R. v. Harris, 2020 BCPC 179

Citation: R. v. Harris 2020 BCPC 179 Date: 20200103 File Nos: 178420-1-B; 178420-2-BC Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. REGGIE LEE HARRIS ORAL REASONS FOR JUDGMENT AT JUDICIAL INTERIM RELEASE HEARING OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: P. Donnachie Counsel for the Accused: D. McKay Place of Hearing: Victoria , B.C. Dates of Hearing: November 1, 2019 and January 3, 2020 Date of Judgment: January 3, 2020 [ 1 ] Mr. Harris is in custody charged that from July 1 to August 18 of 2019, he failed to comply with a long term supervision order

by consuming drugs, contrary to s. 753.3(1) of the Criminal Code . [ 2 ] In this show cause hearing, the Crown seeks Mr. Harris' detention on the primary, secondary and tertiary grounds. [ 3 ] Although Mr. Harris is charged with the breach of a long term supervision order, he is not in a reverse onus situation. The Crown bears the onus of demonstrating, on balance, that Mr. Harris' detention is justified on any or all of the grounds proposed. [ 4 ] By way of background, Mr. Harris, is now 37-years-old with a criminal history dating back some 20 years.

It is a significant history, which includes 13 adult convictions for offences involving violence or the use of weapons. [ 5 ] In November 2011, Judge Hinds of the Saskatchewan Provincial Court declared Mr. Harris a dangerous offender. Those reasons, which are important in this bail hearing, are cited at 2011 SJ No. 720 . Mr.

Harris was before Judge Hinds, charged with at least seven offences, the predicate offence being the charge of break and enter into a dwelling house and therein committing the indictable offence of assault causing bodily harm. [ 6 ] Judge Hinds outlined the circumstances of that offence in some detail in his reasons at paragraph 8. Briefly, Mr. Harris, having consumed alcohol with the victim earlier in the evening, attended at the victim's home in the early morning. Upon answering his door, the victim was struck by Mr. Harris in the face with a blunt object, after which Mr.

Harris entered the home and further assaulted the victim. [ 7 ] For that offence, Mr. Harris was sentenced to what's described in the reasons as 5.5 years in custody, followed by a 10-year supervision order. [ 8 ] As importantly, at issue in the sentencing before Judge Hinds was whether the Crown had established beyond a reasonable doubt that Mr. Harris was a dangerous offender. The hearing into his dangerous offender status was lengthy, numerous witnesses were called, and Mr. Harris' history, both criminal and otherwise, was deeply explored. [ 9 ] As the headnote in R. v.

Harris sets out, the Crown established a 14-year pattern of repetitive and persistent aggressive behaviour in which Mr. Harris showed an inability to restrain his conduct, and an indifference regarding the likelihood of causing death or injury to others. [ 10 ] While the Crown sought an indeterminate sentence, the court found mitigating factors that supported a lesser measure. Those factors were Mr.

Harris' strong work ethic, his acknowledgement of the source of his conduct, his community supports, and an offer of regular employment. [ 11 ] In this hearing the Crown referred to various excerpts of Judge Hinds' reasons to underscore the seriousness of the charge Mr. Harris now faces. At paragraph 13, Judge Hinds writes of Mr. Harris' significant and long-standing substance abuse disorder starting at age 13 and continuing up to the predicate offence. [ 12 ] Mr. Harris' criminal history is appended to the reasons and summarized at paragraph 14. At that time, Mr.

Harris had 18 convictions for property-related offences, 13 convictions for offences involving violence, 10 convictions for failing to abide by a court order, and 4 convictions for escaping lawful custody, among others. In all, at the time of sentencing before Judge Hinds, Mr. Harris had 22 youth convictions and 30 adult convictions. [ 13 ] In the hearing before Judge Hinds, the Crown submitted numerous documents in support of its application that Mr. Harris be found to be a dangerous offender. Among those, referred to at paragraph 23, is a Correction Services criminal profile of Mr. Harris written in April 2008.

There the author writes of Mr. Harris' pattern of affiliating mainly with anti-social peers and of his drinking to excess, only to wind up in confrontational situations. [ 14 ] The report writer also writes that: There is significant documentation that indicates that Harris should not consume alcohol at any time. [ 15 ] The Crown also called Dr. Nicholaichuk to provide a risk assessment of Mr. Harris. Dr. Nicholaichuk placed Mr. Harris in the medium risk category with a probability of violent recidivism set at 32 percent over 4.4 years in the absence of an effective intervention or community management strategy.

