R. v. Chester, 2020 BCPC 194

Citation: R. v. Chester 2020 BCPC 194 Date: 20201016 File No: 16794-1 Registry: Port Hardy IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JUSTIN JOHN CHESTER and SHELBY CAROL PAUL RULING ON s. 523 (2)(

b) APPLICATION of JUSTIN JOHN CHESTER OF THE HONOURABLE JUDGE B. FLEWELLING Counsel for the Crown: T. McFadgen Counsel for the Defendant: S. Runyon Place of Hearing: Port Hardy , B.C. Date of Hearing: September 9, 2020 Date of Judgment: October 16, 2020

INTRODUCTION [ 1 ] As a result of events on or about November 25, 2019, at or near Port McNeill, BC, Mr. Chester is charged with the following offences: • possession of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act ; • possession of a non-restricted firearm - a 12-gauge shotgun – without holding a licence, contrary to s. 91(1) of the Criminal Code ; • carrying, handling or storing the 12-gauge shotgun in a careless manner, without lawful excuse, contrary to s. 86(1); and • escape from lawful custody contrary to s. 145(1)(a). [ 2 ] Mr.

Chester was detained on the secondary grounds by the Honourable Judge Brooks on December 10, 2019. The charges Mr. Chester was facing at the bail hearing included additional and serious driving offences alleged to have occurred on November 22, 2019, and did not include a charge of possession for the purpose of trafficking, although the facts supporting that allegation were summarized. [ 3 ] Mr. Chester elected a trial by judge alone in the Supreme Court of British Columbia, with a preliminary inquiry. On September 9, 2020, without any evidence being called, Mr. Chester (along with his co-accused Ms.

Paul) consented to an order that the case be remitted for trial. [ 4 ] Pursuant to s. 523(2)(b), Mr. Chester applies to vacate the detention order made by Judge Brooks on the basis that since that time there has been a material or a substantial change in the circumstances. BACKGROUND Information 17098-1: November 22, 2019 [ 5 ] During the hearing for judicial interim release, Judge Brooks heard the circumstances relating to two separate Informations. The first Information relates to events alleged to have taken place on November 22, 2019 at or near Woss, BC. Mr.

Chester was charged with driving a motor vehicle on a highway knowing that he was prohibited from driving; dangerous operation of a motor vehicle; and failing to stop his motor vehicle while being pursued by a peace officer. [ 6 ] The circumstances alleged were that just after 8 a.m. that morning, the RCMP received a 911 call from an individual reporting a possible impaired driver driving north on the Island Highway near Woss. The witness reported that the vehicle was not remaining in its lane and was posing a safety risk to other motorists.

This individual obtained a license plate on the vehicle, a black Dodge Dart, which was identified to Ms. Shelby Paul who is Mr. Chester's girlfriend and co-accused on the current Information. [ 7 ] The witness followed the vehicle to a gas station at Woss and identified the driver as a 25-year-old male. The RCMP obtained videos from that service station which depict an individual matching the description given by the witness. The RCMP identified the male driver as Mr.

Chester. [ 8 ] Approximately 45 minutes later, an RCMP officer located a black Dodge Dart consistent with the previous information, travelling northbound at a high rate of speed. The officer's radar indicated a speed of 164 km/h. The officer activated his emergency lights but the vehicle failed to stop. The police were not able to close the distance and ended the pursuit. [ 9 ] Approximately 13 minutes later, there was another traffic complaint near the community of Zeballos, which is north of Woss.

The individual calling reported that a vehicle matching the earlier description was travelling “fast” through the construction zone and would not stop for construction workers. Information 16794-1: November 25, 2019 [ 10 ] The next set of charges arises from events on November 25, 2019 in Port McNeill, BC. [ 11 ] The allegations are that early that afternoon an RCMP officer came upon a motor vehicle collision on Highway 19, near Port McNeill. A vehicle occupied by Mr. Chester and Ms. Paul had rear-ended a commercial truck. As the officer was conducting his investigation, out of his peripheral vision he saw Mr.

