R. v. Morrison Date:, 2016 BCPC 176

Citation: R. v. Morrison Date: 20160428 2016 BCPC 0176 File Nos: 43732-1, 43768-1, 43846-1-A Registry: Penticton 827081K Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA File No: 43732-1 Registry: Penticton REGINA v. CHRISTOPHER DAVID MORRISON JORDAN DEAN SWANSON - and - File No: 43768-1; 43846-1-A Registry: Penticton REGINA v. CHRISTOPHER DAVID MORRISON - and - File No: 82708-1-K Registry: Abbotsford REGINA v. CHRISTOPHER DAVID MORRISON JUDICIAL INTERIM RELEASE HEARING (RE: ACCUSED CHRISTOPHER MORRISON)

ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE KOTURBASH Counsel for Provincial Crown: N. Devji Federal Crown Counsel: G.K. Holmes appearing by teleconference Counsel for Accused Morrison: J. Jensen appearing by teleconference Counsel for Accused Swanson: J. Jensen appearing by teleconference (as Agent for J. van der Walle) Place of Hearing: Penticton , B.C. Date of Hearing: April 28, 2016 Date of Judgment: April 28, 2016 Introduction [ 1 ] THE COURT: This is a judicial interim release hearing. In R. v. St -Cloud , 2015 SCC 27 , Mr.

Justice Wagner emphasized the importance of recognizing that detention in Canada is not the rule but the exception. [ 2 ] Mr. Morrison is charged with multiple counts on four separate Informations. [ 3 ] The Provincial Crown is applying to revoke Mr. Morrison's bail on Information 82708, pursuant to s. 524 of the Criminal Code . Mr.

Morrison finds himself in a reverse onus situation with respect to all other Informations, and if I am satisfied his bail must be cancelled on Information 82708, he will be in a reverse onus on that matter as well. [ 4 ] At the outset, the Provincial Crown unequivocally stated that they are opposed to Mr. Morrison's release on the secondary and tertiary grounds. Initially, the Federal Crown equivocated on whether or not they were opposing Mr.

Morrison's release, but when pressed, they said they were and that they were opposed on the tertiary grounds. [ 5 ] In every judicial interim release hearing, the prosecutor has a duty to inform the judge how the hearing will be proceeding and where the onus lies. In R. v. McBride, [1996] OJ No 2226 (Ont. Gen. Div.) Howden J. quotes from a decision of the Ontario Court of Appeal in R. v. Yarema , wherein he states: . . . it is clear and important to the proper and fair functioning of judicial processes under these provisions that the basis of the hearing be established at the outset of a bail hearing.

The Court of Appeal concurred . . . in finding that in each case, the justice must do two things at the start: first, ascertain the basis of the accused's appearance, and then inquire of the prosecutor the basis upon which it is intended to proceed. Issues 1. Should Mr. Morrison’s previous bail order be cancelled? 2. What does it mean for Mr. Morrison to be in a reverse onus? 3. What are the strengths and weaknesses of the Crown’s case? 4. Has Mr. Morrison established that his detention is not necessary on any of the three grounds for detention?

a) Primary ground

b) Secondary ground

c) Tertiary ground 1. Should Mr. Morrison’s Previous bail order be cancelled? [6] I am satisfied that there is sufficient evidence before me to conclude that Mr. Morrison breached his recognizance onInformation 82708, and further committed an indictable offence while on that recognizance. His bail on that matter is cancelled. [7] Mr. Morrison is now in a reverse onus situation on all matters. 2. What does it mean for Mr. Morrison to be in a reverse onus? [8] The operation of reverse onus does not change the standard of proof.

In the reverse onus situation, the onus is on the accused toestablish, on a balance of probabilities, that his or her detention is not justified under any of the enumerated criteria set out in s. 515(10)(

a) to (c). [9] When the accused carries the burden (the reverse onus), this does not mean the accused must disprove the commission of theoffence or his or her involvement. Instead, it means that the accused must satisfy the presiding judge, on a balance of probabilities, thatin all the circumstances, his or her detention is not required on any of the three grounds. 3. What are the strengths and weaknesses of the prosecution’s case? [10] A judge conducting a bail hearing must remind him or herself that the accused is presumed innocent, regardless of the strengthor gravity of the prosecution's case.

