IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Tyler James Dickson and Roy James Dickson are each charged in Abbotsford Information 78630-1 with committing an assault on Leonard Houweling on November 25, 2013. Tyler Dickson is also charged with committing an assault on Graham Robert Watson on the same day. That information was sworn on February 17, 2014.

[2]           On October 15, 2014, information 78630-2C was sworn. In that information, an application was made for an order placing each of the Accused on a Recognizance to Keep the Peace under section 810(1) of the Criminal Code. Because Tyler James Dickson and Roy James Dickson are Accused persons on the 78630-1 information, and Defendants on the 78630-2C information, I will refer to them as Defendants in the remainder of these Reasons.

[3]           On December 1, 2014, both Defendants appeared in this court with their counsel. At that time, counsel advised that the Defendants would be consenting to enter into a Recognizance under section 810. Crown Counsel briefly summarized the allegation, informing the court that an altercation had ensued following an argument over the sale of some hay. The Crown outlined the terms of the order it was seeking, which simply required each Defendant to keep the peace and be of good behaviour, have no contact with the complainant and not attend at the complainant’s place of business. Each counsel then advised as follows. (The source of these exchanges comes from my listening to the Digital Audio Recording System or DARS recording of the proceedings.)

[4]           The Crown was then asked what terms it was seeking for the recognizance. Mr. Dhanu then entered into a discussion with his client in the courtroom. The Crown stopped to ensure that the Defendant Roy James Dickson was instructing his counsel to enter into the order.

[5]           The Crown then set out the terms it was seeking. Counsel for each Defendant was asked if their clients were consenting to enter into an order on those terms.

[6]           No further submissions were made. An order was made in respect of each Defendant, placing each on a recognizance to keep the peace under section 810 of the Criminal Code. The recognizance was in the amount of $500, without deposit or surety, for a term of 12 months. The terms of the order required each Defendant to:

[7]           Each Defendant was directed to attend to the court registry to sign their order before a justice of the peace. They did not comply with that direction. Later that morning, the file was recalled and Mr. Dhanu made the following submission to the court:

[8]           Crown counsel took the position that, since the order had been pronounced, the court was functus officio, a Latin term meaning “a task performed.” In other words, the Crown took the position that, now that the order had been formally pronounced, the court no longer had the authority to adjust the order, and the Defendant’s only remedy was to appeal the decision. Mr. Dhanu asked to have the matter adjourned to the following day to research the question further.

[9]           Mr. Dhanu appeared the following day and provided me with authority which satisfies me that I have not lost jurisdiction to reconsider this matter. (I will refer to it later in these reasons). He stated that his client had some misgivings about entering into the recognizance, believing it to be a guilty plea. Mr. Dhanu said that he had assured his client that there was no finding of guilt. After the order was pronounced however, his client had understood the process to be “a making of peace of all parties”. However nothing in the submissions to the court that day suggests that the elder Defendant was disputing that the grounds for making the order were lacking.

[10]        Mr. Dhanu also advised the court that he was appearing as agent on behalf of counsel for Tyler James Dickson and that he had instructions to apply to strike the order on behalf of both Defendants. At this point, the Defendant Tyler James Dickson addressed the court on his own behalf and advised that he did not wish to have his order struck, and he was willing to enter into the Recognizance which I had placed him on. The following exchange occurred:

[11]        After making further inquiry, I am satisfied that Tyler James Dickson is willing to enter into his recognizance and is not applying to set aside his order. If he has not already done so, he should attend to the Registry to sign his recognizance forthwith.

[12]        In R. v. Bostrom 2008 BCSC 1311, the court considered the question of when a judge is finished with a matter and can no longer reconsider his or her order. In that case, an accused was convicted of sexual assault. The trial judge sentenced the accused to a term of 15 months in custody and made some other ancillary orders. Forty minutes later, the sentencing judge had the case recalled, and added a two year probation term to the order. The accused appealed the imposition of the probation term, taking the position that the sentencing judge was functus officio after he sentenced the accused to custody, and could not recall the matter to add the probation term. Mr. Justice Rogers held that the judge is not functus officio until he signs the order he has made. In support of this proposition, he relied on the BC Court of Appeal decision of R. v. Roberts 2004 BCCA 436. In that case, Mr. Justice Smith wrote:

