R. v. S.D.G. Date:, 2015 BCPC 460

Citation: R. v. S.D.G. Date: 20150917 2015 BCPC 460 File No: 16458-1 Registry: Port Hardy IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. S.D.G. ORAL REASONS AT JUDICIAL INTERIM RELEASE HEARING OF THE HONOURABLE JUDGE B. FLEWELLING Ban on Publication pursuant to s.486.5(1) of the Criminal Code

Counsel for the Crown: A. Venturini Counsel for the Defendant: A. Penhall Place of Hearing: Campbell River , B.C. Date of Hearing: September 17, 2015 Date of Judgment: September 17, 2015 [ 1 ] THE COURT: This is S.D.G.'s application for judicial interim release. [ 2 ] He is before the court today on Information 16458-1. S.D.G. is charged with the following four counts: Count 1: That on August 31st, 2015, at or near [deleted for publication], in the Province of British Columbia, did sexually assault M.J. contrary to

Section 271 of the Criminal Code ; Count 2: That on the same date did break and enter a dwelling house situate at [deleted for publication], with intent to commit an indictable offence therein, contrary to Section 348(1) (

a) of the Criminal Code ; Count 3: That on the same date and at the same place, without lawful excuse, was in a dwelling house, situate at [deleted for publication], with intent to commit an indictable offence therein, contrary to

Section 349 of the Criminal Code ; and Count 4: That on the same date and in the same place, with intent to enable himself to commit the indictable offence of sexual assault, did attempt to choke M.J. by pressing his elbow in her throat, contrary to

Section 246 (

a) of the Criminal Code . [ 3 ] I have heard the circumstances alleged by Ms. Venturini for Crown counsel and those, briefly, are as follows: On August 31st at approximately 3:22 a.m. the victim, M.J., contacted the RCMP to report that she had been sexually assaulted by S.D.G. approximately 90 minutes prior to that. In her statement M.J. advised the police that she had been home alone earlier that evening, and as the next day was a working day, had gone to bed relatively early.

She went to bed alone and there was no one else in her house at the time. [ 4 ] She advised the police that she awoke to find a man sitting on her, pressing his forearm to her throat, that he forced himself upon her and kept repeating "You know you want this". Sexual intercourse was forced. There was a struggle. M.J. attempted to throw this man off.

Apparently that did occur on one occasion but he was able to get back on top of her, and at one point she was flipped over onto her stomach and her head was held down by this man's hand. [ 5 ] M.J., in reporting this matter to the police, advised the police that she knew that this man was her nephew, S.D.G., who is before me today and accused of these offences.

In her statement to the police, she indicated that she recognized his voice, that she knows him, and that she was able to locate some items of clothing that she has seen him wear and that were left behind after he fled her house. [ 6 ] She travelled some 270 kilometres to [deleted for publication] for the purposes of completing a sexual assault investigation and kit. [ 7 ] The police also interviewed and took a statement from S.D.G.. S.D.G. did admit to walking home late that evening. He indicated that he remembered going to and leaving M.J’s home.

He then did not answer, or answer responsively, any other questions asked of him when the police officer began to ask questions relating to the sexual assault. [ 8 ] M.J. is 45 years of age. S.D.G. is 22 years of age. [ 9 ] Crown has asked this court to detain S.D.G. in custody on the tertiary grounds. [ 10 ] Ms. Penhall, on behalf of S.D.G., submits that he ought to be released and that the appropriate plan would be for S.D.G. to reside with his great-uncle in [deleted for publication] and that potentially there are also other family members willing to take S.D.G. in and to supervise him. [ 11 ] Ms.

Penhall also asked me to consider that the only evidence the Crown has put forward is a statement from the victim, and urges me to find that, because there is no overwhelming evidence and no criminal record other than two s. 810 peace bonds, it is appropriate that S.D.G. be released. [ 12 ] I have been provided with the decision of my brother Judge Doherty, in R. v. Ordano (18 June 2015), Campbell River Registry, 39796-2-C, (B.C.P.C.). Mr. Ordano was charged with attempting to commit murder by entering a dwelling house with a firearm and discharging that firearm. Fortunately, no one was injured.

I am also advised that Mr. Ordano did not have a prior criminal record. Judge Doherty detained Mr. Ordano on the tertiary grounds. [ 13 ] The Ordano case apparently involved events that led to no one truly understanding what had actually occurred. It was described as a seemingly inexplicable offence. [ 14 ] The same language is used in this case, and Crown counsel describes this alleged offence as also seemingly inexplicable. [ 15 ] Crown is seeking detention based on the tertiary ground.

I refer to Judge Doherty's decision in Ordano in which he refers to the most recent decision by our Supreme Court of Canada in R. v. St-Cloud , 2015 SCC 27 . St-Cloud provides guidelines for the

consideration of the court when determining whether or not release should be granted or detention ordered on the tertiary ground. [ 16 ] Judge Doherty, at paragraph 16 of Ordano , summarizes the provisions of s. 515(10) (

c) of the Criminal Code , setting out the basis for the tertiary ground: (

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 [lastly] (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [ 17 ] I adopt what Judge Doherty goes on to state at paragraph 18 of his decision: . . . the Supreme Court of Canada has put paid to the notion that the tertiary ground was somehow a residual ground for detention that should be infrequently invoked and narrowly interpreted.

In fact, it is a ground that stands on its own. [ 18 ] In summarizing the Supreme Court of Canada's decision in St-Cloud , and its application in Ordano , Judge Doherty goes on to state: I pause to remark here that in my mind, the four limited circumstances support detention, but that does not end the matter. The court goes on to give direction. [ 19 ] I pause here in the case before me to state the following. Based on the submissions I have heard from Crown counsel, it is my view they may have a case that is stronger than that urged on me by S.D.G.'s counsel.

There certainly appears to be some circumstantial evidence, namely, items of clothing allegedly left behind by the assailant. [ 20 ] The second factor is the gravity of the offence. This clearly is a serious offence, and that also relates to s. 515(10) (c)(iii) of the Criminal Code : the circumstances surrounding the commission of the offence. This offence involved a break and enter into M.J’s home, it is alleged to have occurred while she is sleeping safely in her home, and those circumstances, in my view, are aggravating factors.

I also make reference to s. 348.1 of the Criminal Code , which also relates to when circumstances involving a break and enter are considered aggravating, and that is when a dwelling house is occupied at the time of the commission of the offence. [ 21 ] Finally, the last factor is that S.D.G. is likely liable, if convicted, to a potentially lengthy term of imprisonment. [ 22 ] However, as Judge Doherty stated in Ordano , that does not end the inquiry. [ 23 ] Judge Doherty summarizes other factors that are set out in the St-Cloud decision.

I am not going to summarize all of them, but I adopt Judge Doherty's reasoning as set out at paragraphs 19 and 20 of the Ordano decision. [ 24 ] I consider the balancing that is required of the court and take into consideration all the relevant circumstances and, ultimately, the question to be asked is whether detention is necessary to maintain confidence in the administration of justice. [ 25 ] I consider the perspective of a reasonable person, properly informed about the philosophy of the Criminal Code , the Charter values, and the actual circumstances of the case.

It is recognized this reasonable person is not a legal expert and not someone that appreciates subtleties of defences that are available to the accused. [ 26 ] Importantly, as set out in paragraph 19 of Ordano and citing St-Cloud , and I quote (as read in): This reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified. [ 27 ] I am satisfied, based on the circumstances, and all the relevant considerations that I have set out, and in particular the seriousness and severity of this offence, that the accused S.D.G. cannot be released and ought to be detained on the tertiary ground.

I find that if he was released that it would bring the administration of justice into disrepute and would undermine the confidence of the public. [ 28 ] S.D.G. will be detained while awaiting trial. ( RULING ON JIR APPLICATION CONCLUDED)