R. v. M.J.S., 2013 BCPC 443

Citation: R. v. M.J.S. 2013 BCPC 443 Date: 20130116 File No: 1853-1 Registry: [Omitted for publication] IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R.W.K. M.J.S. ORAL REASONS AT JUDICIAL INTERIM RELEASE HEARING (RE ACCUSED R.W.K.) OF THE HONOURABLE JUDGE DE WALLE Youth Matter – Restriction on Access, s. 118 & s. 110 YCJA BAN ON PUBLICATION 517 CCC; Counsel for the Crown: W.J. Hilderman Counsel for Accused R.W.K.: G.A. Verdurmen For Accused M.J.S.: No appearance Place of Hearing: [Omitted for publication] , B.C. Dates of Hearing: January 2, 9, 2013 Date of Judgment: January 16, 2013

[ 1 ] THE COURT: On November 21, 2008, the body of [omitted for publication] T.M. was found on the [omitted for publication] in [omitted for publication]. He had been shot three times. [ 2 ] A lengthy police investigation resulted in a charge of first degree murder against M.J.S. and R.W.K. Both individuals are charged as youths under the Youth Criminal Justice Act . A third individual has been charged separately as an accessory to murder. [ 3 ] The application before this court is made by the Crown, who seeks an order for the detention of R.W.K. pursuant to s. 29(2) of the Youth Criminal Justice Act .

A publication ban under s. 517 of the Criminal Code was made at the outset of this hearing. [ 4 ] In the context of the presumption of innocence and the principles set out in s. 3 of the Youth Criminal Justice Act , I turn to the law and the circumstances of this case. I also note the onus is on the Crown to satisfy the court that the detention of the accused is required. [ 5 ] A

summary of the circumstances set out by the Crown that led to the charge of first degree murder before the court is as follows: [ 6 ] The body of the victim was found at 7:15 p.m. on November 21, 2008, by a person who was walking across the [omitted for publication] in [omitted for publication], British Columbia. Police attended the scene and determined that the victim had been shot three times. There were two bullets that had entered the victim's back and one bullet wound in the back of his head. [ 7 ] Police initially identified M.J.S. and R.W.K. as persons of interest.

Investigation revealed that M.J.S. had been a girlfriend of the victim for a couple of months. Prior to that, she had been in a relationship with her co-accused, R.W.K. [ 8 ] Text messages between the two accused suggest this relationship was back on and that T.M. was interfering in their relationship. Investigation also revealed that on November 10, 2008, a dispute had occurred between R.W.K. and T.M. that had led to some pushing and shoving. [ 9 ] The police investigation stalled when no physical evidence could be found linking either accused to the crime.

On November 21, 2008, the accused R.W.K. was [omitted for publication] years of age. His [omitted for publication] birthday was three weeks away. He is now [omitted for publication] years of age. [ 10 ] In November 2011, the RCMP Unsolved Crime Unit became involved with the investigation. This investigation, that included an undercover "Mr.

Big" component, resulted in the charges of first degree murder that R.W.K. is now facing. [ 11 ] The accused M.J.S. provided the following information to undercover police officers during the investigation: She said that she and R.W.K. had staked out the [omitted for publication] after forming a plan to get rid of T.M. R.W.K. had arranged to borrow a rifle from his friend, D.

M.J.S. then made arrangements with T.M. to meet him at the [omitted for publication], while R.W.K. hid in some nearby bushes. [ 12 ] After the two of them met, M.J.S. told T.M. that she needed to go to the bathroom, and at that time, as she walked away, R.W.K. came out of the bushes and shot T.M. She saw T.M. start to run when he was shot a second time. At that point, T.M. fell to the ground.

R.W.K. walked over to him and shot him a third time while he was on the ground. [ 13 ] Subsequently, R.W.K. also confirmed some of the details of M.J.S.'s statements to the undercover police officers and as well provided more detail. He told police that the gun came from his friend's home. He also said that he was wearing gloves and that there were no loose ends.

He further told police that he threw his jacket into nearby bushes, and that he threw the shell casings, as well as a wallet and cellphone belonging to the victim, into a nearby lake. [ 14 ] R.W.K. also assisted the undercover police officers to recover the murder weapon from D. The weapon was a .22 calibre rifle. The bullets seized from the victim's body came from a .22 calibre firearm. [ 15 ] Following his arrest in the fall of 2012, R.W.K. provided a warned statement to police.

The statement of the accused R.W.K. provides what can only be described as a planned, premeditated, and execution-style killing of a young man. He told police that he and M.J.S. made a plan to lure T.M. to the [omitted for publication] and to kill him. He admitted that he fired three shots into the victim, killing him. [ 16 ] He took a wallet and cellphone from T.M.s’ pocket to make it appear as if the killing involved a robbery.