However, the strength of the prosecution's case can be an important consideration on all threegrounds, particularly the tertiary ground. [11] Although the court in St-Cloud did not rank the importance of the statutory criteria in s. 515(10)(c) (tertiary ground), as theOntario Court of Appeal in R. v. Heyden, 2009 ONCA 494, observed, it makes sense that the strength of the case enjoys someprominence in the mix. Notwithstanding the seriousness of the allegations and the potential penalty, detention based on a weak casetends to undermine, not maintain, the administration of justice. Also see R. v.

Dang, 2015 ONSC 4254 and R. v. Adiwal, 2003 BCSC740. [12] In situations where the Crown's case is weak and a conviction unlikely, it can be oppressive or unjust to detain the accusedpending a hearing of the matter. See R. v. Smith, (ONSC). [13] However, the strength of the prosecution's case should never displace the presumption of innocence at a bail hearing.

I must becautious, when assessing the strength of the Crown's case, not to draw impermissible inferences that the case is strong and that theaccused is therefore probably guilty and it will not pose a hardship for him to be detained. [14] Assessing the strength of the prosecution's case at a bail hearing can be a very difficult task. The informal and expeditiousnature of bail hearings can sometimes reflect an unnecessarily strong case for the prosecution. [15] However, the court in St-Cloud signalled the importance of an authentic appraisal of the prosecution's case at a bail hearing. Mr.

Justice Wagner states: Despite these difficulties inherent in the release process, the justice must determine the apparent strength of the prosecution's case. Onthe one hand, the prosecutor is not required to prove beyond a reasonable doubt that the accused committed the offence, and the justicemust be careful not to play the role of trial judge or jury: matters such as the credibility of witnesses and the reliability of scientificevidence must be analyzed at trial, not at the release hearing.

However, the justice who presides at that hearing must consider the qualityof the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his or her balancing exercise. Forexample, physical evidence may be more reliable than a mere statement made by a witness, and circumstantial evidence may be lessreliable than direct evidence.

The existence of ample evidence may also reinforce the apparent strength of the case. [16] The court also emphasized that, in addition to considering evidence that casts doubt on the case for the prosecution, the justicemust also consider any potential defences. Charter issues also fall into this category. [17] In R. v. Andrew, 2009 BCSC 705, Mr. Justice McEwan considered the application of Charter arguments as they pertained to thestrength of the Crown's case. He observed where there is an “articulable argument for a Charter breach”, it must not be simply deferredat the hearing for judicial interim release.

Rather, it must be assessed against the strength of the Crown's case. [18] In R. v.

Dong, [2008] OJ No 464 (ONCJ), the judge there described the challenges in assessing potential Charter arguments: The court must be exceedingly cautious when attempting to evaluate allegations that could raise one or more Charter challenges,particularly where it is manifestly impossible to reliably divine the likely outcome of a "Dawson application" to challenge the validity ofthe search warrant or anticipate the outcome of a Section 24(2) application for the exclusion of a handgun, $18,000, a prohibited weapon,ammunition, 64 grams of methamphetamine, and large quantities of drugs from grow operations particularly when the exclusion of realevidence such as a handgun, even in the face of a Charter breach, could well be found to bring the administration of justice intodisrepute . . .

[ 19 ] Although the Supreme Court of Canada in Grant has brought some clarity to the issue regarding the exclusion of evidence, and R. v. Dong was rendered prior to that decision by the Supreme Court of Canada, it still remains a very difficult task at a bail hearing to determine the likely outcome of a Charter application. [ 20 ] In conducting my analysis, I must be careful not to let this bail hearing evolve into a mini trial.

