IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Michelle Prevost is charged with assault of Tamara Jones and uttering a threat to Tamara Jones to cause death or bodily harm to her.  She is also charged with storing firearms in a manner contrary to a regulation.  She has pleaded guilty in First Nations Court to all three charges.  The Crown seeks a conditional sentence order of 12 months. Ms. Prevost asks the court to consider a conditional discharge.

[2]           The offence occurred on July 18, 2013, nearly two years ago.  No further incidents have occurred since.  Ms. Prevost is a 47 year old with no criminal record.  Her plans for the future may well be seriously impacted if she ends up with a criminal record arising from these incidents.

[3]           I have the benefit of a Gladue report as well as some references and other materials to assist in sentencing.

[4]           The question is whether these are circumstances which are appropriate for a conditional discharge.  A conditional discharge is available if the court considers it to be in the best interests of the accused and not contrary to public interest.  In considering whether or not it is in the best interests of the accused, I must look beyond merely the impact on the accused and her employment or future opportunities.  I must also look at whether deterrence is a relevant consideration or whether rehabilitation would be impaired if not attached to a probation order that leads to a criminal record.  The seriousness and violence of the offence do not determine whether or not a conditional discharge is available.

[5]           Ms. Prevost must be a person of good character, without prior conviction, and I must find that it is not necessary to enter a conviction against her in order to deter her from future offences or to rehabilitate her.  This is part of the test set out in R. v. Fallofield, 1973 CanLII 1412 (BC CA), [1973], 13 C.C.C. (2d) 450 (B.C.C.A.).  Since that decision, this component of the test has been softened to some degree to the extent that it does not preclude a person with a prior record receiving a conditional discharge.

[6]           Where it is argued that a conviction could have serious adverse repercussions to the accused person, it is up to that person to establish to the satisfaction of the court that this is so.  In other words, it is not enough to say it might seriously adversely affect the accused.  There must be some basis for the assertion.

[7]           The circumstances of this offence are quite alarming.  There were two very young children present when Ms. Prevost, driven by a jealous rage, attacked Tamara Jones.  The attack involved punching and kicking.  Ms. Prevost’s young child and Ms. Jones’ young child both witnessed this event and were frightened by it.  Ms. Jones has been left with what appear to be permanent scars, albeit small ones, caused by her glasses breaking.

[8]           There is no question that Ms. Prevost understands the impact upon the two young children who witnessed these events.  She attempted to have counselling for her own child, but her child’s father has blocked those efforts.  Ms. Prevost is similarly concerned for Ms. Jones’ child.

[9]           There is also no question that Ms. Prevost has expressed considerable remorse for the offence.  She has taken some steps toward rehabilitation, including taking a firearms course in response to the firearms charge.

[10]        Ms. Prevost is working at Walmart while she completes her Bachelor of Arts degree.  She is hoping to become a family mediator and has previously been cleared for work with the Sheriff Services.  She has also been employed doing supervised visits for other families.  Ms. Prevost argued that she has invested 20 years in her education toward becoming a family mediator.  A criminal record will compromise all of this effort.

[11]        She also volunteers a lot which will be hampered by a criminal record.  She hopes to travel as well.  The complications of a criminal record for assault in that regard are obvious.

[12]        Ms. Prevost has been working on identifying her roots, has done a sweat and hopes to do a healing circle and restorative justice with Ms. Jones.  Ms. Jones has made it clear that she wishes to have no contact with Ms. Prevost.  Ms. Prevost must accept this.

[13]        Ms. Prevost was pursuing restorative justice because she believed that if she and Ms. Jones could sit down and discuss what had happened and have the reconciliation, it would stop Ms. Jones from her current conduct.  Evidently, Ms. Jones is infiltrating Ms. Prevost’s friends and family circles and stirring up negative information about Ms. Prevost.  It was my impression, although Ms. Prevost may be correct that a restorative justice process might go some way to appeasing Ms. Jones, Ms. Prevost is primarily pursuing this to help herself.  I see no benefit to Ms. Jones in the healing circle so long as she wishes to have no contact with Ms. Prevost.  I can understand Ms. Prevost’s confusion and anxiety over Ms. Jones’ alleged conduct.  It does seem contrary that a person desiring no contact would then move in with Ms. Prevost’s child and ex-husband and make deliberate contact with Ms. Prevost’s acquaintances.  Despite this apparent contradiction, Ms. Prevost must understand that Ms. Jones is the victim; not Ms. Prevost.

[14]        When the Elders asked Ms. Prevost if she had taken any personal grief or loss counselling for her own life difficulties, Ms. Prevost reported that she took After Divorce Care.  She also attended Alcoholics Anonymous for families of alcoholics.  She also completed one-on-one counselling at University of Northern British Columbia.  These were in connection with her own sense of loss following her divorce.  They do not relate to her violent and unprovoked attack on Ms. Jones.

[15]        It is difficult to see how granting a discharge that will preclude a criminal record serves as a deterrent to others who may act out in jealous rages.  This was not a slap or a push. It was a serious assault.  That being said, the degree of the assault should not preclude a conditional discharge so long as I am satisfied that I can impose rehabilitative terms upon Ms. Prevost that will also serve as a deterrent to others in similar circumstances.  As I have said, Ms. Prevost is without criminal record.  She has worked hard to progress toward a career in family mediation and volunteers in the community.  Imposing a sentence that would result in a criminal record will impair her on this path, if not foreclose her from both entirely.

[16]        In the circumstances, I am satisfied that it is not contrary to the public interest to impose a discharge conditional upon Ms. Prevost completing a period of probation.

[17]        I am going to impose a period of probation for 12 months.  The conditions are as follows:

[18]        The firearms located were not connected in any way with this assault.  As such, I am satisfied that the weapons prohibition I have imposed for a period of one year is adequate to the purposes.  I therefore decline to exercise my discretion under s. 110 to impose a firearm ban.

[19]        As for your healing plan, the primary focus of your submissions was about your career path and volunteer work.  There was too little insight into the history that triggered this terribly disproportionate response.  The focus of your healing plan will be on the one-to-one counselling you should be engaging to explore these issues.  By your next review, explore the available resources in your community and identify one suitable to you.  Schedule your first appointment and be prepared to report these steps to the elders at your first review.  Your healing plan will involve:

[20]        Your first review will be September 4, 2015 in First Nations Court.