R. v. Middleton Date:, 2016 BCPC 106

Citation: R. v. Middleton Date: 20160426 2016 BCPC 0106 File No: 236670 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JERMAINE SHAWN MIDDLETON DECISION ON JUDICIAL INTERIM RELEASE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: Brendan McCabe Counsel for the Defendant: Valerie Hartney Place of Hearing: Vancouver , B.C. Date of Hearing: April 18, 2016 Date of Judgment: April 26, 2016

1 Introduction [ 1 ] This is an application pursuant to s. 523(2) (1)(

a) of the Criminal Code whereby the accused, Jermaine Middleton, seeks his release from custody. The Crown opposes the application arguing detention is necessary on the secondary grounds, the tertiary grounds and to a lesser extent the primary grounds. 2 Background a. The offences [ 2 ] The accused is charged with a number of offences related to what is commonly referred to as a “home invasion.” The facts of the allegations are generally as follows: [ 3 ] During the mid-morning hours of October 14, 2014, a witness was parked on Nassau Drive in Vancouver when he saw a white Cadillac and a dark SUV park.

Approximately five persons, some of whom were dressed as construction workers, exited the vehicles and started to set up traffic cones. The witness heard one of the males state words to the effect of, “I will take the cones down when you go inside.” Four of the males then walked East down the street. [ 4 ] Suspicious over what he had observed the witness called the police. In response, the police attended the area. One of the responding officers, Cst. Hobbs, started walking in the area and when he was in a nearby lane he saw a male believed to be the accused. This male walked directly up to Cst.

Hobbs and asked where his ear piece was. It was Cst. Hobbs’ view that the male knew that Cst. Hobbs was a police officer. [ 5 ] Cst. Hobbs continued walking and as he did so he noticed a white Cadillac and a dark SUV parked on the street. While walking Cst. Hobbs noticed that the male who had spoken to him was now talking on a cell phone. He watched as this male went to the window of the SUV where he appeared to speak with someone inside. The male then entered the driver’s side of the Cadillac. [ 6 ] Cst. Hobbs moved to a position of concealment and he began watching the vehicles. While in his position Cst.

Hobbs saw some males walk West past his location. Cst. Hobbs then heard a car door shut and he saw the brake lights of the Cadillac come on and the vehicle start moving West towards Victoria where he lost sight of it. [ 7 ] The Cadillac was almost instantly observed by Cst. Ward who was a block to the North and watching Victoria drive. Cst. Ward began to follow the Cadillac and it was stopped without incident a few blocks later.

The accused was the driver, and in the front passenger seat was the co-accused, Lenny Middleton, with the other co-accused, Jason Hnatyshyn, in the rear. [ 8 ] The three persons were detained and almost immediately thereafter arrested. Inside the Cadillac the police found jewellery, liquor, a computer and a cell phone. These items were immediately linked to 1836 Nassau Drive. [ 9 ] While Cst. Ward and others were dealing with the Cadillac the police began searching for an incident location.

The search brought the police to 1836 Nassau Drive where they learned that there had been a home invasion style robbery. [ 10 ] With respect to what is alleged to have occurred, the Crown believes Mr. Hnatyshyn, Lennie Middleton “Lennie” and two unknown males forced their way into the residence, violently assaulted the occupants, bound one with zap straps, pointed a firearm at them, sprayed them with pepper spray and stole the items recovered. It is noteworthy, that the video taken from the residence shows the suspects wearing clothes that were similar to that worn by Lennie, and found under Mr.

Hnatyshyn when he was removed from the Cadillac. It is also noteworthy that blood found on the shoes of Lennie and Mr. Hnatyshyn was matched via DNA to the victim’s blood. 3. Court History a. Judicial Interim release [ 11 ] After the accused’s arrest he remained in custody until October 28, 2014, at which point a judicial interim release hearing was held and the accused was detained on the secondary grounds by The Honourable Judge Walker. On June 15, 2015, a review of the detention order was heard and in the result Madame Justice Watchuk confirmed the accused’s detention. b.

Trial process [ 12 ] Despite being arrested in October of 2014, the trial of this matter did not start until January 2016. It is my understanding that the delay was not due to the accused; rather it was due to the co-accused finding counsel and then finding trial time that fit counsel’s calendar. [ 13 ] Once the trial started things took much longer than anticipated and extra days were required. To complicate matters, Lennie dismissed his lawyer and therefore new dates could not be fixed until Lennie retained new counsel.