He also did a videotaped re-enactment of the incident for police detailing the events, including the area where he disposed of the jacket, the shell casings, the wallet, and the cellphone. [ 17 ] I turn to s. 29(2) of the Youth Criminal Justice Act . It reads as follows:

(2) A youth justice court judge or a justice may order that a young person be detained in custody only if (

a) the young person has been charged with (

i) a serious offence, or (ii) an offence other than a serious offence, if they have a history that indicates a pattern of either outstanding charges or findings of guilt; (

b) the judge or justice is satisfied, on a balance of probabilities, (

i) that there is a substantial likelihood that, before being dealt with according to law, the young person will not appear in court when required by law to do so,

(ii) that detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances, including a substantial likelihood that the young person will, if released from custody, commit a serious offence, or (iii) in the case where the young person has been charged with a serious offence and detention is not justified under subparagraph (

i) or (ii), that there are exceptional circumstances that warrant detention and that detention is necessary to maintain confidence in the administration of justice, having regard to the principles set out in

section 3 and to all the circumstances, including (

A) the apparent strength of the prosecution’s case, (

B) the gravity of the offence, (

C) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (

D) the fact that the young person is liable, on being found guilty, for a potentially lengthy custodial sentence; and (

c) the judge or justice is satisfied, on a balance of probabilities, that no condition or combination of conditions of release would, depending on the justification on which the judge or justice relies under paragraph (b), (

i) reduce, to a level below substantial, the likelihood that the young person would not appear in court when required by law to do so, (ii) offer adequate protection to the public from the risk that the young person might otherwise present, or (iii) maintain confidence in the administration of justice. [ 18 ] Subparagraph (3) reads what I have already referred to: The onus of satisfying the youth justice court judge or the justice as to the matters referred to in subsection (2) is on the Attorney General. [ 19 ] The Crown does not seek R.W.K.'s detention on the primary or secondary grounds.

The Crown relies on the third or tertiary grounds set out in subsection (c)(iii); namely, to maintain confidence in the administration of justice. [ 20 ] In the decision of R. v. Bhullar , 2005 BCCA 409 , a decision of the British Columbia Court of Appeal, Madam Justice Rowles determined that, assuming the primary and secondary grounds are met, the denial of bail on the basis of the tertiary ground will be exceptional. [ 21 ] In the Bhullar decision, the B.C.

Court of Appeal went on to say that a court must be satisfied that detention is not only advisable, but necessary, and necessary not just to any goal, but to maintain confidence in the administration of justice. [ 22 ] I turn now to the circumstances and background of R.W.K. [ 23 ] The accused is [omitted for publication] years old and currently lives with his parents in [omitted for publication]. He has lived all his life in [omitted for publication] and has significant roots in the community. He graduated from [omitted for publication] in December 2008.

Since that time, he has held a series of jobs over the years since high school, and since April of 2012 he has been employed at a local [omitted for publication]. He has a steady girlfriend. He is close to his immediate family and he has no prior criminal record. [ 24 ] A series of letters of support and character from family and friends have been filed in this hearing. There are 16 letters of support.

They generally describe the accused as a polite, helpful, and caring individual. [ 25 ] Defence counsel, in his usual thorough manner, has placed before this court a detailed bail plan that includes a $75,000 no-deposit surety by the accused's parents, as well as proposed strict conditions of bail that include residing at the home of the parents. [ 26 ] I turn to s. 29(2) of the Youth Criminal Justice Act , in particular subsection (2)(iii) and subheadings (A), (B), (C), and (D).

With respect to (A), the apparent strength of the prosecution's case, I would note the following: In my view, the Crown in this case has set out a strong prima facie case. Indeed, defence counsel did not seriously challenge the strength of the Crown's case. [ 27 ] I am mindful of the potential issues that may arise at trial, including Charter challenges to the "Mr. Big" investigation, and possible admissibility issues regarding statements by the accused.

I also note that the probable murder weapon has been seized and is connected to the accused. [ 28 ] So it is my view, based on the material before me, that the Crown does have a strong case against R.W.K. [ 29 ] (

B) The gravity of the offence: First degree murder is the most serious offence in the Criminal Code when a killing is involved, so clearly this is a charge of utmost seriousness. [ 30 ] Paragraph (C), the circumstances surrounding the commission of the offence, including whether a firearm was used. I refer to the following circumstances: The outline of the circumstances as provided by the Crown indicate a planned and deliberate and callous murder. There was apparently no issue of provocation or self-defence. There was apparently no involvement of any alcohol or drugs. A firearm was used in the killing of T.M.

I would describe his killing as an execution-style killing, a brutal killing with two shots in the back and a third to the back of the head while he was down on the ground. [ 31 ] I refer also to efforts by the accused and co-accused to cover up the crime, to make it look like an apparent robbery, wearing gloves, and disposing of items after the murder in the bush and into a lake.

