R. v. Moir, 2013 BCSC 1696

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Moir, 2013 BCSC 1696 Date: 20130813 Docket: 53172-9 Registry: Chilliwack Regina v. Dustin Blue Robert Moir Ban on Publication pursuant to ss. 517 and 539(1) Criminal Code of Canada This publication ban has expired as of March 3, 2017. Before: The Honourable Mr. Justice Joyce Oral Reasons for Judgment Counsel for the Crown: C.M. Kramer Counsel for the Accused: L.J. Helps Place and Dates of Hearing: Chilliwack, B.C. August 7, 2013 Place and Date of Judgment: Chilliwack, B.C. August 13, 2013 [ 1 ] THE COURT: This is an application by Mr.

Moir for judicial interim release pending his trial on a charge of first degree murder. [ 2 ] By way of background, Mr. Moir is charged with first degree murder in the death of Chelsey Acorn who was killed in late 2005 when she was 14 years old. Chelsey, who was at the time in the care of the Ministry, left her foster home on June 10, 2005 and was last seen by a friend on October 25, 2005 in Abbotsford, British Columbia. Her body was discovered by some hikers in a shallow grave at a place off the Coquihalla Highway near Merritt, British Columbia, on April 8, 2006.

Her remains were identified by dental records. [ 3 ] As a result of police investigation, Mr. Moir and his father, Jesse Blue West, were targeted as suspects in the murder of Chelsey. The police conducted separate undercover operations against Mr. Moir and Mr. West using what are commonly referred to as "Mr. Big" operations, where undercover police officers pose as members of gangs seeking to recruit the accused. Following the undercover operations, Mr. Moir was charged with first degree murder and was arrested on March 16, 2007. Mr.

West was also charged with first degree murder. [ 4 ] The Crown, at that time, sought Mr. Moir's continued detention on the tertiary ground only. On May 4, 2007, Mr.

Moir was granted bail on the following conditions: • a $200,000 recognizance with two sureties, one of whom was his mother, and the other was his then girlfriend (now wife); • to keep the peace and be of good behaviour; • to report to a bail supervisor; to reside with his mother and stepfather; to abide by a curfew from 9:00 p.m. to 6:00 a.m. every day; • to have no contact with witnesses Josh Gordon and Steven Dudley; • to maintain or seek to maintain employment. [ 5 ] Following a preliminary inquiry that ran from February 22 to March 5, 2008, both Mr. West and Mr.

Moir were committed for trial on a charge of first degree murder. [ 6 ] Pre-trial applications began on March 5, 2009 and the trial proper against both accused commenced before a jury on November 23, 2009. Late in the trial, the trial judge granted a severance application. Mr. Moir's trial continued before the jury and on February 16, 2010, the jury convicted Mr. Moir of first degree murder. [ 7 ] Mr. Moir appealed his conviction and on January 30, 2013, the Court of Appeal overturned the conviction and ordered a new trial.

[8] In the meantime, after Mr. Moir's conviction, Mr. West's trial continued before the same trial judge sitting without a jury. OnJanuary 30, 2013, the trial judge found Mr. West guilty of first degree murder. [9] On July 31, 2013, Mr. Moir filed this application for judicial interim release pending his new trial. That trial is not yet set forhearing but it is anticipated that it will begin in the fall of 2014. [10] Mr. Moir seeks his release on bail on the following conditions: • a recognizance in the amount of $200,000 with one surety.

His mother, who owns a home with an equity of nearly $500,000, isprepared to act as surety again; • to keep the peace and be of good behaviour; • to report to a bail supervisor in person once per week; • to reside with his wife, Brea Moir (formerly Brea White), in the suite that she rents in Maple Ridge, and not change his residencewithout the approval of his bail supervisor; • to abide by curfew from 9:00 p.m. to 6:00 a.m. every day; • to have no contact with any witnesses or persons whom Mr.

