R. v. P.J.B. Date:, 2015 BCPC 390

Citation: R. v. P.J.B. Date: 20151023 2015 BCPC 0390 File No: BB100852-1-K Registry: Bella Bella IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. P.J.B. ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J. C. CHALLENGER Counsel for the Crown: A. Ghatak Counsel for the Defendant: K. Cronin Place of Hearing: Bella Bella , B.C. Date of Hearing: October 23, 2015 Date of Judgment: October 23, 2015

[ 1 ] THE COURT: P.B., the offender in this matter, was found guilty following trial on April 15th, 2015. I found him guilty of one count of assault simpliciter. The offence occurred in Bella Bella on November 1st, 2013. I gave reasons for conviction at that time. I will repeat the circumstances of the offence briefly now. [ 2 ] The victim, Ms. H., and Mr. B. were in a romantic relationship which had been ongoing for several months. They are both members of the [omitted for publication] living in Bella Bella. They had been cohabiting for, as I have indicated, a few months.

They were both alcoholic and were engaged in ongoing abuse of alcohol. Mr. B. was 32 at the time of the offence and Ms. H. was 50. Mr. B. is a large well-muscled male. Ms. H. is 4'11 feet tall. [ 3 ] On the day of the incident, both were drinking heavily. Mr. B. became jealous and made accusations of infidelity with respect to Ms. H. She denied these. He threw her to the ground, punched her in the chest, kicked her and then punched her in the face several times. She got away from him and tried to escape out of the house. However, he threw her to the ground again and kicked her.

She again tried to get out of the house, but was caught. [ 4 ] He took her back into the house, threw her to the ground again, stomped on her face, and took a belt and put it around her neck. He threatened to tighten it, but did not. Ms. H. then was able to get away and went to neighbours to obtain help. Shortly thereafter, the police attended. During the course of the assault, Mr. B. was controlling Ms. H.'s movements and dictating when or if she could speak, and his speech was laced with profanities. [ 5 ] Ms. H. suffered a black eye, a swollen cheek, and some abrasions.

She was taken to the hospital where a CT scan was performed as a result of the blows to her head. She has had ongoing headaches and experienced vision problems for approximately two months. In her victim impact statement, she says that she continues to fear him and does not want to encounter him in the community. [ 6 ] Mr. B. is now 34. He has a Grade 10 education. There is no issue that his moral culpability should be seen to be reduced by the Gladue factors. He grew up in his early years in Bella Bella with alcoholic parents.

He himself has been diagnosed with fetal alcohol syndrome disorder, had a further diagnosis of ADHD and was found to have low cognitive function. His maternal grandparents were residential school survivors, although neither of his parents went to residential school. His childhood was characterized by chaos, abuse, and neglect. The Director of Child Protection became involved with the family when he was aged six and he went into permanent care at age nine and thereafter was in numerous placements. [ 7 ] His substance abuse started very early on in his pre-adolescent years and involved both drugs and alcohol.

He had such significant behavioural issues as a youth and teen in care that he was eventually banished from the community. He spent his late teen and early adult years in the Downtown Eastside of Vancouver and was engaged in active crack addiction. [ 8 ] His criminal history has been filed. There are violence and property offences as a youth and adult. His first significant conviction was in 2001 and it was a crime of violence and, notably, it involved the same victim, Ms. H. He broke into her home while he was intoxicated, put a knife to her throat, and asked her for sexual acts.

She was able to get away and was not physically injured at that time. [ 9 ] He returned to the community of Bella Bella in the mid-2000s. In August of 2005, he was convicted of break and enter, mischief, resisting arrest, causing a disturbance, and two counts of assault. He received a two-year-less-a-day CSO. There was no probation imposed to follow. He successfully completed that CSO. [ 10 ] His next conviction is in 2010 for a spousal assault. This was a different intimate female partner and he pushed her down when a child was present.

His most recent conviction is in 2013 for causing a disturbance and he received six months' probation. [ 11 ] Since his arrest on this matter, he has attended two courses of treatment for a total of four-and-a-half months. He has completed both those courses of treatment successfully. He has also spent 30 days in isolation somewhere outside the community here in Bella Bella. [ 12 ] He has a new partner and they had twins approximately seven months ago. Mr. B., to his credit, managed to maintain his sobriety even though they lost one of those children who were born prematurely.