Chester throw something into the ditch. At the same time, the officer heard a loud bang, which the officer thought could have been a gunshot. Upon questioning, Mr. Chester told the officer that he threw car parts from the collision. Both Mr. Chester and Ms. Paul sustained minor injuries because of the collision and were transported to the hospital. [ 12 ] The investigating officer remained at the scene and began to examine the ditch or bush area from which he heard the sound (the loud “bang”) emanate.

He found a loaded 12-gauge pump action shotgun in the ditch with a spent cartridge in the chamber and live rounds in the magazine. He also found a butt stock pad near the vehicle in which Mr. Chester and Ms. Paul were occupants. The officer determined that the shotgun was still "relatively dry" and formed the opinion that the shotgun had been recently placed there, that Mr.

Chester had thrown the shotgun into the ditch, that the shotgun had discharged when it was thrown, and this was the noise that was heard by the investigating officer. [ 13 ] Upon finding the loaded shotgun, the investigating officer contacted Sgt. Phillips who was at the hospital with Mr. Chester, and relayed what he had found in the ditch - the loaded shotgun. At that point, Sgt. Phillips advised Mr. Chester that he was under arrest because the police had discovered a firearm. Judge Brooks heard that Sgt. Phillips took Mr. Chester's arm and was trying to handcuff him when Mr.

Chester pulled away and fled on foot. A chase followed but Mr. Chester escaped into the forest. [ 14 ] Mr. Chester has a significant criminal record which was before Judge Brooks. That criminal record is replete with offences of

violence, breaches of court orders and undertakings as well as a prior conviction for escape from lawful custody. Given these circumstances, and the fact that a loaded shotgun was found near the vehicle occupied by Mr. Chester, the local Port McNeill police were very concerned that Mr. Chester was loose in the community, desperate to avoid capture, and posed a significant threat to the public. Businesses and schools were locked down and there was a significant visible police presence, but Mr.

Chester did not turn himself in. [ 15 ] Constable England from the Campbell River detachment arrived a number of hours later with his police service dog to assist in locating Mr. Chester. A resident saw a man running through a back yard and from there the police service dog was able to pick up a track and ultimately locate Mr. Chester in a heavily wooded area. In the course of his capture and arrest, Mr. Chester sustained a dog bite to his right arm. [ 16 ] Judge Brooks heard that subsequent to a search of the vehicle in which Mr. Chester and Ms.

Paul were occupants, the police located almost $10,000 in Canadian currency separated into a number of bags and divided into denominations. For example, they found two bundles of $50 bills, five bundles of $20 bills, thirty-one $10 bills and several $100 bills. They also found dime bags, containers of plastic bags, score sheets, cell phones, as well as drug paraphernalia. In a hidden compartment underneath the glove box, the police found what they believed at the time to be cocaine and marijuana.

Judge Brooks was also advised that the police found four different types of ammunition, Smith & Wesson handcuffs, weighted gloves, four knives, a hammer and a bat. Original Release Plan [ 17 ] Mr. Chester proposed that he would reside with his stepfather and mother, Ms. Stedmak, in Port Alberni. His mother would act as a surety in the amount of $10,000, he would be subject to electronic monitoring and 24-hour house arrest with exceptions if in the presence of his mother or stepfather or with the permission of his bail supervisor. A technical suitability report confirmed that electronic monitoring in Ms.

Stedmak’s home was feasible. He also agreed to participate in counselling and to comply with conditions that he abstain from drugs or alcohol, not be in possession of drug paraphernalia, weapons or knives and that he would agree to a condition that he not be in the driver seat of a motor vehicle. [ 18 ] Ms. Stedmak and her husband are retired. Ms. Stedmak gave evidence during the bail hearing. She told the court that Mr. Chester had been residing with them in Port Alberni from February until September 2019. Mr. Chester had resided with them previously and she acknowledged that she has been a surety for Mr.

