R. v. Jeff, 2022 BCPC 316

Citation: R. v. Jeff 2022 BCPC 316 Date: 20221202 File No: 37885-1 Registry: Fort St John IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REX v. MITCHELL NICHOLAS JEFF REASONS FOR JUDGMENT AT JUDICIAL INTERIM RELEASE HEARING OF THE HONOURABLE JUDGE D. PATTERSON (via videoconference) Counsel for the Crown (appearing by videoconference): A. Thapa Counsel for the Defendant (appearing by videoconference): S. Catona Place of Hearing: Williams Lake , B.C.

Date of Hearing: December 2, 2022 Date of Judgment: December 2, 2022 [ 1 ] THE COURT: I am going to stop you there just for a moment, and it is this, I completely understand the trauma that his family and he grew up in and how it has no doubt affected him. I completely understand that the criminal history that he has and possesses is

like a lead weight around his neck and is dragging him down for the ability to get bail and what have you. [ 2 ] What I am wondering is this, Mr. Catona, if I release him on the electronic monitoring, is he in a position now, before the time he gets out, to ensure that his residence would qualify so that when he gets paroled, he can have the bracelet and get out of custody? [ 3 ] CNSL S. CATONA: Absolutely, Your Honour, yes. Yes. [ 4 ] THE COURT: If that is the case, I do not need to hear from you any further. I am satisfied he meets the reverse onus. Mr. Thapa is now becoming well aware about my feelings on the

interpretation of the Gladue factors with s. 493.2 of the Criminal Code . From everything you have told me, I have no doubt Mr. Jeff qualifies under both s-s. (

a) as an Indigenous man who is a member of the Anahim First Nation; and (

b) as an accused who belongs to a vulnerable population that is overrepresented in the criminal justice system and is disadvantaged in obtaining release under this particular part. [ 5 ] So I am prepared to do a release order, but it will have a condition that the electronic monitoring program will be there and so he will have to be up -- he will have to be fitted with the bracelet before he is let out of Prince George Regional Correctional Centre or whichever institution he happens to be in on his release date. [ 6 ] CNSL S.

CATONA: Is it possible, Your Honour, to order the technical suitability report now or given that his release date will probably be sometime in the future, but it would be safer to call this matter ahead sometime before his release date? [ 7 ] THE COURT: I suspect that Community Corrections will want a current report for the time when he is going to go. So I am seized of the matter. So let us do this. I will adjourn you to the judicial case manager to fix a date for continuation in front of me. [ 8 ] Mr. Jeff, you are going to have to stay in contact with Mr. Catona.

You are going to have to determine your exact date that you are to get out of custody and then we are going to want to bring it in front of me two or three weeks before that. I will then order the technical suitability report and grant you the formal bail at that time. [ 9 ] THE ACCUSED (via videoconference): Okay. [ 10 ] THE COURT: Make sense? [ 11 ] Madam Clerk, would you be so kind as to send an email for me to the -- well, actually, I will do it. I am going to write to Fort St.

John and I am going to order a transcript of today's hearings so that I do not have to try and read my pig scratch and remember why I said what I just said. So I will order a transcript of today's hearings. It will be on a regular basis. So, Mr. Jeff, you will get bail on this. Obviously, anything that happens between now and the date you get the bail has got nothing to do with me and what I am deciding to do based on today's show cause hearing, okay? [ 12 ] THE ACCUSED (via videoconference): Okay. [ 13 ] THE COURT: All right. So I believe that we have a relief JCM today, Ms.

Lewis, I believe, is acting as a judicial case manager. Did you wish to go to her office today, Mr. Catona? [ 14 ] CNSL S. CATONA: Yes, please, Your Honour. [ 15 ] THE COURT: All right. I will adjourn you forthwith, then. Mr. Catona will advise you, Mr. Jeff, as to the date that we have set and, if you find out you are getting out sooner or later, just let Mr.

Catona know and he can arrange with the judicial case manager to change the date for the completion of your bail hearing. [ 16 ] THE ACCUSED (via videoconference): Okay. [ 17 ] THE COURT: All right, thank you very much. [ 18 ] THE ACCUSED (via videoconference): Thank you. [ 19 ] Madam Clerk, do we have anything else we can deal with before lunch? [ 20 ] CNSL A. THAPA: Your Honour, I just have one quick question. Mr. Catona, he is in remand, being right now. If the bail is pending, he might just stay there with less facilities rather than going to federal. [ 21 ] CNSL S. CATONA: Yes. [ 22 ] CNSL A.

