R. v. Kelly, 2013 BCSC 960

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Kelly, 2013 BCSC 960 Date: 20130225 Docket: 153565-1 Registry: Victoria Regina v. Ralph Bartholomew Kelly Docket: 154026-1; 154027-1 Registry: Victoria Regina v. Ralph Bartholomew Kelly, Frank Joseph Pecorelli, Garett William Campbell Docket: 77255-1 Registry: Kelowna Regina v. Raymond Patrick Shaw, Ralph Bartholomew Edward Kelly Before: The Honourable Mr. Justice Macaulay On judicial review from: Provincial Court of British Columbia, August 14, 2012 ( R. v.

Kelly , Kelowna Registry No. 77255-2 and Victoria Registry Nos. 154026-1, 154027-3-C, 153565-1) Oral Ruling at Bail Review (Re Accused Ralph Bartholomew Kelly) Counsel for the Crown: J. Ahern Counsel for the Accused Kelly: D. McKay No Further Appearances Place and Date of Hearing: Victoria, B.C. February 25, 2013 Place and Date of Judgment: Victoria, B.C. February 25, 2013 [ 1 ] THE COURT: Mr. Kelly seeks a review of the August 14, 2012, order of a Provincial Court judge that he be detained. The charges against Mr.

Kelly arise out of investigations conducted in Victoria and Kelowna. [ 2 ] Viewed chronologically, the charges are: Victoria File Number 153565 : a. May to August 2008, eight counts of trading or distributing securities contrary to various provisions of the Securities Act ; b. June to August 2008, two counts of fraud not exceeding $5,000. Victoria File Number 154026 : a. October 2008, one count of fraud exceeding $5,000, and a duplicate count of theft exceeding $5,000 involving the same complainant; b.

January to September 2009, one count of fraud exceeding $5,000, and a duplicate count of theft exceeding $5,000, each involving

the same complainant; c. April 2009, one count of fraud exceeding $5,000 and a duplicate count of theft exceeding $5,000, again each involving the same complainant. Victoria File Number 154027 : a. October 2008, three counts alleging breaches of the Securities Act . Kelowna File Number 77255 : a. December 2009 to January 2011, defrauding four individuals exceeding $5,000 and a duplicate count alleging theft. [ 3 ] Mr. Kelly was originally arrested in April 2011 on the Victoria charges and eventually released in June 2011 on a recognizance with a cash deposit of $50,000 that his sister provided. Mr.

Kelly then remained on bail, except for a few days following a minor breach, until he was re-arrested on the Kelowna charges in July 2012. Because the alleged Kelowna offences predate Mr. Kelly's release, he did not bear the onus of proof respecting his proposed release at the August 2012 bail hearing. At that time the Crown successfully opposed release on the secondary ground and also persuaded the Provincial Court judge to revoke bail on the Victoria charges. [ 4 ] Mr.

Kelly did not have any previous criminal convictions but, in October 2008, the Securities Commission found him in breach of regulatory provisions in the Securities Act , including perpetrating fraud. As a result, the Commission imposed, among other things, a lifetime ban on the purchase of securities or exchange contracts, and prohibited any engaging in investor relations activities. The Commission also ordered a repayment of losses fixed at not less than $242,153.60, as well as payment of an administrative penalty.

It would have been apparent to the Provincial Court judge at the August 2012 bail hearing that some of the criminal allegations, if proven, would also amount to a breach of one or more of the Commission's orders. [ 5 ] The reasons of the Provincial Court judge are brief and expressed, as is often the case there, on the assumption that the Crown and the accused know the background as revealed by the materials filed and the record. [ 6 ] As I read the reasons for judgment, particularly at paragraph 3, the judge understood that the principal question raised here related to whether the Crown satisfied the onus of establishing that detention is necessary for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that Mr.

Kelly will, if released, commit a criminal offence. [ 7 ] Taking into account that the analogous activities giving rise to the Commission's orders occurred in 2001 to 2003, and the timing of the Commission's prohibitions in October 2008, the judge's conclusions in paragraph 3 of his reasons appear apt: He has been involved with the Securities Commission since the events of 2001. He ignores all [of] them.

He sets up new frauds in the -- southern Vancouver Island and he makes a side trip to Kelowna to defraud innocent civilians here. [ 8 ] The judge went on to refer expressly to “vast amounts of money disappearing”. On the evidence, it appears that Mr. Kelly used the proceeds primarily to support himself. [ 9 ] Mr. McKay, on behalf of Mr. Kelly, contends that the Provincial Court judge became distracted by considerations of Mr. Kelly's mental state, including his attitude towards the orders of the Commission and the courts. I am not persuaded that the judge denied bail primarily because of those concerns.

It is fair to say, on a reading of previous transcripts, including a hearing before Higinbotham J., that Mr. Kelly, while acting for himself, advanced a completely illogical, non-legal, and nonsensical position consistent with what is sometimes referred to as the Freeman's Movement, that has attracted much judicial attention in the recent past. The judge appeared to accept that might explain Mr. Kelly's past failures to comply with orders of the court or perhaps the Commission. [ 10 ] I do not fault the judge for describing Mr. Kelly as disingenuous.

If anything, the court might be justified in using stronger terms to describe Mr. Kelly's apparent willingness to disobey court process. [ 11 ] In any event, even if the judge gave that factor undue weight, it does not detract from the central conclusion that Mr. Kelly, if released, is likely to prey on the public as a means of supporting himself. I also conclude that there is a substantial likelihood, that cannot be reduced to a manageable risk by bail provisions, that Mr.

Kelly, if released, would attempt to defraud gullible investors. [ 12 ] He is not a manageable risk because he has alienated his adult siblings, including his sister who tried to assist him. His parents are elderly, and even if they accepted Mr. Kelly into their home it is doubtful that they could exercise any meaningful control over him. Both parents are in their seventies and the adult siblings have expressed concerns that their parents not be placed in such a position of responsibility as it would not be in their interests. [ 13 ] The application to review the detention order is accordingly denied. “M. D.

Macaulay, J.” The Honourable Mr. Justice Macaulay