R. v. W.V.W., 2014 BCPC 352

Citation: R. v. W.V.W., M. H. A. Date: 20140808 2014 BCPC 0352 File No: 39743-2-C Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. W. V. W. M. H. A. REASONS FOR JUDGMENT AT JUDICIAL INTERIM RELEASE HEARING RE ACCUSED M.H.A. OF THE HONOURABLE JUDGE S. K. KEYES BAN ON PUBLICATION 517(1) CCC Crown Counsel: T. Bauman Counsel for Accused M.H.A.: B. Gilson, Q.C. Place of Hearing: Prince George , B.C. Date of Hearing: August 8, 2014

Date of Judgment: August 8, 2014 [ 1 ] THE COURT: Mr. A. is charged with multiple offences arising out of his participation in the beating, robbery, confinement, kidnap, and extortion of Mr. W(2). [ 2 ] The circumstances are that Mr. W(2), who is 68 years old, gave a ride to Mr. A. and two young women, C. and T. M. [phonetic], to Prince George from Burns Lake. He dropped them off at an address on Ahbau Street in Prince George and returned there later in the day on their invitation. [ 3 ] After he entered that residence, the home of W. W., he was assaulted by Mr. W. and others in the company of Mr.

A., who was wielding a hatchet or a bat or both. [ 4 ] Mr. W. pointed a gun at Mr. W(2) and pistol whipped him with it. It is not suggested that Mr. A. assaulted Mr. W(2) personally, but he participated in the beating that occurred as a party. Mr. W(2)'s person was searched and his vehicle, keys, cellphone, and bank card were stolen from him. He was threatened, and the PIN number for the bank card was extorted from him. Mr. W(2) was taken to another residence in town where he was again threatened, then to yet another residence.

Ultimately he was able to escape after a confinement of some duration. [ 5 ] He stumbled, injured, into a location on Juniper Street in Prince George where police were called and Mr. W(2) was taken to hospital. He was kept overnight due to the fact that he had suffered a concussion. The photos introduced as Exhibit 2 at this bail hearing show that Mr. W(2) is an elderly man who had clearly suffered traumatic injuries to his face. The skin of his nose was broken and he had black eyes. [ 6 ] The police investigation led them to the residence of Mr. W. on Ahbau Street.

After obtaining a search warrant, the police found Mr. W(2)'s cellphone in the residence, two bats, and bloodstains behind the couch. [ 7 ] On March 4, 2014, Mr. A. was stopped by the police while driving Mr. W(2)'s vehicle, but allowed to leave, because at the time the police were unaware of his involvement in the crime. However, the police investigation led them to arrest Mr. A., who gave a full confession when he was interviewed. He told the police that the whole event was preplanned in the belief that Mr. W(2) had money. [ 8 ] Mr. A. also said that after he obtained Mr.

W(2)'s PIN, he used the bank card to withdraw cash and purchase items until the card maxed out. Mr. A. also said that the parties involved, including Mr. W., were all connected with the criminal underworld and well-known local criminal characters, such as R. M. and F. M., who were involved in some fashion. Crown counsel advises that these persons are well-known criminal underworld figures. [ 9 ] Mr. A. has a very extensive criminal record for a person so young. At only 23 years old, Mr. A. has a record of 53 convictions. The Crown position is that Mr.

A. should be detained on the primary, secondary, and tertiary grounds. With respect to the primary ground, the Crown points to Mr. A.'s two convictions for breaching court orders and his two convictions for escape lawful custody, the most recent of which was February 2013. Simply put, the submission is that the court should have no confidence that Mr. A. will show up for court, because he does not abide by court orders and escapes lawful custody. [ 10 ] The Crown also relies on the secondary ground based upon, again, Mr. A.'s very lengthy criminal record.

He has 55 convictions, an uninterrupted record from youth to present with breaks in the record primarily when in custody, a record not just for breaches of court orders, but also convictions for uttering threats and possession of weapons for a dangerous purpose, in addition to numerous property offences.

Of particular concern are his convictions for possession of a loaded prohibited or restricted firearm, which apparently occurred in the same incident giving rise to his convictions for uttering threats and unlawfully causing bodily harm. [ 11 ] Given that this allegation before the court also involves the use of a firearm, although not by Mr. A., threatening and causing bodily harm to Mr. W(2), the parallels are concerning. [ 12 ] Mr. Bauman also asks the court to consider the tertiary ground in this case, based upon the following factors: the strength of the Crown's case against Mr.

