R. v. Lee, 2021 BCPC 356

Citation: R. v. Lee 2021 BCPC 356 Date: 20210628 File Nos: 37138-2-C, 37138-3-KA, 37138-4-KCA Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEON LEE REASONS FOR JUDGMENT AT JUDICIAL INTERIM RELEASE HEARING OF THE HONOURABLE JUDGE D. PATTERSON Counsel for the Crown: R. L. Kis appearing by videoconference Counsel for the Defendant: E.M. Murphy appearing by videoconference Place of Hearing: Williams Lake , B.C.

Date of Hearing: June 28, 2021 Date of Judgment: June 28, 2021 [ 1 ] THE COURT: Deon Lee is seeking his release from custody in relation to Information 37138-3-KA and 37138-4-KCA. The B.C. Prosecution Service is seeking to revoke the bail that was granted on June 24, 2021, by my brother Judge Struyk in relation to

Information 37138-2-C. [ 2 ] This is a situation in which it appears to the court that it would be a benefit to know what charges are being faced, so in relation to Information 37138-4-KCA, there are three counts: Count 1, Deon Lee, on or about the 26th day of June, 2021, at or near Fort St. John, in the Province of British Columbia, did commit assault of Dana Macsween contrary to s. 266 of the Criminal Code . Count 2, Deon Lee, on or about the 26th day of June, 2021, at or near Fort St.

John, in the Province of British Columbia, being at large on a release order did fail to comply with a condition of that release order by having contact or communication with Dana Macsween contrary to s. 145(5) (

a) of the Criminal Code ; and Count 3, Deon Lee, on or about the 26th day of June, 2021, at or near Fort St. John, in the Province of British Columbia, being at large on a release order did fail to comply with a condition of that release order by going to a place where Dana Macsween happened to be, contrary to s. 145(5) (

a) of the Criminal Code . [ 3 ] Information 37138-2-C is a single count information that says: Deon Lee, on or about the 23rd day of June, 2021, at or near Fort St. John in the Province of British Columbia, being at large on a release order, did fail to comply with a condition of that release order by possessing a knife, contrary to s. 145(5) (

a) of the Criminal Code . [ 4 ] And the third Information is 37138-3-KA, which says: Deon Lee, on or about June 26, 2021, at or near Fort St. John, in the Province of British Columbia, being at large on a release order did fail to comply with a condition of that release order by contacting Dana Macsween, contrary to s. 145(5) (

a) of the Criminal Code . [ 5 ] In making my decision today, I did consider at great length the alleged victim and the protection of that alleged victim, Dana Macsween, and I also considered the fact that on June the 24th of 2021, Mr. Lee was released by my brother Judge Struyk, and the relevant conditions of that release order included: Condition 3: You must have no contact or communication directly or indirectly with Dana Macsween. Condition 4: You must not go to or be within 10 metres of any place where Dana Macsween lives, works, attends school, or worships or happens to be.

If you see her, you must leave her presence immediately without any words or gestures. [ 6 ] Mr. Lee is in a reverse onus situation as a result of the new substantive charge of assault, and the fact that he was on a release order of Judge Struyk at the time of the alleged offences, plus he is alleged to have committed more breaches. [ 7 ] The significance of this file is that on June 26, 2021, the RCMP did what is commonly referred to as “a wellness check” on Ms. Macsween. Police had been told that Ms. Macsween was sending out suicidal texts and that she was very scared of Mr.

Lee. [ 8 ] The police attended to the Best Western Hotel in Fort St. John, British Columbia, where they located Ms. Macsween in a hallway sitting down. She appeared to be in an intoxicated condition and she had a combination of both old and new injuries, including a swollen cut lip, blood in her mouth and on her clothing, and some lacerations. [ 9 ] Based on what the attending police officer observed and had been told, including that Mr. Lee allegedly had pushed Ms. Macsween down some stairs, the police officer came to the conclusion that Mr. Lee was arrestable for assaulting Ms. Macsween. [ 10 ] Ms.

Macsween was taken to hospital. The police spoke to a mental health nurse at the hospital, who told them that the injuries to Ms. Macsween's face were not there the day before when she had been in hospital. The nurse also told the police that it appeared as though Ms. Macsween had rug burn marks and finger-shaped bruises within her inner arm. The nurse emphasized that apparently Mr. Lee had pushed Ms. Macsween down some stairs. [ 11 ] Police attended to the Site C construction site outside of Fort St. John for the purpose of arresting Mr. Lee.

Police also spoke to the individual who had made the initial complaint. The complainant told police that Ms. Macsween had sent the complainant a photo and that Ms. Macsween appeared beat up in the photo. The complainant also stated that Ms. Macsween had told her that she was terrified and fearful of Mr. Lee, but that she was fearful of complaining to the police, as Mr. Lee's parents could perhaps lose their property as a result of being surety for Mr. Lee. [ 12 ] I am told that Mr.

Lee has no criminal record , but the Crown is concerned about: (1) the escalation of violence, (2) the very obvious fact that the allegation is that within 48 hours of being released on bail by my brother Judge Struyk,

(3) Mr. Lee completely ignored the conditions of his release order, by having had contact or communication directly with Dana Macsween, (4) committed an assault of Ms. Macsween, and (5) was in a place where he knew Ms. Macsween would be, or if he did not know that she would be there, once he discovered she was instead of doing what he was supposed to do, which is not have contact with her and to depart the area, he did just the opposite and that led to the incidents that bring him into custody. [ 13 ] I am told by Ms. Murphy, acting as duty counsel, that Mr. Lee is 33 years of age. He is from St.

Mary's, Newfoundland. He has been employed since March of 2021 at the Site C construction site. He is a concrete specialist, and that he had gone to the Best Western in Fort St. John because he had a room there. [ 14 ] He says that he -- I am told that the accused says he was surprised to see Ms. Macsween's truck there and he was equally surprised to receive text messages from her, inviting him to go drinking. Apparently he has an alcohol addiction, for lack of a better term, and could not help himself, despite being on a release order, and for whatever reason got together with Ms. Macsween.

[ 15 ] I am told, as well, that the accused has a very practical solution to the problem at hand. If I let him out of custody, he will go to the Fort St. John airport, get the next flight out of Fort St.

John, and work his way back to Newfoundland. [ 16 ] I am required by s. 515(13) of the Criminal Code to consider the victim and her safety. [ 17 ] I am also required by s. 493.1 of the Criminal Code , in making a decision under this part, to give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in ss. 498(1.1) or 515(10) as the case might be. [ 18 ] I note at this point that there was nothing that I was told by Ms.

Murphy, or the prosecutor for that matter, that leads me to believe that Mr. Lee falls within that class of person outlined in s. 493.2 of the Criminal Code that should be given particular attention. [ 19 ] I note the powerful dissent in R. v. Hall , 2002 SCC 64 , at paragraph 47 . It states: At the heart of a free and democratic society is the liberty of its subjects.

Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty. [ 20 ] I also note that as per R. v. Zora , 2020 SCC 14 at paragraph 1 , R. v. Myers , 2019 SCC 18 at paragraph 1 , and R. v.

Antic , 2017 SCC 27 , at paragraphs 29 and 67 (d) , that the default position per the Supreme Court of Canada is that the accused should be released at the earliest opportunity and on the least onerous terms available in the circumstances. [ 21 ] I am also fully aware of the ladder principle and I am fully aware of the fact that each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. [ 22 ] In this particular case, I need to target specifically the risk factors set out in s. 515(10) of the Criminal Code and that would particularly be regarding Mr.

Lee's desire, for lack of a better term, to have contact with Ms. Macsween, whether that is by text message or in person, and the risk that it would pose to Ms. Macsween and to the criminal justice system generally, that Mr.

Lee would commit further criminal offences if I was to release him from custody. [ 23 ] In looking at the conditions which he is presently on, they are pretty clear: no contact or communication directly or indirectly with Dana Macsween, and not to go or be within 10 metres of any place where Dana Macsween lives, works, attends school or worships or happens to be, and if you see her you must leave her presence immediately without any words or gestures. [ 24 ] It is clear to me that Ms. Macsween is living in fear of Mr. Lee. It is also clear to me that Mr.

Lee, for whatever reason, was unable to comply with the release order that he had been given just two days before. [ 25 ] In all the circumstances, I am in agreement with the Provincial Crown that there are no conditions in a release order that would stop Mr. Lee from having contact with Ms. Macsween, and in looking at her particular situation as a vulnerable woman residing at or near the Best Western Motel in Fort St. John, that my releasing Mr.

Lee would do nothing to protect her and could lead, and in all probability would lead, to further contact between the two of them and further violence. [ 26 ] So in these circumstances, I am not satisfied that the release plan presented by Mr. Lee, which is essentially, “I am going to leave the Province of British Columbia”, which in itself would give rise to concerns on the primary ground, is adequate in all the circumstances. Accordingly, I am ordering the detention of Mr. Lee on the secondary ground. So there is a detention order in this case. [ 27 ] Ms. Kis? [ 28 ] CNSL R.

KIS: And the previous release order is then cancelled? [ 29 ] THE COURT: That is correct. All previous -- the previous release orders are cancelled, so a detention order on 37138-3-KA and on 37138-4-KCA, and I have revoked the bail on 37138-2-C. [ 30 ] CNSL R. KIS: Yes, Your Honour. Then I would be asking for the no-contact order to be on the detention order and see if I - - [ 31 ] THE COURT: Yes. There will be a no-contact with Dana Macsween. [ 32 ] CNSL R. KIS: And for the record I believe that is s. 515(12). [ 33 ] THE COURT: Sub (2) - - sorry, 515(2) is on remand. [ 34 ] CNSL R.

KIS: Sorry, 515(12), I believe it is. [ 35 ] THE COURT: Thank you, yes. (REASONS FOR JUDGMENT)