He has been employed working at the [omitted for publication], clamming, fishing, and dealing with firewood. He has taken responsibility for his life by achieving sobriety. He accepts the verdict of the court. [ 13 ] Yesterday, in his comments to the court, he said he did not understand why Ms. H. continued to be afraid of him. This is difficult to understand given that, when he was 18, he broke into her house and put a knife to her throat and threatened to sexually assault her. More recently, he beat her and, at that time, she trusted him. However, I find it likely that due to Mr.

B.'s cognitive issues, particularly the fetal alcohol syndrome disorder, that his remorse and understanding of the impact of his offending behaviour is limited. In his circumstances, I find that that is a neutral factor for sentencing. [ 14 ] The aggravating factors in this matter are that the assault was ongoing and there were repeated blows to Ms. H.'s face and head. He kicked her head and he put a belt around her neck.

It is also aggravating that there is such a differential between their size and age. [ 15 ] It is aggravating that he had committed a previous serious assault on the same victim and that he has a previous conviction for an assault on an intimate partner. He was on probation at the time of the offence and on bail for an offence for which he was later acquitted. [ 16 ] The relationship with Ms. H. was of short duration and there was no economic dependency by her upon him. In fact, he was living in her home. So this is not a situation where there was a cycle of abuse between these parties.

It was a single incident which ended the relationship. Nevertheless, his assault had a significant impact on the victim's health and her emotional well-being which is something the court must take into account now. It is statutorily aggravating pursuant to the provisions of s. 718.2(a)(ii) and, as the

cases note, it is also a breach of trust. [17] The mitigating circumstances are that Mr. B. has been sober since the time of his arrest on this matter and has been compliantwith bail conditions which restricted his liberty and for some period of time quite significantly, but in total for a period of two years.

Ialso take into account that his pattern of offending had been diminishing prior to the commission of this offence. [18] The Crown takes the position that a period of institutional incarceration is called for and they say that somewhere in the rangeof six months more or less is appropriate with probation to follow. Ms. Ghatak for the Crown submits that if a conditional sentenceorder is imposed, it should be for a duration of 12 months with probation to follow. [19] Counsel for Mr. B., Ms.

Cronin, suggests a sentence of time served, which would be five days' actual time served plus credit fora total of eight, or alternatively, a conditional sentence order and probation be imposed. [20] A number of authorities were provided to the court. I am not going to read from those, but I will set them out for the record. The Crown relied on R. v. Morris, 2004 BCCA 305 , [2004] 3 C.N.L.R. 295; R. v. Williams, 2004 BCPC 459 , [2005] 1C.N.L.R. 279; R. v. Brown, 1992 ABCA 132 , [1992] A.J. No. 432; R. v. Dunlop, 2014 ONCJ 44. The defence relied on R. v.Lewis, [2014] B.C.J.

No. 991. [21] These cases elucidate the application of the principles of sentence to offences of violence against intimate partners and theapplication of the principles of sentence with respect to Aboriginal persons whose experiences lessen their moral culpability for suchoffences. [22] Recent statistics establish that Aboriginal females are more likely to be assaulted or wounded or killed by an Aboriginal male.

It is also probable, in my experience, that both the victim and the offender involved in these incidents would have been impacted by theGladue factors. [23] Violence against, the abduction of, and the murder of Aboriginal females is pervasive in our society and is a shameful legacy ofthe assimilation policies. Worse, it is one which has been ignored. [24] Violence against females worldwide continues to be an issue which is inadequately dealt with by most societies and theirgovernments. Violence in homes or between intimate partners or family members perpetuates social dysfunction and emotionaldamage.

It is also a symptom of those same issues. [25] In my experience, in the majority of such incidents, overconsumption of alcohol is also both the cause and the effect of theviolence. [26] I pause to note that this is a social problem which the dominant culture in Canada has not succeeded in eradicating orsignificantly reducing overall socio-economic levels and with those from all cultural backgrounds.

Due to the entrenched andoverwhelming social issues which have resulted from our treatment of our First Nations people, they face an even greater challenge inthis regard. [27] Offences of this nature demand a sentence which clearly expresses society's condemnation and which will serve to deter others. The case law makes clear that for an assault which carries on over time and/or which creates the risk of or causes serious injury, a term ofincarceration is appropriate.

This is especially so for offenders with a history of violence toward the same victim or other intimatepartners. [28] Arguably, due to the prevalence of violence against Aboriginal women, sentences for such offences should attract particularlydeterrent sentences. In my view, it is paradoxical that the result of following this line of reasoning will be the continued over-incarceration of our First Nations people. All this court can do in this case is attempt to strike a balance between the need for generaldeterrence and denunciation with the provisions of s. 718.2(

e) as they apply to Aboriginal offenders and as interpreted in Gladue andIpeelee. [29] In all the circumstances, I find that a term of incarceration is required to meet the principles of sentence. I also find the range ofsentence for this offence and this offender is from three months to nine months of institutional incarceration. I must now considerwhether to impose a conditional sentence. [30] Given Mr. B.'s efforts towards his rehabilitation since the time of the offence, I find he can safely serve his sentence in thecommunity. He has also previously served a lengthy conditional sentence order in the past.

At present, the prospects for his continuingrehabilitation are positive. He has a new partner and child who would be impacted negatively by his incarceration. This offender'srecovery from alcohol abuse is particularly admirable given his cognitive challenges. [31] The Crown submitted that the community of Bella Bella remains, unfortunately, closed to the epidemic of violence betweenpartners here. A simple count of charges laid over the past year reveals that 45 percent of all charges involve violence against anintimate partner or family member. There are no safe houses or transition facilities.

Then, again, there is insufficient housing overall inthis community. [32] Counsel were unable to put any specific innovative, reparative, or restorative options before the court. However, I am awarethat the community has an active restorative justice committee which has been involved with this offender to date in facilitating theperiod of isolation he undertook while on bail. [33] There is a need to address the principle that the sentence must serve to acknowledge the harm done to the victim and thecommunity at large.

The females in this community need to see that violence against them is taken seriously by the court. However, theconsequences to the offenders and the collateral damage to the victim partners or other family members cannot be seen to be overlyharsh or there will be an even greater reluctance to report these offences. The sentence must also serve to send a message to the males in

this community that violence against their partners will not be tolerated. [34] I must also consider whether increasing the length of any term imposed and the inclusion of conditions which will be punitiveand rehabilitative can serve to meet the principles of sentence. [35] In all the circumstances of this offence and this offender and having considered all the principles of sentence, the SupremeCourt of Canada decision of R. v.

Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, and the cases cited by counsel, their submissions,and the victim impact statement, I find that a conditional sentence order is appropriate. [36] The conditional sentence will be for a period of one year to reflect the higher end of the range referred to earlier. It will also befollowed by probation for one year. In total, this offender's liberty will have been limited for a total of four years. [37] The terms I am about to impose on this conditional sentence order will include a significant number of community work servicehours, a curfew, and restrictions on Mr.

B.'s ability to pursue income-generating activities freely, with the hope that this will serve todenounce and deter assaultive behaviour towards intimate partners here. [38] I will turn now to the conditions for the conditional sentence order, and I am certainly going to invite counsel to address memore fully. Did you want to address anything now, Ms.

Ghatak? [DISCUSSION RE CONDITIONS] [39] THE COURT: Okay, so the terms will be that you will keep the peace and be of good behavior. [40] You are to appear before the court when required to do so by the court. [41] You are to report to a supervisor here today and, thereafter, when and where required to do so by the supervisor and in themanner directed by the supervisor. [42] You will remain within the Province of British Columbia unless written permission to go outside of the province is obtainedfrom your supervisor. [43] You must notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any changeof employment or occupation. [44] You must provide your current residential address and current telephone number, if any, to your supervisor and do not changethat address or contact telephone number without the prior written consent of your supervisor. [45] You must have no contact direct or indirect with R.H., save and except incidental contact in the community.