Chester on two prior occasions, once in 2017 and possibly five years earlier. Ms. Stedmak and her husband reside in a home worth about $232,000 and have no mortgage. [ 19 ] Defence counsel (not defence counsel appearing on this application) highlighted that there were triable issues in both cases. With respect to the events on November 25, 2019, counsel (at that time) for Mr. Chester submitted that no one actually saw what Mr. Chester threw into the bushes. Judge Brooks heard that Mr.

Chester told the police that both he and the occupants of the vehicle that had been rear-ended were throwing car parts to the side of the road. Judge Brooks’ Decision to Detain [ 20 ] I have reviewed the transcript of Judge Brooks’ reasons for judgment. Ultimately he detained Mr. Chester on secondary grounds. Judge Brooks was troubled by the allegations that on November 22, 2019, Mr. Chester was driving a vehicle at a high rate of speed and failed to stop for a police officer who was in obvious pursuit. He was alive to the issue as to whether or not Crown could establish that Mr.

Chester was actually the driver. [ 21 ] Judge Brooks then considered the allegations relating to the events on November 25, 2019. Although Judge Brooks was advised of the circumstances flowing from the search warrant and the inference that they were indicia of drug trafficking, he indicated that those were not yet the subject of charges and did not give them particular weight, although he felt those circumstances could reasonably be taken into account. [ 22 ] His primary focus and concern related to Mr. Chester's criminal record.

At para. 9 of his reasons, he stated: Of particular significance is the criminal record of Mr. Chester. It involves twenty-six breaches of court orders and one prior flight from a peace officer, as well as a resisting arrest of a peace officer. He has five obstruction charges and one assault of a peace officer, and he has a trafficking conviction and possession for the purpose of trafficking conviction. He has four prior firearms prohibitions. Four times the court has said to him he is not to possess firearms.

That is very, very significant . [Emphasis added] [ 23 ] He agreed that there were some frailties and triable issues in both cases, but were, generally, strong cases. He took into account the prospect of a “very significant period of imprisonment.". [ 24 ] At para. 13 he said: With regard to the secondary ground, we have a situation which, in my view, is completely different. We have a lengthy criminal record.

We have one in which he has not abided by or shown really much respect at all for prior court orders, and that is extremely significant when we bear in mind the risk to public safety, which exists for an individual who has possessed weapons in a way that is quite shocking. When I take into account those circumstances, I must apply them as against the release plan which is suggested. [Emphasis added] [ 25 ] Ultimately, Judge Brooks concluded that he had no confidence that Mr. Chester would abide by any conditions he would order.

At para. 14, Judge Brooks stated: … I simply have absolutely no trust whatsoever that Mr. Chester would abide by any order I would make and that there would, indeed,

be a substantial likelihood that he would commit further offences … The regularity with which he is done so in the past is a testament to that. THE LEGAL FRAMEWORK [ 26 ] I have had the benefit of reviewing the legal authorities provided by both counsel. In R. v. Frederickson , [2018] B.C.J. No. 3509 , the Honourable Judge Malfair provides a thorough and helpful review of the law relating to judicial review of previous bail orders. [ 27 ] Frederickson involved a bail review hearing under s. 523(2)(

a) which may take place at any time before the trial judge. That

section contains the following provision: Order vacating previous order for release or detention

(2) Despite subsections (1) to (1.2), (

a) the court, judge or justice before which or whom an accused is being tried, at any time, may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted. [ 28 ] Judge Malfair succinctly summarized the principles that must be considered in determining a s. 523 (2)(

a) application to vacate a previous order of detention: 1. A s. 523(2)(

a) application is in the nature of a review and is not a hearing de novo . 2. The trial judge’s role is not to substitute his or her own view for that of the judge or justice who detained the accused, rather, the focus is on whether there has been a material change in circumstances since the detention order was made. 3. The onus is on the accused to show there has been a material change of circumstances such that his or her continued detention is no longer justified. 4.

