R. v. Murphy, 2019 BCPC 361

Citation: R. v. Murphy 2019 BCPC 361 Date: 20191220 File No: 18055-1 Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. SEAN JOSEPH MURPHY BAN ON PUBLICATION 517 CCC; 486.4(1) CCC ORAL REASONS FOR JUDGMENT AT JUDICIAL INTERIM RELEASE HEARING OF THE HONOURABLE JUDGE S. MERRICK Counsel for the Crown: T. Cockfield Counsel for the Defendant: J. Oppal Place of Hearing: Sechelt , B.C. Dates of Hearing: Oct. 9, 22; Nov. 8, 20; Dec. 6, 17, 19, 2019 Date of Judgment: December 20, 2019

[1] THE COURT: Sean Joseph Murphy is charged with sexually assaulting R.B., confining R.B. and stealing money from R.B. These allegations are contrary to s. 271, 279(2) and 334(

b) of the Criminal Code, and are alleged to have occurred August 26th and 27th,2019. This is Mr. Murphy's application for judicial interim release. [2] The Crown opposes Mr. Murphy's release on the secondary and tertiary grounds. Mr. Murphy seeks to be released to alicenced facility registered with the assisted living program that is monitored and staffed 24 hours a day. A BRIEF

SUMMARY OF THE ALLEGATIONS [3] On August 26, 2019, R.B. had finished work and had walked to the nearby shopping mall, where she encountered Mr.Murphy. R.B. had seen Mr. Murphy around town but did not know his name. Mr. Murphy made a comment about R.B. being oncrutches. R.B. continued her shopping at the mall and then went to another store downtown. [4] En route back to the bus stop she encountered Mr. Murphy again. Mr. Murphy asked R.B. for a cigarette. R.B. began feelingill. The two walked behind a store. R.B. was feeling ill and there was a belief that it was due to a low blood sugar. Mr.

Murphy offeredR.B. some Coca-Cola, which she drank. Mr. Murphy also offered R.B. some CBD and THC, which she smoked. [5] After that R.B. and Mr. Murphy went by taxi to a camper that Mr. Murphy had access to. At some point during the eveningMr. Murphy left with R.B.'s bank card and withdrew a sum of money from the Bank of Montreal. R.B. says that was done without herconsent. [6] In the camper overnight and into the early morning hours, R.B. alleges that she was drugged by Mr. Murphy, confined, andsexually assaulted. Mr. Murphy denies the allegations. THE LAW [7] Crown counsel seeks Mr.

Murphy's detention as noted on the secondary and tertiary ground. Dealing with the secondaryground, I refer to Mr. Justice Halfyard's decision in R. v. Abdel-Rahman, 2010 BCSC 189. Section 515(10)(

b) of the Criminal Codestates that: the detention of an accused in custody is justified on the secondary ground: where the detention is necessary for the protection or safety of the public, including any victim of or witness[es] 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 . . .

At paragraph 21 of the Abdel-Rahman decision, Justice Halfyard notes: The limits within . . . detention on the secondary ground may be justified were described by Chief Justice Lamer in R. v. Morales, (SCC), [1992] 3 S.C.R. 711 (at para. 39) in the following words:. . . Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while onbail.

Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration ofjustice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justifiedonly when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous. . . . At paragraph 22 Justice Halfyard notes: In R. v. Wilcox 2005 BCSC 1785 . . . Mr.

Justice Barrow (at para. 22) further clarified the limits of the secondary ground by stating thatbail should not be denied unless “that risk cannot be adequately addressed by the imposition of appropriate terms of release.” Justice Halfyard continues in paragraph 22 that he takes the: . . . statement to refer to the “necessity” of detention, and to mean that even significant risks can be addressed by strict bail conditions,provided the risk to public safety does not amount to a “substantial likelihood.” At paragraph 23 Justice Halfyard notes that in his opinion: . . . the decisions that a judge must necessarily make in order to reach the conclusion that detention is justified on the secondary ground,are . . . [as follows]:

a) First, that there is a risk that the accused will either commit an offence, or will interfere with the administration of justice, if . . .released;

b) Second, that this risk is of such magnitude that it amounts to a “substantial likelihood;”

c) Third, that the . . . risk would constitute a danger to public safety (in general, or to a specific victim or witness) if the accused isreleased; and

d) Fourth, that the detention of the accused is “necessary,” because the identified danger to public safety cannot be prevented orreduced to an acceptable level by bail conditions (such as reporting to authorities, curfew, no-contact, mobility restrictions, sureties orcash bail).

At paragraph 24 Justice Halfyard comments: In describing the foregoing decisions, I am relying on my

interpretation of the majority judgment of Lamer C.J.C. in R. v. Morales. [8] In R. v. Myers, 2019 SCC 18 at paragraph 67, the Supreme Court of Canada noted as follows: . . . It was within the bail judge’s discretion to determine whether the release strategies presented by counsel addressed the risk that ifreleased from custody, Mr. Myers would commit a criminal offence or interfere with the administration of justice within the meaning ofs. 515(10)(b).