Once new counsel was retained continuation dates were fixed with the matter continuing in November of 2016 which is 24 months post the accused’s arrest and detention. 4. Accused’s circumstances a. Background [ 14 ] The accused is 39 years old. He was born and raised in Nova Scotia. His father is deceased and he has cousins and a sister in BC. The offender has a significant criminal record. He has youth convictions in 1991 and 1994. In 1996 the accused was convicted in Winnipeg of possession of stolen property. The accused testified this offence involved a vehicle and happened while he was associating

with a bad crowd. [ 15 ] In 1997, the accused was convicted of robbery, break and enter, theft, and assault with a weapon. For these offences the accused was sentenced to four years for the robbery and two years concurrent for the other offences. [ 16 ] In 2002, the accused was convicted of uttering threats, obstructing a police officer, failing to attend court, and two counts of failing to comply with a recognizance. For these offences the accused received a sentence of three months with probation for 1 year. [ 17 ] In 2003, the accused was convicted of trafficking in a

schedule II substance and conspiracy to commit an indictable offence. For these offences the accused was sentenced to 2 years and 11 months for the drug offence and 6 months consecutive for the conspiracy offence. [ 18 ] In 2010, the accused received a 3 year sentence after he was convicted of accessory after the fact to murder. [ 19 ] Of note in the accused’s criminal history is, the uttering threats occurred when he was on judicial interim release. A further observation is the break in the accused’s criminal offending of approximately four years, between 2006 and 2010. b.

Release plan [ 20 ] If released, the accused agrees to follow all of the terms and conditions of his release, including the wearing of an electronic monitoring bracelet. He will live at the home of his sister-in-law, Chantal Ayivon, who is an adult support worker. [ 21 ] The home is large with other family members living upstairs. No one in the home has a criminal record. Ms.

Ayivon was present during the bail application and is therefore aware of all of the circumstances, including the accused’s criminal history and the circumstances of the current allegation. [ 22 ] Letters have been filed by family members offering support for the accused. One of the letters is from the accused’s brother, Anthony, who indicates that he is prepared to employ the accused in the construction industry. 4. Position of the parties a. The Crown [ 23 ] The Crown advances three grounds upon which detention maybe justified.

Specifically, in support of his position that detention is necessary on the primary ground, the Crown points out the accused has no real roots in this province, that he has strong ties to his home province of Nova Scotia, and that he has a criminal record which includes failing to attend court. [ 24 ] With respect to the secondary ground, the Crown argues that the accused’s detention is necessary for the protection of the public and if released there are no terms or conditions that could be imposed that would reduce the risk to an acceptable level.

In support the Crown points to the accused’s serious criminal record, the fact he was on judicial interim release when committed drug offences, and finally, the degree of planning and coordination that went into the commission of the instant offence. [ 25 ] As for the tertiary ground, the Crown argues the case against the accused is very strong. He also points out that a home invasion robbery is a serious offence, and there is the possibility of a significant federal sentence.

It is further submitted that the above factors in the context of a violent home invasion wherein weapons were used and a serious assault was committed as being circumstances where the repute of the justice system would suffer if the accused were released. b. The defence [ 26 ] The defence argues that there has been a change in the accused’s circumstances such that the accused can be released. Further, that any concerns which might exist can be eliminated by imposing terms and conditions which include electronic monitoring.

Defence counsel, points out electronic monitoring was not available at the accused’s initial bail hearing or on his review. [ 27 ] As for the tertiary ground, the defence argues the facts show that the accused was a party to the offence and that he did not commit the violence, thus, and in counsel’s view, the risk of a significant sentence is reduced.

Counsel also argues that the repute of the justice system would suffer if the accused is detained in the face of close monitoring and restrictions when and in contrast, the co- accused, Jason Hnatyshyn, was released on bail despite having a longer criminal record and despite him allegedly being directly involved in the violence. 5. Analysis a. The law [ 28 ] The nature of the application requires some commentary about s. 523 of the Code and the principles related to judicial interim release. The relevant portions of s. 523 (2)(1)(

a) reads: 523

(1) Where an accused, in respect of an offence with which he is charged, has not been taken into custody or has been released from custody under or by virtue of any provision of this Part, the appearance notice, promise to appear, summons, undertaking or recognizance issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, promise to appear, summons, undertaking or recognizance was issued, given or entered into, (

a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3), until his trial is

completed; or (

b) in any other case, (

i) until his trial is completed, and … Order vacating previous order for release or detention

(2) Despite subsections (1) to (1.2), (

a) the court, judge or justice before which or whom an accused is being tried, at any time, … (iii) the court, judge or justice before which or whom an accused is to be tried, may, on cause being shown, vacate any order previouslymade under this Part for the interim release or detention of the accused and make any other order provided for in this Part for thedetention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted. [29] Accordingly, the accused must satisfy the court, on a balance, that there is cause for the previous detention order to be vacated.