The material change of circumstances can relate to: a. delay of the trial; b. the apparent strength of the Crown’s case; or c. where the accused was detained on the primary, secondary or tertiary grounds, material changes to any circumstances underlying the judge or justice’s reasons for detaining the accused, such that detention on those grounds is no longer warranted. 5. While the trial judge should be mindful of trial delay in considering the application, delay alone is not determinative of release.

Delay is relevant to the issue of whether or not the passage of time has changed the circumstances relied on by the detaining judge or justice which were the material basis of his or her decision to detain the accused. 6. When assessing the strength of the Crown’s case, the trial judge in a s. 523(2)(

a) application is not providing a mid-trial opinion as to whether or not the Crown will ultimately succeed in establishing the accused’s guilt beyond a reasonable doubt. Rather, the trial judge is engaging in a comparative analysis, considering whether the Crown’s case is now materially weaker than when first considered by the detaining judge or justice. If so, the trial judge should consider whether there is still a “reasonable prospect of conviction”, which is a standard less than a balance of probabilities. 7.

Even if there has been a material change in circumstances, the trial judge must consider whether further detention of the accused in custody is justified having regard to the criteria under s. 515(10). [ 29 ] The application before me is pursuant to s. 523(b). Section 523(2)(

b) contains virtually identical provisions: Order vacating previous order for release or detention

(2) Despite subsections (1) to (1.2), (

b) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other than an offence listed in

section 469, may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted. [ 30 ] As in an application pursuant to s. 523(2) (a), a review upon completion of a preliminary inquiry pursuant to s. 523(

b) allows the presiding judge to consider whether, after hearing evidence during the preliminary inquiry, detention or release of an accused remains justified. When it involves the review of a detention order, the purpose of both ss. 523(2)(

a) and (

b) is to prevent an accused person from languishing in jail when, due to changed circumstances, his detention order is no longer appropriate. Those changed circumstances may relate to changes in the accused person’s release plan or personal situation. The Crown's case may not be as strong as it appeared at the bail hearing or it may become apparent that there are real and significant Charter issues or defences that have more merit than initially thought. The types of factors a court may consider are not closed. The important point is that the accused must establish, on a balance of

probabilities, some substantial or material change since the original detention order such that detention is no longer justified. [ 31 ] In my view, the guiding principles applicable to a bail review under s. 523(2)(

a) also apply to a review under s. 523(2)(

b) and I proceed with those principles in mind. [ 32 ] In this particular case, while the preliminary inquiry commenced, counsel consented to a committal without calling any evidence. Accordingly, the context within which I assess the original detention order must be based upon submissions of counsel, Mr. Chester’s affidavit and a letter from Ms. Arend, Assistant Deputy Minister with BC Corrections.

Some of the allegations I heard during submissions were not before Judge Brooks. [ 33 ] Although a bail review is not a hearing “ de novo ”, the reviewing court may hear allegations that was not before the original judge. This is so whether the review is under any of the review provisions. Sections 520 and 521 expressly allow the reviewer to consider the transcript of the proceedings heard by the previous judge or any exhibits and such additional evidence or exhibits as may be tendered by the accused or the prosecutor : s. 520(7)(

c) and s. 521(8)(c). [ 34 ] Section 525(6) expressly incorporates s. 518, a provision that allows a justice to receive and base a decision on evidence considered credible or trustworthy, in the circumstances of each case. [ 35 ] The s. 523(2)(

a) or (

b) review, whether it be during a trial or following a preliminary inquiry, logically contemplates that the reviewing judge will hear evidence that may not have been before the original judge. [ 36 ] I conclude that, in reaching a determination on a s. 523(2) (

b) bail review, I can consider allegations that were not before Judge Brooks. PROPOSED RELEASE PLAN [ 37 ] Counsel for Mr. Chester was candid that the release plan is the same one before Judge Brooks. Mr. Chester would reside in Port Alberni with his stepfather and mother, Ms. Stedmak, both of whom are willing to act as sureties in the amount of $10,000. He would have a condition of house arrest unless accompanied by one of his sureties. He is also willing to abide by an electronic monitoring condition. CHANGE IN CIRCUMSTANCES SINCE THE DETENTION ORDER [ 38 ] Mr.

