HMTQ v. Daum

2008 BCSC 1712 R. v. Daum

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Daum, 2008 BCSC 1712 Date: 20081212 Docket: 18818-1 Registry: Rossland Between: Her Majesty the Queen Respondent And Tyrone Daum Appellant Before: The Honourable Mr. Justice McEwan Reasons for Judgment Counsel for the Respondent: Lynn Moffat The Appellant: In Person Date and Place of Trial/Hearing: December 1, 2008 Rossland, B.C. [1] Tyrone Harold Daum appeals an order pursuant to Section 810(1) of the Criminal Code that he enter into a recognizance that he keep the peace and be of good behaviour for a period of 12 months and abide by certain conditions. [2] The order was made on July 7, 2008, and amended on July 21, 2008. The additional conditions are: 2. To be within the city limits of Kelowna TWO DAYS PER WEEK, ON MONDAYS AND WEDNESDAYS from 8:00 am to 3:00 pm for the sole purpose of traveling directly to and from and without stopping except: at Costco; at the offices of your counsel situation at 830 Bernard Avenue, Kelowna; to attend at the Government Liquor Agent office in Kelowna, BC on Dilworth for the purpose of purchasing alcohol for your hotel; or if you are in the immediate presence of your mother, Carole Daum.

3. You are to have no contact directly or indirectly with Della Elko, Susan Elko, Mark Elko, Ted Sodoberg, Shelly Hawley, Chad Elko, Tammy Sodoberg, Samantha Elko, Amanda Elko, Ashley Elko, Andrew Sodoberg or Nicholas Sodoberg except for indirect contact with Susan Elko through legal counsel.

4. Reside at 28 Mulhearn Road, Beverdell, BC and not change that place of address without first advising the Midway RCMP in person.

5. You are prohibited from possessing any firearms as defined under Section 110 of the Criminal Code of Canada for a period of 1 year. Furthermore, you have 30 days to lawfully dispose of any such firearms to a person who has the appropriate permits and has the authority to possess those items. [3] Section 810 reads as follows: 810.(1) An information may be laid before a justice by or on behalf of any person who fears on reasonable grounds that another person will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property. Duty of justice (2) A justice who receives an information under subsection (1) shall cause the parties to appear before him or before a summary conviction court having jurisdiction in the same territorial division. Adjudication (3) The justice or the summary conviction court before which the parties appear may, if satisfied by the evidence adducted that the person on whose behalf the information was laid has reasonable grounds for his or her fears, (a) order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour for any period that does not exceed twelve months, and comply with such other reasonable conditions prescribed in the recognizance, including the conditions set out in subsections (3.1) and (3.2), as the court considers

desirable for securing the good conduct of the defendant; and (b) commit the defendant to prison for a term not exceeding twelve months if he or she fails or refuses to enter into the recognizance. Conditions (3.1) Before making an order under subsection (3), the justice or the summary conviction court shall consider whether it is desirable, in the interests of the safety of the defendant or of any other person, to include as a condition of the recognizance that the defendant be prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all such things, for any person specified in the recognizance and, where the justice or summary conviction court decides that it is so desirable, the justice or summary conviction court shall add such a condition to the recognizance. Surrender, etc. (3.11) Where the justice or summary conviction court adds a condition described in subsection (3.1) to a recognizance order, the justice or summary conviction court shall specify in the order the manner and method by which (a) the things referred to in that subsection that are in the possession of the accused shall be surrendered, disposed of, detained, stored or dealt with; and (b) the authorizations, licences and registration certificates held by the person shall be

surrendered. Reasons (3.12) Where the justice or summary conviction court does not add a condition described in subsection (3.1) to a recognizance order, the justice or summary conviction court shall include in the record a statement of the reasons for not adding the condition. Idem (3.2) Before making an order under subsection (3), the justice or the summary conviction court shall consider whether it is desirable, in the interests of the safety of the informant, of the person on whose behalf the information was laid or of that person's spouse or common-law partner or child, as the case may be, to add either or both of the following conditions to the recognizance, namely, a condition (a) prohibiting the defendant from being at, or within a distance specified in the recognizance from, a place specified in the recognizance where the person on whose behalf the information was laid or that person's spouse or common-law partner or child, as the case may be, is regularly found; and (b) prohibiting the defendant from communicating, in whole or in part, directly or indirectly, with the person on whose behalf the information was laid or that person's spouse or common-law partner or child, as the case may be. Forms (4) A recognizance and committal to prison in default of recognizance under subsection (3) may be in Forms 32 and 23, respectively. Modification of recognizance (4.1) The