A. is overwhelming if the statement he made to the police admitting his involvement is admitted; the gravity of the offence, simply put it does not get much more serious than confinement, kidnapping, and extortion; a lengthy period of incarceration is likely if Mr. A. is convicted, the Crown submits a fit sentence would be in the range of four to eight years’ incarceration; the oblique involvement of gangs in the matter, that the public could lose faith in the administration of justice if Mr. A. were released, given his admission that this activity was gang-related; and lastly, that Mr.

A. was on bail at the time of the offence. [ 13 ] Mr. Gilson, for the defence, acknowledges that his client has an unenviable record. He notes that there are no convictions for fail to appear on the record, but acknowledges that the number of breaches supports the primary ground, and the number of convictions generally makes the Crown position on the secondary grounds very strong. [ 14 ] With reference to the tertiary ground, he says that the strength of the Crown's case depends in its entirety on whether the statement made by Mr.

A. to the police is admitted in evidence, and that there may have been an inducement which may affect the voluntariness and thus the admissibility of that statement. [ 15 ] That said, Mr. Gilson candidly admits that the secondary grounds for detention are very strong and he would not have sought his client's release but for the events which have transpired since Mr. A. was placed into custody. [ 16 ] I am informed that Mr. A. has been attacked while in custody three times, most recently at Kamloops Regional Correctional Centre where he was slashed on the head with a razor requiring 16 stitches. Mr.

Gilson advises that his client believes someone is behind these attacks, but does not say who that person might be, although Mr. Gilson adds that Mr. W., his co-accused, has been charged with obstruction of justice and uttering threats against Mr. A.

[ 17 ] Mr. Gilson's greater concern is that Mr. A. has contracted a virus which has caused a pericardial infection. Mr. A. has recently spent 26 days in hospital and was released from hospital and transported by air to appear in court in Prince George for his trial on this matter which commences today, that is August 8, 2014. [ 18 ] Mr. A. is on a series of heart medications. He is on nitro spray. He has lost 22 pounds. Currently he is taken to the Prince George Regional Correctional Centre hospital five times per day and given nitroglycerin for pain.

He is told that he needs a defibrillator to be installed in his chest because doctors are concerned about his heart stopping, but he will have difficulty arranging for that procedure in prison. Mr. Gilson says he is informed that if Mr. A. were punched hard in the chest he could die, due to this medical condition. [ 19 ] Mr. Gilson advised that the trial is anticipated to take 15 days, five of which have been scheduled which will extend into September. [ 20 ] The submission from the defence is that, because of these medical concerns, Mr. A. should not be detained pending the conclusion of his trial.

The proposal is that Mr. A. should live under house-arrest conditions in the home of his father, P. A., who lives and owns his own home in Burns Lake, a town approximately three hours' drive one way from Prince George. I am informed that Mr. P. A. is retired and has owned his own home in Burns Lake for many years. The proposal is that Mr. M. A. not leave that residence unless in the company of his father, who will bring him to and from court and anywhere else he must go for medical treatment. I am informed that his family loves Mr.

A. and is willing to support him in Burns Lake. [ 21 ] At the end of submissions on August 6, I sought additional information about Mr. P. A. and the other inhabitants of his residence. Yesterday I was provided with several new pieces of information. Firstly, with respect to Mr. P. A., whom the defence puts forward as a surety, he has a criminal record starting in 1978 with multiple convictions for serious offences. The most recent conviction is for possession of a scheduled substance in September of 2011. The other residents of Mr. A.'s home include his son, K. A., and another person, D. P.

Both have criminal records that include convictions for failure to comply with release terms, and Mr. P.'s most recent convictions are in 2013. [ 22 ] I was also provided with PRIME records which indicate that the police have attended at Mr. A.'s home on more than 40 occasions, as recently as June of this year. As Mr. Gilson points out, such call may have been for reasons unrelated to criminal activity, so I give the PRIME record little weight, but I do infer that whatever is going on there requires the attendance of the police on a regular basis. [ 23 ] Mr. P.