In this regard, he reported that Mr. Harris' risk was primarily attributed to his pattern of substance abuse, his association with criminal peers, and his history of aggression. [ 16 ] Dr. Nicholaichuk testified further that the necessary alterations to Mr. Harris' lifestyle involved staying away from all alcohol and drugs, complete abstinence; staying away from negative peers; and learning to regulate/control his emotions, particularly his anger. Dr. Nicholaichuk also recommended that Mr.

Harris find stable employment and draw upon his community supports. [ 17 ] It is acknowledged by the Crown in this hearing that Mr. Harris is steadily and gainfully employed and/or employable. He is also now married to A.G.D., and the couple have two children, a factor that objectively adds to his stability, but may well contain stressors that also undermine his sobriety. [ 18 ] Certainly, it was the opinion of Dr. Nicholaichuk that Mr. Harris is capable of functioning in the community, but that same success lulls a person like Mr.

Harris to believe they are recovered and can handle alcohol or drugs, which is manifestly untrue. It is a pattern that circles back to criminal offending, and one that Mr. Harris appears to be exhibiting at this time. [ 19 ] Mr. Harris did unsuccessfully appeal his dangerous offender designation, as well as several other of the convictions of Judge Hinds. The Crown conceded an appeal on one charge, a threat to cause death or bodily harm, and Mr.

Harris was successful in having his community supervision order reduced from 10 to 5 years because of his age and the length of his custodial sentence, including the time he would be under parole supervision before starting his long term supervision order. His application for leave to appeal from that

decision to the Supreme Court of Canada was denied. [ 20 ] While in custody on remand awaiting trial before Judge Hinds, Mr. Harris is purported to have struggled with institutional rules and regulations, participating in violence against staff and other inmates. While serving the sentence imposed by Judge Hinds, Mr. Harris was charged with four institutional offences, including consumption of drugs. On parole, Mr. Harris breached his special conditions to abstain from drugs on two occasions. [ 21 ] While several of these drug charges related to marihuana consumption, Mr.

Harris did test positive for cocaine use in December 2014. He initially denied using cocaine before finally admitting to the charge. [ 22 ] In October 2014, Mr. Harris started a relationship with Ms. A.G.D. Together they have a child, L., born [omitted for publication], and a newborn delivered while Mr. Harris has been in custody on this charge. [ 23 ] In a report to the Parole Board of Canada in support of the recommendation that this charge be laid, Mr. Harris's parole officer writes that Ms. A.G.D. has been assessed as a positive source for Mr. Harris.

Still, the couple have struggled. [ 24 ] While incarcerated, Mr. Harris was angered and upset when his access to L. was denied by MCFD, though that situation resolved itself after he agreed to counseling. [ 25 ] Mr. Harris started on his long term supervision order on January 12, 2016. It is set to expire on January 11, 2021. His conditions include orders that he not consume or possess alcohol or drugs, other than those prescribed to him by a medical physician. He was ordered not to associate with any persons involved in criminal activity and/or substance misuse.

He was required to follow a substance abuse treatment plan and report to his parole officer four times a month, though that was subsequently reduced ultimately to once a month after December 2018. [ 26 ] Mr. Harris did report some domestic unrest to his parole officer in the spring of 2019, but later reported that he and Ms. A.G.D. had resolved matters. [ 27 ] On August 8, 2019, Mr. Harris wrote to his parole officer that Ms. A.G.D. was going crazy with her pregnancy, that she regretted being pregnant, and that she had asked him to kill her. Mr.

Harris reported that he left their home, and feeling badly about himself, went to a friend's home and used cocaine. He then told Ms. A.G.D. about his drug use. [ 28 ] Ms. A.G.D. is on record as having left the family home with L. on August 9, 2019, to stay at a transition house. She reports it was not because of any violence or abuse, rather she was concerned that she and Mr. Harris were arguing in front of their child. Nonetheless, Ms. A.G.D. and L. returned to their home on August 12. The transition home alerted MCFD. In turn, a social worker interviewed Mr. Harris on August the 16 th .