Chester says that since that detention order on December 10, 2019 there have been a number of substantial changes. [ 39 ] On July 15, 2020, Mr. Chester was acquitted of charges relating to events on November 22, 2019 (Information 17098-1). [ 40 ] Furthermore, at the outset of the preliminary inquiry on the current Information, Crown amended Count two to allege possession of a non-restricted (as opposed to a “loaded prohibited or restricted”) firearm, namely a 12-gauge shotgun, contrary to s. 91(1) . The Crown has proceeded by indictment and the maximum jail sentence under the amended

section is five years rather than ten years for the charge as previously alleged. [ 41 ] Mr. Chester intends to raise significant Charter issues that may lead to the exclusion of evidence that "will effectively gut the Crown's case." He intends to allege that contrary to s. 10(

a) of the Charter , Sgt. Phillips failed to adequately or properly inform him of the reason that he was being arrested and simply telling Mr. Chester that he was under arrest because “(they) found the gun” was insufficient. [ 42 ] He will allege that, contrary to s. 9 of the Charter, his arrest was without reasonable and probable grounds and arbitrary because the investigating officer did not see Mr.

Chester throw a firearm; the officer could not be certain the loud bang he heard was from a firearm; and, at the time of arrest, did not know whether the butt stock found near the vehicle matched the firearm found in the ditch. [ 43 ] He will also allege that his apprehension by a police service dog and resultant injury was a breach of his right to security of his person and contrary to s. 7 of the Charter . [ 44 ] Mr. Chester also says that he may not receive a timely trial. He raises a significant concern that his co-accused, Ms.

Paul, may not be able to retain new counsel quickly enough to represent her at trial. Following my inquiries of counsel during this hearing, I was advised that the trial coordinator for the Supreme Court of British Columbia has indicated the earliest trial date may not be until May 2021. [ 45 ] Lastly, Mr. Chester strenuously argues that he has been in custody on remand since November 25, 2019. Because of the current pandemic, and since March 2020 Mr. Chester says that he is enduring extremely difficult conditions that I should consider in assessing the change in landscape since December 10, 2019.

He says that due to safety measures implemented by BC Corrections, he can only go outside every second evening for twenty minutes; he cannot use exercise equipment; he does not have a cellmate; family visits have been suspended; and he has a very limited ability to leave his cell even to contact his counsel. He shares a small outside yard with mentally ill offenders, which has also been extremely difficult. [ 46 ] He says he is an asthmatic and that if he were to contract the COVID-19 virus it could have serious implications for him.

ANALYSIS AND DISCUSSION The Acquittal (November 22, 2019 Offence) and Charge Amendment (November 25, 2019 Offence) [ 47 ] I agree that the subsequent acquittal on the driving and flight from police charges is a change in circumstances. The allegations arising from the events on that day were considered by Judge Brooks who was clearly troubled by the allegation that Mr. Chester fled, in a vehicle, from a peace officer. On my reading of the transcript of his reasons for judgment, it is also apparent that Judge Brooks related

his concern to the “totality of the circumstances” - a reference to the events of November 22, 2019. [ 48 ] Judge Brooks detained Mr. Chester on the secondary ground and concluded there was a substantial likelihood that Mr. Chester would reoffend if released and that no conditions, even house arrest with a surety, could be imposed to ameliorate that risk. His reasons were clear. Judge Brooks pointed to the fact that Mr. Chester has a lengthy criminal record. Although he stated, in his reasons, that Mr. Chester had a prior conviction for trafficking, he actually has three prior convictions for trafficking. Mr.

