R. v. Campbell

2012 BCSC 904 R. v. Campbell IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Campbell, 2012 BCSC 904 Date: 20120502 Docket: 75697 Registry: Kelowna Regina v. Quinnton Campbell Before: The Honourable Mr. Justice Barrow Oral Reasons for Sentence Counsel for the Crown: E.A. Pedersen Counsel for the Accused: D.B. Johnson Place and Date of Trial/Hearing: Kelowna, B.C. December 7-9, 2011 and April 25-27, 2012 Place and Date of Judgment: Kelowna, B.C. May 2, 2012 [1] THE COURT: Mr. Campbell has been convicted, following a trial, of one count of criminal harassment. The victim of that offence is Danielle Beaulieu. Ms. Beaulieu is the mother of Mr. Campbell's nine‑year‑old son, K. [2] By way of general background, Mr. Campbell and Danielle Beaulieu were involved a relationship in 2001 and 2002. They separated periodically during that time and separated for the last time in early 2003. [3] The harassment that grounds Mr. Campbell's conviction occurred over the weekend of August 27 and 28, 2011. On both of those days, he repeatedly entered Ms. Beaulieu's home while she was not there. While in the home, he telephoned her repeatedly. Ms. Beaulieu was, at the time, visiting her parents in Vernon. When her neighbours noticed a strange man in the residence, they telephoned her. When they described the man to Ms. Beaulieu, she knew immediately that it was Mr. Campbell. She told them to phone the police if he returned. He did and they called the police, but by the time the police arrived, Mr. Campbell had left. He was arrested on September 3, 2011, and has been in custody awaiting trial since. [4] The ominous nature of the events of late August come into focus only when the background of the relationship between Ms. Beaulieu and Mr. Campbell is recalled. Mr. Campbell was convicted, on his guilty plea, of assaulting Ms. Beaulieu in October 2004. The assault or assaults that grounded that conviction occurred in 2003. He broke into her apartment in March 2006 and was charged with breaking and entering. He was convicted of that offence again on his guilty plea. Further, in October 2007, he assaulted her again. He was convicted of that offence because he admitted assaulting her to the judge that sentenced him. He would now have me believe that none of these things happened. I reject that categorically. [5] Mr. Campbell has a longstanding problem with drugs and alcohol. Shortly after he was released from prison in the spring of 2011, he moved to a recovery house in Kelowna. He wanted to see his son, and Ms. Beaulieu agreed to allow him to do that. In fact, she went some distance towards making that happen. She took K to see his father, someone that K had not seen for some time, when Mr. Campbell arrived at the recovery house. She took him there within a day or two of his arrival. [6] There followed regular visits over the course of about six weeks. Ms. Beaulieu's only condition with respect to those visits was that Mr. Campbell had to be free of drugs and alcohol. She made that clear to him. The pick-ups and drop‑offs took place in a public place because she did not think that Mr. Campbell knew where she lived, and she wanted that to remain the case. [7] In mid‑June, the visits stopped abruptly. The parties have different views as to why that happened. According to Mr. Campbell, it happened because Danielle Beaulieu was jealous of Mr. Campbell's new girlfriend, a person that used to be a friend of Ms. Beaulieu's. According to Ms. Beaulieu, it happened because she was concerned that Mr. Campbell either had or was about to start drinking or using drugs again. She based that on at least two things. One is that she believed that his new girlfriend used drugs and perhaps drank alcohol and that, to her, was a warning that Mr. Campbell's life might again descend into the difficulties associated with addiction. Secondly, she saw other behaviours, missed visits and other more subtle behaviours, that set up in her mind a concern which was fostered by, promoted by, or aggravated by the presence of Mr. Campbell's new girlfriend in his life. That is her account of why she was concerned. She stopped the visits as a result. [8] It is clear that after the visits stopped, the parties, with relatively few exceptions, stopped communicating with each other. I accept that they sent text messages back and forth, during which they continued the dispute that had erupted in late June. [9] Without asking Ms. Beaulieu if he could come to her house, even if she was there, Mr. Campbell took it upon himself to go to her house when she was not there. He did not simply knock on the door and leave when she did not answer, but he went inside. He went into her bedroom. He did not leave when she was not home, he remained there, and he returned repeatedly over the weekend. In the course of those visits, he telephoned her. [10] I find it astonishing that, as against this background, Mr. Campbell cannot now see that such conduct would be terrifying to someone in Ms. Beaulieu's circumstances. That is troubling. [11] The consequences of this conduct have been significant. They have been borne both by Ms. Beaulieu and K. As a result of Mr. Campbell's earlier behaviour towards Ms. Beaulieu, and in particular his earlier break in of her home, she lived with considerable anxiety for some time. Two years ago, she and her son moved to the home they occupied in August 2011. Because she believed Mr. Campbell