punitive to denounce and deter the crime [ 81 ] The CSO is not sufficiently punitive to denounce and deter crime because it cannot stop the domestic violence between E.A.M. and K.C. E.A.M. says it is not he, but K.C. who was intoxicated; it is not he, but K.C. who possessed the liquor bottles in their motel suite; it is not he, but K.C. who instigated the violence. E.A.M. says he has not consumed alcohol since October 7, 2019, yet in the previous breaches, he also denied drinking. In the past, K.C. contacted the police asking they remove E.A.M. from her residence.

Nevertheless, she refuses to provide a statement to the police which makes it difficult for them to monitor and enforce the CSO when its breach involves E.A.M.’s interactions with K.C. [ 82 ] A CSO must “protect society and … contribute… to respect for the law and [to] the maintenance of a just, peaceful and safe society by imposing just sanctions…” Accordingly, a CSO must denounce and deter crime, protect the public, rehabilitate the offender, repair the harm done to the victim or community or promote a sense of responsibility in the offender.

In my view, E.A.M.’s CSO is ineffectual in ensuring these goals are being met. (

j) The impact on the in tegrity of the CSO System [ 83 ] Under s. 742.6(9) of the Criminal Code , this Court has four options available in light of E.A.M.’s breaches: (1) do nothing; (2) vary the conditions of the CSO; (3) suspend the CSO for a time; and (4) terminate the CSO. [ 84 ] In my view simply reinstating the CSO, where E.A.M. suffers no consequence would bring the integrity of the CSO system into disrepute.

CSOs would be perceived as little more than paper tigers incapable of achieving the purposes of sentencing. [ 85 ] Neither the Crown nor the Defence had proposed any additional changes to E.A.M.’s CSO to facilitate his compliance. The circumstances of the December 27, 2019 breach indicates E.A.M. will not obey his CSO, even if all he has to do is simply walk away from a volatile situation. In my view, increasing the restrictions on E.A.M.’s interactions with K.C. will not result in his compliance, because she will not cooperate with the enforcement agencies.

According to E.A.M., K.C. has nowhere else to go if she cannot live with him. [ 86 ] Finally, suspending the CSO and ordering E.A.M. to spend a period of time in prison and then releasing him to serve the remainder of his sentence in the community is not an appropriate solution. Firstly, this is already a very short CSO. Secondly, E.A.M. has been arrested and detained in the past on the CSO, albeit briefly. This experience did not dissuade him of breaching the CSO shortly after his return from Vision Quest.

I find there is a significant risk that if I were to permit E.A.M. to serve any portion of his remaining sentence in the community it will likely result in further breaches. [ 87 ] For the reasons set out above, E.A.M.’s current CSO is ineffective. Its protective terms are enfeebled by K.C.’s unwillingness to

cooperate with the police. Unless its terms are and can be enforced, the CSO fails to achieve the fundamental purpose of sentencing outlined in s. 718 of the Criminal Code . Disposition [ 88 ] I find E.A.M. has breached conditions 1, 6 and 9 of the CSO without reasonable excuse. I consider the appropriate option under s. 742.6(9) is to terminate the conditional sentence, and I so order. I direct E.A.M. be committed to custody until the expiration of the sentence, which I understand to be 83 days. E.A.M. is not entitled to any credit for the period his CSO was suspended. _______________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia