R. v. Takakenew and Takakenew Date:, 2017 BCPC 99

Citation: R. v. Takakenew and Takakenew Date: 20170307 2017 BCPC 99 File Nos: 220637-1; 220637-2-C Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. SHANE BRANDON LEE TAKAKENEW and SHANE CONRAD TAKAKENEW RULING ON APPLICATION OF THE HONOURABLE JUDGE A.M. WOLF Appearing for the Crown: S. Sfikas (for Federal Crown) Counsel for the Crown: A. Jantunen (Provincial Crown)

Counsel for the Defendant: A. Dorin (S. Brandon Lee Takakenew) Counsel for the Defendant: K. Beatch (S. Conrad Takakenew) Place of Hearing: Surrey , B.C. Date of Hearing: March 2, 2017 Date of Judgment: March 7, 2017 INTRODUCTION [ 1 ] There are two accused. Shane Conrad Takakenew (Mr. Takakenew Sr.) and Shane Brandon Lee Takakenew (Mr. Takakenew Jr.). They are father and son. They have different histories. They have different personal circumstances. They are jointly charged with some offences. However, they also are separately charged with some offences.

What they have in common is that both the Federal and Provincial Crown are seeking their detention on the secondary and tertiary grounds. Both of these individuals have a right to be presumed innocent of the charges they face and the right to fair and reasonable bail. [ 2 ] This is the written decision of their bail hearing that was heard March 2, 2017. GENERAL COMMENT ON THE CHARGES [ 3 ] The list of charges for both accused is long. It is not uncommon, and well within the discretion of the Crown, to lay charges in different ways.

For example, an accused could be charged with being in possession of a stolen wallet and all of its contents. That would be one charge. That same person could also be charged with being in possession of a stolen wallet (1); license (2); id card (3); and credit card (4), that were all found inside the wallet. In that scenario, there would be four charges. I agree with defence counsel’s submission that many of the possession of stolen property charges could have been charged together and thus the number of charges would be significantly less.

I remind myself that I should not let the quantity of charges distract me from the main issue. Is it necessary to detain either accused as a result of secondary or tertiary grounds? In other words, just because they have many charges does not mean that they should necessarily be detained. They are both presumed innocent of all the charges. [ 4 ] A general description of the charges is helpful. Most of the charges have to do with either breaking and entering into a home, or being found in possession of items that were stolen in those break and enters.

Many of the items that are alleged to be in possession of either of the accused were found in a residence. That residence was occupied by both accused and other family members. The items were also found in different places in the residence. All the items were not located in any one place solely belonging to any particular person. Some were found in the common areas such as the living room, kitchen and bathroom. Other items were located in particular bedrooms. [ 5 ] I believe it is important to make further general observations about the allegations. Most of the homes broken into were targeted.

It appears they may have been chosen as a result of a belief that large sums of cash and jewelry might be found. The method of breaking into the homes in all cases is similar. Many other aspects of the break and enters are alleged to be the same. [ 6 ] Canadian and American currencies in the thousands of dollar value were taken. Many gold bars and a large quantity of jewelry are missing.

The total value of the items missing is not certain, but it appears to be in the $300,000.00 range. [ 7 ] Defence counsel jointly submits that the search of the Takakenew residence was done in a manner that breached their clients’ constitutional rights. One way or the other, a search of the residence was done. All of the stolen articles listed in the charges were located in the residence. [ 8 ] A gem analyzer, money counter and gold tester were also located. I have been given no explanation as to why these items may have been in the residence.

To be clear, there is no onus on any party to help me understand why these items were in the home. However, it is my view that I can infer that these items were used for their logical purpose. A gem analyzer is used to examine and analyze the quality of gems. A money counter is used to count large quantities of currency. A gold tester is used to test the quality of an item that is made from gold. I note that in these break and enters a significant quantity of gems, money and gold were taken. MR. TAKENEW SR. (S. Conrad) [ 9 ] He has fifteen charges. They span over a ten month time period.