A. wrote a note telling me of his struggles with addiction and his efforts to remain sober and clean up his life. Mr. Gilson also notes that Mr. A.'s sister, C. T., is prepared to take him to reside with her in Prince George. [ 24 ] It should be noted that at the time these offences were alleged to have been committed, Mr. A. was at large in the community after having been released on a promise to appear on two charges of mischief. [ 25 ] Mischief is an offence which is hybrid in nature. It is my understanding that, pursuant to s. 34 of the

Interpretation Act , R.S.C. 1985, in all federal statutes including the Criminal Code a hybrid offence will be deemed to be indictable, and I quote from the

Interpretation Act , s. 34: Indictable and

summary conviction offences

(1) Where an enactment creates an offence, (

a) the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment . . . I will omit the remainder of the sections of s. 34. [ 26 ] Mr. Gilson advised the court that the two charges of mischief had been outstanding for some time before these events before the court took place, and that the Crown had elected to proceed summarily on those informations. Both the Crown and defence submitted that the case of R. v. Parsons , 1997 Newfoundland Court of Appeal, is authority for the proposition that such an election will somehow change the nature of a hybrid offence deemed to be indictable under the

Interpretation Act into a

summary conviction offence for the purposes of 524 and, by analogy, s. 515(6), the reverse onus provisions. [ 27 ] However, a review of the Parsons decision reveals that it was not decided on those grounds, and indeed Parsons interprets a hybrid offence as indictable for the purpose of assessing the applicability of the reverse onus provisions in that case. The court in Parsons does remark that: While the Crown has not yet elected to proceed by way of indictment in respect of these hybrid offences, s. 34 of the

Interpretation Act deems them to be indictable . . . until such time as the Crown elects otherwise. [ 28 ] With respect, this remark is obiter and there is no authority cited in that decision for the proposition that the

Interpretation Act deems them to be indictable "until such time as the Crown elects otherwise". The

Interpretation Act imposes no such limitation. [ 29 ] The decision in Parsons is not compatible with the later decision of the B.C. Court of Appeal, which is binding on me, in R. v.

Connors, [1998] B.C.J. No. 41, in which the court, unanimous on this point, found that a hybrid offence is an indictable offenceregardless of the Crown election. I quote from paragraph 69: Counsel for the appellant submits that the passage from the headnote to R. v. Toor quoted by Seaton J.A. in R. v. B. is correct save forthe concluding phrase "until the Crown otherwise elects". At least for the purposes of the Identification of Criminals Act the term"indictable offence" includes offences which may be prosecuted summarily, but they retain their character as indictable offences nomatter how the Crown elects.

The Crown election has an impact procedurally on how and in what court the charge proceeds and, aswell, on the maximum penalty that may be imposed, but does not change the character of the offence. It remains an indictable offence. Iagree. [30] With reference to the suggestion that the police must have reasonable and probable grounds to believe that a matter will beproceeded with by indictment before the power to take fingerprints is conferred by the Identification of Criminals Act, Cummings J.A.said: 73 In my opinion, such an

interpretation is wrong in law. The

Interpretation Act is not substantive legislation. It neither extends norrestricts substantive powers and rights. Rather, the

Interpretation Act merely sets out the rules which govern the drafting andinterpretation of statutes. One of those rules is that wherever the phrase "indictable offence" occurs in federal legislation, it shall be readto mean "offence which may be prosecuted by indictment", that is: an "offence which is either purely indictable or which the Crown mayelect to proceed either by indictment or by

summary conviction". [31] As I have mentioned, the decision of the court was unanimous on that point. Long before the Connors decision, however, thequestion was considered by the Supreme Court of Canada in R. v. Dallman, , where the court said: It is contended that because paragraph 40 states that every person guilty of an offence shall be liable "on

summary conviction or onindictment", the offence of importing is not an indictable offence. In our view that contention is unsound since all that is meant by"indictable offence" in

section 573 of the Criminal Code is that the offence as to which a conspiracy is charged may be prosecuted byindictment. That requirement is met by the terms of paragraph 40 even in cases where proceedings had been commenced under thesummary conviction provisions of the Code. [32] In the decision of R. v. Dudley, [sic - 2009 SCC 58], the Supreme Court of Canada considered the issue in thecontext of whether the Crown had the ability to proceed by indictment on a charge after it has chosen to proceed summarily, havingfailed to notice that the information was laid out of time for

summary procedure. Both the majority and minority found that the Crowncould do so, as long as there had been no adjudication on the merits, but for different reasons. [33] Madam Justice Charron, writing for the minority, was of the following view, and I quote at paragraph 71: The import of s. 34(1) of the

Interpretation Act is that dual procedure offences are deemed to be indictable offences, so the proceedingsare commenced pursuant to s. 504 or 505, not s. 788(1). As a result, the proceedings are never "instituted" under

Part XXVII within themeaning of s. 788(1), and the limitation period does not apply to these offences. Any subsequent Crown election to proceed summarilydoes not retroactively invalidate the institution of the proceeding. Further, as the wording of s. 34(1) of the