Chester has a conviction for possession for the purpose of trafficking; two convictions for assault; two convictions for assault with a weapon; one conviction for assault with intent to resist arrest; five convictions for resisting or obstructing a peace officer; and a conviction for flight from a peace officer. His record is also replete with breaches of probation and release orders. Judge Brooks referred to Mr. Chester having four prior firearms prohibitions, although I counted five prohibitions in total throughout his record.

He has two lifetime firearms prohibitions and a ten-year firearms prohibition, which were in effect on November 25, 2019. [ 49 ] The prior criminal record and the previous firearms prohibitions were, in Judge Brooks’ words, “very, very significant” in his assessment of Mr. Chester’s release plan and his willingness to abide by conditions. Judge Brooks was clear that he had no confidence that Mr.

Chester would comply with any order that he could make. [ 50 ] Judge Brooks was alive to the fact that there were triable issues in relation to the November 22, 2019 charges and the identity of the driver. [ 51 ] The amendment to Count two of Information 16794-1 reduces the maximum penalty to five years. While I accept this may result in Mr. Chester receiving a lesser sentence for this offence as amended, it is still serious when viewed in light of the fact Mr.

Chester’s was subject to three firearms prohibitions at the time of the alleged offences. [ 52 ] The issue I must decide is whether these changed circumstances were “material to the basis upon which detention (was) ordered, namely the primary or secondary ground…”: R. v. Prete , [1987] O.J.

No. 2480 (15 December 1987). [ 53 ] While I agree that each of these events is a change since the original detention order, I am unable to conclude that the acquittal on Information 17098-1, or the amendment to Count two on the current Information 16794-1, constitutes a change that is material to the basis on which detention was ordered. Charter Issues and Strength of the Crown’s Case [ 54 ] Mr. Chester intends to raise Charter issues at his trial that will, he says, substantially undermine the Crown’s case. It is difficult to assess the strength of Mr.

Chester’s Charter arguments having no evidence other than the alleged facts and Mr. Chester’s assertions. I also keep in mind that even if he is successful in establishing a breach of a Charter right, Mr. Chester still has to establish that the evidence ought to be excluded or another judicial remedy is appropriate. The fact that Mr.

Chester will assert a breach of his Charter rights at his trial does not constitute a material change in the circumstances that Judge Brooks considered and the underlying basis for his decision to detain. [ 55 ] However, I accept that this argument relates, at least in part, to the strength of the Crown’s case. [ 56 ] The manner in which the strength of the Crown’s case is to be considered during a s. 523 (2) (

a) review was explained in Frederickson : [47] In my view, the “strength of the Crown’s case” analysis must be grounded in the context of a change in circumstances which is the fundamental consideration of any application under s. 523(2)(a). The role of the reviewing trial judge is to consider the facts of the case that were put before the detaining judge and assess if those facts have been since been confirmed or refuted in the trial evidence.

In that respect, the trial judge is not providing a mid-trial opinion as to the anticipated outcome of the trial, but is undertaking a comparative analysis addressing any significant changes to the facts relied on by the detaining judge relevant to the strength of the Crown’s case. This was the approach taken by Mr.

Justice Davies in Tse, who ultimately found that the despite the evidence led in the trial before him, he could not say that the Crown’s case was any weaker than when considered by the detaining judge. [ 57 ] During this application, I heard that Crown counsel does not have DNA evidence from the shotgun “at this time”. I was also advised that the police arrived at the collision scene around noon and although it had been raining heavily earlier that morning, the shotgun found by the police officer was still relatively dry. This caused the officer to believe that the gun had been placed there recently.

Judge Brooks was advised only that the shotgun was “still relatively dry” and, coupled with the sound heard by the officer when Mr. Chester threw something, the loaded shotgun being located near the area where something was thrown by Mr. Chester, formed the basis for a circumstantial case. The allegation that it had been raining heavily that morning may serve to strengthen the Crown’s case. [ 58 ] I also heard that an occupant from the vehicle that was rear ended by the Chester/Paul vehicle initially told the police that he did not hear a loud bang but subsequently gave a statement that he did hear it.

