R. v. Reszitnyk Date:, 1999 BCCA 384

Citation: R. v. Reszitnyk Date: 19990614 1999 BCCA 384 Docket: CA025706 Registry: Vancouver COURT OF APPEAL FOR BRITISH COLUMBIA ORAL REASONS FOR JUDGMENT : Before: THE HONOURABLE MADAM JUSTICE SOUTHIN June 14, 1999 THE HONOURABLE MR. JUSTICE CUMMING THE HONOURABLE MR. JUSTICE BRAIDWOOD Vancouver, B.C. BETWEEN: R E G I N A APPELLANT AND: RANDY PAUL RESZITNYK RESPONDENT J. Duncan appearing for the Appellant R. Holloway appearing for the Respondent

[ 1 ] SOUTHIN, J.A.: This is an appeal by the Crown from a conditional sentence of two years less a day imposed by the Honourable Madam Justice Beames on the plea of the respondent of guilty to a charge of sexual assault. [ 2 ] The respondent and the complainant had at one time lived together and were bringing their relationship to an end. The respondent went to her residence and thereupon he committed what once would have been known as the crime of rape, and he did it with great violence. Fortunately the complainant was not physically permanently injured.

I have no doubt that emotionally she was. [ 3 ] On the evidence the respondent was drunk. On the evidence he is a man who cannot handle alcohol. When he drinks, he becomes bellicose - perhaps he becomes bellicose almost to the point of alcohol-induced insanity.

I am not saying he was insane - that is another aspect. [ 4 ] The terms of his conditional sentence order that are significant for this case is that he was ordered to abstain completely from the use of alcohol or any non-prescription drugs and to submit, whenever required to do so by a supervisor or by a police officer, to random breath, blood or urine tests for the presence of alcohol or drugs; and that he was to remain within his residence at all times with the following exceptions, that he may leave it for the purpose of travelling to and from work and working, visiting a doctor, hospital or other medical service, meeting with his supervisor or attending any counselling directed by his supervisor, attending not more than once per week, unless approval for increased frequency was obtained from his supervisor, a meeting of alcoholics anonymous, attending a meeting of an organized religious faith, and for one 2 hour period per week to shop for necessaries.

He was also required to take counselling for his alcohol and drug abuse. [ 5 ] Ms. Duncan for the Crown says that the learned trial judge did not give sufficient weight to the principles of deterrence and denunciation. She submits that the proper sentence for this offence was four to six years. Of course had such a sentence been imposed, there could have been no conditional sentence of imprisonment, the statute requiring as a pre-condition to such an order that the length of sentence be two years less a day. [ 6 ] As I said to counsel during argument, there are no right answers in cases of this kind.

This man who is in his mid-thirties has a criminal record for impaired driving, which indicates his alcohol problem. He obviously from time to time uses marijuana, but if we put everybody who uses marijuana into jail in British Columbia, I think we would have to convert the school system into a prison system to have adequate buildings for the purpose. [ 7 ] Under the circumstances, I am unable to say that the Crown has met the requirement laid down by the Supreme Court of Canada in R. v.

Shropshire , 1995 CanLII 47 (SCC) , [1995] 4 S.C.R. 227 , that is to say, I am not persuaded that the learned judge did that which is contrary to the requirements of sentencing as laid down by the Criminal Code . [ 8 ] The Crown's other point is that there ought to have been a probation order added to the conditional sentence of imprisonment. Mr. Holloway for the accused respondent prudently, as my colleague Mr.

Justice Cumming remarked, prudently does not oppose the addition of that probation order. [ 9 ] It is my view, therefore, that the appeal should be allowed to the extent that the probation order in the terms which were discussed by counsel with the Court be added to the sentence. [ 10 ] CUMMING, J.A. I agree. [ 11 ] BRAIDWOOD, J.A.

I would just like to add that it is essential in this analysis to bear in mind that although the respondent was charged with sexual assault causing bodily harm, uttering a threat to cause death or bodily harm, and unlawful confinement, his guilty plea related to sexual assault simpliciter , and further that we are told that he is now obeying the terms of his sentencing order including a confirmation of his abstinence from alcohol and drugs and he has found gainful employment. I agree with all those comments. [ 12 ] SOUTHIN, J.A. I agree with what Mr. Justice Braidwood has just said.

[ 13 ] CUMMING, J.A. I agree. [ 14 ] SOUTHIN, J.A. So ordered. "The Honourable Madam Justice Southin" "The Honourable Mr. Justice Braidwood"