If you encounterMs. H. in the community, you must immediately remove yourself from her presence without word or gesture. [DISCUSSION RE CONDITIONS] [46] THE COURT: So you are not to be found within 50 feet of any residence at which you know Ms. R.H. to reside. [47] You will perform 100 hours of community work service under the direction and to the satisfaction of your supervisor orcommunity work service officer and complete those hours within the first nine months of your period of conditional sentence. [48] You will be bound by house arrest curfew.

You must be continually inside your place of residence save and except forattending to any medical emergencies for yourself or any member of your immediate family and reporting to your supervisor as yoursupervisor requires. [49] Your supervisor may give you written permission to be outside of your residence for the purpose of attending to anyemployment, working, and returning home immediately thereafter or for any cultural events or activities and any food-gatheringpurposes being fishing, clamming, berry-picking.

With respect to any food gathering you will advise your supervisor as to when you aregoing to go and where you are going to go. [50] As to the no-contact, I am going to go back to that. If you encounter Ms.

H. at any cultural event or activity, you must removeyourself from that event or activity immediately without word or gesture. [51] I will hear counsel later about any other exceptions that might be required for that curfew. [52] You will attend for, accept, and complete any counselling to include, but not limited to, residential treatment or recoveryprograms and complete same to the satisfaction of your supervisor.

When residing in any residential treatment or recovery centre, youwill abide by all the rules and regulations. [53] You must abstain absolutely from the possession or consumption of alcohol and any drugs or substances scheduled in theControlled Drugs and Substances Act, save and except as prescribed by a medical doctor and then only according to the dosageprescribed. [54] You are not to be found in possession of any knives except for the immediate preparation or consumption of food or such knivesas are necessary to carry out the duties of your employment at your place of employment or as are necessary for any food-gatheringpurposes. [DISCUSSION RE KNIVES]

[ 55 ] THE COURT: I should provide under the curfew that you may be outside your residence for two hours three times a week to attend to your personal errands.

The reason I am saying that is because he has the baby and there may be reasons he needs to be out and assisting with that. [ 56 ] When you are away from your residence, you must not enter any licensed premise such as a liquor store, bar, or pub. [ 57 ] When you are away from your residence, you must carry a copy of this order and your supervisor's written permission with you at all times and produce them to any peace officer who stops or questions you for any purpose. [ 58 ] You are not to have in your possession any weapons as defined by the Criminal Code of Canada includinMs. g any firearm, crossbow, proibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance or any authorizations or registrations held by you. [DISCUSSION RE CONDITIONS] [ 59 ] THE COURT: The term that will apply to any food-gathering is, "For any food-gathering purposes, you are not to be found in the same area where Ms.

H. may also be food gathering. You are not to attend to or be on the same boat and you are not to attend to the fish-packing plant when Ms. H. is present." [ 60 ] Now, are there any other terms or conditions? [DISCUSSION RE CONDITIONS] [ 61 ] THE COURT: So I think we covered that if he attends to any cultural event or activity and Ms. H. is present, he must remove himself from that activity or event -- [ 62 ] MS. CRONIN: Mm-hmm. [ 63 ] THE COURT: -- and that is for all purposes, dancing, drumming, otherwise. [ 64 ] All right. So anything further that anyone wants to say about the CSO, Ms. Cronin? [ 65 ] MS.

CRONIN: The only other comment I might have with respect to the house arrest curfew, if there might be an exception for medical treatment for immediate family and that -- I mention that in case there is a requirement or in case he wishes to attend the Lower Mainland for further treatment -- [ 66 ] THE COURT: Oh. [ 67 ] MS. CRONIN: -- of his son and certainly he would have to seek written permission if it was not one of the exceptions that Your Honour had -- [ 68 ] THE COURT: Yes, I did say medical emergencies, but -- [ 69 ] MS. CRONIN: I am not sure that they would qualify as a medical emergency.

It would be medical treatment for an immediate family member, if that is something Your Honour might consider. [ 70 ] THE COURT: Yes, that is an appropriate term. [ 71 ] MS. CRONIN: -- and if I could just confirm for clarity with respect to the house arrest curfew whether that is the duration of the year CSO or -- [ 72 ] THE COURT: At this point it is. [ 73 ] MS.

