IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. R has entered a guilty plea to a charge of spousal assault.  The Crown seeks a suspended sentence and a period of probation.  Mr. R seeks a conditional discharge.  As will be apparent from the discussion below, the principles to be applied are not well-defined in the jurisprudence and the authorities are difficult to reconcile.

[2]           Mr. R has been granted a conditional discharge on each of three previous occasions:

[3]           The spousal assault which gives rise to the present charge occurred on the evening of August 22, 2015, the day on which Mr. R and Ms. D were married.  Each had consumed a quantity of alcohol.  Angry words were exchanged.  Mr. R seized Ms. D by the hair and pulled her to her feet.  He then dragged her around their hotel room by her hair and slapped her.  She was terrified by the assault and decided that her best strategy was to be physically passive while seeking to mollify Mr. R.  That strategy was eventually successful and he released her.  She suffered no lasting physical injury and did not require medical treatment.

[4]           Ms. D had no wish to involve the police or to see any action taken against Mr. R.  However, on the following day, she told her sister what had happened.  The sister then reported the incident to the police.  Ms. D provided a candid statement to the police, but told the police that she did not want Mr. R to be charged with an offence. 

[5]           On August 24, 2015, two days after the assault, Mr. R contacted Mr. Watts, a counselling therapist, to arrange an appointment.  He has been engaged in counselling with Mr. Watts since that time.  Mr. Watts has also provided counselling to Ms. D, Mr. Watts describes Mr. R’s history as follows:

[6]           In a letter to Crown counsel dated January 9, 2016, Ms. D said:

[7]           At the time of the assault, Mr. R was unemployed.  In November, 2015, he was offered, and accepted, employment as a technical writer for a technology company.  Mr. R’s position is a responsible one, which requires him to travel overseas to train customers’ employees in the use of his employer’s products.  Mr. Morahan expressed the concern that a record of conviction for assault might prevent Mr. R from travelling as required.  Mr. Morahan has made enquiries on that subject of the authorities in the country to which Mr. R is most likely to travel, but has not received any clear response.  He told me that, as far as he is able to determine, the matter is in the discretion of the individual immigration officer who interviews the traveller on arrival.

[8]           Ms. D is a veterinarian, with a private practice in [redacted for publication], British Columbia.

[9]           A conditional discharge may be granted if the court “… considers it to be in the best interests of the accused, and not contrary to the public interest …”:  Criminal Code, section 730(1).

[10]        Counsel agree that Ms. D’s letter is not a victim impact statement, as defined in section 722(2) of the Criminal Code.  Mr. Morahan submits that it is admissible as “other evidence” under the authority of section 722(3).  In his written submission on the point, Mr. Bennet said:

[11]        Ms. D’s letter is composed of two elements:  (i) a statement of some objective facts about the impact of the assault on her relationship with Mr. R and the steps which they have taken since the assault to reduce the risk of future domestic violence; and (ii) Ms. D’s submission (or plea) in support of Mr. R’s application for a conditional discharge. 

[12]        There is a case to be made for the proposition that victims of crime should have a voice at a sentencing hearing.  However, Parliament has made no provision for that, and such an innovation could be made only by a court of higher authority than this one.

[13]        I do not agree with Mr. Bennet’s view that the objective facts asserted in Ms. D’s letter are irrelevant to the public interest.  Those facts are relevant to the risk that Mr. R may reoffend and to the prospects for his rehabilitation.  The public has an interest in both of those questions.

[14]        In R. v. Fallowfield 1973 CanLII 1412 (BC CA), [1973] 6 WWR 472, Chief Justice Farris said that a discharge will generally be in the interest of the accused where “… the accused is a person of good character, without previous conviction, … it is not necessary to enter a conviction against him to deter him from future offences or to rehabilitate him, and … the entry of a conviction against him may have significant adverse repercussions …”. (underlining added).  Counsel agree that a conditional discharge would be in the best interests of Mr. R, and I perceive no reason to differ with that assessment.