The bail hearing is not a place for a full hearing of the Crown's case, nor an opportunity for the accused to fully challenge the weight of the Crown's case. [ 21 ] Turning to the alleged facts in hand. [ 22 ] Mr. Jensen, in his usual very persuasive manner argues that on Information 82708-K-1, that charges Mr. Morrison with engaging in threatening conduct and criminally harassing Ms. Kayla Rock, that there is little in the circumstances put before the court to assess the strength of the Crown's case. Initially when he made that argument, he was correct.

However, during a break in the proceedings, the Crown obtained a more fulsome police report and have shored up the information supporting the allegations. [ 23 ] The Crown alleges that prior to the alleged timeframe set out in that information, Mr. Morrison pushed his common law, Ms. Rock, to the ground and got on top of her, and put his forearm across her throat. A parent heard Ms. Rock screaming and ran to her aid, finding Mr. Morrison on top of her. [ 24 ] Following this incident, Ms. Rock left Mr. Morrison. He then contacted her, and threatened to kill himself, her, and the unborn child and her family. Ms.

Rock returned to live with him, but alleges that things did not go well and she moved out again. [ 25 ] Following this move, the Crown says Mr. Morrison, despite Ms. Rock's requests to stop, continued communicating with her through extensive text messaging. She said she was afraid of him because of his ties to organized crime, namely a gang called the Red Scorpions, and the fact that he has firearms that resembled machine guns. [ 26 ] Police obtained copies of those text messages. In the texts, Mr. Morrison threatens to expose Ms. Rock's personal including sex life on the internet.

The Crown says that the majority of the text messages, which number 200 plus, are from Mr. Morrison. [ 27 ] I am satisfied that the Crown's case against Mr. Morrison on that information is strong. [ 28 ] Mr. Morrison was arrested and released on a recognizance on November 3, 2015. One of the conditions required him to reside in an approved residence. He chose to leave his job and his family and move to Princeton. He told his bail supervisor he would be residing in a trailer park in Princeton. [ 29 ] Information 43732-1 charges Mr. Morrison jointly with Mr. Swanson for committing a forcible entry, threatening Mr.

Dunsford, possessing a weapon, breaching a term of his recognizance by being in possession of a weapon. The incident is alleged to have occurred on February 28 or three and a half months after being released on the Abbotsford recognizance. [ 30 ] Mr. Jensen again argues that the case against Mr. Morrison on that matter is weak. [ 31 ] The circumstances are that on Sunday, February 28th, at approximately 10:30 a.m., Mr. Morrison and Swanson attended the residence of Mr.

Dunsford in Princeton. [ 32 ] There is a church near the residence and there were some parishioners present and witnessing the events that took place. [ 33 ] According to Mr. Dunsford's girlfriend, Mr. Morrison and Swanson appeared at the residence. Mr. Morrison indicated that he wanted to make things right with Mr. Dunsford and asked if he could please come inside the residence. He was told no and Mr. Dunsford's girlfriend tried pushing him out and closing the door, but Mr. Morrison resisted. He told her that if she did not let him in, “his boys would deal with it”. [ 34 ] Mr.

Jensen urges me to find at this stage of the proceedings that Mr. Morrison was there on friendly terms. The information put forward by the parties, beyond the use of the word "please", does not support this finding. [ 35 ] When Mr. Dunsford appeared at the door, Mr. Swanson was observed pulling out a rock in a shirt, often referred to as a "slungshot", which has only one purpose. Mr. Morrison's voice was raised. Others from across the street observed this, they heard the word "fuck" and "fuck off" being used, which is not normally consistent with pleasantries. [ 36 ] I agree with Mr.

Jensen that it might be challenging for the Crown to establish that his client was in constructive possession of the slungshot or knew that it was present. [ 37 ] Mr. Dunsford then retrieved a bat. He said Mr. Morrison said he had a gun and asked Mr. Dunsford if he wanted to die right now, while at the same time grabbing his waistband. One of the witnesses across the street provides supportive evidence, telling the police that he had heard someone say that they had a piece and saw that person lift his shirt. [ 38 ] Following the incident, Mr. Dunsford received text messages that he says were from Mr.