THAPA: So that is something that -- [ 23 ] THE COURT: All right. They have got him in the remand section. They do not have him in the proper section. [ 24 ] CNSL S. CATONA: Yeah. [ 25 ] THE COURT: That is something to consider. [ 26 ] Let us get him back, Madam Clerk. [ 27 ] THE CLERK: Okay. [ 28 ] CNSL S. CATONA: Thank you, Mr. Thapa.

[ 29 ] THE COURT: Thank you for bringing that to our attention, Mr. Thapa. I simply did not appreciate that he was still on the remand side. [ 30 ] CNSL A. THAPA: Thank you. [ 31 ] THE CLERK: I just let the sheriff know that we need Jeff to return to the room. [ 32 ] THE COURT: Thank you. [ 33 ] THE CLERK: You're welcome, Your Honour. [ 34 ] THE COURT: Thank you. [ 35 ] Mr.

Jeff, I understand that you are still being held on the remand side of the prison. [ 36 ] THE ACCUSED (via videoconference): Yeah. [ 37 ] THE COURT: Am I correct on that? [ 38 ] THE ACCUSED (via videoconference): Yeah. [ 39 ] THE COURT: All right. Would you like to be able to go onto the other side of the prison and get out of remand? [ 40 ] THE ACCUSED (via videoconference): Yeah, I was trying to do [indiscernible] and the bail so I don't have -- [ 41 ] THE COURT: Yes. Okay. [ 42 ] THE ACCUSED (via videoconference): -- [indiscernible]. [ 43 ] THE COURT: So here is what we are going to do.

There will be a release order without financial obligation, and the reason I am making this release order is as I described earlier. [ 44 ] Hearing the circumstances of this particular offence, the allegation really comes down to this, somebody in Quesnel, British Columbia, lifted a licence plate from an Accord motor vehicle. That licence plate found itself onto an Accord vehicle in the Fort St. John/Charlie Lake part of British Columbia. Now, that is about six, seven hours away, depending on travelling conditions by motor vehicle.

That motor vehicle is seen by a police officer and the licence plate is improperly affixed. It is hanging down. The officer runs the plate and sees that it does not have valid insurance. [ 45 ] So he decides to make a motor vehicle stop. The vehicle does stop, lets the passenger out, and then it drives away. The officer does not follow the vehicle, instead intercedes with the passenger, identifies that passenger who is outside in a store, runs his known accomplices and comes up with Mr. Jeff's name. He then looks up Mr.

Jeff on PRIME and he notes that it sure looks to him like that is the person that was driving the motor vehicle. [ 46 ] So he broadcasts it and, ultimately, another police officer in the Charlie Lake area, which is not far out of Fort St. John, while doing routine checks for the motor vehicle, observes an individual in black, gets somewhat suspicious of that individual, ultimately finds the Accord, seizes the Accord, applies for a warrant for the Accord, seizes a number of things out of the Accord including some shotgun ammunition, a piece of BCID in Mr. Jeff's name in the glovebox.

I should indicate the ammunition, as I understand it, was in various parts of the motor vehicle, but not in plain view, a black-handled knife, and some other items. That second police officer is not able to identify the man in black who departed the scene, for lack of a better term, as being Mr. Jeff. [ 47 ] So what the Crown case really comes down to is a stolen licence plate on a motor vehicle which a police officer will testify to was being driven by Mr. Jeff and which incidentally had Mr. Jeff's BCID in at the time that the vehicle is searched pursuant to a warrant to search. Mr. Jeff seeks his release.

He is in a reverse onus situation. [ 48 ] Considering the fact that he is a member of the Anahim First Nation, both of his parents are residential school survivors, given the realities of being an Anahim First Nations man born and growing up in the Williams Lake area of British Columbia, subject to the systemic and other factors that are often in play in the lives of our First Nation people, I have no doubt that s. 493.2 of the Criminal Code applies in this case, as does s. 493.1 . 493.1 says: In making a decision under this Part, a peace officer, justice or judge shall 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 subsection 498(1.1) or 515(10), as the case [might] be. [ 49 ] Of course, 493.2, which was put in the Criminal Code not long ago, really, is a recognition in law of the Gladue factors applying at the bail stage and it says the following: In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of (

a) Aboriginal accused [Mr. Jeff qualifies]; and (

b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part. [ 50 ] Again, Mr. Jeff qualifies under that part. The reality is, as a First Nations man living in Williams Lake, well employed, with his

criminal record that acts like a ball and chain around his neck, he definitely meets the definition of an individual who is a member of a vulnerable population overrepresented in the criminal justice system, especially in the remand population where statistics show that between 30 and 40 percent of people on remand are First Nations individuals. [ 51 ]

Section 11(

e) of the Charter provides that any person charged with an offence has the right not to be denied reasonable bail without just cause. The right to bail under s. 11(

e) of the Charter includes the presumption of innocence, and I am going to say this, and counsel have probably heard me say it already, but the powerful dissent in R. v. Hall from 20 years ago, 2002 SCC 64 , applies in this case at paragraph 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 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. [ 52 ] I am of the view that he has met the secondary grounds. Primary ground is not, in my view, at play in this particular case. So, I believe he has met the onus. Going back and living with his father is a viable plan in Williams Lake. I have no doubt he is well known by the police.

I have no doubt that the Community Corrections Office will keep a close eye on him and, if he decides to be lured into the criminal lifestyle yet again, he will no doubt find himself back where he is right now on an allegation of breaching my release order. [ 53 ] So a release order, as I mentioned before, without financial obligation. [ 54 ] Madam Clerk, we are going to have the following conditions. [ 55 ] 1101, you must report in person to a bail supervisor within four business days of your release from custody and, after that, you must report as directed by the bail supervisor, and I am going to have the bail supervisor in Williams Lake, and I know that causes problems for Community Corrections, but I do not see any reason to send him up to Fort St.

John to report just to return to Williams Lake.

The address and telephone for the Williams Lake Community Corrections Office will be put into that document. [ 56 ] 1213, you must comply with the electronic supervision agreement, including the wearing of and care for the electronic supervision equipment. [ 57 ] 1213(a), you must accept the community correctional centre's transportation and report immediately to the nearest Community Corrections Office where the electronic supervision equipment will be installed or, if the Community Corrections officer will come to the jail, you must have the electronic monitoring bracelet installed on your person before your release from custody.

So, do you understand that, sir? [ 58 ] THE ACCUSED (via videoconference): Yeah. [ 59 ] THE COURT: They will either physically take you in custody to get the bracelet put on or they will come and put it on you and then release you.

Either way, you have four business days to report to your bail supervisor in Williams Lake. [ 60 ] THE ACCUSED (via videoconference): Okay. [ 61 ] THE COURT: All right. [ 62 ] 1210, when first reporting to the bail -- sorry, it is going to be a condition of the curfew/house arrest. [ 63 ] 1209, you must obey a house arrest by being inside the place where you live and regularly sleep between the hours -- sorry, 24 hours a day, seven days a week, with the exception on Wednesdays, period.

On Wednesdays, you shall be allowed out of your residence between the hours of 1:00 p.m. and 5:00 p.m. daily for the purpose of shopping, getting the necessities of life, and attending your Community Corrections bail supervisor, if so scheduled. During the time of 1:00 p.m. to 5:00 p.m. on Wednesdays, you shall not leave the city limits of Williams Lake, British Columbia. Do you understand that, sir? [ 64 ] THE ACCUSED (via videoconference): Yeah. [ 65 ] THE COURT: All right. The exceptions are as follows: (

a) you have the prior written permission of your bail supervisor; such permission is to be given only for employment or other reasonable purposes; (

b) you are in the immediate presence of a bail supervisor or a police officer; (

c) you are going directly to or returning directly from a healthcare facility because of a medical emergency. You must provide, and I take it you will consent to do this, sir, proof of your attendance at a healthcare facility if requested by your bail supervisor or a police officer. Do you consent to do that, sir? [ 66 ] THE ACCUSED (via videoconference): Yeah. [ 67 ] THE COURT: Thank you. You may leave your residence during your curfew hours as long you do not go more than 10 metres from your front door. [ 68 ] Is it is a residence he is residing in, Mr. Catona, or an apartment complex? [ 69 ] CNSL S.

CATONA: The last address I had, Your Honour, was 910 Western Avenue, Williams Lake, B.C. Mr. Jeff, is your father still at that address? [ 70 ] THE ACCUSED (via videoconference): Ah, 1172B, that's my address. [ 71 ] THE COURT: Sorry 1172? [ 72 ] THE ACCUSED (via videoconference): B MacKenzie.