Information 83393 April 29, 2015 – break and enter – Clinton Avenue, Abbotsford; August 8, 2015 – break and enter – Kingfisher Drive, Abbotsford; August 14, 2015 – break and enter – Sylvan Place, Abbotsford; September 24, 2015 – break and enter – Astoria Crescent, Abbotsford. Information 220637 December 2, 2016 – possession of Mr. Korfiatis’s currency that was stolen;

December 23, 2016 to January 21, 2107 – possession of stolen wallet; December 23, 2016 to January 21, 2017 – possession of stolen identity document; December 23, 2016 to January 21, 2017 – possession of stolen identity document; December 23, 2016 to January 21, 2017 – possession of stolen identity document; December 23, 2016 to January 21, 2017 – possession of stolen identity document; December 23, 2016 to January 21, 2017 – possession of stolen iPad; January 19, 2017 to January 21, 2017 – possession of stolen camera; January 19, 2017 to January 21, 2017 – possession of stolen property; January 19, 2017 to January 21, 2017 – possession of stolen camera and purse; January 20, 2017 to January 21, 2017 – possession of stolen watch and jewelry.

MR. TAKAKENEW JR. (S. Brandon Lee) [ 10 ] The following is a brief outline of Mr. Brandon Lee Takakenew’s twenty-two charges. They span over an eleven month time period. Information 233634 February 26, 2016 – did traffic in marihuana; February 26, 2016 – did traffic in cannabis resin. [ 11 ] This set of charges is set for trial in May 2017. Essentially, a police officer received information from craigslist, arranged for a buy of narcotics and Mr. Takakenew Jr. was arrested as a result of an undercover operation.

Information 220637-C-2 November 24, 2016 – break and enter – 94 A Avenue; December 2, 2016 – possession of Mr. Korfiatis’s currency collection; December 23, 2016 to January 2, 2017 – break and enter – 170 A Street; December 23, 2016 to January 21, 2017 – possession of Ms. Zhou’s wallets; December 23, 2016 to January 21, 2017 – possession of Ms. Zhou’s identity document; December 23, 2016 to January 21, 2017 – possession of Mr. Du’s identity document ; December 23, 2016 to January 21, 2017 – possession of G. Zhou’s identity document; December 23, 2016 to January 21, 2017 – possession of A.

Zhou’s identity document; December 23, 2016 to January 23, 2017 – possession of stolen IPad; January 19, 2017 to January 21, 2017 – possession of stolen camera; January 19, 2017 to January 21, 2017 – possession of stolen coins; January 19, 2017 - break and enter – 168 A Street; January 19, 2016 to January 21, 2017 – possession of stolen camera and purse; January 19, 2017 - break and enter – 104 th Avenue; January 19, 2017 and January 21, 2017 – possession of stolen purse; January 20, 2017 - break and enter – 165 B Street; January 20, 2017 to January 21, 2017 – possession of stolen iPad and knife; January 20, 2017 to January 21, 2017 – possession of stolen watch and jewelry; January 20, 2017 – break and enter – 105 A Avenue; January 20, 2017 – break and enter – Cherryhill Close.

THE PROVINCIAL CROWN SUBMISSIONS [ 12 ] The Provincial Crown seeks to revoke the previous bail that Mr. Takakenew Sr. received on his outstanding Abbotsford matter. That trial has commenced and is scheduled to continue in the fall of 2017, approximately eight months from now. A significant amount of evidence has been heard. [ 13 ] Federal Crown seeks to revoke Mr. Takakenew Jr.’s bail on a set of Vancouver drug charges. That trial is scheduled to commence in the fall. [ 14 ] All counsel agree that both the accused are in a reverse onus situation. [ 15 ] The Provincial crown submits Mr.

Takakenew Sr.’s criminal record supports his detention. DEFENCE COUNSEL’S SUBMISSIONS [ 16 ] Counsel on behalf of both accused submit that they can both be released on similar terms to their previous bail. Essentially, the argument is that any secondary or tertiary ground concerns can be adequately addressed by the imposition of restrictive bail conditions. Mr. Takakenew Jr. [ 17 ] Ms. Doran, counsel for Mr. Takakenew Jr., has pointed out that her client had a bail hearing on one break and enter charge on January 25, 2017 and the Honourable Judge Dohm released him.