justice or the summary conviction court may, on application of the informant or the defendant, vary the conditions fixed in the recognizance. Procedure (5) The provisions of this Part apply, with such modifications as the circumstances require, to proceedings under this section. R.S., 1985, c. C-46, s. 810, 1991, c. 40, s. 33; 1994, c. 44, s. 81; 1995, c. 22, s. 8, c. 39, s. 157; 2000, c. 12, s. 95. [4] On July 7, 2008, Mr. Daum was before the provincial court for judicial interim release having been detained in custody for about four days on a 5 count information arising out of a domestic dispute. The Crown related a rather confusing story that involved allegations of events outside the information, a matter the hearing judge remarked upon more than once. The allegations pertinent to the charges included physical violence, threats and harassment. These were denied by Mr. Daum, who was represented by counsel. [5] Following some conversation respecting terms of release, the motion was briefly adjourned. [6] When the case resumed, counsel advised that an agreement had been reached whereby Mr. Daum would be released on a "peace bond" on a new Information. This colloquy then ensued between counsel for Mr. Daum (Mr. Johnson), the Crown (Ms. Moffat), and the Court: MR. JOHNSON: Your Honour, I'm just wondering, is there any way that it could possibly be done in the absence of the

information with the consent of the accused and his counsel? THE COURT: Well, he's going to -- MR. JOHNSON: He's going to admit - I've already spoken -- THE COURT: You don't have a copy of the information? MS. MOFFAT: No, Your Honour. I've just - I asked my office -- THE COURT: You know, the court's jurisdiction depends on, at least, a sworn information. MR. JOHNSON: I'm just wondering any way -- THE COURT: Sometimes a photocopy is good enough, but there's has got to be something before me. MR. JOHNSON: No chance of doing it under the original information and a 606(4)? THE COURT: How long do you think you're going to be? MS. MOFFAT: It's not an included offence. It won't be long. What I can do, Your Honour, is I'm going to just handwrite the conditions out word for word. My friend can look at them and agree. I'll make a copy and perhaps you'd be satisfied to deal with it in that manner? THE COURT: I'm sorry -- MR. JOHNSON: Yes. THE COURT: -- we'll have to have the information. MR. JOHNSON: Okay. I will do it that way. Thank you very much. THE COURT: Thank you. MR. JOHNSON: And thank you to my friend. THE COURT: Thank you. [7] After a further adjournment, the Crown indicated that Mr. Daum's lawyer "had to get away", but that she had specific terms to suggest to the court. By this time, an Information had apparently been prepared. THE CLERK: Recalling Tyrone Daum, 18818. MS.

MOFFAT: Yes, Your Honour. Mr. Johnson had to get away. He and I discussed some terms. Your Honour, should have before you a peace bond information and I have some very specific terms to suggest to the court. And I understand subject, of course, I'm going to read these terms aloud and have Mr. Daum confirm, but the proposition put before the court is that Mr. Daum will enter into a peace bond for a period of one year with $500 no deposit. And - shall I just read the terms, your Honour? THE COURT: Please. MS. MOFFAT: The first term is the usual term, item 1, and I have a rather poor copy for Madam Clerk, which she's welcome to use if she can ready my writing. But the first term would be to keep the peace and be of good behaviour. The second term, you are not to go - or actually it should be (b) you are not to be within the city limits of Kelowna, British Columbia, save and except to travel directly to, and from, without stopping, (a) to Costco, (b) to your mother's residence situate at - and Mr. Daum is going to provide us that address. THE COURT: What is your mother's address, sir? THE ACCUSED: She has to move this month. She's in a new home care, just off of Hollywood and - THE COURT: You don't have the address? THE ACCUSED: No, I've been in here. MS. MOFFAT: Oh - THE ACCUSED: It's just off to Hollywood and -- MS. MOFFAT: -- I was told that he could provide that address. THE