did not know where she lived she felt safe, a feeling more greatly appreciated given her past experience. That changed with this offence. She has since moved. K has had to change schools. She lost her job. I do not suggest that Mr. Campbell is responsible for that, but these events no doubt played a role in that development. Her son now sleeps with her. I do not know if K is afraid of his father, but I know Ms. Beaulieu is and K clearly senses that. In short, the consequences have been significant. [12] It is necessary to characterize the gravity of this offence in order to find the appropriate sentence. There is no usual range of sentence for offences of this kind because, perhaps more than most offences, they can be committed in an almost infinite variety of circumstances (see R. v. Kohl, 2009 ONCA 100 at para. 41). The cases to which the Crown has pointed demonstrate that clearly. They also demonstrate that some of the factors that are significant to assessing the gravity of the offence are the length of time over which the harassment has occurred and the motive for it. [13] In this case, the harassment did not take place over a protracted period of time. It did not involve repeated actions over months or years or thousands of phone calls or things of that nature, and to that extent, it is not as serious as many of the circumstances in the cases to which the Crown has pointed. [14] In terms of motive, Mr. Johnson points out that Mr. Campbell's intention in going to the house was not to harass Ms. Beaulieu, but rather to see his son. I accept that that is so. I also accept that if he had given even a moment's thought to how his conduct might affect Ms. Beaulieu, he would have known instantly the ludicrous nature of what he was about. He did not give it that thought because all he was concerned about was what he wanted, and what he wanted was to see his son. [15] As motives go, that motive is, in my judgment, less troublesome than is the motivation in many of the cases to which the Crown points. Some of those cases, as Mr. Johnson intuited, were motivated by individuals who were intent upon committing assaults or sexual assaults or other kinds of offences against those who were the victim of the harassment. In that sense, this case is less serious than those cases. [16] On the other hand, motive may also serve as a measure against which the likelihood of future conduct can be assessed. In cases, for example, like Malakpour, 2008 BCCA 326, where the accused simply refused to accept the fact that his relationship with the complainant was over, that circumstance was a reason to be concerned that he would simply continue to harass her. [17] In this case, Mr. Campbell's motive was to see his son. I have no doubt that he will continue to want to see his son for years to come, and in that sense, there is some reason to be concerned. The other thing I say about the motive is this: Although Mr. Campbell now believes that Ms. Beaulieu was lying when she gave her evidence, he must know that if he has any hope of ever playing any role in his son's life, he needs to accept responsibility for what has happened. Whether it happened as she described it or as he believes it to have happened, he needs to accept responsibility for it in the manner in which the court has concluded it happened. If he does not do that, he will never get beyond the hurdle that he needs to get beyond if he has any hope of having a healthy relationship with his son. [18] I accept Mr. Campbell's heartfelt comment to the effect that it is important for children to have a father in their life. His own life experience has demonstrated the reality of that perhaps more profoundly than anything one might find by reference to psychologists or parenting manuals. He knows of the importance. I accept that he is in earnest when he says he wants a relationship with his son. [19] I also accept that Ms. Beaulieu has a fear of him which is not likely to ever go away entirely. It may dissipate over time. The reason I say that is because in May of 2011, in the face of having been previously assaulted on two separate occasions years apart, and having had her residence broken into, she was prepared to allow Mr. Campbell to see and develop a relationship with his son. That, to me, suggests that Ms. Beaulieu has some residual hope that something positive can come of that relationship. She is now, according to her victim impact statement, confident that that cannot ever happen. I am not so sure, and I am not so sure that she will not, at some point, be prepared to try again. That remains to be seen, and whether she does or not is largely up to Mr. Campbell. [20] In order for that to happen, he needs to accept responsibility for what has happened, regardless of whether it happened as he suggests it did or as somebody else suggests it did. That matter is now beyond his control. The court has determined what happened, at least for purposes of this analysis, and that is all that matters for Mr. Campbell and all that needs to matter for his future conduct, if he has any hope of playing a positive role in his son's life. [21] I turn now to the law. [22] In 1996, Parliament amended the Criminal Code by enacting s. 718 to s. 718.2. In doing so, it codified the objectives and principles of sentencing (An Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22 (Bill C-41)). Section 718 sets out the fundamental purpose of