These inconsistent statements will undoubtedly be the subject of cross-examination at trial. [ 59 ] In my view, Mr. Chester is essentially articulating the same frailties in the Crown’s case that were highlighted to Judge Brooks. It is clear to me that in reaching his decision, he recognized those frailties. He understood that the Crown’s case in relation to the shotgun was circumstantial. There are no facts either alleged or omitted that change the strength of the Crown’s case in a way that is material. Put another way, I cannot say that the Crown’s case is weaker than when considered by Judge Brooks.

Time to Trial [ 60 ] Mr. Chester’s trial has not been scheduled in the Supreme Court of British Columbia and may not proceed until sometime in May 2021. As an individual in custody, his case will have priority and it may be possible to secure an earlier trial date although I do not know

that. I also recognize that his co-accused, Ms. Paul, has had to retain new counsel and this may affect Mr. Chester’s trial strategy and thetiming of his trial. [61] Mr. Chester says that he has been in custody for “at least 16 months” after factoring credit at 1.5 days. He also says there arecases in which higher pre-sentence credit, “trending upwards to a credit at 3 days” has been given due to COVID-19 lockdownconditions. I respectfully disagree that the weight of authorities stands for such a proposition.

The maximum allowable credit under s.719 (3.1) of the Criminal Code is 1.5 days for every day of pre-sentence custody. Justice Smith, in R. v. Audet, 2020 ONSC 5039, [2020] O.J. No. 3554, referred in his judgment to a chart provided by defence counsel summarizing widely differing approachby courts in deciding the amount of credit for time served in custody under lockdown conditions. Mr. Audet sought 1.5 days credit,which would have given him an additional 223 days credit. Mr. Audet had spent 106 days in complete or partial lockdown and receivedan additional 106 days credit for this time.

However, there was no discussion or analysis concerning the jurisdiction of the court to awardcredit beyond the maximum allowed under s. 719 (3.1). Accordingly, I am unable to accede to the submission that Mr. Chester mayreceive more credit than 1.5 days for every day in custody. [62] He argues that there is a real risk his actual time in custody could exceed his sentence. He has been in custody since November25, 2019, a period of approximately eleven months. With the maximum credit allowed under s. 719(3.1) of 1.5 days, that would equate toabout sixteen months up to the present time.

If his trial does not in fact take place until May 2021, which is something that I cannotdetermine, he will have served approximately eighteen months in custody, which, with credit at 1.5 days, equates to approximatelytwenty-seven months. [63] Crown counsel’s sentencing position suggests the sentence they are seeking may be in the range of six years. At the time ofthese allegations, Mr. Chester was subject to three firearms prohibitions, was on probation, and has a lengthy criminal record thatincludes four prior convictions related to trafficking.

If convicted of the current offences, I accept Judge Brooks’ assessment that “theprospect of the penitentiary is very real in these circumstances.” [64] I am unable to conclude that Mr. Chester’s time in custody awaiting a trial is likely to exceed a potential sentence. [65] There may be situations in which the passage of time since the offence has resulted in events or facts that constitute a materialchange in circumstances that have ameliorated the risk that resulted in the original detention order.

In this case, I cannot say that thepassage of time alone, and in particular the possible time to trial, is a material change that militates in favour of release. The COVID-19 Pandemic [66] Mr. Chester was in custody when the world entered a pandemic. I accept that this is a material change in circumstances and issomething I should consider in the application before me. The risk of transmission of the COVID-19 virus increases when individualsare living in close proximity to one another and particularly when indoors. I have no doubt that he is enduring living conditions that areemotionally and physically difficult.

In his affidavit, he stated that he is asthmatic and contracting the virus could have seriousimplications for him. [67] Corrections has implemented a number of policies to limit the transmission of the virus, but that substantially reduce the qualityof life for inmates. Those policies include suspension of all in-person visitors, unless urgent, and a reduction in the activities andprograms for people in custody. Mr. Chester says that he is alone in a cell and is only allowed outside for meals and limited exerciseoutdoors. He spends a great deal of time in isolation.