I understand counsel’s submission to be that while there are new charges that have been laid since that judicial interim release hearing, there have been no breaches of his bail. She further submits that he has no criminal record, has ties to the community, a residence, and poses no risk to re-offend. She further argues that there are no tertiary ground concerns that need to be dealt with. In the alternative, it is argued that any concerns the court has can easily be dealt with by imposing restrictive conditions on Mr. Takakenew Jr. Mr. Takakenew Sr. [ 18 ] Mr. Beatch, counsel for Mr.

Takakenew Sr., on behalf of his client, argues that his client has a related record. However, it is strongly submitted that the record is extremely dated. In 2008 there was a break and enter conviction. The accused received 18 months jail. In April 1999, there is a break and enter conviction. He received a 15 month jail sentence. In February 1999, there are two entries for break and enter. He received a 15 month jail sentence. Going further back, in 1993 he received 15 months jail for a break and enter. In 1991, he received 5 months jail for a break and enter.

Finally, in 1987 there is another break and enter, where he received 3 months jail. There are other related and non-related offences on his record. I agree with defence counsel. His record is dated. I add, however, that he has six previous break and enter convictions. THE LAW – SECONDARY AND TERTIARY GROUNDS [ 19 ] I reviewed some of the law in a previous decision in the 2016 case of R. v. T.D. BCPC 210, starting at paragraph 9. The circumstances were different.

However, the Crown in that case, as in this case, sought the detention of the accused on the secondary and tertiary grounds, pointing to a number of factors, including allegations of ties to a gang and outstanding charges. The Law on the Secondary Ground [9] Section 515(10) sets out the statutory provisions concerning detention on either the primary, secondary or tertiary grounds. Justification for Detention in Custody, 515(10) [10] The

section reads: For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (

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 (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. [ 20 ] Once more, I agree that both accused are entitled to the presumption of innocence, and I am mindful of the words of Justice Iacobucci in the Supreme Court of Canada in R. v.

Hall , 2002 SCC 64 , found at CanLII, or at [2002] S.C.J. No. 65, and although in dissent, his words are important:

[47] At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fullycompensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, mustplace the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty. [48] In the context of the criminal law, this fundamental freedom is embodied generally in the right to be presumed innocent until provenguilty, and further in the specific right to bail.

When bail is denied to an individual who is merely accused of a criminal offence, thepresumption of innocence is necessarily infringed…one in which the “golden thread” that runs through our system of criminal law isplaced in jeopardy. And this is the context in which laws authorizing pre-trial detention must be scrutinized. [49]

Section 11(

e) of the Canadian Charter of Rights and Freedoms calls particularly on courts, as guardians of liberty, to ensure thatpre-trial release remains the norm rather than the exception to the norm, and to restrict pre-trial detention to only those circumstanceswhere the fundamental rights and freedoms of the accused must be overridden in order to preserve some demonstrably pressing societalinterest. [50] The duty to protect individual rights lies at the core of the judiciary’s role, a role which takes on increased significance in thecriminal law where the vast resources of the state and very often the weight of public opinion are stacked against the individual accused.

Courts must not, therefore, take lightly their constitutional responsibility to scrutinize the manner by which the legislature has authorizedthe detention of the accused in the absence of a conviction. [21] R. v. St. Cloud, 2015 SCC 27 , [2015] 2 S.C.R. 328 clearly states the law as it relates to the tertiary ground. Forexample, strength of the Crown’s case, and gravity of the offences need to be considered.

Once more, at risk of overly simplifying theprinciples we are dealing with, in order to detain an individual on the tertiary grounds, I must be satisfied, having regard to all thecircumstances, that the detention of the accused is necessary to maintain public confidence in the administration of justice. [22] As was pointed out by Justice Romilly in the case R. v. Adiwal, 2003 BCSC 740 , 2003 B.C.S.C. 740, at CanLII, or[2003] B.C.J. No. 3233, the public's confidence in the administration of justice must be analysed in two important contexts. First, it mustbe analysed in the context of the presumption of innocence.

Vital to the proper functioning of the administration of justice in our societyis an understanding and respect for the presumption of innocence. Second, the public confidence aspect must be analysed from the basisof an informed reasonable person. The public confidence ground should not be determined on the basis of gauging public opinion, or toaccord with the general public expectation that bail will be denied to all persons charged with serious offences. [23] As was pointed out in R. v.

