R. v. Thiessen, 2017 BCPC 466

Citation: R. v. Thiessen 2017 BCPC 466 Date: 20170825 File Nos: 64331-1, 64331-2-A, 66088-1 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. LUCAS BENJAMIN THIESSEN ORAL RULING ON APPLICATION FOR JUDICIAL INTERIM RELEASE OF THE HONOURABLE JUDGE D. GAFFAR Counsel for the Crown: O. Bick Counsel for the Defendant: S. Dawson Place of Hearing: Surrey , B.C.

Date of Hearing: August 24, 2017 Date of Judgment: August 25, 2017 [ 1 ] In giving these oral Reasons for Judgment, I reserve the right to edit my Reasons for minor errors and to add such things as headings and more extended case references or excerpts, if a transcript is ordered. Any such editing will not change any of the underlying

reasoning or ultimate result. [2] Lucas Benjamin Thiessen has been charged with a number of drug charges and a breach of his bail. He was originally chargedwith four counts of possession for the purposes of trafficking relating to individual and blended drugs containing heroin,methamphetamine, cocaine and/or fentanyl in the months of January and February 2015.

He was released on bail with a recognizance inthe amount of $50,000 requiring a $5,000 cash deposit. [3] Two-and-a-half years later, he was charged with violating his bail conditions by allegedly having contact with one of his co- accused on the 8th of August 2017. Ten days later, he was charged with three counts of drug trafficking relating to bricks of cocaine andlarge amounts of marihuana, as well as possessing two unloaded sawed-off shotguns and an unloaded revolver. He was taken intocustody shortly thereafter and has been in custody since that time. [4] Mr.

Thiessen finds himself in a reverse onus situation in which he must justify his release from custody because of the nature ofhis charges and the alleged breach of his original bail conditions. [5] The Crown argues that Mr. Thiessen should be detained because he poses a substantial risk to reoffend in a manner that impactspublic safety, which is strongly suggested by his alleged association with a co-accused in close proximity to his alleged involvement insubstantial amounts of drug trafficking. [6] Mr.

Thiessen submits that he can be released on a recognizance in the amount of $50,000, requiring a $50,000 cash deposit, withstrict house arrest-type terms. He argues that such a restrictive and stringent release will ensure his good conduct and reduce anyperceived risk of reoffending. [7] In making my decision, I have considered the submissions of counsel and the cases provided by counsel: R. v. Pearson (1992), (SCC), 77 C.C.C. (3d) 124 (S.C.C.); R. v. Antic, 2017 SCC 27; R. v. Abdel-Rahman, 2010 BCSC 189; R. v. Bhullar,2005 BCCA 409; R. v. Friesen, 2017 BCSC 1391; and R. v.

McCormick, 19 February 2015, Vancouver Registry 233320-1 (B.C.P.C.). [8] I start my analysis with some general observations about the law that I must apply throughout these proceedings. It is importantfor Mr. Thiessen, his family and loved ones, and the community to understand the legal principles I must apply. [9] At a bail hearing, it is not my role to determine the guilt or innocence of Mr. Thiessen. Due to the nature of his offences, there isthe legal presumption that he is detained unless he justifies his release.

However, he is still constitutionally entitled to be presumedinnocent at this stage, not to be denied bail without just cause and to receive bail on reasonable terms.

I may find that there is "just cause"to deny bail only in a narrow set of circumstances and only if detention is necessary to promote the proper functioning of the bail system. [10] Reasonable bail contemplates the imposition of bail conditions that are no more onerous than necessary to regulate the conductof an accused in the community. [11] Generally, all accused persons are eligible for bail, regardless of the nature or seriousness of their alleged offences. However, Imay find that Mr.

Thiessen's detention is necessary if he poses a substantial risk to reoffend in a manner that endangers public safety orinterferes with the administration of justice. This ground for detention is called the secondary ground. [12] The danger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention. Ingeneral, our society does not countenance preventative detention of individuals simply because they have a proclivity to commit crimes. [13] I must note, however, the Supreme Court of Canada's observations in R. v. Pearson, (SCC), [1992] S.C.J.

No. 99at para. 61 with regards to the presumption of detention on drug matters and why an accused must justify his or her release. The SupremeCourt of Canada noted that drug matters are unique and that they are committed in a very different context than most other offences. Most offences are not committed systematically. By contrast, trafficking in narcotics occurs systematically, usually within a highlysophisticated commercial setting. It is often a business and a way of life. It is highly lucrative, creating huge incentives for an offenderto continue criminal behaviour even after arrest and release on bail.

In these circumstances, the normal process of arrest and bail willnormally not be effective in bringing an end to criminal behaviour. Special bail rules are required in order to establish a bail system[that] maintains the accused's right to pre-trial release while discouraging continuing criminal activity. [14] In accordance with the decision in Abdel-Rahman, 2010 BCSC 189 at para. 23, I must examine whether

a) there is a risk that theaccused will either commit an offence or will interfere with the administration of justice if he is released;

b) whether this risk is of suchmagnitude that it amounts to a "substantial likelihood" of reoffending;

c) this risk would constitute a danger to public safety in general orto a specific victim or witness if the accused is released; and

d) the detention of the accused is "necessary" because the identified dangerto public safety cannot be prevented or reduced to an acceptable level by bail conditions such as reporting to authorities, curfew, nocontact, mobility restrictions, sureties or cash bail. [15] In answering these questions, I must consider the combined effect of the following factors which strive to assess the likelihood ofdangerousness if Mr. Thiessen is released and are relevant to the secondary ground, as listed in R. v.

Rondeau (1996), (QC CA), 108 C.C.C. (3d) 474 (Q.C.C.A.), at p. 478, the nature of the offence; the relevant circumstances of the offences, which mayput in issue events prior to and subsequent to the offence; the likelihood of conviction, or in other words, the strength of the Crown'scase; the degree of participation of the accused; the profile of the accused, that is, his occupation, lifestyle, family situation, mental state;his conduct prior to the commission of the alleged offence and any criminal record; and the danger which the interim release of theaccused represents for the community specifically affected by the matter. [16] Suffice it to say that no offence is excluded from bail consideration.

I am also mindful that I must not place undue weight on theseriousness of the offence or strength of the Crown's case at the bail stage. [17] Further, to R. v. Blind (1999), (SK CA), 139 C.C.C. (3d) 87 (Sask. C.A.) at para.15:

In considering all of the relevant circumstances, the hearing judge must not become so focused on the gravity of the offence and the strength of the Crown’s case as to overlook that there are no categories of offences for which bail is not a possibility. There are few crimes of violence or of murder where one could not say that the gravity of the offence, considered on its own, without regard for the purpose of bail, justifies detention. There are also many cases where the strength of the Crown’s case appears, at the pre-trial stage, to be overwhelming only to have it unravel as the trial progresses.

It is also dangerous to place too much emphasis on the possibility of a lengthy prison term as all serious crimes carry the possibility of such. Giving undue weight to this factor becomes a means to start punishment before conviction. [ 18 ] Ultimately, I must also determine if the risk posed by Mr. Thiessen can be managed by the imposition of appropriate terms of release. [ 19 ] Mr. Thiessen argues that I should consider the difficulties that he may experience while in custody in accessing counsel and properly preparing for court proceedings.

Both these activities are constitutionally protected: access to counsel and the ability to make full answer and defence. [ 20 ] He also submits that there may be further delays in proceeding to trial on all these matters given the volume and complexities of his case. I note that the voir dires on the original charges are scheduled to commence in early September 2017, approximately three weeks from now. I am the trial judge. Mr.