Convinced he was on drugs, the social worker attended at Mr. Harris' home and secured his agreement to leave the residence while they worked out a safety plan with Ms. A.G.D. [ 29 ] Mr. Harris called a friend on August 17 to report he had left his home and needed help. That friend then spotted Mr. Harris on the street. As she described it, Mr. Harris told her he had not slept in three days, that his feet were sore from walking, he was hungry, and he admitted to using a lot of drugs. Other reports indicate a friend of Mr.

Harris provided him with cocaine in exchange for work. [ 30 ] On the advice of that friend, Mr. Harris, you reported to your parole officer by text message the next day. You then reported in person on the 19 th , whereupon you were arrested and your supervision order suspended. [ 31 ] As the Crown outlined in its written submissions, the warrant of apprehension and suspension remains in effect for up to 90 days.

It is open to the person signing the order, or a designate, to cancel the suspension no later than 30 days after commitment or to refer the matter to the Parole Board of Canada for an assessment of the case. [ 32 ] In this case, your parole officer did refer the matter to the Parole Board.

He produced the report I have referred to, with the recommendation that an information be laid charging you with breach of your long term supervision order, as well as an amendment to your special conditions, adding a residency requirement. [ 33 ] The Parole Board did receive submissions from your counsel and a letter from you in which you admitted to using drugs and acknowledging that it was in violation of your supervision order. You told the Parole Board you did not agree with the residency requirement involving substance abuse treatment, but rather preferred to go back to work in order to support your family.

Your counsel unsuccessfully opposed the recommendation that an information be laid. [ 34 ] As well as recommending that an information be laid charging you with a breach of your supervision order, the Parole Board also voted to change the condition of your supervision order to include the recommended residency requirement.

The condition is that you must reside at a community correction centre or community residential facility approved of by Corrections Canada for a period of 180 days. [ 35 ] In this bail hearing, originally you indicated that you would, if released, attend at the [omitted for publication] here in Victoria where you would reside, according to the new special condition, from Sunday to Thursday and where you would attend counselling during the day. That would leave several days during which you could return home to your wife and children.

Today we learned that the Parole Board of Canada does not share that view, and there would be no leaving during the weekend. [ 36 ] In any event, it is implicit in the Crown's submissions that this release form including this new Information, does not adequately address its concerns on all three of the primary, secondary and tertiary grounds. [ 37 ] On the primary ground, the Crown submits your detention is necessary to secure or ensure your attendance at the trial of this matter.

In support of its submission, the Crown points to your many prior convictions for breaches of court orders and the four escape related convictions on your record.

[38] Fundamentally, though, the Crown relies on R. v. Wu, 1998 BCJ No. 2854 at paragraph 11, for the proposition that the verystrength of its case, coupled with the likelihood of a lengthy sentence, raises a primary ground concern, particularly bearing in mind yourcriminal history. [39] The strength of the Crown's case in the bail hearing is obvious. Among other things, Mr. Harris, you have admitted to thebreach before this court, just as you did in your letter to the Parole Board. [40] As for the potential length of sentence, that is an important consideration in any bail hearing for a number of reasons.

In thiscase, the Crown submits the range of sentence is anywhere from seven to 12 months at a minimum, given the seriousness of this offence.It relies in this regard on the sentences in R. v. Ipeelee, 2010 SCC 13 , 2010 SCJ No. 13. [41] R. v. Ipeelee is a sentence appeal by Mr. Ipeelee and in a separate case heard by the Supreme Court of Canada at the same time,by Mr. Ladue. Each appealed from their sentences for breach of a long term supervision order.

As the court writes given that there is nomandatory minimum for this offence, the entire range of sentencing under the Criminal Code is available for this offence, including non-carceral sentences where appropriate. [42] At paragraph 55 of Ipeelee, the court instructs that in determining an appropriate sentence within that range, sentencing courtsmust consider the severity of the breach.

That requires consideration of the nature and circumstances of the breach and: . . . the role that condition plays in managing the offender's risk of . . . [re-offending] in the community. [43] Here, as you acknowledge, the breach is the use of drugs, contrary to the conditions of your supervision order.

In addition, thereis the spectre of associating with persons involved in or using drugs, and here I refer to the friend who allegedly provided you withcocaine in exchange for work. [44] Clearly, given the role of alcohol and substance abuse in your offending behaviour, which is described in detail in Judge Hinds'reasons, the breach, if proven, must be considered serious.

