IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Walkus was ordered to attend for counselling as directed by and to the satisfaction of his probation officer pursuant to a Probation Order made on September 9, 2014.  The counselling was to include domestic violence and/or substance abuse counselling.

[2]           On February 17, 2015, Mr. Walkus attended a session of Respectful Relationships after consuming alcohol and was advised by Probation Officer Steiman to leave.  He was removed from the program entirely because this was the second session that he missed.

[3]           As a result, he is charged with failing to comply with the counselling condition of the probation order without reasonable excuse pursuant to s. 733.1 of the Criminal Code.

[4]           The Crown must prove a criminal offence beyond a reasonable doubt.  In order to obtain a conviction, it must also prove, beyond a reasonable doubt, the requisite mental element: that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them: R. v. City of Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299.

[5]           Crown counsel submits that it has proven the offence.  Mr. Walkus it is argued, knew that he could only miss two sessions; he knew he had already missed one session; he consumed alcohol before attending the February 17 session of the program; he knew that it was contrary to the rules of the program; and he knew that if he missed one more session he would be in breach of the condition in his probation order that he attend the program.

[6]           Crown counsel points out that the condition of the probation order is not only that Mr. Walkus attend domestic violence counselling, but that he take such counselling to the satisfaction of his probation officer.

[7]           Counsel for Mr. Walkus submits that Mr. Walkus did not voluntarily or intentionally violate the counselling condition of his probation order.  He attended the program on the day in question intending to comply with the probation order.  He argues that the consumption of alcohol did not trigger the breach but, rather, the actions of Probation Officer Steiman by directing Mr. Walkus to leave.

[8]           At the time of this offence, s. 733.1 of the Criminal Code contained the following wording:

[9]           The offence of breach of probation pursuant to s. 733.1 requires full proof of mens rea.  In other words, there must be proof, beyond a reasonable doubt, that Mr. Walkus intentionally committed the act that resulted in a failure to comply with a condition of his probation: R. v. Docherty (1989) 1989 CanLII 45 (SCC), 51 C.C.C. (3d) 1 cited in R. v. Bingley, 2008 BCPC 245 (CanLII), [2008] B.C.J. No. 1680, R. v. Lempke, [2016 ] BCPC.

[10]        If the Crown proves the intentional act, Mr. Walkus must establish that, on a balance of probabilities, he had a reasonable excuse.

[11]        A conviction for breach of probation can result in significant penalties.  Effective July 16, 2015, if Crown proceeds by indictment, an offender can be imprisoned for a term of up to four years or, if Crown proceeds summarily, imprisonment up to eighteen months or a fine up to $5,000 or both.

[12]        I heard evidence from probation officers Billie Leslie and Carrie Steiman as well as from Mr. Walkus.

[13]        Mr. Walkus met with Probation Officer Billie Leslie who reviewed the terms of the probation order with Mr. Walkus and explained the consequences of not complying with the conditions as well as his right to apply to court to vary those conditions.

[14]        Mr. Walkus was given “Core Programs Attendance Agreement” which was reviewed with him by Ms. Leslie.  That document was signed by Mr. Walkus and witnessed by Ms. Leslie on August 22, 2014.

[15]        Ms. Leslie directed Mr. Walkus to attend the ten session Respectful Relationships program taking place between September 23, 2014 and December 2, 2014.

[16]        This program was deferred but Mr. Walkus was subsequently directed to attend another Respectful Relationships program commencing January 13, 2015 to March 17, 2015.

[17]        On December 22, 2014 he was given the same Attendance Agreement which was reviewed again with him by Ms. Leslie.

[18]        Mr. Walkus knew and understood that a number of rules as set out in the Attendance Agreement applied to the program and knew that he had to abide by those rules in order to successfully complete it.

[19]        He knew and understood that those rules included that he not report to a session “under the influence of drugs or alcohol” and that if he had a drink he wouldn’t be allowed to participate.

