R. v. Miyonkuru, 2017 BCPC 450

Citation: R. v. Miyonkuru 2017 BCPC 450 Date: 20170605 File No: 245794-2-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA JUDICIAL INTERIM RELEASE REGINA v. BILALI MIYONKURU RULING OF THE HONOURABLE JUDGE H. DHILLON Counsel for the Crown: I. Keeley Counsel for the Defendant: G. Ng J. Ladha Place of Hearing: Vancouver, B.C. Date of Hearing: May 29, 2017 Date of Judgment: June 5, 2017 INTRODUCTION

[ 1 ] Mr. Miyonkuru is charged by indictment under information No. 245794-2-C with committing very serious offences in Vancouver on April 26, 2017. He faces charges of using a firearm while committing or attempting to commit the indictable offence of assault of one female, sexual assault of a second female, and sexual assault causing bodily harm and robbery of a third female. The Crown submits that there is just cause for his pre-trial detention under s. 515(10) of the Criminal Code on the secondary and tertiary grounds. Mr. Miyonkuru seeks his release on conditions.

CIRCUMSTANCES OF THE OFFENCES [ 2 ] The Crown alleges that over a short period of two hours in and around the Joyce Street Skytrain station in Vancouver, B.C. three separate females were set upon by a male, alleged to be Mr. Miyonkuru, in circumstances that placed their safety and security at risk. [ 3 ] Counts 3 and 4 allege that just after midnight a 20 year old female, on leaving the Skytrain station, was followed by a male who had his face partially obscured by a bandana. He accosted her a short distance away. He held out an item, which appeared to be a gun, and told her to stop.

She did not comply and ran away. On reaching home she called police. [ 4 ] Count 5 alleges that about one hour later, a different female in the same vicinity was approached from behind and pushed into a building wall. The assailant grabbed her buttocks and breasts. The victim’s screams caused the male, alleged to be Mr. Miyonkuru, to run away. In both of these cases, the incident was very brief and visual identification by each victim was fleeting.

Common elements with the first incident were that the assailant approached a woman travelling alone, wore a bandana to obscure his face, and the second incident occurred within 5 blocks of the first. [ 5 ] The third incident occurred within the hour and in the same general neighbourhood as the first two incidents and gives rise to allegations in Counts 1 and 2. The third involved the commission of a serious sexual assault causing bodily harm of a young woman and robbery of her cell phone.

Briefly, the circumstances are that a 20-year-old female was followed home after she left the Joyce Skytrain station and boarded the #26 bus. The Crown alleges that Mr. Miyonkuru was on the bus. He followed the female off the bus. He approached her from behind, grabbed her around the shoulders and covered her mouth. He forced her to continue walking. At a more secluded location, he forced her to the ground, covered her face by lifting her sweater, and sexually assaulted her. He had penetrative vaginal sex with her, first with and then without a condom.

He also forced her to perform oral sex, and digitally penetrated her. When her cell phone rang, he took it from her and kept it. He let her go shortly after the assault. The following day the victim reported the assault to police. Medical forensic examination of the victim revealed notable vaginal tears. [ 6 ] Based on the timeline, location and the identification information given by each of the complainants, police took various investigative steps to locate transit video and transit card usage information that led to police identifying Mr. Miyonkuru as a suspect. Police linked Mr.

Miyonkuru through his debit card transactions to his presence in and around the Joyce Skytrain station around the time of the offences. CCTV from Super Great Pizza provided very clear facial and clothing detail of a black male, which is strong and cogent evidence of Mr. Miyonkuru’s presence adjacent to the Skytrain station proximate in time to the commission of the offences. [ 7 ] A taxicab fare was paid by a male matching Mr. Miyonkuru’s description, using his debit card, who was picked up very near the last-in-time sexual assault and driven to Richmond where Mr. Miyonkuru was known to reside.

Subsequent late evening police surveillance of Mr. Myonkuru showed him loitering suspiciously around a Richmond Skytrain station in the early morning hours of May 1, 2017 and also around midnight of May 2, 2017. He behaved in a peculiar manner similar to that seen by one of the complainants on April 26, 2017. [ 8 ] On May 3, 2017 police arrested Mr. Miyonkuru for the sexual assault offences.

A search of his residence on execution of a warrant uncovered items of evidentiary value in his bedroom linked to the alleged offences, including clothing worn by him as seen on video on the night of the alleged assaults, a bandana, an imitation firearm, and the cell phone stolen from the third-in-time victim with Mr. Miyonkuru’s fingerprints on it. [ 9 ] Mr. Miyonkuru made certain admissions during an interview by police shortly after his arrest, after being read his Charter rights and getting brief advice from duty counsel.

He admitted to an assault of a female, his possession of a fake gun, his pointing the gun at another female who ran away, and he placed himself in the geographic location of the assaults. [ 10 ] Mr. Miyonkuru provided further highly inculpatory admissions after being interviewed by Sgt Rob Roy Mackenzie. Mr. Miyonkuru recognized Sgt Mackenzie as his command superior in the Royal Canadian Army Cadet Corps and on his urging made statements which, if found admissible at trial, would be highly determinative if not conclusive of his guilt.

Sgt Mackenzie, identified by uniform as a member of the Vancouver Police Department, had been selected to interview Mr. Miyonkuru by police because of their common background in the cadet corps. [ 11 ] Mr. Miyonkuru also confirmed that he was HIV positive but said he was tested regularly and his viral load was low or undetectable. Information Relating to the Accused [ 12 ] Mr. Miyonkuru’s personal circumstances are that he is age 19 and was born in 1998 in Tanzania, Africa. His family survived in refugee camps, and he his lost his mother to HIV disease. He came to Canada with his family in 2006 at age 8.

He became a Canadian citizen in April 2017. He completed high school last year and is enrolled at a community college taking courses in computer science, web development and marketing. [ 13 ] He enrolled in the B.C. Royal Canadian Army Cadet Corp in 2010 and attained the position of Company Sergeant Major in which capacity he was responsible for a company comprised of over 200 cadets and staff members. Although too old to continue with cadets after age 19, he has continued to act as an unofficial mentor for younger cadets. [ 14 ] Mr. Miyonkuru has no criminal record.

By all accounts he is a well-liked and highly regarded young man in many aspects of

his life. [15] There are numerous letters filed in support of Mr. Miyonkuru’s bail application. Many are from persons in apparent goodstanding in the community such as teachers, fellow cadets, and religious leaders. All state that they see Mr. Miyonkuru as responsibleand reliable in every endeavour and aspect of life. He has volunteered at many charitable causes, and is seen by those in his army cadet,school and church circles as an exemplary, trustworthy and giving individual. The letters depict Mr.

Miyonkuru as a person who enjoyswide support of family and friends all of whom believe that he can be relied on to follow any condition of his release. The Proposed Release Plan [16] Central to the proposed release plan is the supervision of Mr. Miyonkuru by his father Yusuph Munyaneza. Mr. Munyaneza ison disability benefits due to a workplace injury and will be available to monitor his son at all necessary times. Mr. Munyaneza is oflimited financial means and cannot pledge real property or other assets as surety.

He can offer a cash deposit of $3,000 and he proposesto ensure that his son obeys any and all conditions of his release. Mr. Miyonkuru attests to being highly motivated and able to complywith any court conditions relevant to his pre-trial release from custody. Case Law [17] I have reviewed and considered the following cases: R. v. Antic, 2017 SCC 27; R. v. Oland, 2017 SCC 17; R. v. St-Cloud, 2015SCC 27, [2015] 2 S.C.R. 328; R. v. Morales, [1992] 2 S.C.R. 711; R. v. Cheung, 2016 BCCA 221; R. v. Ma, 2015 ONSC 7709; R. v.Hamid, 2016 BCPC 271; R. v. S.D.G., 2015 BCPC 460; R. v. Bhullar, 2005 BCCA 409; HMTQ v.