Morrison, threatening to get him and saw him in half. He also made threats directed towards Mr. Dunsford's girlfriend, saying, "You know what happens to rats." [ 39 ] Mr. Jensen said that although the Crown has copies of the text messages, they have not furnished any proof at the bail hearing that these text messages came from his client. [ 40 ] One of the witnesses said it was obvious that the property owner wanted the people off his property. [ 41 ] Although I agree with Mr.

Jensen that the Crown may have some challenges with respect to the weapons charge, I do not agree with his characterization that the other counts against Mr. Morrison are weak.

[ 42 ] Following that incident, the Princeton police engaged the assistance of a specialized police unit to locate and arrest Mr. Morrison. Through intelligence, they learned that he was likely living at a residence different than the one he had told his bail supervisor about, and they set up surveillance on that residence on March 2nd. [ 43 ] Mr. Morrison was observed coming and going from the residence, again not the approved residence. At one point, police observed him engage in what appeared to be hand-to-hand drug transaction. They then moved in and arrested him. [ 44 ] A female person, Ms.

Whincup, was arrested fleeing the residence. She told police that she had only known Mr. Morrison for a few days, that he had been selling her pot, and that she was there to pay a debt. [ 45 ] She told police that when she was inside the residence, she saw some firearms on the couch. She said she did not see anyone else inside the residence. [ 46 ] The officer in charge decided to enter the residence before obtaining a search warrant. According to the police report, he entered because he knew that Mr. Swanson was still at large and he needed to secure evidence inside the home.

When he opened the door to the residence, he immediately saw two pistol-grip shotguns and a revolver on the couch. The guns were loaded. [ 47 ] After clearing the residence, police obtained a search warrant. [ 48 ] During the search, police located heroin, crack cocaine, methamphetamine, marihuana, $6,000 in cash, a scale, score sheets, bear spray, ammunition, paperwork and bills in Mr. Morrison's name, and three cellphones. Mr. Morrison’s recognizance of the bail from Abbotsford and a bottle of medication were also found. [ 49 ] On Information 43768, Mr.

Morrison is charged with possessing a number of loaded firearms, possessing firearms contrary to a firearms prohibition, and possessing drugs for the purposes of trafficking. [ 50 ] The Federal Crown directed a stay of proceedings on Count Number 4, which charges Mr. Morrison with possessing weapons contrary to his recognizance.

I am uncertain at this stage whether the Provincial Crown intends to charge him with that, but at this point he is not charged with breaching his recognizance on March 2nd for possessing weapons. [ 51 ] On Information 43846-A-1 he is charged with breaching his recognizance for not residing in his approved residence. [ 52 ] Mr. Jensen, argues that the police clearly violated his client's s. 8 rights by entering the residence without a warrant.

He further contends that the search warrant that was issued and ultimately used to gather evidence from inside the residence was obtained solely on the strength of the initial unlawful entry. [ 53 ] Ms. Holmes, on behalf of the Federal Crown, persuasively argued that the police had good reason to enter the residence on exigent circumstances. She points out that they had information that Mr. Morrison was involved in organized crime. When he attended the residence of Mr. Dunsford, he was in the accompaniment of Mr. Swanson, and the two appeared to be working in concert.

He also made reference to ‘his boys’. [ 54 ] Although Ms. Whincup said no one else was inside the residence, she said she saw guns. The police could not afford to take the chance that there was someone else inside, and moved in to clear the residence. [ 55 ] Ms. Holmes pointed out that even if the initial entry was unlawful, and the information obtained during that entry excised from the information to obtain for the warrant, there remains cogent evidence for a justice to have authorized a warrant. She relies on the fact that Mr.

Morrison exited the residence and engaged in what appeared to be a hand-to-hand drug transaction. Ms. Whincup reported to police that she saw guns inside the residence, and Mr. Morrison was on a firearms prohibition and a recognizance not to possess the same at that time. [ 56 ] In R. v. Andrew , Mr. Justice McEwan at paragraph 21 again describes his assessment of the strength of the prosecution's case when he writes: . . .