Bhuller, 2005 BCCA 409: Courts must be careful not to pander to public opinion or to take account of only the overly excitable…[Referring to R. v. MacDougal,1999 BCCA 50]. …the reasonable person making this assessment must be one properly informed about the “philosophy of the legislative provisions,Charter values and the actual circumstances of the case”. [Referring to R. v. Nguyen, (BC CA), 97 B.C.A.C. 86.] [24] The Honourable Judge Challenger of the Provincial Court of British Columbia, in R. v. E.Z.L., 2013 BCPC 65, citingMcLachlin, C.J., in R. v.

Hall, 2002 SCC 64 states: Given the importance of the presumption of innocence to our justice system, public confidence in the administration of justice will, inmost circumstances, be maintained and enhanced by the pretrial release of accused who are not required to be detained on the primary orsecondary grounds. But there are those cases, those comparatively rare cases, where the tertiary ground in detention is necessary tomaintain confidence in the administration of justice.

Necessary for Protection or Safety of the Public [25] In trying to determine if detention is necessary, the court must consider whether, if there is a substantial likelihood that theaccused will, if released, commit a criminal offence. [26] R. v. Abdel-Rahman, a decision of Justice Halfyard, is a useful authority in considering the meaning of s. 515(10). He quotesMr. Chief Justice Lamer in R. v.

Morales, found at, (SCC), [1992] 3 S.C.R. 711, at paragraph 39, with the followingwords: 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. … SECONDARY AND TERTIARY GROUNDS Mr. Takakenew Jr. [27] Mr. Takakenew Jr. has no criminal record. In early 2016 he was charged with trafficking in drugs. He was arrested andultimately released on bail. That charge is yet to be proven but is set down for trial. The drug he is alleged to have trafficked in iscannabis and cannabis resin. The act of trafficking could result in a jail sentence.

Although, realistically there is no indication that hewas running a dial-a-dope operation and I expect if convicted the sentence would be well within a provincial range. [28] I believe more problematic is that in 2016 he was charged with serious offences of breaking into many different residences. These charges are extremely serious. The accompanying possession of stolen property offences are also serious. [29] I can fully appreciate how an educated member of the public might want Mr. Takakenew Jr. to be detained on the tertiary

grounds. In other words, locking up a drug dealer, who, while out on bail breaks into houses, must be necessary to maintain confidencein the administration of justice, right? [30] But the law requires a different analysis. An innocent person charged with trafficking in marijuana, alleged to have broken intohomes, might be able to be released on certain conditions. I find that his lack of record speaks volumes. He has never been convicted ofa crime. He has never been convicted of breaching his terms of release.

I do not find that he needs to be detained on the tertiary grounds. [31] What about the secondary grounds? Usually, when considering the secondary grounds, one can look to a criminal record. Often the court can glean a sense of the risk to the public by looking at the individual offender’s history with the criminal justice system. In this case, I do not have a history of convictions to consider. Essentially I have a history of allegations. [32] With respect to the allegations, I find the pattern of them very disturbing. There are an overwhelming amount of allegations.

Itis not a question of simply finding one item in a home that he lives in. Timelines are established by cross-referencing security camerafootage. There are many different items found in places strongly associated to Mr. Takakenew Jr. [33] It appears that while released into the community, he was bound by bail conditions. He is alleged to have consistently breachedthose bail conditions by committing many, many different offences. Yes, he is innocent until proven guilty. However, I cannot overlookthe alleged pattern of behavior covering almost a full calendar year time period.

I find this alleged pattern of conduct is strong enough tofind that there are secondary ground concerns. Specifically, I find that even though he has no record, there is a substantial likelihood thatif released, he will commit further offences. I also find those offences would be very serious. [34] Are there conditions that would satisfy me that any secondary ground concerns could be lessened to an acceptable level? Topose the question another way, have conditions been suggested that would mitigate the risk to the public? No. He was released onconditions to the community.

