IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Jeremy Robert Allen was found guilty on June 5, 2015 after trial of two counts of breach of recognizance for failing to abide by no contact terms with the named complainant, Laura Dinwoodie.  The Information was proceeded with by indictment. 

[2]           The two counts relate to two separate recognizances but the acts alleged in breach of those recognizances were the same in each case.

[3]           The counts, as amended, read as follows:

[4]           At the trial of this matter, Mr. Allen faced five counts. The trial also resulted in acquittals on Counts 3, 4 and 5 which charged Mr. Allen with an attempt to obstruct, pervert or defeat the course of justice by uttering threats, uttering threats to cause death or bodily harm, and assault, all in respect to Ms. Dinwoodie.

[5]           At trial I found Mr. Allen to be an untruthful witness.  He was at times transparently false in his evidence.  Nonetheless, I was left with a reasonable doubt as to his guilt on Counts 3, 4 and 5 and he was acquitted on those counts.

[6]           The recognizance referred to in Count 1 was entered into on Kelowna case no. 79586 on October 15, 2013 in the amount of $1,500 with a cash deposit.  This recognizance was granted after Mr. Allen’s arrest in relation to charges arising out of events on October 12, 2013.  Those charges included breaking and entering with intent at the home of Ms. Dinwoodie’s mother, theft and uttering threats.  The charges all related to Ms. Dinwoodie or those close to her. This matter was tried June 19, 2014.  Mr. Allen was convicted on the charge of breaking and entering with intent.  On July 22, 2014, he received an effective sentence of 70 days in jail.

[7]           A month after that break-in, on November 14, 2013, Mr. Allen was arrested again.  He was charged with new offences arising that day under Kelowna case no. 79776.  The charges included breach of the no contact provisions of the October 15 recognizance, assault, and uttering threats to cause death or bodily harm.  The November 14 charges all related to Ms. Dinwoodie.

[8]           The next day, November 15, 2013, Mr. Allen was released on a further recognizance in the amount of $1,500, also with a cash deposit.  This is the recognizance referred to in Count 2.  The no contact term with respect to Ms. Dinwoodie contained in condition 4 of that recognizance is set out in Count 2.

[9]           On July 24, 2014, Mr. Allen pleaded guilty to the breach of the no contact condition on the November 14 offences.  Mr. Allen was sentenced to 14 days on the no contact breach and an effective sentence of 60 days for uttering threats to cause death or bodily harm to Ms. Dinwoodie.

[10]        Despite being bound by two recognizances which required him to have no contact with Ms. Dinwoodie, over the period May 24 through June 5, 2014 Mr. Allen subjected Ms. Dinwoodie to a virtual barrage of communications by text, email and telephone.  There is no doubt that the communications attributed to Mr. Allen were his.

[11]        Mr. Allen embarked on a campaign to win back Ms. Dinwoodie, in spite of the no contact conditions in both recognizances.  This commenced a few weeks prior to his June 19, 2014 trial date.  The messages were calculated to persuade Ms. Dinwoodie to reconcile with Mr. Allen.

[12]        Ms. Dinwoodie was the complainant and an important witness in the forthcoming case against him.  The benefits to Mr. Allen of having Ms. Dinwoodie “on side” at his trial were obvious and potentially significant.

[13]        Mr. Allen’s communications to Ms. Dinwoodie over this period were unrelenting.  The exhibited print-outs of his text and email communications run to many pages.  His words were in turns flattering, apologetic, pleading or ingratiating and at other times coarse and insulting.  He conveyed the truth, as he put it, that no one loved her as he did.  Her silence was torturing him.  He couldn’t eat or sleep.  He was shattered.  He asked why she was, destroying him, killing him.  He told her at one point he had nearly committed suicide the previous night.  He repeatedly pleaded with her to come home, to help him mend his broken heart.  He asked her again and again to stop ignoring him.

[14]        In some messages his words and tone were bullying and abusive.  He told Ms. Dinwoodie she was vindictive.  He cursed and accused her of cheating on him, though he said he still loved her.  On May 24, 2014, while Ms. Dinwoodie was preparing to attend her father’s funeral, Mr. Allen called and told her that her father had thought she was a whore and said that he, her father, never loved her.