I do not think the variables that must be weighed in this case suggest – at this stage of the proceeding – that the applicant is "unlikely" to be convicted, such that his continued detention is unjustified. In saying so, I do not disparage the argument. I simply observe that the outcome is not foregone to a degree that would negate detention on the secondary ground. [ 57 ] I agree with Ms. Holmes that it is not a foregone conclusion that there was a Charter breach and, further, that the alleged arsenal of guns and drugs would be excluded even if a trial judge determined there was a breach. [ 58 ] Whether Mr.

Morrison is successful on the Charter application at trial, the case against him regarding knowledge and control of those firearms and drugs is overwhelming and that still remains an important consideration on the s. 524 analysis. 4. Has Mr. Morrison established that his detention is not necessary on any of the three grounds for detention?

a) Primary Ground [ 59 ] The first ground is the primary ground. The primary ground will justify detention where detention is necessary to ensure the accused's attendance in court and prevent him from fleeing the jurisdiction. [ 60 ] Although the parties conceded the primary ground is not an issue, there are some factors that give me pause. They are: • the strength of the Crown's case and the potential for a lengthy period of incarceration; and

• the fact that Mr. Morrison is alleged to have breached a recognizance on more than one occasion and has a record, albeit a datedone, for breaching a previous bail order. [61] On the other hand, Mr. Morrison does not have a history for failing to appear, and appears to have relatively strong ties toBritish Columbia. [62] I agree with counsel that there are not sufficient concerns to detain Mr. Morrison on the primary ground alone.

b) Secondary Ground [63] The next ground is the secondary ground. Detention will be justified on the secondary ground where it is necessary for theprotection and safety of the public, including any victim or witness. In addition, it also seeks to prevent any interference with theadministration of justice. [64] Factors relevant to the protection of the public include, but are not limited to, whether there is a substantial likelihood that theaccused will, if released, commit a criminal offence or interfere with the administration of justice. [65] As Mr.

Justice Barrow pointed out in Wilcox: Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while onbail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence . . . and I would add then only when thatrisk cannot be adequately addressed through the imposition of appropriate terms of release. R. v. Wilcox, 2005 BCSC 1785 [66] Establishing a substantial likelihood does not require proof beyond a reasonable doubt that the accused will commit furtheroffences.

However, there must be a real and not conjectural or illusory likelihood. [67] With respect to the secondary grounds, the relevant factors can be categorized into the following three categories: offencefactors, criminal history factors, and personal factors.

Offence Factors Nature of the alleged offending behaviour [68] I must consider the nature of the alleged offending behaviour and determine whether it is of the type that supports a stronglikelihood of reoffending. [69] Cases that involve drugs have long been recognized as presenting their own set of considerations that are not generally prevalentin other types of offences. [70] In Pearson, the Supreme Court of Canada considered the constitutionality of s. 515(6)(

d) of the Code, that being the reverseonus section. In doing so, the court considered the rationale for the reverse onus in cases of drug trafficking. The Supreme Courtrecognized the unique circumstances of the offence of drug trafficking with the following comment at paragraph 61: . . . Most offences are not committed systematically. By contrast, trafficking in narcotics occurs systematically, usually within a highlysophisticated commercial setting. It is often a business and a way of life.

It is highly lucrative, creating huge incentives for an offenderto continue criminal behaviour even after arrest and release on bail. In these circumstances, the normal process of arrest and bail willnormally not be effective in bringing an end to criminal behaviour. Special bail rules are required in order to establish a bail systemwhich maintains the accused's right to pre-trial release while discouraging continuing criminal activity. R. v. Pearson, (SCC), [1992] 3 SCR 665 [71] The court did not go so far as to say that the alleged involvement in drug trafficking is an automatic bar to bail.

Instead, thecourt highlights the import of carefully assessing these concerns. [72] The information before me demonstrates a somewhat sophisticated level of drug trafficking. [73] In the case at hand, although Mr. Jensen argues that there is no evidence to support links to organized crime, the informationpresented demonstrates otherwise: • First, his former girlfriend, Ms. Rock, told police that he is associated to the Red Scorpions and had guns that resembled machineguns. • Second, in the text messages to Ms. Rock, there are references to grow ops and the police being involved. • Third, when Mr.