sentencing, which is to contribute to "respect for the law and the maintenance of a just, peaceful and safe society". This is accomplished by imposing "just sanctions" that reflect or respond to one or more of the sentencing objectives: namely, denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders. [23] The Code lists a number of principles which are to guide the sentencing judge. The core principle is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. [24] Proportionality is intimately linked to the fundamental purpose of sentencing -- which is the maintenance of a just, peaceful and safe society through the imposition of just sanctions. The sentencing judge is to accord weight to the objectives of sentencing as the circumstances of the offence and offender demand, but whatever weight is accorded to them and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. A sentence that reflects the gravity of the offence serves the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 S.C.R. 486 at p. 533. It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system... [25] Further, a sentence that is proportionate is one that does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [26] The offence of criminal harassment carries a maximum sentence of 10 years. Section 264(4) lists specific aggravating factors which, if established, are to be taken into account on sentencing. In general, if, in committing the offence, the offender was breaching the terms of an order, either a s. 810 peace bond or any similar order, that is an aggravating factor. Mr. Campbell was not subject to any such order when he committed the offence. [27] The Crown has referred me to several authorities including: R. v. Kohl; R. v. Malakpour; R. v. Cholin, 2011 BCCA 116; R v. D.W.H., 2005 BCSC 247; and R. v. Purewal, [1994] B.C.J. No. 3221 (P.C.). The facts in these cases are all markedly different from those in the matter at hand. They do, however, serve to highlight some principles. In Cholin, the court noted at paragraph 17 that the degree of fear and anxiety caused to the victim and the extent of the offender's insight into his behaviour are important considerations on sentencing. In Purewal, MacKenzie P.C.J. (as she then was) underscored the importance that our society places on the sense of security we are entitled to feel in our own homes. Robbing someone of that is a serious matter. In R. v. Finnessey, [2000] O.J. No. 3316 (C.A.), the court noted that the absence of physical violence is not a mitigating factor. Of course its presence would be an aggravating circumstance. I will not say more about these cases because they all involve conduct markedly different than that under consideration here. [28] Mr. Campbell is 36 years old. He has a high school education. Sadly, the most telling aspect of his personal circumstances is his criminal record. It is long and largely uninterrupted. It includes the following: · September 30, 1992 - Youth Court - two counts of assault - 12 months probation · May 4, 1993 - Youth Court - two counts of failure to comply with a disposition - four months of additional probation · March 31, 1995 - possession of a weapon and assault - nine months' jail and three months' jail concurrent · November 6, 1995 - assault - 60 days' jail · October 10, 1997 - two counts of assault causing bodily harm - three years' jail and a five-year firearms prohibition · February 4, 1998 - theft and two counts of assault - three months' jail on each count, all concurrent and concurrent with the sentence he was then serving · December 7, 1999 - parole violation · July 5, 2001 - breach of probation - seven days' jail · October 1, 2002 - escape custody and break and enter - seven days on each · September 2, 2003 - escape custody and fail to appear - 30 days on each concurrent · October 27, 2004 - assault (the victim of this assault was Ms. Beaulieu) - five months' jail and two years' probation - possession of a stolen credit card - 30 days - break and enter - one month jail - breach of recognizance and failure to appear - 30 days' jail · September 28, 2005 - two counts of breach of probation and one count of escape custody - 60 days' jail · April 20, 2006 - one court of break and enter (this was the break and enter of Ms. Beaulieu's residence) - six months' jail - assault - one year consecutive - three counts of breach of probation - three months consecutive on the first count and a further three months consecutive on the other two · May 15, 2008 - assault - nine months' jail (after being credited with 75 days of pretrial custody). I take this to be an effective sentence of one year · October 7, 2009 - possession of a firearm contrary to an order - three months' jail (and a lifetime prohibition) - breach of probation - one month jail · July 28, 2010 - theft under - CSO nine months · September 1, 2010 - possession of a weapon for a dangerous purpose - CSO six months - mischief - CSO six months · October 28, 2010 - assault, theft under and obstruction of a police officer - CSO nine months · November 10, 2010 - two counts of breach of recognizance - CSO four months [29] In addition to its length and sheer volume, the record is significant for two other reasons. First, as noted above, three of the convictions relate to offences committed against Ms. Beaulieu. Second, there are 12 convictions for assault and several weapons offences. [30] I accept what Mr. Campbell says about the beneficial