[15]        The statute does not require the accused to establish that a discharge would be in the public interest.  It need only be shown that a discharge would not be contrary to the public interest.  Put another way, a discharge may be granted unless some prejudice to the public interest would be likely to result from it.  On the other hand, a discharge should not be granted in every case in which it is not contrary to the public interest.  The relevant factors must be balanced in each individual case.

[16]        The phrase “public interest” is not defined by the Criminal Code or by the Interpretation Act RSC 1985, c I-21.  Anyone who has listened to debates in Parliament, or read the existing jurisprudence considering section 730 of the Criminal Code, will be aware that there is a wide range of opinion as to what is, or is not, in the public interest. In their dissenting judgment in R. v. Zundel 1992 CanLII 75 (SCC), [1992] 2 SCR 731, Justices Cory and Iacobucci said at paragraph 147:

[17]        Section 718 of the Criminal Code provides that denunciation and deterrence are two of the objectives of sentencing.

[18]        Denunciation is effective because human beings are social animals, whose behaviour is strongly affected by societal norms.  Most people, most of the time, are motivated to refrain from behaviour which will bring upon them the opprobrium of their peers.  Severe sentences for criminal behaviour are one way in which society expresses its disapproval of particular behaviours.  By contrast, there is a risk that a discharge may send a public message that the behaviour in question is not very serious.  Because spousal assault is so frequent and so destructive, that message should certainly not be sent.

[19]        In R. v. B.J.M. 1976 ALTASCAD 6 (CanLII), [1976] AJ No. 429; 3 Alta LR (2d) 341, Justice McGillivray said that “… one of the strongest deterrents to criminal activity, particularly in the case of those who have no records, is the fear of the acquisition of a criminal record ...”.

[20]        In many spousal assault cases, there is a compelling public interest in protecting the victim.  Many victims of spousal assault are unable or unwilling to support a prosecution for psychological or economic reasons.  In such cases, it is the duty of the state to intervene for their protection.  For the reasons expressed by Ms. D, I do not think that this is such a case.  I would feel more secure in that conclusion if Ms. D had been called to give evidence at the sentencing hearing.  However, doing the best I can with the material provided to me, it appears to me that Ms. D is an autonomous actor, well able to assess her own situation and to make sensible decisions in her own interest.

[21]        One of the objectives of sentencing is the rehabilitation of the offender:  Criminal Code section 718(d).  Secure, remunerative and productive employment is an important element of rehabilitation for many offenders.  A criminal record often impairs the employment prospects of the offender.

[22]        There is a divergence of judicial opinion in relation to this factor.  In B.J.M. at paragraph 20, Justice McGillivray said that the interest of employers or prospective employers of the offender in knowing the particulars of the offence is a reason to refuse a discharge.  By contrast, in R vs Moreau [1992] JQ No. 1226; 76 CCC (3d) 18, Justice Rothman said that potential adverse effects on the future employment prospects of the offender may be a reason to grant a discharge.  There is an obvious tension between the employer’s interest in learning as much as it can about its employee and the employee’s interest in withholding some kinds of information from his employer.  The balance of judicial opinion appears to favour the Moreau approach: R. v. Hust 2004 ABPC 128.

[23]        In balancing the interests of the offender and those of employers and prospective employers, it is necessary to consider the nature of the offence and the responsibilities of the offender’s profession or occupation.  No one would doubt that a school board has a legitimate need to know whether a teacher has committed a sexual assault, or that a bank has a legitimate need to know whether a bank teller has committed a fraud.  In each case, the public interest demands that employers and prospective employers be well-informed about the criminal past of the offender.

[24]        Mr. R’s offence was not one of dishonesty.  It has no apparent connection to his work, and gives rise to no reason to doubt that he can, or will, competently and responsibly perform the duties of his employment.  In those circumstances, I think that the potential adverse effect on his career prospects supports his application for a discharge.