Generally the two main circumstances where detention orders have been vacated involve; a significant change in the strength of Crown’scase or second, changes that would satisfy a court that the accused’s detention is no longer necessary on any of the grounds set out insection 515 (10) of the Code. Section 515 (10) of the Code reads: Justification for detention in custody

(10) 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 anyperson under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, ifreleased 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 thatinvolves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [30] When considering the principles of judicial interim release it is helpful to remember that there are no offences in Canada forwhich judicial interim release is not available. Moreover, s. 11 (

e) of the Charter dictates that any person charged with an offence has aright not to be denied reasonable bail. Further, it is also important to recognize that a fundamental principle of our criminal law is thepresumption of innocence. That is all persons accused of a criminal offence are presumed to be innocent and cannot be punished untilconvicted after a fair trial: R. v. Laframboise, (ON CA), [2005] O.J.No. 5785 (Ont. C.A.). [31] Despite the presumption of innocence, there will be circumstances where the detention of an accused person will be necessary.

With this in mind, individual liberty is a hallmark of a free and democratic society and therefore linked to the importance of bail. In R. v.Hall, 2002 SCC 64 , [2002] 3 S.C.R. 309, Iacobucci J., commented: 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. This is the context of this appeal, one in which the “golden thread” that runs throughour system of criminal law is placed in jeopardy. And this is the context in which laws authorizing pre-trial detention must bescrutinized. 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. [32] With respect to the secondary ground, section 515 (10) (b), it must be remembered that bail cannot be denied because a personposes a risk to commit further offences or because there is a risk that they will interfere with the administration of justice, rather, theremust be a substantial likelihood that such events will occur and if they do that public safety would be compromised.

Moreover, even

where there is a substantial likelihood consideration must be given to whether or not detention is necessary in all of the circumstances: R.v. Morales, (SCC), [1992] 3 S.C.R. 711. [33] Determining, if detention is necessary requires considering if the “substantial likelihood” risk can be reduced to an acceptablelevel by the imposition of appropriate bail conditions. Such conditions can include reporting, curfews, area restrictions and monitoring:R. v. Wilcox, 2005 BCSC 1785. [34] Detention based on s. 515 (

c) is not limited to those unexplained crimes, or the most heinous crimes. Rather, s. 515 (10) (c)provides specific considerations that assist in the determination of whether or not detention is necessary to maintain the public’sconfidence in the administration of justice. These considerations include; the apparent strength of the Crown’s case, the gravity of theoffence, the circumstances of its commission and the potential for a lengthy period of incarceration. These considerations are notexhaustive, moreover, even if they support detention a court must not automatically detain.

Rather, a court must consider some otherfactors that may be relevant such as the personal circumstances of the offender. Finally, with this information, the court must balancethe considerations and decide the issue from the public’s perspective which is a reasonable person, fully informed about the legislation,the Charter principles and the circumstances of the case: R. v. St-Cloud, 2015 SCC 27. 6. Application of s. 515(10) a. The primary ground s. 515 (10) (a) [35] The Crown argues there is some concern that the accused will leave the jurisdiction and not attend court.

In support the Crownpoints out that the accused is not from British Columbia, he is a relatively new arrival, he has family in Nova Scotia and he has a recordfor failing to appear. The defence points out, the accused has family in British Columbia, he has a romantic interest here and he hasstarted to set down roots. [36] It is my view the detention of the accused is not necessary to ensure the accused’s court attendance. My determination is basedon his connection to British Columbia.

Specifically, he has been in British Columbia for two years, he has an offer of employment inBritish Columbia, and he has a sister and family who live in Surrey. b. The secondary ground s. 515 (10) (b) [37] The Crown argues if the accused is released that there is a substantial likelihood that he would commit further offences. Healso argues that bail conditions would not adequately reduce the risk of danger to public safety. In support the Crown points to theaccused’s long criminal record including a conviction for failing to comply with a recognizance and to the accused committing offenceswhile on bail in 2002.

Finally, the Crown submits the careful planning and sophistication involved in the instant case as well as thedegree of violence committed supports a belief that the accused is criminally organized and connected. [38] The defence responds by pointing out the accused will have strict bail conditions, including, reporting, electronic monitoringand a curfew.