[32] (

D) The fact that the young person is liable on being found guilty for a potentially lengthy custodial sentence: The Crown in thiscase expects to seek and will apply for an adult sentence which, if imposed, would result in a life sentence of 25 years, and if sentencedas a youth, this accused would be facing a sentence of 10 years' incarceration, which would be divided between custody andout-of-custody time pursuant to the Act. [33] In the result, the accused is clearly facing a potential lengthy custodial sentence. [34] I turn then to subsection (c)(iii), which refers to maintaining confidence in the administration of justice, which is the focal pointof this bail hearing. [35] These words have been dealt with in a number of decisions.

Some of the decisions that I have been referred to include R. v. Hall,2002 SCC 64 , [2002] 3 S.C.R. 309; R. v. Nguyen (1997) [sic, 2007], (BC CA), 119 C.C.C. (3d) 269; R. v.Patko, 2003 BCCA 262. [36] I turn to the decision in Nguyen, which is a decision of Mr. Justice Warren of the British Columbia Supreme Court, and atparagraph 52, he has this to say, and he is referencing a decision of the decision in Hall, and also a decision from Mr.

Justice Romilly inthe Adiwal case, but citing from paragraph 52, Justice Warren says this: In his analysis, and after referring to the decision in Hall, Romilly J. noted that there are two important contexts to a consideration of thepublic's confidence in the administration of justice. First, and arguably foremost, is the understanding and respect for the presumption ofinnocence.

Second, public confidence must be analyzed on the basis of informed, reasonable persons and not on the basis of gaugingpublic opinions or in accord with a general public expectation that bail will be denied to all persons charged with serious offences. Atparagraph 40 he stated: 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 pre-trial release of an accused who is not required to be detained on the primaryor secondary ground.

Detention may be required on the tertiary ground in relatively rare cases . . . [37] In that case, Mr.

Justice Warren upheld the detention order made on the tertiary grounds by the Honourable Judge Rideout,Provincial Court judge in Vancouver, dealing with the kidnapping circumstances that were set out in the Nguyen case. [38] In that decision, Judge Rideout detained the accused, who was a youth, on the tertiary grounds and that was upheld by JusticeWarren. [39] I have also considered a detailed analysis of the factors to consider when assessing maintaining confidence in the administrationof justice which are found in the decision of R. v.

A.B., which is a decision of the Ontario Superior Court of Justice found at (ON SC), [2006] O.J. No. 394, Justice Ducharme. In that decision, Justice Ducharme sets out a number of factors to consider atparagraph 19 of the decision. I am just going to highlight what he has to say with respect to the various factors. [40] He starts by saying: Thus, at minimum, the reasonable member of the community in assessing the propriety of granting bail to an accused person wouldunderstand and appreciate the following factors: (

a) The importance of the presumption of innocence . . . (

b) The significance of the liberty of the subject and the constitutional guarantee of a right to bail in

section 11(

e) of the Charter . . . (

c) The granting of bail must be assessed on a case-by-case basis, and an accused person should be released if none of the grounds set outin s. 515(10) is satisfied. The reasonable person would understand that there are no offences for which bail is automatically prohibitedand that persons charged with offences as serious as sexual assault and murder are often granted bail . . . (

d) The actual nature of the allegations against the accused person, and the fact that these may or may not be proven at their eventualtrial; (

e) Pre-trial detention can last for many months before trial, a fact that can have a significantly adverse affect on the life of the accusedperson and her or his family . . . (

f) The poor may be more likely to be detained than those accused persons with greater financial resources . . . (

g) Pre-trial detention can significantly complicate the ability of an accused person to prepare their defence . . . (

h) In our system of justice, incarceration is imposed as punishment only after a person has been convicted of an offence . . . (

i) The personal circumstances of the accused person . . . and (

j) The terms imposed by the judge granting bail and how these are designed to prevent the accused from absconding or committingfurther crimes while awaiting trial. [41] As I say, I have only summarized those factors, but that is a comprehensive list, in my view. [42] As well, Justice Ducharme has this to say at paragraph 17, and I am going to quote this one paragraph: The requirement to consider "all the circumstances" in section 515(10)(

c) means that a judge must consider both recent events in thecommunity and the broader social context in which the offence is alleged to have occurred. One of the strengths of our legal system is

that judges are part of their communities. Judges are not a hermetically sealed group living apart from society. Judges, along with theirfamilies and friends, work and live in the broader community and we are neither oblivious nor indifferent to important social issues.Judges are exposed to the same media coverage of crime: we read the same newspapers, we listen to and watch the same radio andtelevision programmes. As a result, judges share many of the concerns of the broader community.

In my view, it is entirely appropriatefor a judge to consider these broader concerns when making the difficult assessment required under s. 515(10)(c). However, while ourdecision is to be informed by an appreciation of such concerns, this does not change the essential nature of our judicial task. We must actobjectively and dispassionately and apply the law as enacted by Parliament and interpreted by the appellate courts.