[20]        The materials in each session build upon each other and attendance at all sessions is very important.  However, participants are allowed to miss one session but are removed from the program if they miss a second time.

[21]        It is also important that participants in the Respectful Relationships Program attend in a sober condition.  Otherwise, it would undermine not only the ability of the individual participant to learn and benefit from the counselling but would potentially be a significant disruptive element to other participants.  This would entirely defeat the purpose of the counselling sessions.

[22]        Mr. Walkus did not attend the session on January 27, 2015 although he had been given a written reminder of the date and time.  This was his “first absence” and he was still allowed to continue in the program.

[23]        While on his way to, and before attending the session scheduled on February 17, 2015, Mr. Walkus drank two beers.  When he arrived, Mr. Walkus spoke with Ms. Steiman who was one of the facilitators.  She could smell the odour of alcohol on his breath and told him that he was not permitted to attend the session if under the influence of alcohol and that, as a result, he had to leave.

[24]        As this was his second missed session, Mr. Walkus was removed shortly thereafter from the program.

[25]        Mr. Walkus is a member of the Sechelt Nation and at a young age ran away from an abusive home.  He was placed in six or seven foster homes between the ages of ten to eighteen years old.  He struggles with an addiction to alcohol and when he stops drinking he shakes badly and can’t eat or sleep.  He testified that he is trying to get his life turned around.

[26]        On February 17, 2015, the day he was required to attend the Respectful Relationships program he had managed to remain sober all day but this caused him to feel sick and his evidence was that he needed to drink two beers to feel better before he went into the session.

[27]        To his credit, he candidly admitted that he could have attended the session without drinking but he did so not only because he felt sick but also to relax himself.  I note that these are group sessions and are likely stressful and uncomfortable for many participants.

[28]        He went to the session anyway because he knew if he didn’t attend he would have been breached as he put it.

[29]        The determination that I have to make is not whether Mr. Walkus intended to breach his probation order or whether he intended to not attend the program session, but whether or not he intentionally drank alcohol knowing that doing so would result in his removal from the program.

[30]        I accept that Mr. Walkus knew that being removed from the program would result in a breach of the counselling condition of his probation order.

[31]        I consider this question in the context of the evidence that Mr. Walkus is an alcoholic.  When he abstains from alcohol, he suffers from withdrawal and experiences shaking, poor sleep and loss of appetite.  As he described it, he feels sick.

[32]        While I am sympathetic to Mr. Walkus’ condition, I note that based on his own evidence, he was able to remain sober that day and that he does have some control over his alcoholism even if it is partial abstinence.  Furthermore, he testified that he could have attended the session without drinking. 

[33]        On the day in question - February 17 2015 - I am satisfied beyond a reasonable doubt that Mr. Walkus deliberately and intentionally drank two beers prior to attending the Respectful Relationship session on February 17, 2015 knowing that he was not permitted to be under the influence of alcohol and knowing that as a result he would not be allowed to attend that session.

[34]        I am also satisfied beyond a reasonable doubt that Mr. Walkus knew that failure to attend that session would result in his removal from the program and would be a breach of his condition to attend counselling to the satisfaction of his probation officer.

[35]        The Crown has proven beyond a reasonable doubt that Mr. Walkus intentionally committed an act, drinking alcohol contrary to the rules of the Respectful Relationships program, which resulted in his failure to comply with the conditions of his probation order.

[36]        Although no submissions were made, I also considered whether or not Mr. Walkus has proven, on a balance of probabilities that he had a reasonable excuse for his failure to comply.  For the reasons stated earlier, Mr. Walkus’ alcoholism is not a reasonable excuse in the circumstances of this case.  He does have some control over his drinking.

[37]        Mr. Walkus is guilty of the charge of failing to comply, without reasonable excuse, with a condition of his probation order, that he attend domestic violence counselling to the satisfaction of his probation officer, pursuant to s. 733.1 of the Criminal Code.