[15]        These conversations in breach of bail terms occurred against a background where Mr. Allen’s long relationship with Ms. Dinwoodie began when she was a young teenager.  She is about ten years younger than Mr. Allen.  They had a child together and married when she was still a teenager and a second child followed.  The relationship was notable for frequent moves, Ms. Dinwoodie’s social isolation and the presence of family violence. The couple broke up in 2013 when Ms. Dinwoodie was 24 years old.

[16]        Mr. Allen’s only criminal convictions are those set out in these reasons.  They were recorded after the offence dates charged in the present Information.  To be clear, this offender had no prior criminal convictions when the offences here were committed, though he was on bail for breaching his bail terms when he committed these further bail breaches.

[17]        When he has been employed, Mr. Allen has worked as a subcontractor in the Alberta oil fields.  He hopes to return to that work or to go back to school.  He is in a new relationship and enjoys supervised parenting time with his children.

[18]        The offender has asserted that he has become a changed man since the offence dates. He was drinking then but is now clean and sober nine months. He attends both Alcoholics Anonymous and Narcotics Anonymous programs.

[19]        Mr. Allen was enrolled in the Relationship Violence Program and provided confirmation of his attendance and participation in that program.  He had completed a Nurturing Fathers Program and commenced volunteer work in the kitchen of the Kelowna Gospel Mission in January, 2015.

[20]        Mr. Allen spoke at length in his allocutus and said that he has recently found redemption in his faith.

[21]        The maximum sentence available for breach of recognizance is two years when proceeded with by indictment.

[22]        Crown counsel, Mr. Livingston, takes the position that the circumstances of this case are sufficiently aggravated that the offender should receive an effective sentence in the range of six to eight months in jail.

[23]        In support of this position, the Crown relies on the following cases: R. v. Bates, 2000 CanLII 5759 (ON CA), [2000] O.J. No. 2558 (Ont. C.A.); R. v. J.F., [2001] O.J. 2054 (Ont. S.C.J.); R. v. Seaward, [2003] N.J. No. 307 (N.L.P.C.); R. v. Wood, [2007] B.C.J. 1785, 2007 BCPC 257; and R. v. Billotta, [2015] B.C.J. No. 209, 2015 BCSC 181.

[24]        Counsel agreed that Mr. Allen has been in pre-trial custody attributable to these charges for a period of 51 days.  If entitled to enhanced credit of 1.5 days for each day served in pre-trial custody, Mr. Allen’s credit for time served would amount to 77 days.

[25]        However, the Crown submits on the strength of R. v. Summers, [2014] S.C.R. No. 26, 2014 SCC 26, that the offender was detained as a result of repeated breaches of his bail conditions and is not entitled to enhanced credit.  It is the position of Crown that the offender should receive one day’s credit for each day served in pre-trial custody.

[26]        Counsel for the offender, Mr. Stephenson, submitted that there is no statutory bar to enhanced credit in these circumstances, but whether credit was given on a one to one basis or a 1.5 to one basis, no further incarceration was required by the applicable principles of sentencing.

[27]        The offender did not plead guilty to Counts 1 and 2 but did not dispute his guilt on those counts at trial.  The case against him on Counts 1 and 2 was very strong. Mr. Allen’s contest was on the remaining three counts of which he was acquitted.

[28]        Mr. Stephenson urged that this case is distinguishable from some of the cases cited, in that the offender’s contact with Ms. Dinwoodie was not unwanted by her.  If not a mitigation, it is an absence of a common aggravating feature.  I do not accept this submission as being factually accurate or otherwise a persuasive argument.  In this case, the offender was bound by two bail orders and was deliberate and calculating in his decision to breach the orders repeatedly.  These are serious breaches.

[29]        The Criminal Code sets out principles of sentence for the guidance of the courts. Some of those provisions applicable in this case are set out below:

[30]        In R. v. Bates, the Ontario Court of Appeal emphasised the importance of the paramount principles of general deterrence, specific deterrence and denunciation in cases involving predatory abuse in domestic relationships.  See paragraphs 28 - 30.  The court approved the use of the same principles in dealing with breaches of court orders where the breaches were related to the very conduct for which the offender had been arrested.