ACCUSED: She just got put in a home. THE COURT: Can you phone her and find out today if you're given that opportunity? THE ACCUSED: I don't even know if I got the phone number. Interior Health has all the info. MS. MOFFAT: Hmm. THE COURT: You believe it's what off of Hollywood? THE ACCUSED: Correct, it's right off of Hollywood there in Rutland. MS. MOFFAT: In Rutland. So that's not within the city limits of Kelowna, sir? THE ACCUSED: The city limit sign start 26 K back, I think. It starts way up at the top of Black Mountain or somewhere I think. MS. MOFFAT: Okay, so Rutland is within the city limits of Kelowna? THE ACCUSED: I don't know, you tell me. MS. MOFFAT: I don't know. Do you know the name of the facility where she is? THE ACCUSED: It's a - it's just a care facility. It's a regular house with three beds in it. MS. MOFFAT: Okay. Well, perhaps we could leave it that he is to provide that address prior to entering into the peace bond because that was discussed specifically with Mr. Johnson -- THE COURT: Okay. MS. MOFFAT: -- and myself THE COURT: What other terms? MS. MOFFAT: Condition 3 - so there'd be to your mother's residence situate at, or to attend at the offices of your legal counsel situate at 830 Bernard Avenue, Kelowna. That's in Kelowna. Oh, the first part says Kelowna anyway. Or (d) to the Government Agent office situate at - and I was told Mr. Daum would provide

that address, as well. THE ACCUSED: It's Dilworth. I'm not sure of the address on Dilworth. MS. MOFFAT: Again, I was told he would provide a specific address and perhaps he would provide that prior to being released. THE COURT: Okay. MS. MOFFAT: The third condition, prior to attending Kelowna, pursuant to the preceding conditions, you must telephone the Midway RCMP and advise the Midway RCMP of the time you are departing to Kelowna. You must telephone the Midway RCMP and advise the Midway RCMP that you have departed from Kelowna, within two hours of your departure from Kelowna. THE COURT: I'm sorry, he's got to advise them when he -- MS. MOFFAT: Prior to attending and within two hours of his departure from Kelowna, is sort of the summary of that condition. THE COURT: I'm sorry. He advises - you know, when I thought about this after, I thought - you know, sometimes you can phone the police and they're not there, especially in Midway. THE ACCUSED: They're not there a lot of times. THE COURT: Pardon? THE ACCUSED: They're not there the majority of the time. THE COURT: And I wondered whether if you limit this to specific dates, then - MS. MOFFAT: Or as, say, Midway RCMP or Kelowna Telecoms, all conversations are recorded at either place. THE COURT: So he's got to report and then leave within two hours? MS. MOFFAT: No, but prior to attending he is to call them and indicate that, "I'm

off to Kelowna," and within two hours of leaving Kelowna he has to call and them and advise them that he has now left Kelowna. THE COURT: You see, if he went on a specific day - MS. MOFFAT: Yes, Your Honour. THE COURT: -- then that's the only day he could go and the parties who have some concern or fear, would then know when he's coming and would be on alert. MS. MOFFAT: That makes perfect sense. THE COURT: And you wouldn't - you know, calling the police might work, but all they're going to do is - they're not going to do anything more. How often do you go to the Kelowna area? THE ACCUSED: Pretty well every second day. My mom's pretty ill with Alzheimer's and I take her to all her appointments [indiscernible/away from microphone]. THE COURT: Your lawyer should have stayed with you because there's issues being created here that are problematic. THE ACCUSED: Yes, I go in every second day to pick her up and take her to her doctor's appointment. THE COURT: We don't want you in Kelowna every second day, sir, until you - you know, with all this that's going on, having said what I said, nevertheless, there's not going to be any trouble here. I'm not going to allow any trouble. THE ACCUSED: Absolutely. THE COURT: And so your presence in Kelowna every second day is not a good thing. Let's hear the rest of what you were proposing. MS. MOFFAT: Yes, Your Honour. Those were the more

complicated. This is a little bit more simple. Condition 4 was to have no contact direct or indirect with various members of the Elko family. I have a long list of names, Susan, Della, Mark, Tammy Sodo - THE COURT: You've got all the persons named here. MS. MOFFAT: Yeah, and - THE COURT: Mark, Susan and Della - MS. MOFFAT: That's right, and - THE COURT: Is there - who's the sister? MS. MOFFAT: The sister is Tammy, Tammy Sodoberg and Ted Sodoberg and there's Chad Elko is the brother. And Mr. Johnson had agreed that all of these persons could be named. There's Chad Elko, Samantha Elko, Amanda Elko, Ashley Elko - THE COURT: These are all children? MS. MOFFAT: I'm assuming so, Your Honour, and - THE COURT: Okay. Their names again? MS. MOFFAT: Chad Elko is the brother - THE COURT: Yes. MS. MOFFAT: -- Samantha Elko, Amanda Elko, Ashley Elko, Andrew Sodoberg, you'll recall the sister's married name is Sodoberg, and Nicholas Sodoberg. And the sister's husband, whose home he was at as well, is Ted Sodoberg. THE ACCUSED: And you're missing a Shelley somebody [indiscernible/away from the microphone]. THE COURT: Shelley, okay. Is that Sodoberg? THE ACCUSED: No, I'm not sure what her last name is. I don't think - MS. MOFFAT: Oh, Shelley Hawley. THE COURT: Hawley? MS. MOFFAT: It's spelled H-a-w-l-e-y. I didn't include her because I wasn't sure what her relationship was. THE ACCUSED: That'd

be Chad Elko's partner. MS. MOFFAT: Okay. THE ACCUSED: And the three girls - THE COURT: What else? MS. MOFFAT: One exception to the no contact and that is with respect to Susan Elko, that the one exception would be indirect contact through legal counsel. And, lastly, that he's to advise - pardon me, to reside at - and he was to provide his address to the court because I'm not sure what it is. And not to change his place of address without advising in person, this is not a phone call - THE COURT: He lives at the hotel. THE ACCUSED: I live half a block down from the hotel. THE COURT: What's the address? THE ACCUSED: 28 Mulhearn, M-u-l-h-e-a-r-n Road. That'd be Beverdell. MS. MOFFAT: And not to change his place of address without attending in person and advising the RCMP. And there was one last thing, as well, is Mr. Johnson indicated that - THE COURT: Just a sec. MS. MOFFAT: Sorry. THE COURT: Yes. MS. MOFFAT: Mr. Johnson indicated that his client would agree to enter into a firearms prohibition under s. 110 for a period of five years. THE COURT: Can I impose that after a - on a peace bond? MS. MOFFAT: I considered that, Your Honour, and I've done that separately, of a peace bond, just a stand-alone order under 110, when matters are resolved by way of a peace bond. And s. 110, I'm not sure if Your Honour has a copy of it as - simply requires that where a person is convicted or

discharged under s. 730 of an offence other than an offence referred to in paragraph 109, in the commission of which violence against a person was used, threatened, or attempting, it's my submission, Your Honour, that encompasses a peace bond under s. 810, because the commission of violence is, certainly, an allegation that - THE COURT: But doesn't it deal specifically with an offence? MS. MOFFAT: What is says, it says, Where a person is convicted or discharged of "an offence" - THE COURT: None of that is happening here. MS. MOFFAT: I suppose that's true, Your Honour. I'd be content if it was under a peace bond, like a further condition of the peace bond. THE COURT: It could only be for a year then. MS. MOFFAT: That's fine. THE COURT: Okay. Sir, it would have been preferable for your lawyer to remain. I understood he couldn't, but I think until the dust settles a bit on this matter, that you should be looking at one trip a week into Kelowna. The question is whether you can live with that. THE ACCUSED: Till the dust settles? How long do you figure that would be? THE COURT: Well. I will grant you leave to vary that condition after, say, two months. MS. MOFFAT: That's fine, Your Honour. THE ACCUSED: That's more than acceptable. THE COURT: So for the first while until you get a change by the court, your trips are one day a week and which day is it that you would like? I think - you

know, this notifying the police is too complicated. I threw it out there, but I think it is too complicated and you should go - pick a day. We will say you leave by 10 and you are home by four, something like that. MS. MOFFAT: Hm-hmm. THE COURT: And if you do not comply with these conditions, they will be strictly applied. You are in trouble. THE ACCUSED: Right. THE COURT: You have got lots of issues in your life, your lawyer has told us about. You do not need any more problems. THE ACCUSED: No, no. THE COURT: Do you have other family in Kelowna? THE ACCUSED: A brother. THE COURT: Yes, so your brother could help your mother until you get your situation settled. THE ACCUSED: He's only here on weekends. He lives in Coquitlam for the rest of the week. THE COURT: Which day would you like? THE ACCUSE: Mondays, Your Honour. [8] It appears that in exchange for consent to a Section 810 peace bond it had been agreed that the other matters before the court would not proceed. The arrangement is less than optimal in that what counsel agreed was not entirely certain, and Mr. Daum's situation, following his lawyer's departure, caused the hearing judge some concern. While Mr. Daum did not express his consent very clearly in court, I think I must infer that the hearing judge, despite his misgivings, was satisfied, taking account of what he saw and heard, that Mr. Daum knew what was happening

