R. v. Blaney

2018 BCSC 2211 R. v. Blaney

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Blaney, 2018 BCSC 2211 Date: 20181030 Docket: 67163 Registry: Chilliwack Regina v. Barry Ross Blaney Before: The Honourable Mr. Justice N. Brown Oral Reasons for Judgment Counsel for the Crown: J. Lester Counsel for the Accused: G. Botting D. Ferguson Place and Dates of Trial: Chilliwack, B.C. July 16‑18, 2018 Place and Date of Judgment: Chilliwack, B.C. October 30, 2018

OFFENCES ALLEGED [1] THE COURT: Barry Ross Blaney is charged with the following offences: Count 1 [that] on or about the 27th day of September, 2017, at or near Chilliwack, in the Province of British Columbia, did, without reasonable excuse, fail or refuse to comply with a long‑term supervision order, by failing to take medication as prescribed, contrary to Section 753.3(1) of the Criminal Code. Count 2 on or about the 27th day of September, 2017 did, without reasonable excuse, fail or refuse comply with a long‑term supervision order, by not handing some of his medication into the community residential facility or community correctional centre at which he was living, contrary to Section 753.3(1) of the Criminal Code.

OVERVIEW [2] In brief, at the time of Mr. Blaney's alleged breach of his long‑term supervision order, he was a resident at Chilliwack Community Correctional Centre ("CCC"). On September 27, 2017, a routine search of the facility and its residents was conducted. Witnesses called by the Crown testified that a bottle of legally prescribed medication, Gabapentin, in the form of capsules, was found in a backpack possessed by Mr. Blaney and located in Mr. Blaney's room, 32, in the Chilliwack CCC. [3] The Crown's case focused mostly on how many pills appeared to be missing from the bottle of Gabapentin, inviting the inference either that the medication had been overused or taken out of the bottle and sold to other persons. Gabapentin, pharmaceutically purposed to treat neurogenic pain, can have an intoxicating effect on the user if abused. Witnesses [4] The court heard from the following witnesses: 1) Natalie Day, a psychiatric nurse, employee of Correction Services of Canada ("CSC"); at the material time, manager of the Chilliwack CCC; 2) Jim Jones, a parole officer at the Chilliwack CCC; 3) Lindsay White, a corrections officer, level 2, and canine handler; 4) Trevor Nicholl, a CSC psychiatric nurse on staff at Chilliwack CCC; and 5) Barry Ross Blaney, the accused, also testified.

ADMISSIONS OF FACT [5] The parties prepared a formal admission of facts, which I will review before turning to the evidence of the witnesses. Pursuant to the provisions of s. 655 of the Criminal Code of Canada, counsel for the accused, Mr. Blaney, admitted the following facts for the purposes of dispensing with proof thereof: 1. On 27 September 2017 Barry Ross Blaney ("the Accused") was bound by a Long‑Term Supervision Order which included the following term imposed by the Parole Board of Canada in its decision dated 30 June 2017: "Take prescribed medication as directed by a health care practitioner and while required to live at a CRF [Community Residential Facility], all medications must be handed into the CRF and dispensed in accordance with the prescribed dosage as outlined on the medication package." [6] Commencing in July 2017, Mr. Blaney was ordered to reside at and began residing at the CCC, which is a Community Residential Facility (a "CRF" as described by the Parole Board of Canada). Mr. Blaney continued to reside at the CCC through to and including September 27, 2017. [7] On September 27, 2017, CSC staff conducted a routine search of the CCC. During the search, they located a bottle of prescription medicine which was labelled as, and was, the drug Gabapentin.

AGREED EXHIBITS [8] Counsel agreed to the admission of Exhibit 1, a notice of intention to call an expert witness; and Exhibit 2, the curriculum vitae for that witness.

TREVOR NICHOLL Qualification [9] Following a brief voir dire, Trevor Nicholl was qualified as an expert in the field of methods, techniques, practices and skills of medication administration, evaluation, documentation, and therapeutic use of medication. He was also qualified to testify regarding the analyzing, problem solving, and organizing of consultative services to all disciplines involved in the care and management of those individuals with mental health needs. [10] Since April 2010, Mr. Nicholl has worked as a registered psychiatric nurse at the CCC. His curriculum vitae confirmed his extensive experience in that area, including work as a psychiatric liaison nurse in the Emergency department of Chilliwack General Hospital between 2014 and 2018, on a casual schedule. His duties at CGH included providing essential psychiatric services for an acute 18‑bed in‑patient psychiatric unit at CGH. He has also provided counselling and crisis intervention and medication management. [11] He prepared a brief written report regarding Gabapentin use and misuse, as follows, based on information provided to him by a pharmacist: Gabapentin is most commonly used to treat Epilepsy, restless leg syndrome, hot flashes and neuropathic pain. In CSC institutions it was being widely abused at higher doses to achieve a 1) Euphoric effect similar to that of Cocaine, 2) combined with Seroquel would

give a similar effect to that of Heroin, commonly referred to as Hill Billy Heroin. 3) and was used as a trading commodity in the institutions. At one point and time, it was flagged by Regional Health Services and Pharmacy and only given out to inmates as a DIRECT OBSERVATION medication, [i.e.] in front of a nurse. Due to the stress it had on health care and the endless medication lines in the institutions, it was determined that the inmates could have a 1 week self carry with regular blister package audits for compliance. As of today, that is the policy. 1 week self carry. Gabapentin has a low addiction potential but the high from using it can create a psychological dependence. The maximum dosage of Gabapentin is 3600 mg per day. Higher than recommended dosing can create the cocaine like Euphoria and crushing/snorting it is often the method of abuse. [12] As the report was based on hearsay evidence, and given Mr. Nicholl is not a toxicologist and that his information on the use of Gabapentin in penal institutions is not current, Mr. Nicholl's evidence on this subject has to be considered somewhat cautiously. [13] Mr. Nicholl testified that he did work in penal institutions for a number of years. He reads to keep up to date with drug and medication use in penal institutions. As for Gabapentin, he explained it was popular in institutions to treat pain, for example, back pain and

sciatica. He noted it was not a controlled drug but used a lot in prisons; and in fact, had used it for himself. [14] On cross-examination, he confirmed he had been stationed at the Chilliwack facility since April 2010; with eight years, engaged as a psychiatric nurse. His duties include overseeing medication use there, both for distribution of medication and addressing residents' psychiatric needs. As mentioned, he is not a toxicologist or pharmacist, but does understand, he testified, the impact of medications. [15] With respect to Mr. Blaney's medical issues, Mr. Nicholl testified he was aware of Mr. Blaney having high blood pressure and pain in his legs. He recalled that in July 2017, Mr. Blaney came back to the Chilliwack facility. He noted Mr. Blaney did not want any counselling from him. He explained the various locations in which various medications and drugs are kept, and the processes involved. He testified he counselled Mr. Blaney that if he wanted any prescription, he would have to turn it into the office. If the medication is a narcotic, it is kept in a locked box. [16] Mr. Nicholl testified that every time Mr. Blaney went to see his doctor, he had meetings with him. He directed Mr. Blaney to bring his prescription back, so it could be put in the safe. He could not say how many times he discussed this subject with Mr. Blaney, but testified that every time he went,

he told him he had to bring his prescription back and have it stored. He testified he reminded him of this on each of those occasions. He did not, however, have any notes to that effect. [17] Mr. Nicholl recalled that on September 27, Mr. Blaney had a prescription for Ramipril in a blister pack, used for high blood pressure. [18] As Mr. Blaney did not have a mailbox in which to keep medications in, as some residents did, it was stored in the office. He had to sign out the medication every time he required it. [19] He explained residents can take medication such as inhalers and epi pens and ibuprofen to their room and keep them there. Tylenol 3, on the other hand, is kept in the safe. He recalled Mr. Blaney was on Tylenol 3 for a while, noting he followed the correct procedure for obtaining it from the commissary. [20] Residents can obtain prescriptions through Corrections. He explained that they have contact with a pharmacy in Langley from which they can obtain the pharmaceutical. He noted that if a resident has a job, they have to pay for the prescription. Some residents find it less expensive to go to a different pharmacy to fill the prescription. If they fill their own prescription instead of having Corrections order it for them, they still have to bring their prescription back to the Chilliwack CCC, for safekeeping and dispensing. [21] He recalled Mr. Blaney had his

prescriptions filled in Vancouver. He could not recall if he had Ramipril and Tylenol 3 filled there. On September 26, 2017, he was not aware of Mr. Blaney's having obtained any further prescription. Gabapentin [22] Mr. Nicholl examined Exhibit 5, the bottle containing Gabapentin capsules and the label on it. He opined that there would have been 120 pills in each bottle; a total then, of 240. He counted 111 capsules remaining in the bottle. There was room for more capsules. Nineteen days ran between September 8, 2017, being the date the prescription was filled, and September 27, 2017: four capsules daily over 19 days equals 76 capsules. Therefore, 164 capsules should have been remaining in the bottle (240 - 76 = 164). Mr. Nicholl found only 111 capsules. Another 33 would have brought the total to 164. [23] On cross-examination, Mr. Nicholl confirmed that only one of the two bottles prescribed was found. Mr. Nicholl testified that when he noticed the discrepancy, he was concerned, surmising that Mr. Blaney was either over-using the medication or selling it. Intoxicating effects [24] On the subject of intoxicating effects, Mr. Nicholl testified that given Mr. Blaney's index offence, any intoxication and/or the disinhibiting effects of medication would concern him. As noted earlier, he had used Gabapentin himself, prescribed when he was experiencing sciatic pain. He took 100

milligrams at that time. He testified that he then knew why "guys wanted to feel intoxicated". [25] Mr. Nicholl testified Gabapentin was being used in institutions to treat anxiety and bipolar conditions; its use still a concern in institutions such as Kent. He noted that if inmates wanted a full prescription for four times daily, they would have to wait in long lineups for dispensation. Therefore, days were changed to a weekly basis, as I alluded to earlier. It had become an epidemic, he said, with everyone claiming to have nerve pain. Now, however, blister packs with a week's supply are available and can be closely monitored. Small blister packs can also now be obtained. He testified that large amounts of Gabapentin are sought for the euphoric effect. Dispensing of medication at the CCC [26] In cross-examination, Mr. Nicholl clarified that he does not necessarily administer medication. The Commissioners usually do that. They are the gatekeepers and control locked‑up drugs. As noted earlier, some residents have their own mailbox. Such a privilege depends on their conduct. He has to okay medications being kept in the resident's room. [27] Mr. Nicholl clarified further on cross-examination that about 99% of prescriptions are filled through Rexall Pharmacy in Langley. Mr. Blaney did not obtain his prescriptions through them because, with his Indigenous heritage, his prescriptions

are funded and he can have them filled in Vancouver. Brain injury [28] Mr. Nicholl was aware that in July 2017, Mr. Blaney was struck in an East Hastings intersection by a car, the cause of his back pain. He testified Mr. Blaney had told him that he had suffered a brain injury, but he had not seen documentation of that. He granted, however, that he becomes angry quickly, is oppositional, and is also easily aggravated. He is not, however, forgetful. [29] Mr. Nicholl testified he knew Mr. Blaney went regularly to see his doctor, but he could not say when those dates were, or how many times in all he went to see his doctor. He testified Mr. Blaney was private regarding his medical issues, as he is entitled to be as part of his personal rights. He did not want staff speaking to his doctor and, as noted, Mr. Nichol granted on cross-examination that Mr. Blaney is entitled to keep his privacy. [30] Mr. Nicholl said Gabapentin works well for nerve pain and that Mr. Blaney had been using it for nerve pain in his legs. He confirmed on cross-examination that it is not an opiate, and has a euphoric effect, more like alcohol intoxication. He said it has always been a problem in institutions; and that before 2010, a lot of inmates were on Gabapentin. Now, however, it is not an ongoing problem in the Chilliwack CCC. [31] Mr. Nicholl noted that with a dosage of four times daily, that would

work out to 1,600 milligrams being consumed daily. Further cross-examination of Mr. Nicholl [32] Asked further about his communications with Mr. Blaney, on cross-examination, Mr. Nicholl testified that in July, August, and September 2017, he had several conversations with Mr. Blaney, mostly informal ones. He cannot recall specific conversations. He did not review notes on his conversations. Between July and September, he was not aware of any Gabapentin being used by Mr. Blaney. He was aware, however, that in previous years before July, he was on Gabapentin. He testified that when they got together, the discussions related just to his conditions relating to hid use of medications. [33] Mr. Nicholl testified he had conversations with Mr. Blaney about what he was supposed to be doing. That, in addition, parole officers go over an inmate handbook regarding the resident's parole conditions. [34] Asked about his understanding of Mr. Blaney's attendances on physicians, Mr. Nicholl estimated that over a period of three to four months, he saw them three to four times, frequently. He also frequently went to Vancouver General Hospital for X‑rays. He testified that each of those times Mr. Blaney was told he had to report. Usually, he added, the parole officer had to provide a travel permit. Mr. Nicholl reiterated that he knows that he told Mr. Blaney, if was leaving for a doctor's appointment, to bring back medication, maintaining he told him numerous, countless times. He does not have any written record of those conversations, formal or informal, his words and Mr. Blaney's response, if any.

TESTIMONY OF NATALIE DAY [35] I turn next to the testimony of Natalie Day. [36] Ms. Day was employed by the CSC, and was a manager of the Chilliwack CCC. She had been there 14 years, at the time of the alleged offence. In addition to managing the facility, Ms. Day was responsible for managing three parole officers and administration personnel. [37] Parole Officer Jim Jones also worked at the CCC, at the time. He also testified. [38] Ms. Day knew Mr. Blaney from her contact with him day to day. She also noted having had contact with him in July 2017. She referred the court to a long‑term supervision certificate issued under the Corrections and Conditional Release Act, S.C. 1992, c.

20. A part of the long‑term supervision certificate contains the following statement of conditions and acknowledgment of them: I fully understand and accept the conditions of my long term supervision (attached), any special conditions noted below or attached and any instructions given by my parole [officer] in respect to any condition of my release. I understand that if I violate them, my long term supervision [order] may be suspended. I also understand that failure or refusal without reasonable excuse to abide by the conditions of the long term supervision order is an offence under s. 753.3(1) of the Criminal Code of Canada. [39] The offence section is then set out in the long‑term supervision certificate as follows, s. 753.3(1): An offender who is required to be supervised by an order under s. 753.1(3)(b), and who, without reasonable excuse, fails or refuses to comply with that order is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. [40] Another part of the certificate headed "TAKE MEDICATION AS PRESCRIBED" states: Take prescribed medication as directed by a healthcare practitioner and while required to live at a CRF, all medications must be handed into the CRF and dispensed in accordance with the prescribed dosage as outlined on the medication package. [41] There were two bottles. The prescription on one of the bottles seized,

Exhibit 5.2, stated, "Safeway Pharmacy, 185 ‑ 650 West 41st Street, V5Z 2N9". Also stated is the prescription number, the name Blaney, Barry R., and the name of the prescribing physician, Dr. Shukla, and the date the prescription was filed, September 8, 2017. Also stated was the dosage at 400 milligrams, four capsules a day. [42] Another condition required Mr. Blaney to "Reside at a Specific Place" as follows: Reside at a Community Correctional Centre or a Community Residential Facility or other residential facility approved by the Correctional Service of Canada for another 365 days. [43] I note that a CCC is one of three alternative types of CRFs approved by the CSC. [44] Another part of the certificate dated July 4, 2017, provided that Mr. Blaney had to abide by the CRF/CCC curfew, in other words, either a CRF or CCC type facility, with a curfew imposed by his parole officer, other CRF/CCC facility rules, and return to the facility nightly as approved by his parole officer. It further provided: If you fail to return to the CRF/CCC by your curfew, you are deemed to no longer reside at the CRF/CCC. [45] Ms. Day testified that the review of the terms in the certificate is standard practice, gone over twice at Pacific Institution in Abbotsford, and once at the Chilliwack CCC. [46] Ms. Day explained that the Chilliwack CCC is run by the CSC. A residential facility may be run by

private organizations such as the Salvation Army. The main significant difference between a CSC facility like the Chilliwack CCC and a CRF is that parole officers are always present in a CCC. She further explained that Mr. Blaney could be sent to any one of the three alternatives: a Correctional centre or CRF, or other residential facility approved by the CSC. [47] The Chilliwack CCC is a residential facility, except that it is operated by the CSC. She explained that all CRF facilities follow the same procedures and practices. [48] Ms. Day testified that in September 2017, Officer Jones became Mr. Blaney's parole officer. Previously he was supposed to be reporting to Monica Chambers in Chilliwack. [49] When Officer Jones commented on the subject of the difference between a CCC and CRF, he mentioned on cross-examination that this was the first occasion in which he had worked at the CCC; that previously he had worked at a CRF. He explained that in a CCC, as Ms. Day had also commented, there is a parole officer on site, whereas with a CRF, the parole officer is offsite. He further explained that with a CCC, there is more supervision and contact with the person being supervised. He testified that he would have seen Mr. Blaney regularly between the September 17 and 27, because he was situated in the area where Mr. Blaney lives. [50] I will return below to Ms. Day's testimony with

respect to the September 27 search of Mr. Blaney's backpack and the Gabapentin retrieved, which initiated the laying of the charge against Mr. Blaney. Cross-examination of Ms. Day [51] On cross-examination, the following facts came to light: 1. Ms. Day had worked at the CCC for 14 years, nine of those years full‑time; 2. her responsibilities included overseeing what goes on at the house, to supervise parole officers and commissioners; 3. like Mr. Nicholl, she is a psychiatric nurse; 4. as of September 2017, the maximum count at the CCC was 31, a figure that fluctuates and has about 28 residents on average; and 5. parole officers have offices at the CCC; whereas at a CRF, the residents go to where the parole officer is, or the parole officer comes to the house. [52] She stated that at the CCC, both she and parole officers have more interaction with residents. She conducts a review when new residents are located at the CCC. She has available to her a full summary before deciding whether to take a case, this process includes reviewing parole officer decisions, the nature of the index offence, rehabilitation needs, particular public safety concerns, and medical conditions. [53] The report from the Parole Board is significant. In short, she received a fair amount of information about the individual, she said. There is a full assessment of the "okay" for the new offender, entailing

assessment with stakeholders, the RCMP, and a Citizens' Advisory Committee. [54] Although Mr. Blaney had resided at Belkin and Hobden House, a John Howard house facility, he had previously resided at the CCC in 2015, when Ms. Day was also there. She testified that she also supervised him while at Kent. July 2017 was Mr. Blaney's most recent residency at the CCC, after a then recent suspension. Medical problems [55] As for medical problems, Ms. Day testified she knew Mr. Blaney had neurological problems related to a brain injury and was on medication for that reason. Asked about the effects of brain injury, Ms. Day noted in Mr. Blaney, mood swings, forgetfulness, being quick to anger, and being frustrated. She confirmed that he travelled to Vancouver to see his doctor, and that he had community support in Vancouver. Interactions with Mr. Blaney [56] Ms. Day testified she had conversations with Mr. Blaney, though not as many as the parole officers. She agreed he was frustrated at the CCC, had expressed that, and wanted to live in Vancouver; in part, because he sees his doctor there; and also, because he has community support there. Complaints about the CCC [57] Ms. Day was aware Mr. Blaney had made complaints about the CCC to her and told him he could whine to "Jennifer (a supervisor) all that he wanted". She denied every calling him "rat". She testified she was sure that she had

called Jennifer, that supervisor, and told her that Mr. Blaney had been complaining about the CCC, asserting that Jennifer told her to give him her "no". She testified that his behaviour, overall, was in the nature of threats to her and her staff. Further regarding Mr. Blaney's complaints about wanting to be in Vancouver, Ms. Day testified inquiries were made of other facilities, including Harbour Light, but other CRFs would not take him in. September 27, 2017 search events [58] Regarding the September 27, 2017, search event, she recalled that Officer Jones told her that Mr. Blaney wanted his backpack. He could not, however, go upstairs on his own, as that was a restricted area at the time of the search. She could not say for sure whether she went upstairs on her own. She did not recall going upstairs on her own before going up with Officer Jones. [59] She recalled Mr. Blaney wanted his bag so that he could go to the welfare office. She surmised it was so he could claim disability. He had papers in his bag that he needed. She recalled Officer Jones identified the bag as belonging to Mr. Blaney, who resided in Room 32. She could not recall if he had a roommate, who lived there at the time. [60] As Ms. Day describes the scene, a canine search was conducted in the hallway. She explained that, generally on such searches, there is a search for drugs. She testified she can conduct a

search if she has reasonable and probable grounds. With respect to that, she testified the nature of Mr. Blaney's request was her main ground for having reasonable and probable grounds because, she testified, it was an unusual request. She explained the logic of that concern was Mr. Blaney's having had lots of prior opportunities to go to the welfare office. [61] Ms. Day did not know where in Mr. Blaney's office the bag of pills were located. She testified that Officer Jones had come to her office, at which time she heard Mr. Blaney state, "You know which one it is." She did not hear a conversation before that or previous to that. [62] After the pills were found, she concluded Mr. Blaney had kept them, not disclosed them as required; and that he was either selling the pills or overusing them. Ms. Day gave the pills retrieved to Mr. Nicholl. [63] The Gabapentin bottle of pills was the only medication seized. No blister pack was seized. She never asked Mr. Blaney about keeping pills. She never considered the possibility he had forgotten to turn them over. She stated she assumed that after Mr. Blaney went to the welfare office, he went about the rest of his day. He was not arrested right away after discovery of the Gabapentin pills in his backpack. Helping residents to comply with conditions [64] On further cross-examination, Ms. Day agreed there are many possible conditions for

residents and that the parole officer's job is to make sure they comply with them; and, she testified, it was for her to decide whether to proceed with a breach of them. [65] As for the factors of public safety and rehabilitation, she agreed that they dovetailed, and that if a resident is rehabilitated, it is safer for the public than were they not. She agreed she could give the benefit of the doubt to a resident in such circumstances; and that the exercise of discretion is somewhat of a back-and-forth, when trying to help the offender. Blister pills [66] Defence counsel further questioned Ms. Day regarding blister‑packaged pills. She did not know Mr. Blaney had those in his room. She surmised Mr. Nicholl may have allowed Mr. Blaney to keep them in his room, noting residents may be allowed to keep some medications in their room. Storage locations [67] As for storage locations, already discussed to some extent, she stated there are three locations for storage of medications, depending on the resident's history. She explained Mr. Nicholl can put medications in a locker box in the residence. The resident is able to obtain them with a key. If the medication is a narcotic, marihuana, or opiate, they are kept in a safe. If usage needs to be monitored, for example, because of behaviour issues, etc., Mr. Nicholl dispenses those medications and they have to be dispensed over the counter located upstairs in the residence.

TESTIMONY OF JIM JONES [68] Turning to the testimony of Jim Jones, he has served as a parole officer with the CSC for 22 years; and since September 2017, at the CCC. He noted he had been Mr. Blaney's parole officer two separate times; and that in September 2017, he started as Mr. Blaney's parole officer. He reviewed the certificate I referred to earlier and Mr. Blaney's whole case log, testifying that he went over, with Mr. Blaney, the conditions set out in the certificate. [69] As for the medications condition that I referred to earlier, he testified it was imposed in July 2017, recommended by the belief that Mr. Blaney was abusing medications. He noted there were lots of empty bottles in his room, which was what had driven the conditions. He explained that in house, all medications are required to be turned over to the CCC and distributed there by staff. [70] He testified that he and Mr. Blaney had discussed this medication condition many times. He agreed he had a prescription for medical marihuana. He testified that he discussed with him many times having that in the facility. [71] As for to other medications, Officer Jones testified Mr. Blaney had a prescription for Tylenol or Tylenol 3 from September 17 to 27. He knew Mr. Blaney was receiving prescribed Tylenol, dispensed to him by the facility on a daily basis. As for how prescription drugs are administered, he explained

that the resident goes to the front counter of the facility and is there given them, dispensed by staff, for purposes of safety and control. He explained there are 30 residents in the facility, of which he monitored about 10 offenders. [72] Officer Jones has had several dealings in a CRF. He explained that in his experience, a CRF is not a lot different from a CCC; although, there are usually more high‑risk offenders in CCCs. CRFs are managed by a non‑profit organization. He explained, as I mentioned earlier, that they have the same methods of operation. September 27, 2017 - Jones' version [73] Officer Jones explained from his perspective, what occurred at the CCC on September 27, 2017. At that time, a routine search of the facility and residents was conducted by police officers. Residents were awakened and directed to go to downstairs, where they lined up to be searched by trained canines. The canines were then taken upstairs to search for the presence of drugs. On this occasion, Mr. Blaney approached Officer Jones and asked to be taken to the welfare office. He wanted to go there and provide information at that office that might entitle him to receive further financial support. Mr. Blaney told him that some of the documents he needed were in the backpack. [74] Officer Jones recalled that he and Ms. Day went upstairs to Mr. Blaney's room, 32. In it, he recognized Mr. Blaney's

backpack, which had a unique zipper design on it. He testified Mr. Blaney carried his backpack a lot. [75] Officer Jones testified that Mr. Blaney said that was his backpack, grabbed it, came out, and a Corrections officer was conducting a search with a dog. The officer was Lindsay White, who also testified. He testified that Officer White searched the bag. She saw a large prescription bottle and handed it to Ms. Day. Officer Jones testified that he commented that constituted a breach, because Mr. Blaney had to surrender his medication. He further recalled going downstairs, seizing the medication, giving the backpack back to Mr. Blaney, who went to the welfare office. He recalled Mr. Blaney walked back. [76] With respect to the charges relating to the alleged breach of condition, he testified Ms. Day had to sign a document for issuance of a warrant, after which it became a police matter. He noted the RCMP was called after Mr. Blaney was confined to the house; standard procedure for residents in breach of a term. [77] With respect to Mr. Blaney's conduct and his request to go to the welfare office, Officer Jones testified that it seemed a little odd to him that Mr. Blaney wanted to go at that moment. Previously, he testified, he had offered to take him there to set up his profile, but he had not been getting much feedback from Mr. Blaney regarding that. But on that day, he

testified, Mr. Blaney appeared to be keen about going to the welfare office. [78] On cross-examination, Officer Jones testified it was possible that Mr. Blaney asked not only for documents in his backpack, but also his shoes, so that he could go to the welfare office. [79] Officer Jones could not recall Ms. Day going ahead of him up to Mr. Blaney's room. He testified she might have been on the stairwell first, but there was not a huge gap between them as they went up. He further testified in cross-examination that the main reason to go up to Mr. Blaney's room was to retrieve his backpack because he had papers for the welfare office. He did not closely observe the search of the backpack because he was standing back. [80] Questioned about the use of the dogs to sniff residents, Officer Jones explained that all residents are alerted when dogs are going to be engaged in a search. Officer Jones testified that Mr. Blaney had previously lived at Belkin House where, according to him, he had earned a reputation for being difficult. He understood that Mr. Blaney did not want to come to the CCC. He was aware that Mr. Blaney had some medical problems. [81] Officer Jones testified that he discussed many things with Mr. Blaney, including an earlier overdose. He knew that he had neurological issues, being treated by a physician in Vancouver. He said Mr. Blaney provided him with many documents

from his doctor. He was aware Mr. Blaney was having a specific medical issue treated in Vancouver, and that he had been prescribed medications in relation to that problem. He knew Mr. Blaney was taking Tylenol 3 and that these were being dispensed to him, noting Commissioners in the facility generally dispensed the prescription drugs. [82] Asked about residents with brain injuries, he testified that in his experience that condition was not that common; although he recently had supervised an offender who had suffered a head injury. He granted that being quick to anger, forgetful, being subject to mood swings are common traits that people with head injuries may exhibit, particularly if they had experienced a violent history. As for Mr. Blaney's unhappiness after being located at the Chilliwack CCC, he testified that he expressed frustration about being there; and in cross-examination, further agreed that Mr. Blaney wanted to live in Vancouver, where he had family connections. [83] Officer Jones testified that although Mr. Blaney was very frustrated with his situation, he was polite most of the time.

TESTIMONY OF LINDSAY WHITE [84] Lindsay White testified. She is a Corrections Officer Level 2, in her fourth year of service, and for two years a canine handler. She was on duty on September 27, 2017. She had been recently engaged in the month of August with the Canadian Border Services Agency, in five days of canine training related to narcotics and firearms. [85] On September 27, Officer White was engaged in a routine monthly search of the Chilliwack facility. She explained she normally is dispatched from Mission Institution. Three dogs in total were engaged in the search. By 8:39, they were engaged in the standard procedure for clearing rooms. She was given a list of rooms. Her information indicated Mr. Blaney was the sole occupant of the room in which his backpack was located. There were two beds in his room; one made up, one empty. [86] Officer White said she had engaged in searches at the CCC about 14 times. The residents were advised they were about to conduct a canine search. When she went into Mr. Blaney's room, he appeared to be asleep. She knocked on the door. The room was dark. No one else was in it at the time. [87] Officer White explained that one dog runs down the line of the residents sniffing them to see if any of them have narcotics in their possession. None were found. Once they are finished, the residents can then go back upstairs. [88] Turning now to the

search itself, Corrections Officer White recalled Ms. Day came upstairs with Parole Officer Jones at approximately 9:30 a.m., about half-an-hour after she had arrived with the canine. She was informed Mr. Blaney had asked if he could retrieve his backpack from the room by the bed on the floor. She testified that she said there was no problem, he would just have to go through Parole Officer Jones and Ms. Day. She recalled that the three of them then went to Mr. Blaney's room. She recalled there were two backpacks but Mr. Blaney was specific about which one he wanted. She put the backpack on the floor and went through it manually. Another dog with another handler went over the backpack. No narcotics were indicated. [89] Officer White testified that a resident wanted something out of the room, which had happened before and was not unusual. [90] In the backpack, Officer White found a brown bag with a bottle in it. She tagged a prescription, Gabapentin, found in the main pouch of the larger section of the backpack. [91] There were a few other items that did not stand out and were left inside the bag. Officer White then handed the backpack to Ms. Day and did not conduct any further search of the room. [92] On cross-examination, Officer White testified that the search can take several hours and that the upstairs area is off limits during a search. She explained the canine search for

drugs generally entails heroin, marihuana, and methamphetamine. She recalled that Ms. Day approached her about the backpack. She confirmed she picked up only one backpack, not the other. She testified that she would have to conduct a search of the backpack before she could give it to Ms. Day and turn it over to her, which is what transpired. TESTIMONY OF THE ACCUSED, MR .BLANEY [93] Mr. Blaney testified. He is a member of the Tl'azt'en Nation on Stuart Lake, in Northern British Columbia. He is 56 years of age. He was born in Vancouver. He attended St. Mary's Residential School. He was placed on a 10‑year LTSO order on November 11, 2000. His index offence occurred March 6, 1998. [94] Mr. Blaney testified he had a history of abusing alcohol but not drugs. He recalled staying at a number of residences: Sally Ann; Belkin House; Harbour Light; Circle of Eagles on East Broadway, Vancouver; and Hobden House, Vancouver, staffed by the John Howard Society. [95] Prior to coming to the CCC, Mr. Blaney had been arrested after an overdose of Fentanyl and had been taken to hospital. He denied he was addicted at the time; rather, took the Fentanyl to end his life. He recalled being released on July 4, 2017, placed in temporary detention and being told by a parole officer he would be released in 20 minutes, that they were just trying to figure out where he would be sent. He thought he would be

sent to Hobden House but was sent to Chilliwack. [96] Shown the release certificate, Mr. Blaney said the medication condition that he had to hand in medication to all CRF staff, was added later on. He further testified in this vein that it was suggested to him that he could be abusing prescribed Morphine. Earlier activities [97] Turning to Mr. Blaney's earlier years, he stated that he played baseball when he was 25. He was also a boxer and competed in mixed martial arts. By 2010, he had been engaged in too many fights and on medical advice to minimize those activities, he had to give them up. Health issues between July and September 2017 [98] Mr. Blaney was questioned in direct examination about health issues that he had between July 2017 and September 2017. He testified he had a brain injury and had attended the UBC Brain Clinic. He said he had been treated with Morphine, presumably with respect to the pain, but went on Tylenol 3 on April 21, 2017, just before he was arrested. [99] It appears that before his arrest Mr. Blaney experienced a fall, collapsed, banged his head, and broke teeth; and was also involved in more than one pedestrian/car accident. The timeline of the accidents was somewhat jumbled, but he apparently had more than one. Accidents [100] Mr. Blaney recalled an accident occurring in 2014, when he was hit by a pickup truck, fractured his left hand and elbow,

and injured his back and neck. [101] Mr. Blaney also recalled an accident at age 28, when his head hit a windshield. Given he was 28, this would have been in about 1990. [102] Further, on January 10, 2018, he was involved in another accident. Medical note of Dr. Shukla [103] In a September 9, 2017 medical note from Mr. Blaney's treating physician, Dr. Shukla, he noted Mr. Blaney was 55 years of age. Mr. Blaney had apparently seen him that day. He wrote briefly as follows [as read in]: This patient presented today for medical review. I have been his family doctor for over two years. Barry has a very complex neurological condition that specialists and myself are trying to sort out. I suggest he be made a priority for transition back to Vancouver. If you have any questions, please contact me. [104] That is all that can be gleaned from that. [105] In 2012/2013, Mr. Blaney started to use Gabapentin for nerve‑related problems. Not liking how narcotics made him feel, his doctor suggested Gabapentin and marihuana. He recalled his doctor suggesting marihuana worked, but it did not provide him enough relief; and, he testified he was still falling. He recalled that he filled his prescription at Safeway in the Oakridge Mall, across the street from the doctor's office. His prescription had been put into a bottle. He was given a white bag to put it in, together with some papers. After his

having obtained the prescription that is the subject of this case, he went to have a coffee in the mall. He testified he was accompanied by a woman named Pam, a female family friend. He explained his specialists had stipulated they did not want him travelling alone because of his tendency to fall. [106] They then took the Canada Line to the Waterfront Station. He testified he felt uncomfortable because there was too many people there. He testified his friend Pam noticed the bag holding the pills was ripped and that a bottle was missing. He suggested they go to the Canada Line again and look for them, but again there were too many people. [107] They decided instead to go to a residence on Dunleavy, the home of an Alex and Brenda. He testified that Brenda gave him a paper bag in which to put the pills. Further, a Gene Thomas, who was also there, gave him a backpack. He put a hoodie jacket and the pills and the papers inside the backpack. The black backpack had a big zipper on it that had attracted Officer Jones' attention. [108] Mr. Blaney testified he never took Gabapentin. His plan was to start using it after he had run out of Tylenol 3. [109] After all of this, he took the bus to Langley; and from there, to Chilliwack. When he got back to Chilliwack and his Room 32, he put his backpack on the floor at the foot of his bed. He could not remember the date offhand, but as the

prescription was ordered and filled on September 8, 2017, that would have been the day that he returned with his backpack and put it in his room at the foot of his bed. [110] As for roommates, he testified his roommate, "Clayton", had terminal cancer, and had been sent back to Quebec. [111] Further on direct examination, counsel asked him if he noticed any difference in his experience between the CRF facility and the CCC. Distilled, he testified that the CCC operated like the penitentiary; staffed by commissioners who are ex‑military or RCMP, and volunteers. Whereas Hobden House was staffed by John Howard members. He further testified that in the CRF, John Howard staff tried to help you with the computer. The CCC is like a penitentiary, he testified. He stated he received the same stipend income as he had in the penitentiary. In short, he testified that staff at CRF cared about you and were always there when he awoke in hospital. He complained his wife had terminal cancer but was not allowed to visit him, asserting that the staff are confrontational and the commissioners no different than penitentiary guards. He mentioned further that John Howard members helped him with his education. Supervision [112] As for supervision by staff at the CCC, Mr. Blaney testified he did not have any meeting halfway with staff. He was threatened all the time, "Either my way or you are going to

Kent." He testified that would not happen at a CRF facility. [113] He testified his last offence occurred on March 16, 1998; and that he successfully completed all of his obligations with respect to that. Cross-examination of the accused [114] On cross-examination, Mr. Blaney agreed Dr. Shukla prescribed Gabapentin and that he had to go to the pharmacy to fill the prescription. He agreed he took the bag containing the pills with him on the Canada Line, and was then in possession of the prescribed medication. He agreed he knew he had to turn it in. He further granted that he failed to turn them in; although he knew he was supposed to do that. He explained he forgot to do so. [115] He testified the pharmacist put it in a bag, then later [his friend] Pam noticed the bag had been ripped. [116] He testified he was worried about the trip back to the CCC, which he says takes three hours to complete. Asked about going to his friends, he testified that he went to his friends, who he told he had lost a [prescription] bottle. [117] As for other contents of the backpack, he testified that he had all his welfare and other papers important to him. He testified that he put them in the bag, along with the Gabapentin pills, in plain view, and left them there from September 8, 2017 until September 27, 2017, and never thought about the Gabapentin in his backpack. [118] Crown counsel put it to Mr.

Blaney that he knew he was required to comply with the condition that he turn in all medications. He testified Mr. Nicholl never spoke to him once, asserting that he (i.e. Mr. Nicholl) dealt with guys with psychiatric problems. He denied Mr. Nicholl had numerous times spoken to him and said Officer Jones had told him of the condition. [119] Further on cross-examination, Mr. Blaney agreed that when he got the prescription, he knew it was a prescription; and it would have to be handed in, like any other new prescription. He denied ever having thought of selling the drugs, and avowed to not knowing of anyone selling drugs in prison. He heard about drugs, but hung around with all the guys not involved in them. He further testified that nowhere in Kent did he learn about Gabapentin. [120] Asked about his replacement of Tylenol 3, he testified he wanted to get off Tylenol 3 because he never liked narcotics. He agreed on cross-examination that it was a big deal to get out onto Gabapentin but explained the doctor told him to finish Tylenol 3 first, then start using Gabapentin. He averred in cross-examination that he could not handle liquor. [121] He agreed his July 2017 release occurred because of the Parole Board's decision. Regarding it, he stated he never abused pills in his life. September 27, 2017 [122] As for the events of September 27, 2017, Mr. Blaney recalled being awoken by a

woman stating that a search was needed and he had to get up and get out of the room. He recalled going out of his room and leaning against a wall. A dog was brought forward. He put his hands at his side, the dog sniffed, then they went downstairs. There is nothing really particularly noteworthy in the nature of the search, or its mechanics, but it should form part of the record here. [123] Returning now to the timeline of events, Mr. Blaney testified that he then exchanged words with Officer Jones. He said he had an appointment at 9:30 a.m. and asked Officer Jones to go with him and do the computer work for him. He said he needed some shoes and asked Officer Jones if he would go upstirs and get his backpack. He said he needed both welfare papers in the backpack and some shoes. He recalled that Officer Jones said he could not take him just then, but would do so later. He recalled that he met him about an hour later but did not recall any conversation regarding the bag. [124] Mr. Blaney testified that he had not used the backpack, presumably meaning after he returned to the CCC. He said he had $28 worth of weed but had no money, so had no need to use the backpack. [125] Asked why he did not give the pills and prescription to the Commissioner, Mr. Blaney testified he "just forgot and just put it in [his] room". He averred he never sold any Gabapentin and had never done so in his

life. He further testified in this vein that he never took any of the Gabapentin himself because he was still on Tylenol 3, adding the Commissioner had his marihuana and that he put his marihuana in a safe. [126] As for Gabapentin having a street value, he testified that he had never heard of that before. He was aware that he was put on four doses of Gabapentin daily. [127] Mr. Blaney testified he gave his Tylenol 3 and marihuana to the Commissioner, adding that "most of the guys have to have their prescriptions filled through the Commissioner", whereas he deals with his own doctor and prescription arrangements. [128] Mr. Blaney testified he did not mean to keep the Gabapentin in his room, explaining that after this, he was hit with a baseball bat, not a car, though I understand that it was secondary to an incident that sounded like road rage on the part of another person. The circumstances of that were somewhat garbled. [129] Further with respect to his martial arts involvement, Mr. Blaney told the court he was advised that he could not engage in fighting anymore, or he would end up like Muhammad Ali. [130] Mr. Blaney was questioned about complaints he made to staff. He alleged mistreatment by a guard, who told him he would be forcibly taken to Kent if he did not comply, so, he said, he just went along. [131] As for his communications with Ms. Day, Mr. Blaney testified he

never spoke to her; recalling however, that Ms. Day told him the assistant Commissioner said whining was all he did, get mad, and call names. Questioning of accused on pill numbers [132] Further in cross-examination, Mr. Blaney testified that he did not know how many pills were in the bottle, and that he did not take pills if he was doing marihuana. He testified that a Dr. John Barley [phonetic] had prescribed marihuana for him; that his parole officer helped him with marihuana and instructions on how to go about it obtaining it. He recalled further that Hobden House staff assisted him in finding marihuana to purchase, going so far as to log onto the world Internet, as he put it, in order to purchase marihuana online for him. [133] I turn now to the submissions of defence, after a brief adjournment. (PROCEEDINGS ADJOURNED) (PROCEEDINGS RECONVENED)

SUBMISSIONS OF DEFENCE COUNSEL Count 1 [134] THE COURT: Defence counsel submitted that the question on Count 1 is whether there is evidence before the court that Mr. Blaney specifically failed to take his medication as prescribed. The defence position being that there is no evidence to prove beyond a reasonable doubt that he failed to take his medication as prescribed. Counsel submitted that while this is really an actus reus issue, there is also a doubt whether Mr. Blaney had any intention or failed to take the medication as prescribed. Count 2 [135] As for Count 2, defence counsel stated that he proposed to raise three issues on that count, the first relating to the Crown's application to amend the indictment. Counsel questioned whether the condition, as it reads, required Mr. Blaney to hand in his medication while living at, specifically the Chilliwack CCC. Counsel submitted that the condition Mr. Blaney was under specifically stipulates a CRF; and that a CRF and CCC are different places. Accordingly, counsel submitted that on a plain reading of the condition, Mr. Blaney was not failing to comply with that particular condition. [136] Counsel further submitted, more substantially, that were I to find Mr. Blaney was required to turn in his medication while living at the Chilliwack CCC, the question is really whether the mens rea is made out, whether he had an intention to fail

to turn in that medication to Corrections. [137] Further, still somewhat in this vein, counsel submitted a third issue with regards to Count 2; whether Mr. Blaney did so without a reasonable excuse, counsel submitting there was no intention, that there is a doubt there, and that it flows from this, to some extent, that he had a reasonable excuse. Counsel submitted Mr. Blaney simply forgot to hand in his pills; and, given these particular circumstances and the context in which he forgot to turn them in, there is a reasonable excuse. [138] Further in this vein, counsel underscored Mr. Blaney's traumatic brain injury, submitting he suffers from injuries associated with brain injuries. Still further in this vein, counsel submitted that Mr. Blaney had no knowledge Gabapentin had any street value, which I note was Mr. Blaney's testimony. Counsel further pointed out Gabapentin is not a narcotic; and in all the circumstances, the mens rea element has not been made out, further submitting he did have a reasonable excuse. [139] In summary, on this overview, defence counsel submitted he relied on the one aforesaid core issue related to Count 1, and the three just aforesaid issues in relation to Count 2. In answer to my question, that is, whether counsel was saying, in effect, that Mr. Blaney did not have the necessary intent because he forgot, this being one basis. The other basis, being

that he was not aware of any street value, which, I had pointed out, is a secondary matter, defence counsel confirmed he was contending that awareness related to whether Mr. Blaney had an intention to misuse or abuse the medication; and, in that way, violate the condition which, as amended, states: did, without reasonable excuse, fail or refuse to comply with a long‑term supervision order, by not handing some of his medication into the community residential facility or community correctional centre, at which he was living, contrary to Section 753.3(1) of the Criminal Code. [140] I note I authorized this amendment [as underlined] on July 18, 2018. [141] Defence counsel submitted a plain reading of the original indictment required Mr. Blaney to hand in the prescription while living at a CRF facility. [142] The special conditions discussed early in these reasons stated, first, under the heading "TAKE MEDICATION AS PRESCRIBED": Take a prescribed medication as directed by a health care practitioner and while required to live at a CRF, all medications must be handed into the CRF and dispensed in accordance with the prescribed dosage as outlined on the medication package. [143] The next part of the condition, under the heading "RESIDE AT A SPECIFIC PLACE", states: Reside at a Community Correctional Centre or a Community Residential Facility or other residential facility approved by

the Correctional Service of Canada for another 365 days. [144] Referring primarily to Mr. Blaney's evidence, defence counsel strove to highlight differences between residences like CCC and a CRF, presumably seeking to show, in part at least, that the differences between a CRF and a CCC are significant; and the type of residence specified in the indictment therefore also significant. [145] Earlier in these reasons I discussed to some extent the differences. Counsel itemized two things: first, at residences such as the CCC, a parole officer is on site; whereas a CRF, has a more traditional model of parole officers coming and going. Next, the CCC is more like a penitentiary, with the same food, and its commissioners more like penitentiary guards than in a CRF. In the CCCs, there is more enforcement and staff are less supportive. [146] Crown aptly pointed out that a CCC is operated by the CSC; a CRF, is under contract by a private organization such as the John Howard Society, Salvation Army, etc. [147] As noted earlier, the court heard evidence from Officer Jones and Ms. Day that both facilities follow the same protocol and methods; the major difference being a CCC is operated by the CSC, and parole officers are present. I do not overlook that Mr. Blaney's perception is quite different; that the CCC was more like a penitentiary with the same food, in comparison to the CRF, which he

found more supportive, etc. [148] I do not find R. v. Tremblay, 2008 ONCA 24 [Tremblay] apposite in this case, because the alternative interpretations of the conditions do not inexorably lead to their being applied in a manner that would favour Mr. Blaney. [149] There is no ambiguity on the core of the case. Mr. Blaney granted he was aware of his medication‑tendering and use obligations. There is no indication it would have been different if he had in hand the same medication and prescription while living in a CRF or in another different location; and he did not claim otherwise. [150] Finally, and in summary on this point, as said at trial, I saw no prejudice flowing to Mr. Blaney in my granting of the amendment to the indictment. The same requirement applies in both instances; that is, taking the prescribed medication as directed by a healthcare practitioner in accordance with the prescribed dosage, as outlined on the medication package; and all medications required to be handed in to the CRF and dispensed in accordance with the prescribed dosage, as outlined on the medication package. Had Mr. Blaney been resident in a CRF, the nature of the offence would be the same. It cannot tenably be sustained that the conditions put at an ambiguity at large that would mislead Mr. Blaney because the obligation that lies at the heart of the condition applies at whichever of the three

different residences he could be resident in. [151] Defence counsel alternatively submitted that were the court to find Mr. Blaney was required in the circumstances to turn the prescription in at the CCC, the question remains whether he did so without reasonable excuse, an element of the indictment. To refresh the indictment, I will recite it here again: did, without reasonable excuse, fail or refuse comply with a long‑term supervision order, by not handing some of his medication into the community residential facility or community correctional center at which he was living, contrary to Section 753.3(1) of the Criminal Code. [152] Defence counsel directed the court's attention to the following pathways leading to seeing a reasonable excuse: 1) forgetting to turn the pills in, bearing in mind he suffered from a traumatic brain injury; 2) next, being overwhelmed at the SkyTrain station, somewhat exhibited when he testified; 3) next, no one asked him why he did not turn in his prescription; 4) next, he had no knowledge that Gabapentin had a street value; 5) next, his dismay at the suggestion that he was trying to sell Gabapentin, maintaining he did not know it had a street value; and 6) next, he testified he was prescribed Gabapentin because it was not a narcotic; he did not like narcotics and the way they had affected him. [153] Mr. Nicholl's testimony that Mr. Blaney had the

Gabapentin for a nefarious purpose, although no one currently was being prescribed Gabapentin. [154] In summary, defence counsel maintained that although the mens rea is not one of general intent, the mental element still has to be made out, and in that regard, Mr. Blaney had insisted he did not mean not to turn in the medication. Counsel further submitted that this needs to be put in the context that he still had Tylenol 3, had a brain injury, and he did not know if Gabapentin had any street value. Counsel accordingly submitted there is a reasonable doubt as to whether he intended to breach his condition. [155] Further dovetailing with this, counsel submitted there is enough evidence before the court to indicate Mr. Blaney does have a brain injury that impacts him at times. Counsel reminded the court he had indicated he has a tendency to pass out here and there, telling the court he wanted to get out of the SkyTrain station because it was crowded and he felt overwhelmed. [156] Considered in total, the evidence of Parole Officer Jones, Mr. Nicholl, and Ms. Day, counsel submitted, indicated some signs of a person who has sustained a brain injury. Counsel submitted that considering all the circumstances, including his particular circumstances, the fact that he had stuffed this one bottle of pills in his bag and got back to the CCC and forgot about it, consists with his evidence

and is not inconsistent with the evidence of the staff members who testified for the Crown. [157] Counsel also submitted there is no evidence he sold or intended to sell the Gabapentin; no evidence he was selling it in the house; in addition, his sustaining of a head injury and memory problems. I note, however, that Mr. Nicholl did not observe memory problems; Officer Jones did. Counsel submitted, a reasonable excuse has still been made out, based on his evidence he had forgotten he had the pills, he was taking Tylenol 3, and had been instructed to put off using Gabapentin until he finished the Tylenol 3. I note the foregoing points could speak somewhat to the issue of mens rea. Defence assessment of the Crown witnesses [158] In weighing the evidence, defence counsel submitted the court ought to consider the following with respect to the Crown witnesses. Jim Jones [159] Counsel submitted Parole Officer Jones, Mr. Blaney's long‑term sentence offender supervisor at the time, was forthright but somewhat vague at times, pointing out he had few notes, no contemporaneous ones, forgot that he had met Mr. Blaney at the welfare office and had not driven him there. Counsel further pointed out he had not supervised Mr. Blaney for long, having just started in September 2017. Mr. Jones understood Mr. Blaney had complex neurological issues. Natalie Day [160] Defence counsel submitted Ms.

Day's evidence required a cautious approach, submitting her demeanour with respect to Mr. Blaney's complaints was hostile. I have some reservations of that observation, but in any event that is the perception .He pointed to the key inconsistency in her testimony that she had ordered a search of Mr. Blaney's backpack because she had reasonable and probable grounds for doing so, effectively a hunch; whereas in reality, defence counsel submitted, she did not have reasonable and probable grounds for searching the backpack. [161] I agree with defence counsel's submission on that point, but no Charter matters were put in issue during the hearing. Further, the corrections officer had authority to conduct a search in the circumstances and primarily conducted it. Indeed, she had to conduct a search, first manually, before the dog could go over the bag. [162] Counsel pointed out that the evidence indicated it is not unusual for searches to go on for over three hours; and that in such circumstances, accordingly, a resident might need something from their room and that making requests to retrieve them were not unusual. He noted Ms. Day's testimony that she had a difficult job that was frustrating at the time. [163] I do not think the Crown put any emphasis on Mr. Blaney's wanting to get some materials out of the bag. There really was not much bother over that. That is a legitimate point to

make, but I do not think much turns on Mr. Blaney's having asked that question. His parole officer indicated he wanted to go to the welfare office and they had had discussions earlier on about that. In my view, this is a small sidebar on the larger narrative. [164] Counsel further submitted that Ms. Day can exercise considerable discretion, and has the power to send a long‑term supervision offender back to a penal institution. He submitted, in short, that Ms. Day exhibited some bias. [165] When it comes to the essential elements of the offence and the key points in the evidence before the court, I cannot say I noted any bias on her part that would bear on the essential elements of the indictment. She was perhaps irritated at times on cross-examination and somewhat frustrated, as she acknowledged. I acknowledge the point made and will consider it in my overall deliberations. Trevor Nicholl [166] As for Mr. Nicholl, defence counsel criticized his lack of notes for the period between July and September 2017. As for the report on Gabapentin, he pointed out this came originally from pharmacists and not from Mr. Nicholl's direct sources. [167] Counsel further submitted Mr. Nicholl exhibited some guesswork in stipulating the years in which problems arose in institutions and when inmates were eventually given a week's supply of Gabapentin in blister packs; submitting that, when

pressed, Mr. Nicholl proffered the year 2012‑2013 and admitted he was guessing in proffering those years. The Crown pointed out in response on this point, Mr. Nicholl was employed full‑time in Ambulatory Health Services for the Pacific region, 2002 to 2010, in the Abbotsford Regional Treatment Centre, and was definite about his awareness of the advent of Gabapentin starting around 2002 and 2003, in his role as a psychiatric nurse. [168] Counsel for Mr. Blaney further submitted that he had testified in contradiction, submitting that he testified when abused, Gabapentin is similar to the effects of cocaine, then changed this, and said it was like alcohol, that, when counsel suggested alcohol is a depressant and cocaine a stimulant, could not answer the point. He further submitted Mr. Nicholl stated there had been a problem related to Gabapentin in the penal institutions, but had not been there recently to see that first hand, (I gather was his point). [169] With respect to his interactions with Mr. Blaney, counsel submitted they lack specificity and accuracy. Further, counsel argued he knew nothing specific about medications, was broad in his comments, and vague about what medications Mr. Blaney had already been given. He did mention some medications he was aware of, perhaps not all of them, to be fair to his testimony. [170] Counsel further submitted that Mr. Nicholl was adamant

he had conversations every time he went to an appointment, and that either he or a parole officer would have told Mr. Blaney, or someone would have had a conversation with him, about the medical condition. Mr. Blaney testified, however, that he never had communication with Mr. Nicholl at all. Counsel further noted that he had turned in Tylenol 3 and other medications. Nonetheless, he argued, Mr. Nicholl was vague about what medication Mr. Blaney was on, which, on the evidence, appeared to be Metoprolol, Ramipril, and medical marihuana. The accused [171] As for the accused, Mr. Blaney, counsel submitted he was forthright, not argumentative, did not turn away from questions that cast him in a bad light, and candid about his suicide attempt. Counsel further submitted the marihuana used was taken legally on the recommendations of his doctors and prescribed legally. [172] Mr. Blaney was adamant that Gabapentin, this is, again, in the framework of defence counsel's submissions, that Gabapentin was not a narcotic, and that he wanted to be off narcotics. His physician instructing him, he testified, to finish off the Tylenol 3 before starting to take the Gabapentin. [173] Counsel further submitted there is no evidence before the court that Mr. Blaney had failed to take the medication as prescribed, that he was a drug abuser; rather, intended to wean off all narcotics, including T3,

which Mr. Nicholl testified was locked up. [174] I will briefly refer to some case law, and then I will move forward to Crown counsel's submissions and a brief reference to the reply of the defence. Case law [175] Counsel referred to three cases: R. v. Elder, [2017 BCSC 1164 [Elder], Tremblay, and R. v. Allard, 2012 ONCJ 513 [Allard]. [176] In Elder, Crown and defence counsel agreed the Crown must prove the actus reus and mens rea of the alleged offence, and that the mens rea is not one of general intent. Further, in this vein, I noted at para. 58 that breach of a long‑term sentence offender condition is not a strict liability offence and that the accused is innocent until proven guilty, that the terms of the indictment, its essential elements, have to be proven beyond a reasonable doubt. In that case, I was left with a reasonable doubt that Mr. Elder had intentionally refused to participate in a counselling program and did not breach the conditions stated in Count 2, as worded in that case, in part because the counsellor was not a mental health professional and the counselling was not addressing mental health as required by the condition. [177] In Tremblay, the accused was subject to a long‑term supervision order that contained a condition that he had to report to his supervisor any relationships entered into with females. The condition's purpose was to protect vulnerable

women who might enter into a relationship with the accused by requiring him to notify his supervisor so that appropriate steps could be taken to warn the women involved. The facts in that case are that the appellant offender had encountered a young woman at a laundromat who was having difficulty with one of the machines. After providing her with some help, the appellant engaged her in conversation that included details about where they both had lived and about their work and family situations. She testified that he appeared to be stressed. They had a conversation, as summarized in the case summary. [178] The appellant disclosed significant portions of his history with the courts. The police happened to be monitoring the entire encounter and immediately interviewed the woman, but when the appellant met with his parole officer a few days later, he failed to report the laundromat encounter and he was charged accordingly. [179] In the analysis portion of Tremblay, Justice Sharpe stated at para. 9: [9] The appellant has a disturbing record of abusing women with whom he forms relationships, a record that led to him being declared a long term offender. The condition at issue on this appeal serves to protect vulnerable women who might enter a relationship with the appellant by requiring him to notify his supervisor so that appropriate steps can be taken to warn and protect the woman

involved. Clearly, we must interpret the condition in the light of its protective purpose and avoid an unduly restrictive interpretation that would impede the authorities in supervising the appellant to ensure that he does not reoffend. [180] The Court of Appeal determined that more than a casual or chance encounter with a woman was required to trigger the duty to report and that the accused was required only to report relationships he entered into; the condition not requiring him to report any unsuccessful attempt to enter into a relationship. The case did not determine whether repeated casual encounters could trigger the reporting obligations. [181] The Crown argued in that case that the evidence of how the appellant's supervisor explained this condition to the appellant supports the conclusion that the condition required the appellant to report his encounter at the laundromat. [182] In Tremblay, the court found that evidence of how the appellant's supervisor explained the condition is not relevant because the issue in the case was not whether the appellant had the necessary mens rea, but whether the actus reus had been made out. At para. 23, Justice Sharpe, writing for the court explained: [23] The evidence is not relevant because the issue here is not whether the appellant had the necessary mens rea, but rather whether the actus reus has been made out. The definition of the

actus reus relates to the proper legal interpretation of the ingredients of the offence and I fail to see how what the supervisor told the appellant can have any bearing on that [case]. [183] In the Allard case, in addition to a sentence for sexual assault for two years, five months, and 15 days' custody, the offender was also required to comply with a long‑term supervision order for 10 years following his release from custody. In that case, two conditions were imposed: one, not to enter into an establishment where the primary source of income is derived from the sale of alcohol; and two, must reside at a community corrections centre or a community‑based residential facility operated, approved by the CSC, similar to the case at bar. He was charged with breaching those two conditions. [184] At para. 4, Justice Speyer explained Mr. Allard had been directed to reside at a community‑based residential facility. When he first arrived there, Mr. Allard was advised of the rules of the residence and, as noted by the judge, residents were expected to inform the staff in the reception office when they leave and when they can be expected back; and when checking out, residents are to give a detailed account of where they are going, including addresses and phone numbers, etc. [185] Justice Speyer noted that while he was in the community, Mr. Allard established a pro-social relationship with

a woman named Daisy Grady. His parole officer permitted him to leave the facility to meet with Ms. Grady at her home. At para. 6, Justice Speyer further explained events: [6] On seven occasions between September 23, 2011 and November 21, 2011, Mr. Allard signed himself out of [the CRF] advising staff he was going to visit Ms. Grady at her house. Instead, he was going to an off-track betting establishment in the basement of Sam's Tavern . On at least four of these occasions, he was seen placing bets on horse races. There is no evidence he ever consumed alcohol while in the off-track betting area of Sam's Tavern. [186] The factual issue is whether Mr. Allard was present in areas where alcohol was for sale. At para. 18, Justice Speyer stated he was "mindful of the purpose for which the condition was imposed: to protect the public by prohibiting the accused from entering into establishments where the primary business is [derived from] the sale of alcohol." He concluded, at para. 17, that he had to "consider Sam's Tavern as a single entity when determining whether the accused breached his LTSO condition to not enter into any premises where the primary source of income is derived from the sale of alcohol." [187] Defence counsel was most drawn to the passage in Allard where Justice Speyer referred to the statement of Justice Dickson in Marcotte v. Canada (Deputy A.G.), [1976] 1 S.C.R.

108 at 115; also cited in Tremblay (para. 10). The quote is: No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. If [no] one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication. [188] In his submissions, Crown counsel stressed the importance of considering the purpose of the condition when determining the accused's innocence or guilt on the charges alleged.

CROWN SUBMISSIONS [189] The Crown submitted that the case is basically a simple one, the search not relevant. The central question being whether Mr. Blaney is in breach of the long‑term supervision order. The Crown further submitted that the defence said much about nuances in the evidence that are not necessary for the court to weigh, such as the nature of the search in which the Corrections officer and Ms. Day and Officer Jones engaged. Crown submitted that what remained relevant in the end was a bottle of prescribed pills that Mr. Blaney confirmed his physician did prescribe on September 8, 2017. [190] The Crown further submitted that the issue becomes whether Mr. Blaney was in breach of his long‑term supervision order and that it was important the court not be drawn into the exact terms as read in the release certificate. Rather, focus on the fact the charge as laid falls under s. 753.3(1) and the breach of a long‑term supervision order. [191] The Crown further suggested in this vein that the long‑term supervision order is an organic document that changes as its 10‑year term unfolded. Accordingly, the Crown submitted what is before the court effectively is a snapshot through the lens of the release certificate of the terms of the LTSO with which Mr. Blaney is required to comply, submitting that the CSC and the Parole Board clearly stipulated Mr. Blaney must immediately check

in any prescription to the Community Rehabilitation Facility (CRF), referring here to the prescribed usage set out in the prescription package. [192] Accordingly, the Crown submitted, what Mr. Blaney's physician may have said to Mr. Blaney about the prescription is irrelevant, according to the terms of the condition, because the order is clear that the medication is not to be handled in a roundabout way; that is, to wait until the Tylenol 3s are finished. Crown counsel further submitted that by his not having turned in the medication, Mr. Blaney breached his compliance with the condition and, in so doing, prevented Mr. Nicholl from assisting him to ensure the medication was not abused, under, or overused. [193] Crown counsel submitted that considering Mr. Blaney's index offence, sexual assault, and the need for inhibiting emotions, either overusing the Gabapentin or, on the other hand, hoarding it and then consuming a large dose, thereby creating the euphoric effect Mr. Nicholl described in his testimony, is the particular concern. [194] Crown counsel submitted public safety is the purpose of the condition. The requirement that the medication be turned in for dispensation and the prescription not abused, further stressing the importance of looking at what he characterized as the big picture, that is, the underlying purpose of the Parole Board and the long‑term supervision

order, safety of the public. [195] I note in passing Mr. Blaney's testimony that he had fulfilled all his obligations while on the LTSO and had not caused any harm to anyone during it. [196] As for how Mr. Blaney's not having handed in the bottle and the whereabouts of the pills and where they went, which is unknown, counsel submitted the court does know that Mr. Blaney had 240 pills to start with on September 8, 2017, and by September 27, 2017, only 111, as discussed earlier in these reasons. The Crown submitted other facts in the case do not matter. [197] The Crown submitted the court should consider Mr. Nicholl's testimony that Gabapentin abused has a euphoric effect, raising natural concerns of disinhibition and consequent potential effects on behaviour. [198] The Crown also stressed Mr. Blaney's testimony that he knew he was supposed to turn the medication in, that he had gone several times through the process of seeing his physician and obtaining prescriptions, including medical marihuana and Tylenol 3, which he turned in and had dispensed to him. The Crown reminded the court of Mr. Nicholl's testimony that he had no idea Mr. Blaney had a prescription for Gabapentin in his possession until the September 27, 2017 search, which was carried out and the bottle then handed to him. The only medication of which he was aware, the blood pressure medications and Tylenol 3, which

Mr. Blaney had brought with him from Kent. The Crown submitted, in short, that Mr. Blaney had a clear motive to sell the missing Gabapentin. [199] Crown counsel submitted the court should question Mr. Blaney's testimony that he did not take any of the Gabapentin pills at all, pointing to three alleged inconsistencies: 1) first, testifying he lost the pills, which was upsetting but, Crown argued, underlines the fact he had the pills; and 2) next, going to the residence of his friends, who, he testified, provided him with a backpack. [200] With respect to Count 2, the Crown submitted two things were particularly significant: the first, being Mr. Blaney's admission on cross-examination that he knew he had in his possession prescription medication; the second, that he was supposed to turn it in, putting his failure to do so down to a forgetfulness that lasted for 21 days, as the backpack containing the Gabapentin remained at the foot of his bed where he had left it. [201] Crown counsel argued Mr. Blaney's testimony that he had to wait for his Tylenol 3 to run out before using Gabapentin did not consist with his testimony that he wanted to get off narcotics, because, the Crown argued, nothing prevented him from not using narcotics, such as Tylenol, and using Gabapentin sooner, presumably with and under Mr. Nicholl's approval. [202] I note Mr. Blaney's testimony regarding his

physician's alleged direction to use up the Tylenol 3 first before using Gabapentin, but there is no document supporting that. [203] As for Mr. Blaney's position that he had no idea Gabapentin had no street value, the Crown characterized Mr. Blaney as being institutionally astute; his denial of any knowledge of Gabapentin's street value suspect, as he had been in Kent and other institutions where it was in favour, its inmates there seeking it. [204] As for having a reasonable excuse, the Crown submitted the assemblage of the facts, including the bag just sitting for 21 days, forgotten, in the face of Mr. Blaney being anxious to get off narcotics, and of his acknowledgment of the importance of complying with the LTSO's reporting condition, undermines any foundation for a credible, reasonable excuse. In short, Crown counsel stressed that if the drugs had sat for just a couple of days, a reasonable excuse might have been tenably tendered and form part of a W.(D.) analysis, but at 21 days, any semblance of reasonableness is erased. [205] To these points, the Crown added the facts that Mr. Blaney had previously attended and obtained prescriptions for Tylenol 3 and for blood pressure, and was continuing to take Tylenol 3 and must have known he had Gabapentin in his bag, which does not logically meld with his just having forgotten he had the gabapentin in his backpack. [206] In sum

then, I should note the Crown's following ancillary submissions: 1) imputed evidence Gabapentin has some street value; 2) if misused, it could have some disinhibiting effect beyond its therapeutic effect, raising concerns for public safety; 3) whether, in Mr. Blaney's hands, unsupervised or taken from him by other inmates, the uncontrolled presence of Gabapentin poses a danger within the institution; 4) both for Mr. Blaney and for others, including potential victims, it is a protective measure; and 5) because Mr. Blaney did not report the pills, there are a significant number that are unaccounted for. [207] In closing, counsel submitted that this is the whole point; that is, what the Parole Board and Corrections wants to get at, the misuse of prescription drugs is a problem, and that it is important to oversee the use of prescription drugs, a serious matter. Defence closing reply [208] Defence counsel replied to the Crown's submission that Mr. Blaney's claim he did not know Gabapentin has a street value or had been abused in institutions is not believable because Mr. Blaney was institutionally astute, had spent significant time in federal custody, and understood how to properly go through channels to air his grievances. To that, defence counsel submitted it is quite a different thing to say Mr. Blaney is institutionally astute, and so to infer from that he understands

Gabapentin is abused by people in custody. Counsel reminded the court Mr. Blaney had testified that he was older and that he hung out with older inmates in custody on a smaller unit, keeping to themselves. [209] He also testified he knew that there was some drug dealing going on. Further pointed out, was that he mentioned at one point in his testimony that when he was young, he was aware of a new drug that made people go crazy, perhaps methamphetamine, counsel suggested. In any case, defence counsel submitted it is not a suspicious inconsistency that is, knowing how to file complaints and, on the other hand, not being aware that Gabapentin has a street value and has been abused in penal institutions. [210] I think it is fair to find that Mr. Blaney was not naïve, given his experience. Whether he knew all the details related to Gabapentin hangs in the balance; but either way, it is not a particularly binding point. [211] Defence counsel also replied to the Crown's argument on the subject of Mr. Blaney wanting to get off narcotics, yet continuing to take Tylenol 3, which the Crown had indicated did not make sense. The Crown reminded the court Mr. Blaney gave an explanation, stating he had been told by his doctor that when he was done with Tylenol 3, he could then take Gabapentin. This has come up several times in these reasons. In any case, defence counsel submitted it makes

sense, if Mr. Blaney is following his doctor's instructions, for him to finish the Tylenol 3 and then move on to the Gabapentin. [212] With respect to Mr. Jones stating Mr. Blaney was not forgetful, defence counsel submitted he did not have that in his notes, his not being forgetful. I do not see mention of Mr. Jones having testified Mr. Blaney had problems with memory. [213] When questioned if he had dealt with people with brain injury, he testified he recently supervised a man with a head injury. He agreed being quick to anger and forgetful are common traits if the person had a violent history. Asked if Mr. Blaney was angry about not being in Vancouver, he replied not really, that he wanted to live in Vancouver, but he was polite most of the time, though very frustrated with his situation. So there are two aspects, there is the general observation made by the officer about people with brain injuries, and that aside, Mr. Blaney's circumstances. Mr. Nicholl testified Mr. Blaney did not have memory problems.

FINDINGS AND VERDICT [214] I turn now to my findings and verdict. [215] Defence counsel submitted the court should be cautious in considering Ms. Day's testimony in the case, as I noted earlier. I also note the criticisms of Mr. Nicholl's testimony. But shortcomings in the testimony of the Crown's witness in this case do not have as much bearing on the outcome as they may in other cases and in other contexts. [216] The testimonies of the Crown witnesses and Mr. Blaney are not arraigned totally against one another. In the case at bar, the parties signed an admission of facts. That aside, the evidence on the critical issues is not in opposition. Mr. Blaney acknowledges the condition that bound him to turn in prescriptions and medications into the CRF in which he was resident, in this case, the CCC; and to Mr. Nicholl, who there oversees the appropriate means of storage of the various kinds of prescription medicine and their proper dispensation. [217] Considering his background, Mr. Blaney presented fairly well as a witness to the extent he was able, quite straightforward and courteous when being cross-examined. At times, he exhibited some signs of a keen intelligence, albeit he sometimes struggled articulating it. At times he was quite articulate, such as when he explained his beliefs and life objectives, such as causing no harm to others. [218] Defence counsel submitted there

was no evidence to prove Mr. Blaney had not complied with the medication condition. That is not supportable, because Mr. Blaney had unreported Gabapentin in his possession and some pills were missing from the prescribed amount. [219] In short, there was evidence, some of it circumstantial, including the missing pills. As Justice Cromwell explained in R. v. Villaroman, 2016 SCC 33, at paras. 35, 37, 39, 41 - 42: [35] In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para.

28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt. [37] When assessing circumstantial evidence, the trier of fact should consider "other plausible theor[ies]" and "other reasonable possibilities" which are inconsistent with guilt: R. v. Comba, [1938] O.R. 200 (C.A.), at pp. 205 and 211, per Middleton J.A., aff'd [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v. Mitchell, [2008] QCA 394 (AustLII), at para.

35. I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] S.C.R. 2, at p. 8. "Other plausible theories" or "other reasonable possibilities" must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [39] I have found two particularly useful statements of this principle. [41] While this language is not appropriate for a jury instruction, I find the idea expressed in this passage -- that to justify a conviction, the circumstantial evidence, assessed in light of human experience, should be such that it excludes any other reasonable alternative -- a helpful way of describing the line between plausible theories and speculation. [42] The second is from R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22 and 24-25. The court stated that "[c]ircumstantial evidence does not have to totally exclude other conceivable inferences;" that the trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable; and that alternative inferences must be reasonable, not just possible. [220] I do not intend to and see no need to engage an in depth analysis of

the Villaroman decision, but those passages are of some assistance here. [221] In the case at bar, even were I to accept Mr. Blaney's testimony that the missing pills were inadvertently lost and that he had no intention of using Gabapentin until he had used up his Tylenol 3 prescription, the fact remains he knew he was required to turn in the prescription and pills he had in his possession in his backpack and did not do so; this is sufficient to provide a path to conviction. In my opinion, the fact that most undercuts the defence position on reasonable excuse and mens rea is the days Mr. Blaney's large, zippered backpack remained at the foot of his bed, 21 days, where it remained until the September 27 search. [222] Mr. Blaney's testimony that he had forgotten about the Gabapentin is not reasonable, considering the circumstances as a whole. Put another way, while it may be possible Mr. Blaney inadvertently lost some of the prescribed medication, he still had pills in his possession that he was obliged to turn in to the CCC, and to Mr. Nicholl specifically. As discussed in these reasons, a significant number of pills went missing. [223] Defence counsel raised a number of defences for the court to consider. Likewise, Crown counsel's submissions were very helpful in this matter. [224] Considering the evidence as a whole, including Mr. Blaney's testimony, I am satisfied beyond a reasonable doubt that Mr. Blaney is guilty of Counts 1 and 2. "N. Brown J."