The defence also points out that the time that the accused has already spent in custody has had a deterrent effect on himand it has driven home the importance of complying with any conditions which might be imposed. [39] In considering the issue, I find the accused’s criminal record and the circumstances of the offences cause for this court to besatisfied that if released there is a substantial likelihood that the accused would commit further offences that pose a danger to thecommunity.

Despite this concern, I am of a view that detention is not necessary as the imposition of strict bail conditions will reduce therisk of further offences below that of “substantial likelihood”. c. The tertiary ground s. 515 (10)(c) [40] The Crown argues that the release of the accused would undermine the public’s confidence in the administration of justice. TheCrown states the case against the accused is strong; the offences are serious with the maximum penalty for break and enter being lifeimprisonment and further, if convicted there is the potential for a lengthy period of imprisonment.

Finally the Crown highlights thecircumstances of the offence including; the forced entry into a home, the indiscriminate use of violence against persons who posed nothreat, the binding with zap straps, the use of weapons, and the significant degree of planning. [41] The defence argues the public’s confidence in the administration of justice would not be undermined if the accused werereleased. The defence argues the case lacks clarity on the accused’s specific involvement and highlights that there is no evidence linkinghim to striking the victims.

The defence also argues that the accused’s lesser role suggests that his sentence if convicted would not belengthy. As to the circumstances of the offence, the defence point out the accused has not been directly implicated in the factshighlighted by the Crown. Finally, the defence encourages the court to be mindful of the extensive delays in the instant matter and thatthe time on remand is not time that the accused can get back. [42] In considering the tertiary ground, I find the case to be strong and at this stage Crown’s position is the accused is a party to theoffences.

The maximum penalties available upon conviction highlight the seriousness of the offences. My knowledge of the sentencingranges suggests that even as a party, and if convicted, the accused will face a lengthy period of incarceration. Lastly, the forced entry,the violence, and the degree of planning are troubling aspects to the circumstances. [43] Despite the above, I note that the accused will have been in custody in excess of two years before the trial resumes.

Further, theaccused’s involvement is somewhat attenuated because there is no evidence he directly applied force or had knowledge about weaponsbeing involved. A final observation is, the co-accused, Mr. Hnatyshyn, was released despite a more direct involvement and a longercriminal history. [44] When I consider the above from the perspective of a reasonable person who is fully informed, I find that they would not loseconfidence in the administration of justice if the accused is released provided there are significant restraints on his liberty.

7. Conditions of release [ 45 ] The accused will be released on his own recognizance in the amount of $5,000.00 without deposit and without surety. The terms and conditions are as follows: 1. You must keep the peace and be of good behavior. 2. You must report to court when required to do so by the court. 3. You must report by no later than 4:00 pm Wednesday, April 27, 2016 to a bail supervisor located at 102 - 14245 56 th Avenue Surrey BC and thereafter you must report in person as and where directed but not less than once per week. 4.

You must comply with all rules of electronic supervision which includes but is not limited to wearing and caring for all electronic supervision equipment. 5. You must reside at [omitted for posting] and you must not change that address without the prior permission of the court. 6. You will ensure that the telephone landline wired into your residence will be maintained in working order at all times. 7. You must not be outside your residence between the hours of 7:30 pm and 6:00 am daily, except with the written permission of your bail supervisor.

Such written permission is to be carried on your person at all times. 8. You must present yourself at the doorway of your residence to any police officer, correctional officer or bail supervisor who attends for the purpose of ensuring your compliance with your curfew. 9. Upon the request of your bail supervisor you must provide your supervisor with all employment information including; proof of employment, hours of employment and contact information for your immediate supervisor. 10. You must not possess any weapons as defined by the Criminal Code . 11.

You must not possess any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance 12. You must not be within the area bounded by; 41 st Avenue to the North, Granville Street to the West, Boundary Road to the East and Kent Avenue to the South in the city of Vancouver Province of British Columbia. 13. You must not have any contact directly or indirectly with Thi Binh Chu, Lien Chu, Rafael Lau, or Jason Hnatyshyn. With respect to Jason Hnatyshyn, you may only have contact while at court or in the immediate company of counsel. 14.

You must not attend any workplace, residence or educational institute known to you to be that of Thi Binh Chu, Lien Chu, or Rafael Lau. 15. You must not possess any cellular telephone unless it is registered in your name. If your bail supervisor requests your cellular phone number, you must then provide to your bail supervisor with your cellular phone number, the name of the carrier and a copy of your cellular phone bill. 16. While outside your residence you must carry a copy of this order on you at all times.

If a copy of this order gets damaged or lost you must immediately notify your bail supervisor and make arrangements to obtain a new copy. __________________________ The Honourable Judge R. Harris Provincial Court of British Columbia