Moir knows to be witnesses including Josh Gordon, Steven Dudley;and • to maintain or seek to maintain employment. [11] Mr. Moir's application is supported by affidavits from himself, as well as his wife, mother, mother-in-law and father-in-law. [12] Mr. Moir says that if he is released on bail he will work at small construction projects with his father-in-law as he did when hewas previously on bail. [13] Because Mr. Moir is charged with murder, the onus is on him to show that his detention is not necessary on any of the threegrounds that are in s. 515(10) of the Criminal Code, R.S.C. 1985, c. C-46.

I will not bother to read them into the record, but take them ashaving been read. [14] In this case, the Crown does not suggest that Mr. Moir's continued detention is necessary on the primary ground. The Crownsubmits that his detention is necessary principally on the basis of the secondary ground as well as on the tertiary ground. [15] It must be remembered that the secondary ground provides for a denial of bail in a narrow set of circumstances where the denialof bail is necessary to protect the public or necessary to maintain the proper functions of the bail system.

There must be a substantiallikelihood that the accused if released on bail will commit an offence or interfere with the administration of justice. [16] Denial of bail is not justified where detention would be merely convenient or advantageous (R. v. Morales, (SCC), [1992] 3 S.C.R. 711 at p. 737). [17] In this application, the prosecutor spent considerable time reviewing the nature of the evidence against Mr. Moir including theevidence from the Mr.

Big undercover police operation to submit that the Crown has a very strong case. [18] The strength of the Crown's case is of course one of the express factors that the Court must consider under the tertiary ground.

Iaccept that the Court may have some regard for the strength of the Crown's case under the secondary ground as going to the likelihoodthat the accused if released on bail will commit an offence or interfere with the administration of justice, all the time bearing in mind thepresumption of innocence. [19] However, the accused's record of past criminal conduct is far more relevant to the secondary ground than the strength of theCrown's case, in my view. Having said that, it appears to me that the Crown's case depends to a very significant degree on the Mr.

Bigoperation and the strength of the case depends very significantly on the view that the trier of fact will take of the reliability of thestatements made by Mr. Moir to the undercover operators and their assessment of the credibility of Mr. Moir, should he testify on hisown behalf as he did during the first trial where his trial evidence was consistent with his knowledge of the circumstances of the death ofChelsey at the hands of his father and as an accessory after the fact but not as a party to murder. [20] With respect, I would characterize the Crown's case against Mr.

Moir as being a good case but not an overwhelming casedepending as it does on an assessment of reliability and credibility. [21] Mr. Moir has no prior criminal record. He was on bail for some two years and ten months prior to his conviction. According tohis bail supervisor and his family members, including his sureties, there were no curfew violations. Mr. Moir reported to his bailsupervisor as required with the exception of one week in February 2010 late in the trial when he did not telephone his bail supervisor.When Mr. Moir was advised to reconnect with his supervisor, he did so. Mr.

Moir's bail supervisor described his demeanour at theprobation office as pleasant and cooperative. [22] Mr. Moir's performance on bail up to February 2010 gives no cause for concern with regard to either the secondary or tertiarygrounds and would support his present application. However, the Crown relies on three separate incidents to submit that his detentionunder both the secondary and tertiary grounds is now warranted. Two of these relate to breaches of conditions of bail and the third to anincident in Kent prison following his conviction. [23] The first breach of bail occurred when on February 1, 2010; Mr.

Moir spoke briefly to a witness, Steven Dudley, in the hallwayoutside the courtroom before Mr. Dudley testified. According to a statement taken from Mr. Dudley about this incident, Mr. Moir told

Mr. Dudley it was okay for him to tell the truth and that Mr. Moir would still love him. Mr. Dudley told the police he responded saying that was what he had to do: tell the truth. Mr. Dudley stated that he did not feel threatened by this encounter and that it did not influence him in any way with regard to his testimony. [ 24 ] The second breach occurred when Mr. Moir and his then girlfriend gave another witness, Josh Gordon, a ride home from Chilliwack to Vancouver at the end of the day when Mr. Gordon had given his testimony at the trial. According to the statement of Mr. Gordon to a police officer, Mr.

Gordon was driven to the bus station by a police officer after court and while waiting for the bus, he went to the Tim Horton's coffee shop next door to the bus station. While he was at the Tim Horton's Mr. Moir and Ms. White showed up. Mr. Moir spoke to him and then gave him a ride to Vancouver and dropped him where Mr. Gordon asked to be dropped off near to but not at his place of residence because Mr. Gordon did not want Mr. Moir to know where he lived. Mr. Gordon stated that during the trip they stopped in several places, including Mr. Moir's grandmother's house, and at each stop Mr.

Gordon was fearful that harm would come to him, although he was not harmed and there were no threats of harm towards him. Mr. Gordon stated that about three weeks later, Mr. Moir came to his door, knocked, entered, and spoke to Mr. Gordon. Mr. Gordon was fearful, but again there was no harm or threats of harm towards him. [ 25 ] Ms. White (now Mrs. Moir) gives a somewhat different version of events. She deposed that she and Mr. Moir regularly stopped at the Tim Horton's after court each day and that on the day in question Mr. Gordon asked for a ride home and they agreed.

She stated that there was no discussion about the case and that they dropped him off at his home in Vancouver. She said they should not have given him a ride but thought that it would be all right because he had already testified. [ 26 ] The third incident occurred in Kent prison on October 12, 2012, when hash oil was discovered in a sock belonging to Ms. White in a private family visit room while Ms. White was attending for her visit. The hash oil, weighing a total of 67.5 grams, was held in two film canisters that were wrapped in a condom or balloon. Ms.

White was arrested for possession of a controlled substance. In a statement to the police, she denied bringing any drugs into the institution. She maintained that denial in her affidavit filed in support of this application. Mr. Moir gave a statement to the police in which he admitted that the drugs were his but that Ms. White had no involvement in bringing them into the institution. He said another person whom he did not name brought them into the institution, implying that it was on a different occasion and that his role was to bring them back to the unit from the private visit residence.

He gave no explanation how they came to be in his wife's sock where they were found. Charges have not yet been preferred against either Mr. Moir or Ms. White concerning this incident. [ 27 ] While the communication with Mr. Dudley was a breach of Mr. Moir's bail conditions, I do not view it as a particularly serious breach; he simply told Mr. Dudley to tell the truth and there is no suggestion that it affected Mr. Dudley's testimony in any way or would affect his testimony in connection to the trial. [ 28 ] The interaction with Mr. Gordon was more extensive although it took place after Mr.

Gordon had completed his testimony so it could not have affected Mr. Gordon's evidence at the first trial. Mr. Gordon does not provide an explanation of how it came to be that he found himself being driven home. He does not say that Mr. Moir offered and he accepted. If that was the case and Mr. Gordon feared for his safety as he stated, he could easily have declined the offer and stayed in the safety of the Tim Horton's. There was in fact no harm or threats of harm to Mr. Gordon. It is difficult to imagine why Mr. Moir would return to Mr. Gordon's home when he had already completed his testimony. Again, Mr.

Gordon apparently let him in and there was no suggestion of any threats made if Mr. Moir did in fact go to his residence. [ 29 ] When considering these matters, I bear in mind what was said by Madam Justice Rowles in R. v. Bhullar 2005 BCCA 409 [ Bhullar ] at paras. 54 , 56 and 57 in granting bail on a charge of second degree murder: [54] ...

Whether a past attempt to obstruct justice constitutes an impediment to release misses the point; the question is whether there is a substantial likelihood that the applicant will interfere with the administration of justice, and whether such interference endangers the protection or safety of the public. … [56] ...

There is no suggestion that the applicant made any threats of violence to any potential witness and the applicant's alleged attempts to exert pressure or influence on his salon employees seem not to have been effective. [57] In my view, the detention of the applicant cannot be justified on the secondary ground.

What the Crown has referred to as the "potential risk to witnesses" and the "potential interference in the administration of justice" falls markedly short of the "substantial likelihood" test set out in Morales . [ 30 ] In the circumstances of this case, I am of the view that it is not necessary to detain Mr. Moir in order to prevent him from interfering with the administration of justice by attempting to manipulate witnesses or change their testimony. [ 31 ] The fact that Mr.

Moir admits to being in possession of a significant amount of hash oil in the prison, which it seems to me can only be for the purpose of trafficking, is certainly troubling, even though the conduct of Mr. Moir in that regard does not involve acts of violence. [ 32 ] However, as I said earlier, detention is not to be imposed pending trial because it is expedient or because there is a risk of offending pending trial. The fact that there are concerns is not enough ( see R. v. Patko 2003 BCCA 262 ).

Detention must be necessary and the risk of offending must be a substantial risk that cannot be adequately met by the imposition of bail conditions. [ 33 ] In all of the circumstances, I do not believe that detention is necessary in order to protect the safety of the public or prevent commission of offences by Mr. Moir. I find that he has satisfied the burden that is upon him with respect to s. 515(10) (b). [ 34 ] I turn to the tertiary ground. It is to be confined to narrow circumstances. In Bhullar , Madam Justice Rowles commented as follows at paras. 62 and 63:

[62] Assuming the primary and secondary grounds are [not] met, the denial of bail on the tertiary ground will be exceptional. As HallJ.A. noted at para. 24 in R. v. MacDougal, supra, [1999 BCCA 509] quoted with approval by McLachlin C.J. in Hall [R. v. Hall, 2002SCC 64 , [2002] 3 S.C.R. 309] at para. 27: "Courts must be careful not to pander to public opinion or to take account of only theoverly excitable, but I believe that to fail to have regard to the provisions of s. 515(10)(

c) in the relatively rare cases where it can properlybe invoked would tend to work against maintaining broad public confidence in the way justice is administered in this country." [63] In Hall, the language used by McLachlin C.J. in describing the circumstances of the crime indicates the exceptionalcircumstances of that case, at paras. 25 and 40: ... The crime was heinous and unexplained. The evidence tying the accused to the crime was very strong.

People in the community wereafraid. ... * * * Where, as here, the crime is horrific, inexplicable, and strongly linked to the accused, a justice system that cannot detain the accusedrisks losing the public confidence upon which the bail system and the justice system as a whole repose. [35] Further at para. 66 of Bhullar, Madam Justice Rowles said: [66] Assuming an accused has shown that his detention is unnecessary under s. 515(10)(

a) and (b), Hall anticipates that personscharged with very serious offences, including murder, will receive bail, unless there is a constellation of exceptional factors. [36] As I have said, I view the Crown's case as solid, but not overwhelming. Certainly this is a very serious offence and the penalty ifthere is a conviction will be life imprisonment. In the first trial, Mr. Moir put forward an explanation for his participation in the terribleevents that took the life of Chelsey. He placed the blame on his father and disputed the reliability of the evidence gathered against him inthe Mr. Big operation.

What view of the evidence the trier of fact will take in the upcoming trial remains to be seen. [37] However, in my opinion there does not exist in this case that constellation of exceptional factors that necessitates detentionunder the tertiary ground in order to maintain public confidence in the administration of justice. [38] I therefore grant Mr.

Moir bail on the conditions suggested by his counsel, namely: • a recognizance in the amount of $200,000 with one surety; • to keep the peace and be of good behaviour; • to report to a bail supervisor in person once per week; • to reside with his wife Brea Moir in the suite that she rents at 22970 Ritchie Avenue, Maple Ridge, British Columbia, and notchange his residence without the approval of the bail supervisor; • to abide by a curfew from 9:00 p.m. to 6:00 a.m. every day; • to have no contact with any witnesses including Josh Gordon and Steven Dudley; and to maintain or seek and maintainemployment. [SUBMISSIONS] [39] THE COURT: Yes, that condition will be part of the curfew condition which is to present himself at the door or to answer thetelephone if a peace officer calls or attends at his residence. “B.M.

Joyce J.”