R. v. Shular, 2023 BCPC 116

Citation: R. v. Shular 2023 BCPC 116 Date: 20230419 File No: 37628-1-A, 37661-1, 37608-1, 37608-2-A, 37608-3-A, 37608-4-A, 37608-5-A, 37608-6-A, 37608-7-A, 37629-1- A, 37634-1, 37708-1, 37829-1 Registry: Fort St. John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA File No: 37628-1-A REX v. KELLY SHULAR AND: File No: 37661-1 REX v. KELLY DON SHULAR AND: File No: 37608-1 REX v. KELLY DONALD SHULAR TREVOR DAYTON WILLIAMS AND:

File No: 37608-2-A, 37608-3-A, 37608-4-A, 37608-5-A, 37608-6- A, 37608-7-A, 37629-1-A, 37634-1, 37708-1, 37829-1 REX v. KELLY DONALD SHULAR REASONS FOR JUDGMENT RE APPLICATION OF THE HONOURABLE JUDGE O. FLECK (Re Accused Shular)

Counsel for the Crown: P. Swartz Counsel for the Defendant: S. Catona Place of Hearing: Fort St. John, B.C. Date of Hearing: April 5 and 19, 2023 Date of Judgment: April 19, 2023 [ 1 ] THE COURT: Mr. Shular has made application pursuant to s. 523(2) (

c) of the Criminal Code to vacate a detention order that was made by Judge Chettiar on February 19, 2023, following a weekend bail hearing conducted on that date. [ 2 ] In my view, an application of this nature proceeds in two parts, the first part being to decide whether any order that was previously made, including a detention order, should be vacated and, only if it is vacated, then it would proceed to part two, which is to determine what order should be made in place of the vacated order.

This is my decision on the first part, which is whether to vacate Judge Chettiar's order. [ 3 ] In support of his application, Mr. Shular asserts that there is a material change in circumstances that has taken place since that bail hearing took place. [ 4 ] I will just pause to note that "material change in circumstances" is what I found to be the applicable legal test. I gave that decision back on April 5th of this year. In interpreting s. 523(2) , which states "…on cause being shown an order may be vacated…", in my view the caselaw supports an

interpretation that “showing cause” means showing a material change in circumstances. Therefore, that is the legal threshold or test that Mr. Shular must meet in order to have the detention order of Judge Chettiar vacated. [ 5 ] It is also worth noting that an application under s. 523(2) is an application for a form of bail review. It is not an appeal. Consequently, I do not sit in appeal of Judge Chettiar’s decision. It is not for me to determine whether Judge Chettiar made a reasonable or correct decision at the bail hearing.

My jurisdiction is to determine whether a material change in circumstances has occurred since the detention order, thus justifying vacating the detention order. [ 6 ] In support of the application, like I have said, Mr. Shular has asserted several circumstances that he asserts are, in fact, material changes in circumstances. [ 7 ] The first of these is what I will refer to as the main ground and which was the primary subject of the submissions made on this application.

That is discovery of an inaccuracy in an assertion made by Crown counsel during the bail hearing on February 19 with respect to the circumstances of an alleged breach that is said to have taken place on February 13th of this year. Just to summarize the nature of that inaccuracy, it had to do with whether Mr. Shular had a court appearance on February 13 and thus had grounds to be outside his residence during his house arrest hours but I will get into that a little bit more in a moment. [ 8 ] A second ground advanced by Mr.

Shular in terms of material change in circumstances is the prejudice that he has suffered as a result of his detention; specifically, that he has suffered a loss of business and that he is facing a mortgage foreclosure as a result and, I imagine, he has other bills as well that he has not been able to cover in the meantime. [ 9 ] A third ground that he asserts is that he has now been able to retain counsel, whereas at the time of the bail hearing he did not have counsel and duty counsel was declining to assist him at the bail hearing on February 19 because of the complexity of the files.

Specifically, he submits that he is now able to assert, through counsel, that there are Charter issues as well as other triable issues that have been identified in the disclosure that has been provided on each of the charges he faces, which he was not able to bring up while unrepresented at the bail hearing. Also, there were Gladue factors that should be considered but were not raised at the bail hearing.