CRONIN: Thank you. [ 74 ] THE COURT: Yes, at this point it is, and it is always open to him, and it probably will not be before me but likely before Judge Point, but in six months' time, nine months' time, given it all goes well and that he is compliant with the order, to ask myself or another judge to consider changing that curfew to a less onerous curfew. [ 75 ] So there will be an exception that his supervisor may give him written permission to be outside his residence during his curfew for the purposes of attending to appointments for medical treatment for himself or any member of his immediate family including medical treatment out of the community. [ 76 ] MS.

CRONIN: Thank you. [ 77 ] THE COURT: All right. So I will turn now to the probation. [ 78 ] The terms of the probation will be that you keep the peace and be of good behavior, and appear before the court when required to do so by the court. [ 79 ] Within 72 hours of the conclusion of your conditional sentence, you must report to a probation officer here in the community and report thereafter as and when directed. [ 80 ] You must provide your current residential address to the probation officer and not change that without their prior written permission.

[ 81 ] You must have no contact direct or indirect with R.H. save and except for incidental contact in the community. If you -- and I think I can use the word "'encounter' Ms. H. in the community." If you encounter Ms.

R.H. in the community, you must immediately remove yourself from her presence without word or gesture. [ 82 ] You are not to be found within 50 feet of any residence at which you know R.H. to reside. [ 83 ] You must abstain absolutely from the possession or consumption of alcohol or any drugs or substances scheduled in the Controlled Drugs and Substances Act save and except according to a medical prescription and then only according to the dosage prescribed. [ 84 ] You will attend for, accept, and complete to the satisfaction of your probation officer any counselling to include, but not limited to, substance abuse management counselling or anger management counselling or respectful relationships counselling. [ 85 ] You are not to be found in possession of any knives except for the immediate preparation or consumption of food or such knives as are necessary to carry out the duties of your employment at your place of employment or for any food-gathering purposes. [ 86 ] Any other terms for the probation?

Ms. Cronin? [ 87 ] MS. GHATAK: Weapons. [ 88 ] THE COURT: Oh, yes, you are not to be found in possession of any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substances or any authorizations or registrations held by you. [ 89 ] We still have to deal with the DNA and the firearms prohibition -- [ 90 ] MS. GHATAK: Yes. [ 91 ] THE COURT: -- under s. 110, but with respect to the probation? [ 92 ] MS. GHATAK: The duration? [ 93 ] THE COURT: One year. [ 94 ] MS. GHATAK: Thank you. [ 95 ] MS.

CRONIN: Thank you, Your Honour. [ 96 ] THE COURT: All right, and then so I will require that you provide a sample of your DNA to the Bella Bella RCMP and do we have specific dates and times that they do that or -- here? [ 97 ] MS. GHATAK: Usually we give them about two weeks. [ 98 ] THE COURT: Okay. [ 99 ] MS.

GHATAK: And I understand it is any time before 4:00 p.m. at the detachment. [ 100 ] THE COURT: So that you must then attend at the Bella Bella RCMP for the purposes of providing a sample of your DNA before 4:00 p.m. on any Monday to Friday and no later than November 15th. [ 101 ] Then pursuant to s. 110 of the Criminal Code , again, I am imposing a five-year firearm prohibition and the terms are that you are not to be found in possession of any firearm, crossbow, prohibited weapons, restricted weapons, prohibited devices, ammunition, prohibited ammunition, or explosive substance, or any authorizations or registrations for a period, I think I am repeating myself, of five years. [ 102 ] Anything further? [DISCUSSION RE VICTIM FINE SURCHARGE] [ 103 ] THE COURT: Yes, I will decline to impose the victim fine surcharge. [ 104 ] THE CLERK: And the DNA was secondary, Your Honour? [ 105 ] THE COURT: DNA is secondary. [ 106 ] Mr.

B., I sincerely hope this is the last time we see you before the courts. I accept that you are trying very hard in your life and that I hope you have a happy life from this point forward, and I do also hope that you give some thought to how Ms. H. must feel about your conduct towards her given what happened when you were a young man and what happened recently. [REASONS FOR SENTENCE CONCLUDED]