Thiessen is contemplating an application relating to his not having received his trial (on the 2015 matters) within a reasonable time. [ 21 ] These considerations reflect the realities for in custody accused awaiting trial, particularly in serious and complex cases. I find that these type of considerations fall outside of the considerations articulated in the secondary ground s. 515(10)(

b) and in the jurisprudence. [ 22 ] Secondary ground considerations relate to risk assessment and risk management. Without deciding the question, I leave the question open as to whether such considerations implicate the tertiary grounds and issues surrounding confidence in the administration of justice found in s. 515(10)(c). The Crown in the instant case is not seeking detention under the tertiary grounds. [ 23 ] I will now consider the various factors as they apply to the individual matters before the court. I do not intend to repeat all of the information provided about the offences, or the background of Mr.

Thiessen in these Reasons, in the interest of time. [ 24 ] I will begin with the 2015 drug matter. This matter involves multiple counts of possession for the purposes of trafficking with a variety of drugs listed earlier in this decision. One of the drugs is heroin combined with fentanyl, a significant drug that has exponentially harmed and caused the death of many individuals in British Columbia. In total, four kilograms of hard drugs were located along with 10 kilograms of marihuana. [ 25 ] The relevant circumstances of the offence are based on the surveillance of Mr.

Thiessen entering an apartment building or condominium building, sometimes with a key; his observed exit from a particular suite on one occasion; and the police listening at the door of an apartment where the sounds of drug processing were allegedly heard. [ 26 ] A search warrant was issued many months later and the drugs described earlier were found, along with drug paraphernalia. [ 27 ] The strength of the Crown's case falls on the lower end of the spectrum. The case is circumstantial and has a somewhat substantial time gap between the surveillance of the police implicating Mr.

Thiessen and the execution of the search warrant. Mr. Thiessen's degree of participation is relatively unknown. While his entry to the building occurred on a number of occasions, his entry to the apartment was noted only once. The delay in executing the search warrant may impact on the trial court being able to enlarge his participation in the offence. [ 28 ] Mr. Thiessen is young. He is 23 years old now. He would have been approximately 21 years old at the time of this alleged offence. He has strong family and community support.

He has employment in a painting and renovation company at a wage of $15 to $20 an hour to which he can return if released. He has been reporting regularly to his bail supervisor. Mr. Thiessen has no criminal record. [ 29 ] His release on this matter would not pose a large danger to the community. I note that he spent 2.5 years on bail without issue until the August 2017 charges. [ 30 ] In all the circumstances, I find that the various factors and the release plan on restrictive conditions with cash bail offered would be sufficient to control Mr. Thiessen's conduct on this particular matter. Mr.

Thiessen has justified his release on this matter and I decline to revoke bail on this matter. However, I do mark his bail for estreatment, given the two new allegations in August of 2017. [ 31 ] He may be released on this matter on conditions that I will impose at the end of this decision. [ 32 ] I turn now to the breach charge. Mr. Thiessen is charged with violating his bail on the 8th of August 2017 by having contact with his co-accused. This co-accused is also the same person with whom Mr. Thiessen was observed entering the apartment building or condominium building in January and February of 2015.

They were both at a gas station and video recorded while pumping gas and speaking, probably, to each other on the 8th of August 2017. They were both wearing similar motorcycle gear, vests and other clothing, a red t-shirt, black skull-tight helmets, black or dark coloured vests, jeans and red shoes with white soles. The shoes looked identical. Their motorcycles were parked immediately next to each other. [ 33 ] The strength of the Crown's case in this particular instance is at the mid to higher level. Mr.

Thiessen is directly implicated in this violation. [ 34 ] Up to this point, I am unaware of any issues that Mr. Thiessen had complying with his bail conditions. I note his personal circumstances as previously described. I am unable to perceive any overt danger to the community except a possible disregard for the

prohibition against contact with his co-accused. This may imply a more covert danger when combined with the subsequent offence for which he was charged ten days later. [ 35 ] I also note that this alleged breach occurred in the midst of police surveillance of Mr. Thiessen that implicates him in the August 18, 2017 drug matter. [ 36 ] In all of the circumstances, Mr. Thiessen has justified his release on this matter and I decline to detain him. Again, his conditions of release will be listed at the end of this decision.

When I say I decline to detain him, I mean I decline to detain him on this matter. [ 37 ] I turn now to the August 18, 2017 drug matter. Mr. Thiessen is charged with multiple trafficking counts for cocaine and marihuana, as well as possession of two sawed-off shotguns and a revolver, both unloaded. [ 38 ] From the 13 th of July 2017 until his arrest on the 18 th of August 2017, the police surveyed Mr. Thiessen's departure from his personal residence to another residence close by on three occasions, during which he opened the door to the second residence on two occasions using keys. Mr.

Thiessen appeared to carry the distinct-looking keys to the second residence. [ 39 ] Mr. Thiessen was observed on another occasion with a box and meeting with another individual who has subsequently been charged on this indictment. The co-accused was later stopped and searched and had in his possession the same box which contained 3.5 ounces of cocaine. [ 40 ] Two search warrants were executed on the 18 th of August 2017. At Mr. Thiessen's personal residence the police found small amounts of cocaine and marihuana, vacuum bags and a vacuum sealer, two money counters and $135,924 in cash.

The distinctive keychain with several keys was located on the counter in the residence. It contained a key to Mr. Thiessen's personal residence. [ 41 ] The second search warrant was executed at the second residence. The distinctive keychain found at Mr. Thiessen's residence opened the door to the second residence. More importantly, one of the keys on that keychain opened the garage safe at the second residence, which was found to contain two bricks of cocaine weighing one kilogram each. A third brick weighing one kilogram and a partial brick weighing 600 grams were also located in the garage.

A red bag contained half-a-pound of marihuana. This bag appeared similar to a bag Mr. Thiessen was observed and videotaped carrying inside that second residence earlier that same day. An additional 10 pounds of marihuana was found in a garbage bag in the garage. Other items associated with possible drug residue, packaging and weighing drugs were also located in the garage. [ 42 ] There was no fingerprint or other forensic evidence indicating Mr. Thiessen's presence in the garage or on the firearms that were located. The firearms were located in the garage and under the stairway in the residence.

They were unloaded, as I have mentioned earlier. Ammunition was located in Mr. Thiessen's personal residence, five minutes away. [ 43 ] The Crown's case in this particular regard is very strong. The evidence that links Mr. Thiessen to the residence is both recorded visually, as well as linked with the keys found in his residence. It is the presence of those keys that causes me some concern. To be in possession of those keys, to be able to access that second residence and to be able to access that safe indicated a certain degree of trust, and also the ongoing nature of the enterprise. The observations of Mr.

Thiessen with the box as well as the contents of that box later discovered with the co-accused, also directly link Mr. Thiessen to this drug enterprise. [ 44 ] I note that there has been a very well-developed release plan in this particular instance. Mr. Thiessen is offering through his brother a $50,000 cash deposit on a recognizance, with house arrest-type conditions. Such conditions in the normal circumstances would provide sufficient regulation of his conduct in the community.

The concern that I have is that his conduct prior to the 18 th of August, starting at July 13 up to and including that date, indicate an ongoing involvement in this particular activity. It also indicates that a great deal of trust was placed in him. [ 45 ] His conduct prior to the commission of the August 18 th offence is extremely problematic. I have to consider whether if he was released on the restrictive conditions and with that significant cash bail, the danger that he might represent to the community could be regulated or lowered. [ 46 ] I refer to the decision in R. v.

Pearson referenced earlier, at page 144. The Supreme Court of Canada referred to a report with regards to drug crimes, which is a dated report, but which makes the following relevant observations, even today. Beginning at page 143, the court writes that the report: . . . notes at pp. 18-19 that drug trafficking generally constitutes a form of organized crime . . . There is then a long quotation, and on page 144 the court resumes: It also notes at p. 21 that the nature of drug trafficking is sometimes mistakenly viewed as less serious than more openly violent crimes . . . And this is a translation: . . .

Such an impression is far from the reality, however, when one considers the fierce battles for control of territory and violent action to obtain the money needed to purchase drugs; equally, when one thinks of the personal brutality and social dramas that result. The court continues: It notes at p. 24 that narcotics offences increase the general level of criminality . . . [ 47 ] When assessing the various factors in this particular case, I have considered whether there is a risk that Mr.