Aulakh, 2003 BCSC 740; R. v. Blind, (Sask. C.A.); R. v. Ajibade, 2015 ONCJ 494; and R. v. Manasseri, 2017 ONCA 226. The Legal Principles [18] Under s. 515(10), the Crown must justify detention of an accused person by showing, on a balance of probabilities, thatdetention is necessary under the statutorily enumerated grounds: risk of flight, the protection or safety of the public, or in order tomaintain public confidence in the administration of justice. In R. v.

Antic at para. 67, the Supreme Court of Canada reiterated both aconstitutional and statutory right to pre-trial release from custody, on the least restrictive form and conditions of release justifiable in allthe circumstances of the case, unless just cause for detention in accordance with the law is established. [19] Crown relies on Section 515 (10)(

b) and (

c) of the Criminal Code: Justification for detention in custody

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: … (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or anyperson under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, ifreleased from custody, commit a criminal offence or interfere with the administration of justice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence thatinvolves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [20] The rules of evidence are relaxed in the context of a bail hearing: R. v. Cheung at paras. 38-39, citing R. v. St.-Cloud. A bailhearing is a

summary and expedited process based on the available evidence at the time of hearing. In assessing whether detention canbe justified, the court may rely on credible or trustworthy evidence: s. 518 of the Criminal Code. Section 515(10)(b): The Secondary Ground [21] The issue to be determined is whether detention of Mr. Miyonkuru is necessary for the protection or safety of the public, suchthat if the accused is released, there is a substantial likelihood that he will reoffend and in doing so endanger the safety or protection ofthe public, or interfere with the administration of justice.

Substantial likelihood means a “probability of certain conduct, not a merepossibility. And the probability must be substantial, in other words, significantly likely.”: see R. v. Manasseri, 2017 ONCA 226 at para.87. [22] The evidence on the likelihood of re-offence takes into account the antecedents of Mr. Miyonkuru, and his lifestyle. He has noprior record, the absence of which is evidence of a capacity to generally obey rules and to follow the norms of society.

His otherwisepro-social behaviours, in the context of strong family, peer and community supports, indicate that it is not substantially likely the he willcommit a new offence if released on appropriate conditions of bail.

This inference is strengthened by his success in the disciplined andstructured role of an army cadet over many years, which is a positive indicator in assessing whether he can, if released from custody,faithfully follow court orders in the form of judicial interim release conditions designed to promote the protection and safety of thecommunity. [23] I am not persuaded on balance that there is a substantial likelihood that Mr. Miyonkuru will reoffend, or that the safety or the

protection of the public would be endangered if he were released from custody. Any issue of safety and protection of the public can be managed by strict conditions of release to monitor the accused’s conduct in the community. The Tertiary Ground: Section 515(10) (c) [ 24 ] I turn next to whether detention is necessary to maintain public confidence in the administration of justice having regard to all relevant circumstances including the four enumerated statutory factors under s. 515(10)(

c) as amplified in paras. 57-71 of St.-Cloud : i. the apparent strength of the prosecution case, which includes consideration of the quality of the evidence and any defences raised by the accused that may affect the apparent strength of the prosecution case; ii. the objective gravity of the offence when compared to other Criminal Code offences; iii. the circumstances surrounding the commission of the offence, including use of a firearm, the violent, heinous or hateful nature of the offence, and whether the offence involved domestic violence, a criminal gang or terrorist organization, a vulnerable victim or the joint participation of others; and iv. the accused’s liability for a potentially substantial term of imprisonment. [ 25 ] Other relevant considerations may include the accused’s personal circumstances, the societal impact of the offence, and the length of time to trial.

The court must consider the combined effect of all the circumstances to determine whether detention is justified to maintain public confidence in the administration of justice. [ 26 ] The public's confidence in the administration of justice requires a contextual analysis, viewed from the perspective of an informed, dispassionate and reasonable person who understands the importance of the constitutional imperative of the presumption of innocence and its role in preserving pre-trial liberty of all persons charged with a crime: R. v. Oland , at para. 47 .

In Canada, pre-trial release of those charged with a crime is the cardinal rule and detention the exception unless justified on the facts and law: see R. v. Antic , at paras. 32-34 and St-Cloud , at para. 70. [ 27 ] Detention can only be justified on the tertiary ground if the judge, having considered the statutory factors and related circumstances, is persuaded on a balance of probabilities that a reasonable member of the community would be satisfied that denial of release is necessary to maintain confidence in the administration of justice: St-Cloud , at paras. 87-88. i.