effect that his most recent exposure to treatment to address his addictions had. I believe him when he says he feels free, in terms of free of the weight of a lot of emotional baggage that has given rise, in part, to his drug and alcohol behaviour. I also suspect that his drug and alcohol behaviour explains some of the convictions that he has received over the years. The other thing that explains that, however, are choices that he made. He is now 36 years old. He is grown up. He is responsible for what he does, and he is here before this court today to accept responsibility for what he did in August. He may not like that, but that is the necessary consequence and that is how adults deal with their problems. You commit acts, you accept responsibility for them, and you pay for the acts as you committed them. [31] No sentence I impose will extract the price that Mr. Campbell is going to pay for what he did. The price he is going to pay for what he did is his absence from his son's life. He has now experienced that for almost 10 months. He is going to experience it for some time further. He may experience it indefinitely; who can say? He has no one, however, to blame for that but himself. [32] I hold out some hope that he will be able to, at some point, arrange to see his son again. I would not permit that to happen, however, until he has demonstrated that he is capable of enjoying what is really a privilege in a responsible way, and in a way, that leaves Ms. Beaulieu safe to lead her life free from fear. [33] The Crown seeks in this case a further period of incarceration of two years. That would amount to an effective sentence of 32 months, given that Mr. Campbell has spent eight months in jail waiting for this trial to complete. [34] I think a reasonable sentence in this case is on the order of two years less a day. I am going to give you credit for the eight months that you have spent in custody and sentence you to a further 14 months. I am also going to place you on probation for a period of three years. [35] The reality is that you will be out of jail long before the 14 months is up, as you know. You may be eligible for early release if your behaviour warrants that in the institution. I would not sentence you to a sentence of this length but for your criminal record. It causes me to be concerned about future involvement with Ms. Beaulieu. I am not imposing a longer sentence because I accept what you say about the beneficial effect of your stay at Baldy Hughes, the residential treatment facility in Prince George that you attended prior to coming to Kelowna. I say also that it is apparent to me that while you have made progress in that respect, you have more work ahead of you, and I say that for a couple of reasons. The most significant one is that in August of 2011, notwithstanding your attendance at Baldy Hughes and your later attendance at the rehabilitation facility in Kelowna, you drank. I know you told me this morning that you drank because of the stress that had arisen as a result of the rupture in your relationship with Ms. Beaulieu and with your son. I accept that is true, but the fact is there is stress in everyone's life every day; some days more than others. It cannot simply be that because there is stress, you feel you are free to drink. If you have your son's best interests at heart, you will never allow yourself to drink again, period. No drugs, no drinking, if that is really what you have in your heart. [36] I suspect it is what you have in your heart, and I hope that you are able to live a life that is free from those addictions. I suspect that if you do that, you have a reasonable chance of establishing a relationship with your son. Ms. Beaulieu is now not prepared to entertain that. I would not bet against her changing her mind and giving you another chance in the future, but in order for her to do that, you are going to have to earn it, and you are going to have to earn it by living a life that is true to what you tell me today is important; namely, that you want to be an important figure in your son's life. I suspect you have a great deal to offer him and I hope you are able to do that, but the proof will lie in your behaviour going forward. [37] I am going to place you on probation. The statutory terms will apply. I am not going to make it a condition of your probation that you do not drink or that you do not do drugs; that is entirely up to you. If you do, you know the price you will pay for doing so. I am going to make it a condition of your probation, however, that you have no contact, directly or indirectly, with Ms. Beaulieu or any member of her family, including her parents, who I will name in the order once Mr. Pedersen tells me their names. I am going to allow you to apply to have that condition modified. I am going to impose it for the first six months after you are out of jail. In other words, you get out of jail, there are going to be six months where there is no contact, no matter what. [38] After that, if you want to have contact with Ms. Beaulieu, you need to apply to the court for permission to change this order, and I will be the judge that hears that application. Whether I change it or not will depend on the circumstances as they stand at that time. Whether I change it or not does not mean that you will necessarily get contact; it will simply mean that there will not be a criminal court order prohibiting you from that. It