Those conditions were not adequate to address my concerns. No other conditions have been proposed. Iam told that he has ties to the community, yet high cash sureties have not been proposed. While I am not certain that such a judicialinterim release measure would satisfy my concerns, I do not have the option to consider. [35] I find that there is a substantial risk that if Mr. Takakenew Jr. was released then he would commit further offences. I furtherfind that those offences would be extremely serious. Specifically, I believe if released the community would be put at risk of furtherproperty offences by him.

I do not believe the imposition of conditions lessens this risk to an acceptable level and I detain him on thesecondary grounds. Mr. Takakenew Sr. [36] This accused does have a criminal record. It is older, but I believe it provides me with a clear picture of Mr. Takakenew Sr.’sability to abide by conditions. It has no breaches of bail or probation. However, he has been convicted for breaking and entering intopeople’s homes. He has received numerous significant jail sentences. His record is atrocious. It is an interesting and importantsubmission that his counsel makes regarding to his charges.

He is not actually charged with a break and enter. He is charged with beingin possession of items that were taken from break and enters. I wish to be clear in my reasons. I recognize that being in possession ofstolen property is a significantly less serious offence than breaking and entering into a person’s home. But I think his charges need to beplaced into a context. He has an extensive history of break and enters. He lives with his son. His son is charged with break and enters. Mr. Takakenew Sr. is charged with being in possession of the items that were taken from those break and enters. Legally innocent, yes.

But very disconcerting, suspicious circumstances. [37] Mr. Takakenew Sr. also has outstanding break and enter charges. I believe his history, the fact that he was on bail for a numberof break and enter charges, the fact that he is charged with being in possession of so many items allegedly stolen from people’s homes byhis son, put him in a unique position.

I find that a reasonable person, properly informed about concepts of innocent until proven guiltyand other principles of bail would find it necessary to detain him. [38] I find that detaining him is necessary to maintain the confidence in the administration of justice. The onus is on the accused tooffer conditions that satisfy me that he can be released on the tertiary ground. I have not been convinced that a person with a lengthyrelated history of some of the most serious offences in our Criminal Code, in the middle of trial for the same offences, now charged withthese property offences, can be released.

I therefore detain him on the tertiary grounds. I recognize that in doing so, I have found thatexceptional circumstances exist. I recognize that courts should always err on the side of pre-trial bail when possible. I do not findreleasing him on bail as suggested would be reasonable in the circumstances. [39] As for the secondary ground concerns, I find that his record, although dated, gives rise to secondary ground issues. I find that ifreleased, then there is a substantial likelihood that he would commit further offences. These offences could possibly be serious propertyoffences against members of the community.

There are no proposed conditions that I find would lessen the risk to the community to anacceptable level. I find that it is necessary to detain Mr. Takakenew Sr. on the secondary grounds as well. [40] As I detain both of these individuals, I recognize they are both Aboriginal. I am fully aware that for the first time ever ourincarceration rate of Aboriginal accused is higher than ever. Approximately 24 percent of the males that are in custody are Aboriginal. Many of those males are awaiting trial of their matters.

While they still benefit from the presumption of innocence even while they awaittheir trial, they are still locked up in pre-trial facilities. [41] Counsel submit that they are Aboriginal and thus Gladue factors apply. It is my view that at all stages of criminal proceedingscourts need to be sensitive to the over incarceration rate per capita of Canada’s Aboriginal Peoples. The Supreme Court of Canada in R.v. Gladue, (SCC), [1999] 1 S.C.R. 688, asks courts to recognize the unique circumstances of Aboriginal people. Insentencing proceedings, s. 718 (2)(

e) of the Criminal Code of Canada asks the court to consider all alternatives to jail that are reasonablein the circumstances, for all offenders, with particular attention to the circumstances of Aboriginal people. I believe this principle isequally worth applying at the bail stage. [42] In this case I have been told that these two individuals are Aboriginal. That is the extent of the submission. I have not been told

what nation they are from. I do not know whether they are members of a band that has community supports to offer. There have been no submissions, no bail report, nor any Gladue styled bail report made available to me that provides me with any further alternatives, other than the plans proposed by counsel. [ 43 ] There will be no contact conditions put in place for both accused while in custody forbidding direct or indirect contact with each of the named complainants in the charges. The Honourable Judge A.M. Wolf Provincial Court of British Columbia