The Apparent Strength of the Prosecution Case [ 28 ] A fair appraisal of the Crown case is required, with strengths and weaknesses addressed at this preliminary juncture. [ 29 ] On a preliminary view of the evidence, I find that the prosecution case is particularly strong especially with respect to the third victim, whose cell phone was found in Mr. Miyonkuru’s bedroom, and whose identification of the assailant as to race and other physical attributes is generally consistent with that of Mr. Miyonkuru. Mr.

Miyonkuru was video-recorded following this complainant off the bus prior to the assault, his phone was used after the assault to summon a taxi, and his bankcard was used to pay for the taxi ride from the area of the assault to Richmond. Collectively there is very cogent real and circumstantial evidence linking Mr. Miyonkuru to the sexual assault and robbery.

There is also the prospect of DNA evidence of an unknown male found on the female complainant, which will be analysed once a DNA sample is lawfully secured from the accused. [ 30 ] With regards the other two complainants, their identification evidence of their assailant is very weak. Their contact with the assailant was fleeting and he wore a bandana to cover the lower portion of his face. Mr. Miyonkuru is dark-skinned but neither complainant identifies her assailant as black. The Crown’s case is strengthened largely by the admissions made by Mr.

Miyonkuru to police that he used a gun on one female who ran away, and by the discovery of a gun and bandana in his room. [ 31 ] The defence states that these key pieces of evidence implicating the accused will be challenged at trial. Specifically, the defence will seek to exclude inculpatory statements made by the accused to Sgt. Rob Mackenzie on the grounds that the statement was involuntarily made or elicited in breach of his Charter rights. I am advised the interview was video-recorded and R. v.

Oickle , 2 000 SCC 38 , [2000] 2 S.C.R. 3 , may be controlling authority on the issue of the statement’s admissibility. [ 32 ] The defence also reserves the right to challenge the items seized pursuant to the search warrant, including the cell phone belonging to the sex assault victim. The defence position is that it is early in the investigation. Evidence is still being developed and no firm assessment can be made as to its overall strength until tested at trial. [ 33 ] In R. v. Cheung , Justice Bennett of the B.C.

Court of Appeal at para. 78 summarizes the Toronto Star decision of the SCC as to the kind and quality of evidence that may be considered at a bail hearing: [T]he prosecutor may lead any evidence that is “credible or trustworthy’’, which might include evidence of a confession that has not been tested for voluntariness or consistency with the Charter, bad character, information obtained by wiretap, hearsay statements, ambiguous post-offence conduct, untested similar facts, prior convictions, untried charges, or personal information on living and social habits... [ 34 ] As matters presently stand, I am satisfied that the Crown case is based on credible and trustworthy investigatory evidence.

There is a web of compelling circumstantial evidence, including real evidence which, even in the absence of inculpatory statements, establishes a strong prima facie case in so far as the counts of sexual assault causing bodily harm and robbery of the third victim (counts 1 and 2) are concerned. [ 35 ] Moreover, if the search warrant evidence and video recorded statements of the accused are admitted into evidence at trial, there is a highly persuasive Crown case for conviction on the counts involving the other two victims, including on the weapons charge. And,

if similar fact evidence linking all three females to one assailant within a narrow temporal and geographical window is permitted, there is a substantial likelihood of conviction on all counts notwithstanding the frailties in eyewitness identification. ii. Objective Gravity of the Offence [ 36 ] The gravity of the offence is measured objectively by the maximum and any minimum penalties set out in the Criminal Code .

The maximum term of imprisonment for each count is as follows: Count 1 - Assault Causing Bodily Harm - s. 272(2)(b): 14 years; Count 2 - Robbery - s. 344(1)(b): for life; Count 3 - Assault with weapon - s. 276(a): 10 years; Count 4 - Use of imitation firearm in committing indictable offence - s. 85(2): mandatory minimum 1 year, maximum 14 years; and Count 5 - Sexual Assault - s. 271: 10 years. [ 37 ] There is no question that, given the range of maximum sentences available to be imposed and the mandatory minimum sentence under count 4, the objective gravity of the alleged offences is high. iii.

Circumstances Surrounding the Commission of the Offence [ 38 ] The facts alleged by the Crown show an assailant who used a transit station hub to look for and target vulnerable young women returning home on public transit in the late evening and early morning hours. Two of the women were sexually assaulted by the assailant, one very seriously, violently and highly intrusively. The third was accosted and threatened with a gun.

The offences were planned, violent, and involved multiple victims. [ 39 ] All citizens, including young females, are entitled to have a reasonable expectation that they will be safe at any hour and in any place in our communities. Where that safety is imperilled by sexual crimes, which are serious crimes of violence that violate the personal and sexual integrity of the victims, great fear and uncertainty can grip the community. [ 40 ] Sexual violence can carry with it the potential for sexually transmitted disease. Mr. Miyonkuru is HIV-positive. The SCC in R. v.

Mabior , 2012 SCC 47 , [2012] 2 S.C.R. 584 , imposed an affirmative obligation on a person with HIV to disclose their HIV-positive status to their potential sexual partners if there is a realistic possibility of transmitting the virus by consensual sexual activity. Both a low viral count as a result of treatment and condom or barrier protection are required to establish that there is no “realistic possibility of transmission” of the virus. In the absence of either condition, no legal consent to the activity is obtained.

To hold otherwise undermines Charter values of equality, autonomy, liberty, privacy and human dignity which underlie a sexual partner’s right to consent or to withhold consent to sexual relations with an HIV-positive partner, as discussed in Mabior , at para. 48 . [ 41 ] Here the allegation is not deception about HIV between consenting partners but violence by an HIV-positive person against a stranger. Sexual assault by an HIV-positive person against a stranger without the use of a condom is of a grave order of magnitude in sexual offending. It is a highly culpable and reprehensible act.

Regardless of the ultimate finding on the issue of risk of disease transmission, sexual crimes that expose vulnerable women to the risk of HIV transmission are particularly heinous. iv. Potential for a Lengthy Term of Imprisonment [ 42 ] The B.C. Court of Appeal in R. v. G.M., 2015 BCCA 165 , at para. 22 noted that “[t]he range of sentences for sexual assault involving intercourse is two to six years”, whilst acknowledging that ranges are guidelines rather than hard and fast rules.

Having considered the allegations before the court, the overview of the evidence relating to the offences, and the accused’s youth and prior good background, I am of the view that if convicted of the more serious offence of sexual assault causing bodily harm, he is liable to a lengthy term of imprisonment in the federal range. Moreover, if the weapons offence is proved, he will face a mandatory one year consecutive sentence to any other sentence imposed. There is a real risk of significant jail time for the offences with which the accused is charged.

Balancing of All Factors [ 43 ] On a global view of the four factors under s. 515(10) (c), I am satisfied that the investigative evidence as regards counts 1 and 2 under the indictment reveals a very strong Crown case of serious and troubling offending. In my view, the accused would be liable to a potentially lengthy term of imprisonment on conviction of those two counts alone. There is a likelihood of conviction of the other 3 counts if the accused’s statements to police are found to be admissible. This, however, is not determinative nor the end of the inquiry at this judicial interim release hearing.

The issue remains whether, in circumstances where the four statutory criteria are established in respect of charges of which the accused is presumed innocent, the Crown has established that the detention of the accused is necessary to maintain public confidence in the administration of justice. [ 44 ] I have examined this case from the perspective of the public, comprised of members of society who are informed, reasonable, and willing to undertake a dispassionate assessment of the importance of pre-trial liberty of persons accused but not convicted of crimes.

The right to the presumption of innocence can only be given meaningful effect if a person’s liberty, being the right not to be denied reasonable bail without just cause, is upheld in both intent and effect even in difficult cases. [ 45 ] The prior good character of the accused, and his plan for release, with a cash deposit and strict supervision by a parent, are relevant factors in determining what effect such a plan may have on public confidence in the proper administration of justice. [ 46 ] To maintain public confidence is to preserve the public’s full trust and belief that the criminal law is being administered in accordance with society’s fundamental values.