That being said, judges and justices presiding over bail hearings should always give very careful consideration to releaseplans that involve supervised treatment for individuals with substance abuse and mental health issues. Release into treatment withappropriate conditions will often adequately address any risk raised under s. 515(10), and such a strategy is a less onerous alternativethan provincial remand. It may also substantially address the root causes of the accused person’s alleged criminal behaviour and reducethe likelihood of future criminal conduct.

In accordance with the principles articulated in Antic, we must not lose sight of the fact thatpre-trial detention is a measure of last resort. ANALYSIS A. Is there a risk that Mr. Murphy will either commit an offence or will interfere with the administration of justice if he isreleased? [9] Mr. Murphy has a lengthy criminal record. He has convictions in 2017 and 2018. I am of the view and have determined thatthere is a risk that if I release Mr. Murphy he will commit further offences or interfere with the administration of justice if released. B.

Is the risk of such a magnitude that it amounts to a substantial likelihood? [10] Mr. Murphy, prior to his arrest on October 2nd, was in active addiction. Since 2011 he has been convicted of criminal offencesevery year except for 2015 and '16, but in 2015 Mr. Murphy spent a significant portion of that year in jail. Given the repeated offendingbehaviour, I am of the view that the risk is of such a magnitude that it does amount to a substantial likelihood. C. Does the risk constitute a danger to public safety, either in general or to a specific victim or witness? [11] Mr.

Murphy has been convicted of a number of violent offences and his offending behaviour is directed at women. Mr. Murphyhas approximately 12 convictions for assault, a conviction for assault with weapon and two convictions for criminal harassment and twoconvictions for utter threats. I am therefore satisfied that the substantial likelihood of the risk does constitute a danger to public safety. D. Is Mr. Murphy's detention necessary because the identified danger to public safety cannot be prevented or reduced to anacceptable level by bail conditions? [12] The release plan that Mr.

Murphy proposes is the type of release plan that will often reduce the risk to an acceptable level. Mr.Murphy was arrested October 2nd. He has waited two and a half months before applying for his release. I think that is significant. [13] I accept that Mr. Murphy recognizes that "his substance abuse issues are out of control", and that he wants help. I also take intoaccount that while I would not describe the Crown case as a weak case, there are certainly triable issues. [14] Finally, I remind myself that Mr. Murphy's release is the presumed course of action and that detention is a measure of lastresort.

Those factors weigh in favour of Mr. Murphy's release. [15] Mr. Murphy has identified as indigenous. Crown counsel disputes that based on the fact that Mr. Murphy, when in courtpreviously, has not identified as indigenous. However, I am mindful of the principles in Gladue, and that is a further factor that weighsin favour of Mr. Murphy's release. [16] However, and albeit a few years ago, Mr. Murphy was released to a treatment program and he left the treatment program inviolation of his release terms. I note from a review of Mr.

Murphy's record that he has several convictions for breach of probation. [17] While Crown counsel made reference to a number of public concerns that were related to the police, and Mr. Murphy arguedthat little weight should be given to them because they do not form charges, the one that I am giving weight to is that earlier this yearMr. Murphy attended at Sechelt Mental Health and Addiction, apparently seeking treatment but acted inappropriately with the femalestaff person. As a result, that organization has prohibited or barred Mr. Murphy from attending at their location.

It is my judgment thatthis does question, at least at an earlier time, Mr. Murphy's sincerity with respect to attendance at treatment. [18] I am also very concerned by the fact that Mr. Murphy has two prior convictions for unlawfully at large. In 2018 Mr. Murphywas sentenced to an intermittent sentence. He was convicted for unlawfully at large because he did not attend as required by theintermittent sentence order and was arrested or found on the Downtown East Side. In 2012 Mr. Murphy was also convicted ofunlawfully at large, again for failing to attend as required for his intermittent sentence.

I note that that intermittent sentence was grantedto Mr. Murphy for two convictions for s. 811 breach charges. CONCLUSION [19] I appreciate and agree that release to a supervised treatment program will often reduce the risk to an acceptable level, even moreso when as in this case an accused does not immediately proceed with a release application. I remind myself once again that detention isa measure of last resort. [20] However, the release plan requires a level of confidence that Mr. Murphy will comply with the release conditions. Mr.

Murphyhas four prior convictions for breach of probation and four prior convictions for breach of recognizance. As noted, he has two priorconvictions for unlawfully at large and on a previous occasion he left a treatment centre in violation of his release terms.

[ 21 ] Consequently, I do not have the required level of confidence needed to release Mr. Murphy. I think if I release Mr. Murphy there is too great a danger he will leave the program and if he does, he poses a significant danger to the public. [ 22 ] Consequently, bail is denied on the secondary ground. (JUDGMENT CONCLUDED)