Thiessen will commit a new offence or interfere with the administration of justice if he is released, and I find that there is a risk. I do find that such a risk

amounts to a substantial likelihood, and I do find that this risk would constitute a danger to public safety if he was released, given the nature of the offence and in particular the location of the firearms in the residence, although I underscore that there is no forensic evidence to date that links Mr. Thiessen to those firearms or to even demonstrate that he knew that they were there.

However, in the general context of drug offences, it is not unusual or uncommon to have both firearms and violence associated to the trafficking of drugs. [ 48 ] I now have to determine whether his detention is necessary, because the identified danger to public safety cannot be prevented or reduced to an acceptable level by bail conditions. In all of the circumstances, I am unable to conclude that the identified danger to public safety can be controlled or reduced by the bail conditions. This was originally a substantial bail in 2015 and unfortunately, since that time, after a long period of good behaviour, Mr.

Thiessen has demonstrated ongoing alleged contact with a drug enterprise. [ 49 ] In all of the circumstances, I am unable to conclude that his release can be sufficiently controlled by bail conditions, given the evidence or the information that is before me about the ongoing nature of this enterprise. [ 50 ] I pause to note that access to a safe containing two one-kilogram bricks of cocaine valued at approximately $100,000 (based on Crown's submissions) indicates a certain level of history and trust in a particular enterprise. [ 51 ] In all of the circumstances, I find that his detention is required on the secondary grounds with regards to the August 18, 2017 matter and he is so detained. [ 52 ] With regards to the 2015 drug matters and the August 8, 2017 breach matter, he may be released on a recognizance in the amount of $50,000 with a $10,000 cash deposit. [ 53 ] The terms of his release are that he is to keep the peace and be of good behaviour. [ 54 ] Report to the court when required to do so. [ 55 ] He is to report in person within 72 hours of his release from custody to the bail supervisor located at unit 102-14245 - 56th Avenue in Surrey, British Columbia, and thereafter as and when directed by the bail supervisor. [ 56 ] He is to provide his address to the court and not change that address unless authorized by the court. [ 57 ] He is not to have any contact or communication with Antonio Nolasco-Padia, Jordan Anthony Ramos, Dana Mickael Hendrick Schaper-Kotter, Darcy Horvath. [ 58 ] Mr.

Thiessen is not to possess either personally or through another person any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance or anything that resembles a weapon or a firearm, or any weapon as defined in s. 2 of the Criminal Code or any related authorizations, licences or registration certificates. [ 59 ] The no contact conditions shall include the names Clayton Eheler, Kyle Harrower, Raymond Morrissey, Andrew Va and Le Vo. [ 60 ] You shall not attend within the city limits of Fort St.

John, Dawson Creek or Prince George unless you have the prior written approval of your bail supervisor, and in such case, such written approval shall be carried on your person and presented to any peace officer who requests to see it. [ 61 ] You are not to leave the province of British Columbia unless you have the prior written approval of the court, and in such case, you will carry the written permission of your bail supervisor on your person. I am not permitting it through the bail supervisor or for the purposes of employment.

Authorization will have to be obtained from the court first, before there is any leaving the province for employment purposes. [ 62 ] In addition, Mr. Thiessen shall only be released into the care of his brother Cody Thiessen.

You are to remain inside your residence and the lot on which it is situated at all times except as follows: with the prior written permission of your bail supervisor for the purposes of employment, such permission shall be carried on your person at all times; for the purposes of attending at scheduled appointments with your counsel or scheduled court appearances; in the case of a personal or family medical emergency, where you are permitted to attend directly to and from an emergency medical facility and while attending that facility, proof of which shall be provided to your bail supervisor within 72 hours of your attendance. [ 63 ] So that the record is clear, it might be confusing, he has been released with regards to the 2015 matter and the breach matter, but he has been detained in custody with regards to the August 18, 2017 matter. (RULING RE JUDICIAL INTERIM RELEASE CONCLUDED)