A fundamental expectation of the public is that crimes of serious and violent offending

against vulnerable victims will be dealt with appropriately and justly by the criminal justice system having regard to all the circumstances, including Charter values. [ 47 ] After reviewing the cases referred to by counsel, it is my assessment that the offences in the case at bar are comparable in gravity to the offences described in St.-Cloud , Ma , and S.D.G . [ 48 ] In R. v. St.-Cloud , the offender was a young man without a prior record who engaged in group violence against a public transit operator, leaving the victim with serious injuries and deficits. The violence did not appear premeditated.

It was inappropriately reactive to certain events that unfolded on the bus. The videotaped evidence of the assault was of good quality. The SCC upheld the accused’s detention on the tertiary ground notwithstanding that the accused was a youthful, first time offender. [ 49 ] In R. v. Ma , the accused sexually assaulted and robbed two sex workers. The case was strong but based on circumstantial evidence, with the accused being found with items belonging to one victim, and seen attempting to use her debit card. The other victim made note of his very distinct identifying tattoos.

The accused was detained on the tertiary ground. In the case at bar, real evidence (cell phone) belonging to a victim as well as an imitation firearm were recovered in Mr. Miyonkuru’s possession. [ 50 ] In R. v. S.D.G. , a 22 year old was charged with sex assault of his aunt after breaking and entering into her residence.

The victim identified the accused through recognition evidence, and he was detained on the tertiary ground due to the seriousness of the offence and strong identification evidence. [ 51 ] In cases where detention was not ordered, either the absence of overt violence or potentially unreliable evidence was a feature. In R. v. Ajibade , a young man was charged with procuring young girls into the sex trade but was releasable because there were no allegations of violence or use of weapons. In HMTQ v.

Aulakh , detention was not ordered because reliability of the single witness implicating the accused was directly in issue. [ 52 ] Reasons for judgment of the Supreme Court of Canada in R. v. Antic were released last week. Antic is concerned with the proper

interpretation of ss. 515(1) and (2) of the Code , and the proper application of the “ladder principle” as to the form and conditions of release. The ladder principle presupposes that detention is not warranted, and the least restrictive form of release comes into play, as noted at para. 62: …Because the Crown had justified a monetary condition of release, Mr..

Antic or his sureties should have been allowed to pledge money rather than being required to deposit money with the court. [ 53 ] In the case at bar, the Crown is opposed to release. [ 54 ] I refer back to St.-Cloud which states at para. 88, that “if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered.” [ 55 ] I find that allegations against Mr.

Miyonkuru are extremely serious because there is an element of both prior planning (bandana, gun, loitering around a transit station) and predation of multiple, vulnerable females, as contrasted to St.-Cloud and S.D.G . [ 56 ] Moreover, the allegation that Mr. Miyonkuru did not wear a condom while sexually assaulting one victim, knowing that he is HIV-positive, is both troubling and extremely aggravating.

As previously stated, sexual crimes that knowingly expose vulnerable women to a risk of HIV transmission are particularly heinous. [ 57 ] The relative youth of the accused, his strong community and family support, and prior good character including adherence to discipline in an army cadet setting is not a sufficient bulwark against the need for detention in the public interest.

The proffer of cash bail of $3,000 as a form of release, although a significant sum to the family, is not likely to assuage public concerns raised by the very serious allegations in this case. [ 58 ] On a fair balancing of all the circumstances and on application of the statutory principles as informed by St.-Cloud and Antic , I find that the prosecution has established, on a balance of probabilities, that a reasonable member of the public would lose trust and confidence in the administration of justice should Mr.

Miyonkuru be released from custody. [ 59 ] Where, as here, just cause is proved for the accused’s detention under 515(10)(c), the accused’s pre-trial liberty interest must cede ground to the need to maintain confidence in the administration of justice. Accordingly, Mr. Miyonkuru shall be detained in custody on the tertiary ground until he is dealt with in accordance with the law. ___________________________ The Honourable Judge H. Dhillon Provincial Court of British Columbia