Morrison attended the Dunsford residence, he made reference to his boys. • Despite being unemployed, Mr. Morrison was in control of a large arsenal of firearms, drugs, and money. • There were score sheets and the actions observed by the police were consistent with him being engaged in drug trafficking. • Ms. Whincup also told police that he had sold drugs to her. [74] At a minimum, if Mr. Morrison has no direct links to organized crime, given what police found in the residence, he seems to be

well trusted by those that are well entrenched in it. [ 75 ] The circumstances also speak to a pattern and planned behaviour, and not a momentary lapse of youthful foolishness. The alleged breaches, as well, are flagrant in nature, again not minor slips. Mr. Morrison was on a recognizance, one of the most serious types of bail orders available to this court.

He was also on a firearms prohibition order. [ 76 ] As indicated earlier, even if the evidence flowing from the March 2nd incident were to be excluded, the fact remains he was observed coming and going from a residence where there were a number of loaded firearms and drugs, and that fact alone, as I pointed out, is an important consideration on the s. 524 analysis and in assessing whether there is a substantial likelihood that he will reoffend. [ 77 ] In considering the nature of the alleged offending behaviour, I must consider the risk to the public if the accused were to reoffend.

The more serious the crime, the greater the potential for serious harm if the behaviour is repeated. A risk for violence in the future will weigh more heavily in favour of detention than something like minor property crime. [ 78 ] Given the type and nature of the firearms possessed, there is a heightened risk that if Mr. Morrison does reoffend, the consequences could be catastrophic. The firearms allegedly found in the residence were definitely in the ready position. [ 79 ] I must also be mindful of Ms.

Rock's fear of him and the fear that she expressed to police that he had guns and previously threatened to kill her. It is also alleged that he expressed his intention to deal with Mr. Dunsford if she ratted. Criminal History Factors [ 80 ] The next category of factors is criminal history factors. Mr. Morrison has a criminal record. However, he does not have any convictions after 2008.

Although his record is short, it does demonstrate he is capable of violence, given his conviction for assault causing bodily harm, and that he has violated bail in the past. [ 81 ] The fact that the accused was already bound by a recognizance in the amount of $500 and a firearms prohibition are serious concerns on the secondary ground. Personal Factors [ 82 ] Mr. Morrison has the support of his mother and grandparents. Although the proposed plan has him living with his mother in Harrison Hot Springs, his grandparents have also put their names forward as proposed sureties.

They live in Aldergrove. [ 83 ] He is making child support payments and the threat of being in custody and not being able to meet his obligations for his 11-year-old daughter would likely weigh in favour of release. [ 84 ] Although a large quantity and variety of drugs were found in the residence, there is no suggestion that he has any addictions. However, there is some indication of instability. After being arrested in November, Mr. Morrison quit his job and moved to Princeton, where he was not employed.

He also suffers from depression and has gone through a break-up. [ 85 ] Before leaving the secondary ground, there is some information before the court that Mr. Morrison, if released, would interfere with the witnesses. In one of the text messages, there is reference to dealing with Ms. Dunsford’s girlfriend for speaking to police. This, too, is a concern for the secondary ground.

c) Tertiary Ground [ 86 ] The tertiary ground justifies the detention of the accused when it is necessary to maintain the confidence in the administration of justice. [ 87 ] I agree with Mr. Jensen's comments that the appropriate application of the tertiary ground will engage the resources of counsel and the courts going forward.

It can and certainly does pose challenges for judges like myself, on busy court days like this one, to provide fulsome and a cogent decision and pathway to my final determination on bail. [ 88 ] However, I am also mindful of the fact that when it is engaged, that being the tertiary ground, the charges are likely to be of a very serious nature and the slowing of the train to address bail concerns is worth the time and energy. [ 89 ] A detention order can have a very serious impact on any accused and the determination of bail should never be treated lightly. [ 90 ] The tertiary ground is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.