That alone would indicate that the sentence will be, as the Crown suggests,one of incarceration and not likely at the low end of the range. [45] In terms of the kinds of sentences being imposed, it is useful to note that at the Supreme Court of Canada, Mr. Ipeelee'ssentence was reduced to 12 months from three years. It was his first conviction for breach of his long term supervision order. Thecompanion appeal on sentence by Mr. Ladue was denied. In that case, Mr. Ladue appealed from a Court of Appeal order reducing hissentence from three years to one. It was Mr.

Ladue's third conviction for a breach of his long term supervision order. [46] In both cases, the breach involved the use of drugs or alcohol and in both cases the conditions prohibiting drug and alcoholconsumption were critical in managing the offender's risk of re-offending in the community. [47] Another critical factor in each of these cases, as the Crown emphasized, is the application of Gladue factors on sentence, sothere is a sense, Mr.

Harris, that in your case 12 months might well be at the low end of the range of sentencing. [48] On balance, the Crown has demonstrated a strong case and the potential for a reasonably significant sentence if you are foundguilty of this offence. That will be the case, even given the dead time you have now served while in custody on this charge. [49] Still, other factors require consideration in determining whether detention is justified on the primary ground. The Crown alsorefers the court to the reasons in R. v. Penosway, 2018 QJ No. 11880. Mr.

Penosway found himself in custody on a charge of a breach ofa long term supervision order by failing to reside where directed, failing to abide by a curfew, and consuming alcohol contrary to hisconditions. [50] As here, the Crown sought Mr. Penosway's detention on all three grounds under s. 515 of the Code. After canvassing all threegrounds, clearly the court detained Mr. Penosway, an indigenous man, on the secondary ground. [51] At paragraph 82 of Penosway, the court sets out a number of factors that need consideration, before detaining on the primaryground.

Aside from the circumstances of the offence, these include whether the accused tried to flee during arrest, the accused's reactionwhen apprehended, whether the accused lied to police or the parole officer, and the accused's connection to the community, includingplace of residence, stability and employment. [52] In this case, Mr.

Harris, whether or not you knew your parole officer was going to issue a warrant of apprehension, it is clearthat you reported your drug use, at least eventually, to your parole officer and attended at his office on August 19 when told to do so. [53] You submit you surrendered yourself, and that may or may not be true. However this is not a case where you attempted to evadearrest. [54] Your community connections are your strongest asset on this hearing. Ms. A.G.D. continues to support you, and I have no doubtdesperately hopes you will be released on bail. You and Ms.

A.G.D. appear to be settled here in the Victoria area, largely it seems due toMs. A.G.D.'s own efforts. From your comments during the bail hearing, it appears you both work together, or worked together, in ahouse-cleaning business. Your children are settled here and you are bonded with L. at the very least. It would not be easy or personallybeneficial for you in these circumstances to flee. [55] You are employable, of course, but your plan is not to work. Rather, it is to abide by the special condition imposed by theParole Board that you reside at a community correctional centre or community residential facility.

You promise to reside here in Victoriaat the [omitted for publication] and attend drug treatment programs. [56] Leaving aside this release plan, I accept that in these circumstances, though the case for the Crown is strong and the likelihoodof a sentence greater than six months is equally compelling, your ties to the community and your desire to resume your life here with

your wife and children makes it much less likely you would not attend for your sentencing if released on bail with appropriate conditions. [57] I put less stock in the fact you served some time while a federal inmate in a minimum security facility.

The circumstancesbefore you in this instance are, in my view, quite different. [58] In any event, given the factors I have discussed, I cannot be satisfied that the Crown has proven your detention is necessary onthe primary ground. [59] On the secondary ground, the question is whether your detention is necessary to ensure the safety of the public, taking intoaccount all the circumstances, including the substantial likelihood that if released, you will re-offend, or whether some lesser measuremight address the secondary ground concerns that are so obvious in this case. [60] In Penosway, at paragraph 87, the court writes that from a logical standpoint, past misconduct of an accused is highly probativeof likelihood of re-offence. [61] In R. v.

Wu, at paragraph 10, bail courts are instructed, when considering the secondary ground, to: . . . consider the respondent's past behaviour and his behaviour at the time of the present [alleged] offence in considering dangerousness .. . [62] The Crown submits that the concept of "dangerousness" requires analysis of the harm that could come to pass if the riskmaterializes. Here, the risk clearly, Mr. Harris, is you are re-engaging in the use of drugs and/or alcohol upon your release.