On the other hand, the reduction in personal interactions and other activities at thecorrectional centre reduces the risk of a COVID-19 infection. [68] I have no evidence that the Vancouver Island Correctional Centre is experiencing, or has experienced, an outbreak - likely due tothe implementation of World Health Organization and the Provincial Health Services protocols. [69] The difficult circumstances that Mr.

Chester is experiencing and the increased risk of contracting the COVID-19 virus, must beweighed against the need to detain him on secondary grounds if it remains necessary for the protection of the public: R. v. Leppington,2020 BCSC 546, para. 32. If a proposed release plan is sufficient to address the secondary ground, release may be justified: R. v. J.S.,2020 ONSC 1710 , [2020] O.J. No. 1206, para. 13. [70] I turn now to Mr. Chester’s release plan as it relates to the secondary ground and the need to protect the public.

I recognize thatsurety bail is one of the most onerous forms of release, but it was not sufficient to allow Judge Brooks to release Mr. Chester. The releaseplan proposed again necessarily involves an assessment of Ms. Stedmak’s ability to supervise Mr. Chester if released. [71] Judge Brooks believed that Ms. Stedmak’s willingness to act as surety for her son was made in good faith. However, he was notaware that Crown alleges that she is the registered owner of the vehicle occupied by Mr. Chester and Ms. Paul on November 25, 2019.

Itis to be recalled that a search of that vehicle resulted in the seizure of a significant quantity of money – close to $10,000; weapons –including four kinds of ammunition, handcuffs, a hammer, a bat and weighted gloves; 34.5 grams of fentanyl in a hidden compartment,and other items that may be consistent with drug trafficking (score sheets, sandwich bags and two prepaid empty cell phone packages). Adrug expert placed the street value of the fentanyl between $3,990 and $10,350. [72] Judge Brooks was also unaware that Ms.

Stedmak gave a statement to the police that she gave her son that money so he couldpurchase a vehicle. [73] The cash in the Chester/Paul vehicle was separated with elastic bands in bundles totalling $2,740, $4,230, $2,100 and $690. Itwas organized and separated by denominations. It defies common sense that Ms. Stedmak would give her son close to $10,000 cash,packaged in this manner. When viewed in light of the other items seized following the search of the vehicle, I have a great deal ofdifficulty accepting Ms. Stedmak’s assertion to the police that the cash was hers. [74] The fact that Mr.

Chester was an occupant of a vehicle owned by Ms. Stedmak, coupled with Ms. Stedmak’s statement to thepolice that the bundled cash came from her, leads to me to have grave reservations about her ability to supervise her son in a manner that

will prevent him from committing further offences that are a danger to the community. [ 75 ] Mr. Chester has a lengthy criminal record which includes convictions for assault with intent to resist arrest, resisting or obstructing a peace officer and escape from lawful custody. During his arrest, Mr. Chester fled from Sgt. Phillips resulting in an intensive search that concluded only when found by a police service dog. [ 76 ] There is an allegation that a shotgun was in Mr.

Chester’s possession and that it was handled in a careless manner; there is evidence that may suggest he was engaging in drug trafficking; he fled from police during his arrest; and he has a lengthy and related criminal record. I am not satisfied that Mr. Chester’s release plan will attenuate the substantial risk that he will commit further offences and pose a risk to the public if he is released pending his trial. [ 77 ] I have given considerable thought to the difficult conditions Mr.

Chester is experiencing in custody due to COVID-19 protocols as well as his concern that he may be at heightened risk due to asthma. In the circumstances of this case, those difficulties must give way to the concern for public safety if he were released and, in my view, his detention is necessary for the protection of the public on the secondary grounds. CONCLUSION [ 78 ] In conclusion, Mr. Chester has not established that the original detention order should be terminated or varied. Accordingly, his application is dismissed. _______________________________ The Honourable Judge B.

Flewelling Provincial Court of British Columbia