Therefore, he submits that, since he now has counsel who can raise these issues, that this is a material change in circumstances. [ 10 ] The final change in circumstances that he presents is that he is now able to offer a $1,000 cash deposit for bail which was apparently not available as of February 19. [ 11 ] I will address each of those grounds in turn, starting with the factual inaccuracy from the bail hearing on February 19. [ 12 ] At this point, both the Crown and the defence seem to agree that, at the bail hearing on February 19, Crown counsel asserted that Mr.

Shular had no court appearance on February 13 and that, when he was arrested by the police on February 13 for being outside his residence during his house arrest hours, he had no reasonable reason for being outside his residence. It is now agreed that there was, in fact, a court appearance on February 13. [ 13 ] It was a court appearance on a municipal bylaw infraction allegation which, apparently, does not show up in normal searches of court-online records in the same way that, for instance, a Criminal Code appearance or provincial offences might appear in the system. In fact, Mr.

Shular did have a court appearance at 9:00 a.m. on February 13 but Crown counsel stated at the bail hearing that there was no court appearance on February 13. [ 14 ] That is the inaccuracy that is at the centre of the asserted change in circumstances and, specifically, as it relates to Count 2 on Information 37608-7-A, which is an allegation for breach of bail for being outside during his curfew hours on February 13th. [ 15 ] At the bail hearing, Mr. Shular clearly asserted that he did have court that day. He says that several times to Judge Chettiar.

He certainly made it clear that he was disputing what Crown counsel was saying about the fact that he had no court on that day. He also

made it clear that he had a permission letter from his bail supervisor that allowed him to be outside his residence for the purpose of attending court. I will note that the wording used in the permission letter does not limit that to criminal court appearances. It just says "court." Thus, that would seem to cover any form of court, whether it is civil, criminal, bylaw, or anything that involves a court appearance. [ 16 ] At the bail hearing, Mr. Shular did make that clear to Judge Chettiar. Therefore, it is clear to me that Judge Chettiar was well aware that Mr.

Shular was disputing the allegation contained in Count 2 on that Information and why he was disputing it. [ 17 ] In reviewing the transcript, I find that Judge Chettiar does not expressly favour the Crown's factual assertion over Mr. Shular's assertions. However, Judge Chettiar does mention that she also referred herself to an online database which also does not show a court appearance for February 13. Therefore, in her mind, she had confirmed that there was no court appearance on February 13 and she says so on the record.

From that, I can infer that she likely found that the Crown's version of events at that point was accurate and not Mr. Shular's. [ 18 ] Given that circumstance, I would find that it is certainly possible that Judge Chettiar considered that Mr. Shular did not have a court appearance on February 13, although, like I said, she never expressly says that on the record one way or the other. [ 19 ] However, in reviewing the totality of the transcript, it is also clear, after looking at her reasons for decision in detaining Mr.

Shular, that Judge Chettiar took many factors into account, not only the specifics of the allegation from February 13. In fact, she took into account factors that go well beyond the allegations of February 13. [ 20 ] Specifically, Crown counsel on that day went to great lengths to detail all of the allegations from all of the files that were before the court - in other words, all 13 of the files on which the Crown was seeking detention or to revoke bail on that day – and went through the Crown's case with respect to each one, including the specific allegations and the factual circumstances.

In addition, Crown counsel also went through Mr. Shular's criminal record. [ 21 ] Thus, all of these factors were before Judge Chettiar and it is clear that she took all of these factors into account. I am going to read specifically from a couple of passages from pages 29 and 30 of the transcript, quoting Judge Chettiar. From page 29, I am looking at lines 4 to 11 where she says: And then I am looking at the, you know, the repeated breaches of the curfew, whether it is seven breaches or eight breaches, it does not matter, but there are numerous breaches.

And I am not sure what other condition I can impose on your release order to, you know, alleviate the potential for you reoffending or, you know, the potential for the secondary ground concern, which is the safety of the public. Then going on to page 30, at lines 28 to 33, she states the following: It is not just your last offence, it is the, you know, the number of informations that Mr.

Mann just related to, and there are some significant concerns with firearms and threats and various individuals, innocent public being, you know, put under threat. [ 22 ] These passages make it very clear to me that Judge Chettiar was taking many, many factors into account, not simply the February 13 allegation. [ 23 ] I did note that, in reviewing the transcript, there was not much attention paid to Count 1 on the most recent Information. Count 1 is an allegation of breach stemming from February 8. It is alluded to by Crown counsel and he gives some brief circumstances for that event but that’s it.

It is then not referred to in detail by Judge Chettiar nor by Mr. Shular himself during his submissions. Nonetheless, I find the February 8 allegation significant because Judge Chettiar goes on to say that it was not just Mr. Shular’s last allegation (i.e. the February 13 allegation) that she is considering.

Thus, even though she does not expressly mention the February 8 allegation, it is clear that she was considering that new allegation and not only the new February 13th allegation when she made the detention order. [ 24 ] In giving her reasons for decision, Judge Chettiar did not provide a precise mathematical breakdown of exactly how much weight she gave to each factor in arriving at the decision to detain Mr. Shular. Of course, it would be very unusual for any judicial officer hearing a bail hearing to structure reasons for detention in that fashion.

However, in my reading of her reasons for decision, it is very clear to me that Judge Chettiar considered many factors. It is possible, and probably likely, that she considered the February 13 breach allegation as being one for which the Crown has a strong case; however, it was only one of many factors that she considered in detaining Mr.

Shular. [ 25 ] In particular, I place a fair amount of emphasis on Judge Chettiar's comment on page 29 of the transcript where she says it does not matter if it was, “…seven breaches or eight breaches…” What I infer from that is that, even if the February 13th breach had not been before her, in the final analysis for Judge Chettiar, it played a relatively minor role in her conclusion about the totality of the circumstances and that Mr. Shular should be detained. Therefore, I find it is very likely that she would have detained Mr.

Shular even if the February 13 allegation had not been before her at the time of the bail hearing. [ 26 ] As a result, I find that the factual assertion that was made by Crown counsel about Mr. Shular having no court on February 13, although it ultimately proved to be an incorrect factual assertion, played at most a minor role in Judge Chettiar's decision to detain Mr. Shular and that the subsequent discovery of that inaccuracy is not a material change in circumstances that would justify vacating the detention order made by Judge Chettiar. [ 27 ] However, as I have said, Mr.

Shular does raise several other grounds as material changes in circumstances. Thus, I will address each of those as well, beginning with the prejudice that he says he has suffered as a result of being detained, which, he says, is, in and of itself, a material change in circumstances. [ 28 ] There is no doubt that when a person is detained before trial that prejudice results to that person. By its very nature, it is detention. So that means the person's liberty is being taken away. Taken strictly by itself, that can be viewed as prejudice to that person.

[ 29 ] That is why the law, in the way it is structured in the Criminal Code , places emphasis on the presumption of innocence and also places a presumption on release prior to trial, at least if a person is not in a reverse onus situation (Mr. Shular was in a reverse onus situation in this case). Nonetheless, the Criminal Code also recognizes that, in certain circumstances, detention is justified.

Therefore, prejudice resulting from detention, in and of itself, is not a circumstance that would be considered a change in circumstances because that is the natural foreseeable result of a bail hearing that results in detention. [ 30 ] In this particular case, Mr. Shular points to specific consequences of his detention: he has lost business because he is self- employed and he is having difficulties meeting his mortgage payments. However, those are not changes in circumstances because those are entirely foreseeable consequences of a detention order.

Therefore, it is not something that was not known to either the court or the parties at the time of the bail hearing. It was entirely foreseeable to everybody involved, as it always is when a person is detained, that there were likely to be financial consequences flowing from Mr. Shular’s detention. [ 31 ] Therefore, I do not accede to the submission that those types of consequences of detention are, in and of themselves, a change in circumstances that would justify vacating the detention order. I will also note that, to the extent that it was a factor for Judge Chettiar, Mr.

Shular did, I find, succeed in quite clearly explaining his personal circumstances to Judge Chettiar. He explains to her that he has a business and that he has contracts. He is likely to lose those. In fact, that is probably why he pushed to have a bail hearing on that date. He also talks about his 14-year-old daughter and the effects detention would have on his relationship with her. Again, to the extent that those were circumstances to be considered, I find that they were considered and are not changes in circumstances. [ 32 ] The next material change in circumstances asserted by Mr.

Shular is the fact that he now has counsel, whereas at the time of the bail hearing duty counsel was declining to act due to the complexity of the bail hearing. I can only infer duty counsel thought there was insufficient time to prepare for a hearing taking place that same day and, from the circumstances, I would also infer that Mr. Shular did not have his own counsel or, if he did, his own counsel was not available on that day. [ 33 ] In any case, the bail hearing proceeded without Mr. Shular having the benefit of counsel.

However, the risk of proceeding without the benefit of counsel was more than made clear to Mr. Shular on the day of the bail hearing. Judge Chettiar canvasses it twice with Mr. Shular during the course of the hearing, once at the very outset of the hearing and then again at the close of the Crown's submissions. Therefore, it was very clear that Judge Chettiar was recommending to Mr. Shular that he not proceed with a bail hearing on that day and it is also very clear that Mr. Shular was aware of the risks of proceeding on that day.

Nonetheless, he chose to proceed with the bail hearing on his own. [ 34 ] There is no doubt that there were things that Mr. Shular could have said in his submissions at the bail hearing that were left unsaid. By contrast, it is likely that counsel would have identified those points for Judge Chettiar. For instance, there was nothing said to directly address any of the allegations, except the February 13th allegation. There was nothing said to address potential weaknesses in the Crown's case with respect to any of the allegations, other than February 13.

There was nothing said to identify Charter issues on that day. There was nothing said to identify triable issues and, like I have mentioned, Gladue factors were not raised on that day. Significantly, there was also no bail plan put forward on that day, which would have been very important, given the reverse onus situation. [ 35 ] It is very likely that, had Mr. Shular had the assistance of counsel and had counsel had time to prepare, some of these things could have been done much better at the bail hearing but the risk of that was known to Mr. Shular. He decided to proceed. That was his decision.

The fact that he went ahead and made that decision to be unrepresented at his bail hearing does not mean it is now a change in circumstances that he now has counsel. [ 36 ] The Criminal Code makes no provision for a second bail hearing to take place because an accused now has counsel but did not have counsel at a first bail hearing. Furthermore, I am unaware of any caselaw authority that stands for such a proposition.

The way bail is structured in Canada under the Criminal Code , a person generally has one chance at a bail hearing. [ 37 ] If the person is detained at that bail hearing, then, for the most part, the person is limited to certain statutory reviews under the Criminal Code of Canada , which are only available in certain strictly defined or enumerated circumstances. [ 38 ] There is no provision for a de novo bail hearing because a person proceeded unrepresented at the first bail hearing and now has counsel and wants another chance at it.

Frankly, if that was to be allowed in the criminal law, that would bring the entire bail system into chaos because most people would probably take the chance at representing themselves at a first bail hearing knowing that they would get a second chance at it at a second bail hearing if they can then procure the assistance of counsel. That is not the system. [ 39 ] Therefore, I find that it is not a material change in circumstances that Mr. Shular now has counsel. He knew the risk of proceeding. He was aware of the complexities of his case at bail.

If anything, the fact that duty counsel was declining to represent him because of those complexities should have been a clue to him. He wanted to have his bail hearing. He had it. The fact he now has counsel is not a material change in circumstances. [ 40 ] The final factor that Mr. Shular raises is that he is now able to offer a $1,000 cash deposit on bail. Earlier today, Crown counsel conceded that this may very well be a change in circumstances, but did not concede that it is a material change in circumstances.

Determining whether it is a material change in circumstances also requires reference back to the reasons for decision of Judge Chettiar back on February 19th. [ 41 ] As I have said, it does not appear that any bail plan was put to Judge Chettiar on that day and that includes a cash deposit. I see no reference in the transcript to cash being offered as a form of bail plan. [ 42 ] Nonetheless, in reviewing Judge Chettiar's reasons for decision, it is clear to me that, even if the $1,000 had been offered on that day, Judge Chettiar would still have detained Mr.

Shular and, again, this is evidenced by reference to page 29 of the transcript, specifically at lines 7 to 11. I have read these out before but I will just read them again to make this point: … I am not sure what other condition I can impose on your release order to, you know, alleviate the potential for you reoffending or, you

know, the potential for the secondary ground concern … [ 43 ] That leads me to conclude that Judge Chettiar had reached the conclusion that the secondary ground was of such a concern that no conditions would have formed a reasonable alternative to detention at that point and I have no reason to find that a thousand-dollar deposit would have changed that conclusion for Judge Chettiar.

Therefore, although I accept that the thousand dollars probably were not available on February 19 but are now available, I do not find that it is a material change in circumstances because it would not have changed the outcome of the bail hearing back on February 19. [ 44 ] As a result of the foregoing reasons, Mr. Shular's application under s. 523(2) (

c) is dismissed, as cause to vacate the detention order has not been shown. (REASONS CONCLUDED)