[ 73 ] THE COURT: Sorry, how do they spell the name of the street? [ 74 ] THE ACCUSED (via videoconference): 1172B MacKenzie Avenue, Williams Lake. [ 75 ] THE COURT: I thank you, yes. 1172D MacKenzie Avenue. [ 76 ] THE COURT: Isn’t it B as in Beta? [ 77 ] THE ACCUSED (via videoconference): As in Bravo, yeah. [ 78 ] THE COURT: B as in Bravo, 1172B, as in Bravo, MacKenzie, and is it an avenue or a street or a drive, or do we know? [ 79 ] THE ACCUSED (via videoconference): Avenue. [ 80 ] THE COURT: Sorry, you broke up there, I did not hear you. [ 81 ] THE ACCUSED (via videoconference): Avenue. [ 82 ] THE COURT: Thank you. [ 83 ] You must reside at 1172B MacKenzie Avenue, Williams Lake, British Columbia, unless you are given permission by your bail supervisor to reside at a different location. [ 84 ] Your release order conditions will be supervised electronically (technical suitability report required prior to release from custody).

That way there is no misunderstanding on anybody's part. [ 85 ] So, any other conditions you would like to see, Mr. Thapa? [ 86 ] CNSL A. THAPA: [Indiscernible] -- [ 87 ] THE COURT: He has already got a lifetime weapons prohibition, that kind of thing. I do not need to pile on a whole bunch of conditions that he has already got subject to on other court orders. [ 88 ] CNSL A. THAPA: Your Honour, not to occupy a driver's seat. [ 89 ] THE COURT: All right. [ 90 ] CNSL S.

CATONA: Defence is in agreement. [ 91 ] THE COURT: All right, thank you. [ 92 ] 1624, you must not occupy the driver's seat of any motor vehicle unless you are in the possession of a valid British Columbia driver's licence, period. [ 93 ] I want to give him some hope, but I am going to add the following condition.

There is going to be two of them. 1625, you must not occupy the driver's seat of any motor vehicle with any alcohol or cannabis in your body, I will make that tetrahydrocannabinol, T-e-t- r-a-h-y-d-r-o-c-a-n-n-a-b-i-n-o-l, in your body; and 1626-1, you must not enter or handle any part of any motor vehicle, other than public transport, unless the registered owner or the person lawfully entitled to possess the vehicle is present in the vehicle or you have in your immediate possession their prior written permission to be in that motor vehicle, which may be in paper or electronic format.

So what that does, sir, that stops you from casing motor vehicles in a parking lot, for instance. You cannot touch them, you cannot go in them, unless the registered owner is present. [ 94 ] THE ACCUSED (via videoconference): Yeah. [ 95 ] THE COURT: Make sense? [ 96 ] THE ACCUSED (via videoconference): Yeah. [ 97 ] THE COURT: All right. I am also going to add, the exception is if you have the written permission of your bail supervisor, period.

That written permission may be in paper or electronic format and you must carry it on your person at all times that you are in a motor vehicle where the registered owner is not present. [ 98 ] All right, Mr. Thapa, anything else that you were wanting me to consider? [ 99 ] CNSL A. THAPA: No, Your Honour, thank you. [ 100 ] THE COURT: Thank you. [ 101 ] All right, sir, I am not going to waive the requirement that a justice of the peace read that document to you and I am not waiving the requirement that you sign it.

So, obviously, you still have to get a hold of your counsel and, between the two of you, figure out what date you are eligible to get released, get a hold of Community Corrections ahead of time, and get them to confirm that 1172B MacKenzie Avenue will be good for the bracelet. If it is not, Mr. Thapa is going to make a note that it can be put back in front of me and we will revise it with an address that does work for you. [ 102 ] THE ACCUSED (via videoconference): Okay.

[ 103 ] CNSL S. CATONA: And, Your Honour, a return date? [ 104 ] THE COURT: Date to go to court? Yes. [ 105 ] CNSL S. CATONA: The 19th of December, please, at 9:00 a.m. -- actually, I think 10:30 would be better on the 19th, because he will still be incarcerated, I presume, on that date so -- [ 106 ] THE COURT: All right. [ 107 ] CNSL S. CATONA: -- so 10:30 a.m. Mountain Time on -- or, sorry, 10:30 a.m. Pacific Time on the 19th of December in Fort St. John -- in Fort St. John Provincial Court Courtroom 003. [ 108 ] THE COURT: The only thing I will add to that, Madam Clerk, it is the year 2022.

So December 19, 2022, 10:30 a.m. Pacific Standard Time, courtroom number 003, Fort St. John courthouse, and I will direct that he can appear by video if he is out of custody, but I anticipate he will be appearing in custody. [ 109 ] CNSL S. CATONA: Thank you, for an arraignment, please. [ 110 ] THE COURT: Thank you. (REASONS CONCLUDED)