[25]        Mr. Morahan says that a criminal record might prevent Mr. R from travelling outside Canada, and so might imperil his employment prospects.  Mr. Bennet responds that there is insufficient evidence to support the conclusion that Mr. R will be unable to travel if a conditional discharge is refused.  Mr. Bennet relies on the decision of my colleague, the Honourable Judge Rideout, in R. v. Whitney 2015 BCPC 27 (CanLII), [2015] BCJ No. 327; 2015 BCPC 27, in which the offender presented a similar argument in relation to travel to the USA.  At paragraphs 89 - 91, Judge Rideout rejected that argument because he was provided with no useful information about the policies of the American border agents.  In response, Mr. Morahan pointed out that Moreau and Hust are not among the list of authorities considered in Whitney, and submitted that I should decline to follow or apply Whitney because it is not, he says, consistent with those authorities.

[26]        In Moreau, the learned trial judge had refused to grant a discharge because there was no evidence to support a conclusion that the accused’s employment prospects would be adversely affected by a criminal record.  On appeal, Justice Rothman said:

[27]        Mr. Morahan’s submission raises two questions:

[28]        It has been said to me (although not by Mr. Morahan) that I am obliged to follow judgments of courts of higher authority, but free to decline to follow judgments of other judges of this court.  That is simply incorrect.  The principle was stated by Justice Wilson in Re Hansard Spruce Mills 1954 CanLII 253 (BC SC), [1954] BCJ No. 136; [1954] 4 DLR 590 (underlining added):

[29]        However, I think that it is possible to reconcile the judgments in Moreau and Hust with the judgment in Whitney, and that there is wisdom in each.  A criminal record will almost always impair the employment prospects of the offender.  A general inference to that effect may be drawn without evidence.  However, where specific prejudice is alleged, evidence is required to support the inference.  I am bound by Whitney to conclude that the travel restrictions of foreign countries are not matters of such common knowledge that they can be determined without evidence.  For that reason, I cannot conclude that Mr. R will suffer specific prejudice if he is refused a discharge.  I can, and do, conclude that the refusal of a discharge is likely to have some adverse effect on his future career.

[30]        Mr. Bennet’s most cogent point is the concern that public confidence in the administration of justice may be undermined if Mr. R is granted a fourth discharge.  That is certainly a legitimate concern.  However, I think that there is a counterbalancing factor.  It seems clear that Mr. R suffers from an emotional disorder, perhaps derived from the factors described by Mr. Watts.  Thoughtful and well-informed members of the public would support sentencing measures which would assist in effecting changes in Mr. R’s behaviour.  It seems clear that there are two essential elements of such measures: (i) the assistance of a competent clinical counsellor; and (ii) Mr. R’s active engagement in the counselling process.  Mr. Watts appears to be well-suited to provide the first element.  Mr. R is more likely to be a constructive participant if he believes that he will have the support of the justice system in addressing his issues.

[31]        A conditional discharge would be contrary to the public interest if denunciation and deterrence were of more importance, in this individual case, than rehabilitation.  Because of (i) the determined and apparently successful attempts which Mr. R and Ms. D have made to address their issues; (ii) the absence of any reason to think that Ms. D is psychologically or economically dependent on Mr. R; and (iii) the probable adverse effects of a criminal record for Mr. R, I think that rehabilitation is the more important factor in this case, and that a conditional discharge would not be contrary to the public interest.

[32]        Counsel jointly proposed a term of one year’s probation, and did not propose a term requiring Mr. R to abstain from intoxicants.  I think that a longer term of probation and an abstention provision are necessary because Mr. R has been abstinent, and an active participant in the counselling process, for only one year.  A longer period of abstinence, and continued counselling under the supervision of a probation officer, will render it less likely that he will relapse.

[33]        Common assault is a “secondary designated offence”, as defined in section 487.04 of the Criminal Code.  Section 487.051 authorizes me to make an order in Form 5.03, requiring Mr. R to provide a DNA sample, and requires me to give reasons for my decision on the issue.  I do make that order, for the following reasons:

[34]        There will be a conditional discharge and a term of 30 months’ probation, on the following conditions.  Mr. R must: