Kelowna.com - Kelowna. Right Now!

By Joe Fries

A young offender convicted of breaching his probation after he “forgot” to attend a court-ordered counselling session has been granted a new trial because the Crown did not prove he missed the meeting on purpose.

After a provincial court trial in September 2009, the youth, identified as D.J.M. because his name is protected by a publication ban, was found guilty of willfully failing to comply with the terms of a probation order, and was sentenced to 10 days in open custody.

His lawyer, Blaine Weststrate appealed the conviction on the basis that the Crown did not prove his client had the mens rea (direct intent) to miss the appointment on the basis of willful blindness. He asked for the conviction be set aside and his client be granted a new trial.

He won that appeal in a B.C. Supreme Court ruling handed down by Justice Geoff Barrow on April 1, which was published online this week.

According to that ruling, D.J.M. had two meetings scheduled for June 18, 2009: one at 1 p.m. with his youth worker, and another at 2 p.m. with his drug and alcohol counsellor. While he attended the 2 p.m. appointment, he missed the earlier meeting with his youth worker.

He explained at trial that he had missed a counselling session two days earlier and rescheduled for June 18. He testified that he was so focused on getting to the make-up date that “he simply forgot about seeing his youth worker.”

His youth worker, meanwhile, testified that she had given D.J.M. an appointment slip after their previous meeting. She also acknowledged he had “quite a significant history” of not keeping appointments and had urged D.J.M.’s foster mother to hand him responsibility for keeping his appointments.

At trial, D.J.M. testified that he had thought about keeping a calendar to assist himself, but that he “probably wouldn’t always look at it” even if he had one.

The Crown argued that D.J.M. knew he had a poor memory yet chose not to keep a calendar, which amounted to willful blindness.

Defence counsel Weststrate argued, however, that forgetting an appointment is not equivalent to willful blindness. Further, he noted that D.J.M.’s evidence was believable, and was supported by the fact he travelled 45 minutes by bus to attend the later appointment, which was near his youth worker’s office.

In his ruling, Barrow noted that while the trial judge found that D.J.M. set himself up to miss the appointment by not using a memory aid, the trial judge did not rule on whether the evidence showed the boy did so to deliberately avoid his obligation.

Absent that ruling, Barrow concluded, the trial judge implicitly accepted that the boy “simply forgot.”

Complicating the matter is how the Criminal Code of Canada and Youth Criminal Justice Act describe the offence. In an amendment to the criminal code, lawmakers anticipated this problem of language and changed the reading of the charge to say anyone who “without reasonable excuse” fails to comply with an order is guilty of breaching the order. The Youth Criminal Justice Act, however, still reads that anyone who “willfully fails to comply” with an order is guilty.

joe@kelowna.com

This entry was posted on Friday, April 9th, 2010 at 10:01 am and is filed under Court. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.