may be that you will have to pursue contact through the family court; I do not know. It may be that Ms. Beaulieu will say, "No, I want to hear what he has done. I want to hear what he says, and if it seems sensible, I will think about it." [39] We will have to wait and see, but I want you to know that the opportunity is there. It is some time into the future, but the opportunity is there for you to benefit from your own improved behaviour, in the sense that you will be able to at least take steps towards re‑establishing a relationship with your son. That is the message you need to take from this. [40] The fact that you are going back to jail for a not insignificant period of time is unfortunate. I take no pleasure in that, but it is necessary in terms of me performing the duty that the law casts upon me. [41] There will be an order, finally, that you are prohibited from firearms and possessing the other things set out in s. 109 of the Criminal Code for life. [42] There will be an order that you provide samples of your bodily substances suitable for analysis in the DNA databank. I only make that order if you have not already done that. The police, I am told, will canvass that when it comes time to carry out that order, and if you have already given a sample and you are already enrolled in the data bank, they will not require you to do it again. Am I correct about that, Mr. Pedersen? [43] MR. PEDERSEN: Yes. [44] THE COURT: Thank you. [45] There will be no victim fine surcharge for obvious reasons. [46] Anything else from your perspective, Mr. Pedersen? [47] MR. PEDERSEN: My Lord, it may be your intent because of saying statutory terms, but I'd be asking that there be a term that he report within 72 hours of his release to probation, and thereafter as directed. Then should he make an application six months after he commences his probation, there could be an independent person who could provide input to the court, should it require it, because they will have been having contact and supervision of him. [48] THE COURT: Right. [49] MR. PEDERSEN: The statutory term says he is to advise the probation officer of any change in address or occupation, it does not require him to report, per se. [50] THE COURT: Okay, sorry, okay. [51] MR. PEDERSEN: And also a condition that he not attend within, let's say, 100 metres of any residence or place of work of Ms. Beaulieu and members of her family, with potentially the same exception as you've done with respect to the no contact. The basis of your decision was on watching and besetting. I'm not saying it would happen, but theoretically he could be sitting 40 metres from her house, not having contact, but in plain view and creating the same kind of concerns for her. [52] THE COURT: All right. There will be a requirement that you report to a probation officer within 48 hours of your release from jail, and thereafter as directed by your probation officer. [53] It is reasonable for you to do that for your own benefit because it may provide at least somebody, who is in a position of some authority and neutrality, who can say how you have been doing once you are out of jail. I do not impose it for purposes of punishing you, but rather for purposes of monitoring your behaviour, and it is something that ultimately may inure to your benefit. [54] The term about no contact is that you are not to have any contact with Ms. Beaulieu or her father? [55] MR. PEDERSEN: Yes. [56] THE COURT: And mother? [57] MR. PEDERSEN: Yeah, I'm just asking him to write down all the family members' names, so I can hand that to the clerk. [58] THE COURT: And you cannot be within 100 metres of any residence that they occupy. Obviously that only applies if you know that that is their residence. Nor can you be within 100 metres of their place of employment, assuming you know where they happen to work. But if you learn where they work, you cannot go there. [59] MR. JOHNSON: My Lord, when you refer to Ms. Beaulieu and family members, I'm assuming that includes [K]? [60] THE COURT: Yes, it does. [61] MR. JOHNSON: Just so things are clear to Mr. Campbell, perhaps the no‑go should be residence, work or school? [62] THE COURT: Yes. [63] MR. PEDERSEN: In addition to, of course, [K], as you know, there is Nita Belinda Beaulieu, the mother; Stan Douglas Beaulieu, father; Jason Douglas Beaulieu, brother. [64] THE COURT: Thank you. All of those people will be named in the probation order and there is to be no contact, directly or indirectly, with them. Also named will be K. That term remains in effect during the currency of the probation order, unless it is varied on application by Mr. Campbell or presumably Ms. Beaulieu. That application can be made any time six months following Mr. Campbell's release from jail. [65] I will make every effort to be available to hear that application should it be made. I will hear it outside of regular court hours, so it is not unnecessarily delayed, but if I am unavailable to hear it, another judge may hear it. I will order transcripts of the reasons for conviction and these reasons for sentence, so that they will be available to whoever happens to deal with that application in future. [66] Do you understand that, Mr. Campbell? [67] THE ACCUSED: Yes, I do. [68] THE COURT: Thank you, Mr. Campbell. Mr. Pedersen, anything further? [69] MR. PEDERSEN: I believe that has it covered, My Lord. [70] THE COURT: Thank you, we will adjourn. Barrow J.