[13]        As a practical matter, in this Provincial Court registry, Provincial Court Judges do not usually sign the orders which are pronounced in criminal court, unless the Criminal Code expressly requires this. There are times when a judge will endorse the record of proceedings on a court file, such as when an accused person charged with an indictable offence elects his or her mode of trial. Generally speaking however, the job of signing orders is criminal matters is delegated to either a justice of the peace or a court clerk, depending on the type of order. This is clearly permissible, as stated by the BC Court of Appeal in R. v. MacIvor 1976 CanLII 1483 (BC CA), [1976] 4 W.W.R. 297 at paragraph 6, where Mr. Justice Seaton stated:

[14]        Once the order has been signed, then the judge becomes functus officio. Applying these principles to this case, I am satisfied that I have jurisdiction to reconsider this matter and that I am not functus officio in respect of this order.

[15]        A Recognizance to Keep the Peace under section 810 is neither a guilty plea nor a finding of guilt. A person who is made subject to such an order does not acquire a criminal conviction because of being placed on the order, but the person can be charged with committing a criminal offence under section 811 of the Criminal Code if the order is breached.

[16]        Consenting to enter into a Recognizance under section 810 is not the same as entering a guilty plea. However there are some similarities between an application to withdraw consent to enter into a recognizance and an application to strike a guilty plea and in my view, similar considerations apply in each situation. In R. v. Greenall and Collins 2011 BCPC 28, the law respecting the striking of a guilty plea was summarized in paragraph [36] of that decision. (I will not restate the entirety of that summary.) A valid guilty plea must be voluntary, unequivocal and informed. A guilty plea is voluntary if it is not the product of any coercion or duress and if there no concerns about the mental capacity of the accused. A plea of guilty that is entered in open court, with the assistance of experienced counsel is presumed to be voluntary unless the contrary is shown. In this case it has not been suggested that the Defendant’s consent was not voluntary.

[17]        A guilty plea will be considered “unequivocal” when it is clear, plain and capable of being understood in only one way. A guilty plea entered by counsel on behalf of an accused that meets these criteria can be said to be unequivocal. Finally, a guilty plea will be considered to be informed where an accused has been provided with disclosure of the relevant facts on which the case against him or her is based. All of those conditions are present with respect to the consent to enter into the recognizance.

[18]        A guilty plea should not be struck where it appears that an accused is applying to set aside the plea for the purposes of “making mischief”, i.e. to be obstructionist, or to renege on plea negotiations in order to frustrate the proceedings.

[19]        Before a guilty plea can be struck, the court must be satisfied that the accused has a defence which if proven could constitute a valid defence. In this case, for an order under section 810 to issue, subsection (3) requires the court must be satisfied that there are reasonable grounds for the making of the order. Here those grounds were satisfied by the admissions of counsel.

[20]        In this case counsel for the Defendant has not suggested that the grounds for making the order were not present, and it would be suspicious if the Defendant suddenly alleged this. The Defendant has now had two opportunities to address the issue of the grounds for the order. On the first occasion he acknowledged, through his counsel that such grounds exist. On the second occasion, he did not allege that the grounds for making the order were lacking. He only objected to the fact that the complainant wasn’t also bound by the same terms. If now he suddenly took issue with the grounds for making the order, there would be good reason to question his sincerity.

[21]        The objection the Defendant makes is that he operated under a mistake of law, believing that the same terms applied to him would also apply to the complainant. Where this assumption came from one can only speculate. Certainly counsel would not have given this advice. A mistaken belief as to how the order would operate or a change of heart after the hearing is not the same as a lack of grounds for making the order. They do not justify setting aside the order.

[22]        A finding has been made under section 810(3) that grounds for making the order exist. While this finding can, in some circumstances be reversed prior to the signing of the order, I find that this is not a proper case to do so. The recognizance under section 810 which was made in this court against both Defendants on December 1, 2014 will not be set aside.

[23]        A discussion was had with counsel previously about the effect of the Defendant’s refusal. On a review of this question, the answer is clearly set out in section 810 (3) (b) of the Criminal Code. That section provides that when the court has found that it is appropriate to place a Defendant on an order under section 810, the court shall “commit the defendant to prison for a term not exceeding twelve months if he or she fails or refuses to enter into the recognizance.”

[24]         In the event that either Defendant refuses to enter into their recognizance, the matter can be returned to this court for an application that the Defendant be committed to custody for a period of up to twelve months as subsection (3) directs.