[31]        To paraphrase the court in Bates (at paragraph 30), the law must do what it can to protect people who wish to break off relationships.  The concern for protection must be all the greater when those same people are also vulnerable witnesses.  No contact bail orders are intended to provide that protection and when those orders are rendered ineffective by the cynical and deliberate actions of an offender, deterrent and denunciatory sentences are to be expected.

[32]        The cases cited by the Crown and set out above reinforce the importance of the principles of deterrence and denunciation in such cases.

[33]        Accepting at face value the expressions of regret offered by Mr. Allen in court, the steps he has taken towards rehabilitation are to his credit.  He did not contest at trial the charges of which he has been convicted. At the time these offences were committed he was without a record of criminal convictions.

[34]        However, the mitigation urged on behalf of Mr. Allen does not off-set the need for a sentence which will emphasise denunciation and deterrence and which will help to dissuade Mr. Allen and others who may be in a like situation from committing similar offences.  Mr. Allen is still currently bound by probation conditions.   

[35]        The cases cited by the Crown vary according their facts and the circumstances of each offender.  In consideration of these cases, this offender, the principles of sentencing and the circumstances before me, I am satisfied that an effective sentence in the range of four to six months or 120 to 180 days in jail would be a just sanction here.

[36]        In calculating the credit to be granted for the 51 days served in pre-trial custody, Criminal Code subsections 719(3) and (3.1) have application:

[37]        In this case, the statutory bars to enhanced credit (s. 515(9.1), s. 524 (4) and (8)) have no application.  In R. v. Summers, the Supreme Court of Canada found that the loss of access to parole and early release were circumstances capable of justifying enhanced credit.  This interpretation ensured that a detained offender convicted of offences would not generally serve a longer period in custody than a bailed co-accused receiving the same sentence.  This approach is also in conformity with the sentencing principles of parity and proportionality set out in sections 718.1 and 718.2.

[38]        Justice Karakatsanis, speaking for the court, stated the following at paragraph 48:

[39]        At paragraph 70, Justice Karakatsanis endorsed the analytical approach laid out in R. v. Wust 2000 SCC 18 (CanLII), [2000] 1 S.C.R. 455, as modified by the statutory maximum credit permitted by subsection 719(3) and the statutory exceptions mandated by (3.1).

[40]        There is no evidence or submissions before me regarding deficits in the qualitative aspects of the time served on remand by Mr. Allen at the Kamloops Regional Correctional Centre.  As to the issue of the enhanced credit for time served, it has long been part of the quantitative analysis to consider the extent to which and offender’s bad conduct, such as bail breach, militates against enhanced credit.  See R. v. Summers, paragraph 31.

[41]        In the case at bar, Mr. Allen served 51 days on remand, substantially because he breached his bail terms and did so in an egregious manner.  In these circumstances, the ratio of one day’s credit for one day served set out in s. 719(3) is appropriate.

[42]        Taking all of these matters into account, I’m satisfied that an appropriate effective sentence for Mr. Allen on these matters will be 140 days, less credit of 51 days for 51 days served in pre-trial custody.

[43]        The result will be that Mr. Allen will be required to serve a further 89 days in jail.  He has requested that he be allowed to serve any further sentence intermittently, if possible, in order to allow parenting time with his children to continue and to reduce interference with the progress he has been making in his various programs.  I will grant that request.

[44]        There was brief discussion in submissions regarding the possibility of a conditional sentence order, however I agree with counsel that given Mr. Allen’s recurring inability to comply with court orders, he is not a good candidate for a CSO.  I would not have sufficient confidence in Mr. Allen’s ability to abide by the conditions of any such order to grant him a CSO.  Nor, in my view, would such a sentence adequately address the principles of denunciation and deterrence.

[45]        Mr. Allen will be required to attend on weekends to the lock-up at the Kelowna Detachment, RCMP, at the address which will be provided to him.  He will be subject to a probation order until that sentence has been served in full.

[46]        The sentence, including the probation order, will go in respect of Count 1 only.  I will add that although I found Mr. Allen guilty of both Counts 1 and 2, on application of R. v. Kienapple (1974), 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, and upon the indication of Crown counsel, I directed the entry of a conviction on Count 1 only.  On Count 2, I directed a conditional judicial stay of proceedings on Count 2.  If I was in error in that regard, I would have imposed the same sentence on both counts to be served concurrently.