and consented. In any event, Mr. Daum subsequently signed the recognizance binding him to the conditions he has since found onerous. [9] Mr. Daum has represented himself on this appeal. He has prepared an extensive brief which I assured him I would reserve to consider. Having done so, it appears that much of the material is directed to the manner in which the accusations against him came before the court in the first place. He suggests some collusion between the police and a woman with whom he had a relationship, and who he suggests has wrongfully accused him, and taken advantage of his arrest and detention to appropriate property he says belongs to him. He claims that his Charter Rights have been violated in the process leading to his arrest and detention. [10] Closer to the substantive complaint Mr. Daum makes on appeal is a suggestion that Section 810 of the Criminal Code should be struck down as violating the Charter of Rights and Freedoms. He further submits that the court had no jurisdiction to make the order it did because the judge did not "cause the parties to appear before him". He submits that because there was no notice and no hearing the order is invalid. He submits that there was no evidence on the judicial interim release hearing that could properly be taken into account in imposing a peace bond. He cites R. v. Fehr 1997 CanLII 759 B.C.S.C., January 17, 1997

(Nelson Registry 6074) for the proposition (found at para. 26) that the court cannot bind a person to a peace bond without notice. [11] The balance of the submission addresses what the appellant considers the over-broad conditions of the order itself, and then revisits the merits of the case underlying the charges that brought him before the provincial court judge. [12] I have explained to Mr. Daum that he must identify errors in the proceeding before the provincial court in order to succeed. At the hearing, the information in the Crown's possession was somewhat confusing. It is clear, however, that counsel for Mr. Daum generally agreed that a Section 810 peace bond was a reasonable disposition of the judicial interim release proceeding. It is unfortunate that the lawyer who made this arrangement on behalf of the appellant was unable to stay to iron out the details, as it appears there was some uncertainty. As I have already observed Mr. Daum signed the recognizance including the terms he now finds onerous. [13] It does appear that the concerns which moved the court to impose the restrictions, particularly under paragraph 2, may have been overstated. Mr. Daum has apparently abided by the order but particularly finds the restriction against going to Kelowna a hardship. [14] I note that the provincial court judge invited Mr. Daum to come back before the court for adjustment of

the order if required. [15] While the evidence shows that there may have been some confusion about exactly what was happening in the negotiations leading up to the Section 810 order on Mr. Daum's part, there is no evidence from his lawyer to suggest, for example, that the terms that were ultimately imposed did not conform to the arrangement he made before he left. Nor is there any evidence that Mr. Daum's signature was not voluntarily given on the recognizance itself. As I explained to Mr. Daum during the hearing, appeals are meant to correct errors. They are not an opportunity for the application of hindsight to consent arrangements between counsel. The fact that the procedural requirement of a hearing on the Section 810 information were not followed, is not a criticism of a consent arrangement meant to avert such a hearing. [16] Mr. Daum outlines circumstances respecting the charges which led to Section 810 recognizance that, if correct, give rise to a legal remedy he may wish to pursue. His proper remedy with respect to the terms of the peace bond is, as he was invited to do, to return to the court that made the order and attempt to demonstrate that he should no longer be bound as strictly. [17] Because the original order went by consent, and nothing has been demonstrated that would vitiate that consent ─ despite the less than ideal circumstances in which the order was made

─ this appeal must be dismissed. [18] I will only add that in making the last observation, I do not wish to be under-stood as implying any fault on the part of the provincial court judge. Rather, I rely upon the face that despite his stated misgivings, he was ultimately satisfied that Mr. Daum appreciated what was happening and was not prejudiced in the circumstances. It is obvious that the Court would have been assisted by better information, and the assistance of counsel for Mr. Daum on the final stages, but was obliged to assess the situation as it came before it, not as one might wish it had been. "The Honourable Mr. Justice McEwan"