That drug oralcohol use in your case poses a risk to the public is evident in the materials. [63] The prohibition of such products is a central condition of your community supervision order. You have shown an inability toabstain while in custody, while on parole, and now, allegedly, and frankly admittedly, while out in the community on the supervisionorder. [64] You propose upon release to resume some kind of family life, albeit in conjunction with drug treatment in the community, butthe stressors may be even greater than they were last August.

At a minimum, you will have the near certain knowledge that you will,once again, be removed from your family and community following a trial, and if it comes to that sentencing, at least for some period oftime. [65] As the court writes at paragraph 21 of R. v. Young: . . . the likelihood of a particular risk materializing . . . must be weighed against the gravity of the harm that will ensue if the risk comesto pass. [66] The risk of you using again if released on bail is real.

As the Crown points out in its submissions, "the threat of immediatereturn to jail for at least 90 days was apparently insufficient to deter you from consuming drugs, and thereby potentially increasing thelikelihood of your committing a violent offence." [67] If that threat was not sufficient, what possible deterrence against further drug use could there be, given the near certainknowledge that you are already facing jail time for this offence if you are either found guilty, or if you plead guilty, as you indicate isyour plan. [68] I do not suggest, Mr. Harris, that you intend today to use drugs.

I will accept at this point your fervent hope and desire is toabstain from drug use and to embrace whatever form of substance abuse treatment comes your way. But what your past record shows,and what the circumstances outlined in this bail hearing leading up to your detention demonstrate clearly, is that you have an extremelylimited capacity to absorb and deflect life's day-to-day stressors. When troubled mentally or emotionally, you demonstrate a tendency toself-medicate.

The urge is so strong, you will risk incarceration, you will risk separation from your family, you will use rather than seekthe help that is out there for you. [69] The danger, Mr. Harris, is that when you use, public safety is at risk and not just a slight risk, the risk is significant. [70] As the court at your dangerous offender hearing heard, there was no pattern to your prior violent offences, no premeditation.Rather, your victims simply appeared to be in the wrong place at the wrong time. [71] How can the public defend itself, Mr.

Harris, should you fall victim once more to the urge to use while out on bail? I havegrappled with the possibility of releasing you on the condition that you reside at a residential facility as ordered by the Parole Board.Having considered the matter, I find I cannot be satisfied the plan would secure the safety of the public, even with electronic monitoring,which Mr. McKay submits is available.

That in no way assures the safety of persons who will inevitably be present near you. [72] The Crown has, in my view, made out a case for your detention on the secondary ground. [73] The Crown also seeks your detention on the tertiary ground. It submits that in these circumstances, your detention is necessaryto ensure the confidence of the public in the administration of justice. [74] The Crown relies on the reasons of the Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27 , 2015 2 SCR 328,first for the proposition that detention on the tertiary grounds need not be viewed as a rare or exceptional step.

As the court notes atparagraph 94 of Penosway "This tertiary ground is a separate ground". It is not a ground to turn to whenever the court cannot be satisfieddetention is justified on either the primary or secondary ground. In determining whether to detain on the tertiary ground, the court has toexamine the strength of the Crown's case, including any defences raised, the gravity of the offence, the circumstances surrounding theoffence, and the potential length of sentence.

[ 75 ] In many ways, most or all of these factors have already been considered. Here though, the question is whether a reasonable person, properly informed of the purpose and philosophy of the bail provisions, the Charter , and the circumstances of the case, would lose confidence in the administration of justice if you were to be released on bail. Such a person would be mindful, of course, of the circumstances giving rise to the court's concern for the safety of the public if you were released, at least on the plan proposed.

Such a person would know, too, that the Crown has a strong case, that it is likely to prove that while out in the community under a long term supervision order, such an order being absolutely necessary to protect the public, you breached the conditions by using cocaine. [ 76 ] The Crown submit it was not just a one time slip.

Rather, that you had been consuming for some time and in a large quantity, and that the drugs were supplied to you in exchange for work by a person you almost certainly should not have been associating with. [ 77 ] In my view, a reasonably informed person might well in those circumstances think much, much less of the administration of justice were you to be released back into the community while awaiting trial on this charge. [ 78 ] For this reason, I find that the Crown has met its burden on the tertiary ground as well as the secondary ground, and I am detaining you on both those grounds. [REASONS FOR JUDGMENT CONCLUDED]