We must not dootherwise, even if our intention is to appease perceived public opinion . . . [43] In addition to the analysis of the factors set out in subparagraph (iii)(A), (B), (C), and (D), I also consider the following: [44] [Omitted for publication] is a smaller community. Over 50 percent of the population is retired. The killing of T.M. attracted agreat deal of local and even national attention. There was a great deal of local concern and anxiety over the unsolved crime. [45] The accused in this case avoided detection for approximately [omitted for publication].

From the point of view of the publicperception, a killer was on the loose. [46] I conclude, in all the circumstances that I have considered, that the detention of the accused is necessary in this case to maintainpublic confidence in the administration of justice from the perspective of the ordinary, reasonable, fair-minded members of our society. [47] I am of the view that should the accused be released on bail, the public confidence in the administration of justice would beeroded. [48] I now turn to s. 31(1) as I am required to consider that

section of the Youth Criminal Justice Act. In this case, s. 31(1)(a), (b), and(

c) have all been met. I have concluded that the accused should be detained on the tertiary grounds. [49] There is also material before this court that there are persons, mainly the parents, who are willing and able to take care of andexercise control over their son, and that he is willing to be placed into their care. The

section does provide some discretion to the court asit reads: A young person who has been arrested may be placed in the care of a responsible person . . . [50] How is this discretion to be exercised? Firstly, it seems to me that a finding that detention is required to maintain confidence inthe administration of justice is a compelling factor. Secondly, I am of the view that the current age and circumstances of the accused arerelevant. [51] I refer to the decision of R. v. R.D., which is a decision of the Ontario Court of Appeal found at 2010 ONSC 1073 ,[2010] O.J. No. 611 [sic, 6111].

That case provides this court with some helpful guidelines. [52] The headnote of the case outlines what the Ontario Court of Appeal was dealing with and it reads: The application judge, having decided to detain RD, erred in law in failing to consider whether he could be released into the care of aresponsible person.

Section 31 required consideration of placement with a responsible person even where detention, including detentionon the tertiary ground, would otherwise be justified under s. 515 of the Criminal Code. There had also been a change in circumstances inthat the preliminary inquiry disclosed a prosecution case that was not as compelling as the case portrayed at the bail hearing. Inconsidering public confidence in the administration of justice, RD's young age, the lack of a prior record, his good character and lack ofgang affiliation were all relevant circumstances to be considered.

Although a case was otherwise made out for detention on the tertiaryground, this was an appropriate case to release RD pursuant to s. 31 of the Act. [53] I turn also to paragraph 25 of that decision which reads as follows:

Section 31 of the Youth Criminal Justice Act deals with the placement of young persons, who would otherwise be detained in custody, inthe care of a responsible person.

The provision is unique to the treatment of young persons and implements some of the principles set outin s. 3 of the Act, including: . . . addressing the circumstances underlying a young person's offending behaviour; . . . the emphasis onrehabilitation and reintegration; . . . a separate system for young persons that emphasizes rehabilitation and reintegration; . . . recognitionof the greater dependency of young persons and their reduced level of maturity; and . . . enhanced procedural protections to ensure fairtreatment. [54] Turning to paragraph 34, the Ontario Court of Appeal says this: Finally, it would be ironic if s. 31 were unavailable in the very types of cases where pre-trial custody could have the greatest negativeimpact on the young person.

The tertiary ground will be invoked most often in murder cases and other very serious cases. Those casestend to take much longer to come to trial, meaning that the young person may be in custody, away from parental and other familysupport, for years during a critical time in their development. To fail to recognize the applicability of s. 31 in such cases wouldundermine the principles of reintegration and the need to recognize the greater dependency and reduced level of maturity of youngpersons. [55] Finally, paragraph 36 of the case says this: I do not accept these submissions.

Section 31 requires that the judge consider whether the young person should be released into the careof a responsible person; the

section does not require a release to a responsible person in every case and there will be cases where publicconfidence will not be satisfied by such an order. [56] The facts in this case before me are somewhat unique. Although charged as a youth, the accused is now [omitted for publication]

years of age. Factors such as the dependency of a young person, their reduced level of maturity, the need to be connected with their family and loved ones is clearly more relevant for a 14 or 15-year-old and far less relevant than for a [omitted for publication]. [ 57 ] The accused in this case has been gainfully employed for the past four years. He has travelled to South East Asia, worked in Australia, and currently has a steady girlfriend.

In these particular circumstances, I find it would not be appropriate to release the accused into the care of his parents. [ 58 ] I have concluded, based on the constellation of factors referred to in this case, that the public confidence would not be satisfied by a release to his parents, and in the result I order the detention of R.W.K. (REASONS CONCLUDED)