Interpretation Act indicates, the characterization of a dual procedure offence as an indictableoffence endures. Paragraph (

a) provides no suggestion that the dual procedure offence ever ceases being deemed indictable. In addition,the safeguarding provision under para. (

c) would not be necessary if a

summary election or plea negated the deeming provision in para.(a). Therefore, subsequent events — notably the Crown's election to proceed by way of

summary conviction or the accused's decision toplead guilty to a

summary conviction offence pursuant to s. 606(4) — do not affect the original characterization. They do affect theprocedure that is followed, the penalty that may be imposed, and the effect of a conviction — as Fish J. notes in his reasons, where theCrown elects to proceed summarily, the dual procedure offence acquires the same characteristics as a pure

summary offence in all thoseimportant respects and indeed, as he points out, the offence has been described by many courts as having ceased to be indictable at thatpoint. . . . While this view may accurately reflect the practical effects of the Crown election from a procedural standpoint, there is nosupport in the wording of s. 34 to say that the offence, from a substantive standpoint, is no longer indictable.

If it were otherwise and theoffence ceased to be characterized as an indictable offence upon the Crown electing to proceed summarily, there would be no basis inlaw for the Crown to "re-elect" and continue the proceedings by indictment. In my respectful view, the Crown's choice of proceduralroute does not change the original characterization of the offence as an indictable offence. The extent to which the original characterization of the offence carries the day in any particular context has been the subject of debate inother contexts. For example, the British Columbia Court of Appeal in R. v.

Connors . . . came to the conclusion that dual procedureoffences retained their character as indictable offences in the context of the Identification of Criminals Act . . . which allows for thefingerprinting of any person who is in lawful custody, charged or convicted of an indictable offence . . . At that point, Madam Justice Charron quotes the portion of Connors that I have already quoted. [34] She goes on: The

interpretation of the Identification of Criminals Act is not before us. Therefore suffice it for our purposes to conclude that theunderlying characterization of the dual procedure offence as indictable certainly governs the institution of the process. The Crown'selection to proceed summarily, while defining the process by which the charge will be dealt once laid, does not change the underlyingcharacter of the offence as indictable. Therefore, it is of no moment when the Crown makes the decision.

As noted by the intervener, insome jurisdictions the Crown's election is sometimes expressly set out on the form or in the wording of the count before the informationis laid. In my view, this causes no difficulties. Regardless of the timing of the Crown election, the offence is still deemed to be anindictable offence pursuant to the

Interpretation Act. Another way of looking at it is the following. An election is not made in theabstract. It must relate to a proceeding. As matter of logic, the institution of the proceeding therefore must precede the election.

Accordingly, in those jurisdictions where cases are screened before charges are laid, a dual procedure offence is still instituted as an indictable offence under s. 504 or 505, following which the election becomes immediately effective to govern the ensuing process accordingly. [ 35 ] It should be noted that the view of Madam Justice Charron was not the view of Mr. Justice Fish, who wrote for the majority, who appeared to be of the view that a matter proceeded by

summary procedure was a nullity if the information was laid outside the six-month time limit, but nevertheless the Crown could proceed by indictment on the same information thereafter. He commented that the Connors decision was alone among the authorities in taking the position that it did, but he did not refer to the decision of his own court in Dallman . He also did not overrule the B.C. Court of Appeal in Connors . [ 36 ] Therefore, with respect, I do not see how the Crown election to proceed summarily converts what would otherwise be a reverse onus situation into one that is not.

One can easily imagine how the contrary view would lead to incongruent results for prisoners in exactly the same factual situation. For instance, if two accused persons are both on release on outstanding hybrid offences and both are alleged to have committed a new offence together, should one be in a reverse onus situation and the other not, simply because the Crown, perhaps unbeknownst to either of them, had elected to proceed summarily by the time the new offence had been committed with respect to one accused but not the other.

Such an event could easily occur simply because one accused may have adjourned his prior outstanding matter, prior to the Crown being called upon to elect, or perhaps in the situation of a court sitting rarely in the place where the outstanding matter arose. [ 37 ] Regardless of my view of the policy reasons supporting this view, the fact is that the Connors decision, being a decision of the B.C. Court of Appeal, is binding upon me, as are both the Dallman and Dudley decisions from the Supreme Court of Canada. [ 38 ] Mr.

Gilson, for the defence, submits that since the release was by way of a promise to appear without the imposition of additional conditions, and the alleged offence was mischief, the aggravating factor of Mr. A. allegedly committing a new offence while he was at large on that release is somehow mitigated. Again, with respect, I fail to see any merit to that argument. If Mr. A. had been subject to particular conditions and had violated them in the course of committing new offences, that would have been an additional aggravating circumstance, but there is nothing in s. 515(6)(a)(

i) that requires the breach of a condition of release to be committed for the

section to operate. [ 39 ] Thus, in my view, this is a reverse onus situation. However, on the circumstances before me it matters not, for if I am wrong about the application of s. 515(6) and the Crown does have the burden, I am satisfied that the Crown has met that burden. [ 40 ] My concerns are, in no particular order: 1. Logistically it would be unworkable for Mr. A., if he is as ill as I am told, to travel six hours per day to attend court. 2. I have no evidence before me that Mr.

A. would have easier access to medical care in Burns Lake, particularly given his required attendance at court in Prince George, than he would if he were detained in prison where he attends the prison medical facility daily, I am told. 3. If the biggest risk to Mr. A.'s safety, given his medical condition, is the possibility of assault by other members of the criminal population in prison, I have no evidence that he is any less vulnerable to assault by members of the criminal element outside of prison.

I note that the circumstances of the allegations before me indicate that there were several other assailants involved in the confinement, beating, and threatening of Mr. W(2), all of whom are presumably still at large. If this court were to infer that Mr. A. is in danger from Mr. W. or his supporters within the prison population, then I should also infer that Mr. A. is in danger from those supporters outside of prison as well. If cell bars and prison guards cannot protect Mr. A. from his erstwhile criminal cronies, it is unlikely that his father can. 4. I note that while some of Mr.

A.'s earliest youth convictions took place in Prince George, the vast majority of his convictions after that time, including most of his most recent convictions, 32 of his 55 convictions, occurred in Burns Lake, right up to February 2013, and many others occurred in communities located within two hours' drive, so it would appear that the presence of loving family members in the community of Burns Lake did nothing to prevent him engaging in an almost continuous life of crime in that community. 5. Mr. Gilson did not expressly submit that Mr. A.'s medical condition would prevent Mr.

A. from committing further offences on release, but I take it that he would have the court infer that submission. There is, however, no evidence before me as to Mr. A.'s prognosis in the immediate future. That is, he appears to be a strong and otherwise healthy young man, and I have no evidence before me indicating that he is not expected to recover or to take a particular lengthy time to recover from his infection.

Thus, I am not prepared to infer that his current medical condition is permanent, nor that it would prevent him from committing further offences or violating the conditions of his release once his medical condition improves. [ 41 ] Given Mr. Gilson's submission that only the first five days of his trial have been scheduled, with another 10 days yet to be scheduled, and that after today the next four scheduled dates do not begin until September, it is apparent that the matter will not be concluded for some months. [ 42 ] In short, whether or not Mr.

A. is well enough to carry on his habitual criminal lifestyle today, there is nothing before me to satisfy me that his medical condition will continue unabated well into September and beyond. [ 43 ] It follows that I am not satisfied that the defence has met its burden to satisfy me that Mr. A. will attend court in future, nor that, if released, he will abide by court orders and not injure the public safety by committing further offences. [ 44 ] Mr. A. has such a lengthy criminal record for breaches of court orders that this court can have no confidence that he will abide

by any conditions of release, nor that he will attend court. While there are, as Mr. Gilson pointed out, no convictions for failure to attend court on his record, there are two convictions for escape lawful custody. Although the JUSTIN conviction

summary does not indicate one way or another whether Mr. A. was subject to pre-trial detention on his previous convictions, his record would make such a detention after arrest very likely. As Mr. Gilson candidly admitted, it is that criminal history which explained Mr. A.'s contentment to remain in custody and not seek his release on this matter until now. [ 45 ] Mr. Gilson submits that Mr. A. has been subject to assaults and intimidation in prison, and submits these are connected with the matter before the court. There is no evidence before me that such intimidation will cease if Mr. A. is released.

Indeed, it is reasonable to infer that the fact of such intimidation would make Mr. A. more reluctant and therefore less likely to appear in court as opposed to more likely. [ 46 ] With respect to the secondary grounds, I am of the view that past behaviour is the best indicator of future behaviour. Mr. A.'s overwhelming criminal record is the best indicator available to the court of his future behaviour in the community, notwithstanding the medical condition that afflicts him currently. I am of the view that Mr.

A. is likely to breach any court order he is placed on and to commit further offences which will endanger the community. [ 47 ] In view of the foregoing, it is not necessary for me to make a decision on the tertiary grounds and I decline to do so. Mr. A. will be detained. (REASONS CONCLUDED)