The

section permits the detention of an accused person based upon the public's reaction to the decision to release, free from any concern about the accused person absconding, reoffending, or interfering with the administration of justice. [ 91 ] In St-Cloud , Mr. Justice Wagner put to rest the debate as to whether the

section only applies to heinous or inexplicable crimes. It applies to all offences but, as Mr. Justice Wagner points out, detention under this ground will still be rare, not as a precondition but as a result of its application. i. Strength of the Prosecution’s Case [ 92 ] The first factor to consider is the strength of the Crown's case. As pointed out earlier, the strength of the Crown's case has importance, especially in the tertiary ground. In R. v. Heyden , the Ontario Court of Appeal pointed this out. [ 93 ] As stated earlier, I do not share Mr. Morrison's characterization of the strength or the weaknesses of the Crown's case. I am satisfied that the Crown does have a strong case.

ii. Gravity of the Offence [94] The gravity of the offence is to be determined by the minimum and maximum penalties available in the Code. Many of theoffences Mr. Morrison is charged with carry a maximum penalty of 10 years. Some carry minimum sentences but, given the currentclimate, there remains a great deal of uncertainty in the constitutionality of those minimums. With respect to the trafficking charges, themaximum penalty is life. [95] Although in the case at hand, this factor favours detention, like all other factors, it is not determinative. As Mr.

JusticeMcEachern in Nguyen, (BCCA) points out, no offence in the Code is too serious for bail. People charged withmurder can, in appropriate circumstances, be released. iii. Circumstances Surrounding the Commission of the Offence [96] The third factor is the circumstances surrounding the commission of the offence, including whether a firearm was used. [97] The circumstances of the most recent allegations on March 2nd are very serious. Mr. Morrison, through his counsel, does notdispute this fact.

There were loaded guns, bear mace, and drugs possessed next door to a daycare, where one could reasonably expectkids to frequent. [98] They were in Mr. Morrison's control, despite the fact that he was prohibited from possessing them as a term of his recognizancefor criminally harassing his former common law spouse, and a firearms prohibition order. [99] The circumstances of all of these offences demonstrate that there was some degree of planning and that the alleged crimes werenot spontaneous, nor attributable to youthful spontaneous foolishness. [100] In the incident involving Mr. Dunsford, Mr.

Morrison also appeared to be the primary aggressor. [101] In both cases, potential innocent bystanders were placed in harm's way. [102] On the provincial file, the accused did not appear deterred by the presence of the parishioners at the church. [103] On the federal file, I would point out that, although there was no violence per se associated to the alleged events on March 2, Iam mindful of the Supreme Court of Canada's comments at paragraph 60 of Pearson where the court speaks of the mistaken view takenof drug trafficking.

The court writes: Unlike robbery, sexual assault and murder, drug trafficking is often wrongly regarded as a non-violent crime: there is accordingly acertain tolerance of traffickers who give the illusion of being anonymous businessmen, hidden among those who are engaged in lawfulbusiness. Such an impression is far from the reality, however, when one considers the fierce battles for control of territory and violentaction to obtain the money needed to purchase drugs; equally, when one thinks of the personal brutality and social dramas that result. [104] The fact that the drug house that Mr.

Morrison is associated to is located within a residential neighbourhood, next to a daycare,brings into play the reasonable expectation that there would be children present and about. Although the arsenal of weapons possessedmight not weigh heavily in the public's assessment in the confidence of the administration of justice in a country like Colombia, it can bereasonably inferred that it would for the reasonable citizens of Princeton. iv.

Potential for a Lengthy Term of Imprisonment [105] The final of the four factors is whether the accused is liable on conviction for a potential lengthy term of imprisonment or, in thecase of an offence that involves or whose subject matter is a firearm, a minimum punishment of imprisonment for a term of three years ormore. [106] This factor appears somewhat redundant given the second factor.

However, as instructed by the Supreme Court of Canada, Imust engage in a more in-depth analysis and consider the potential aggravating and mitigating factors in determining whether a lengthyprison sentence is likely. [107] Given all of the potential aggravating factors in this case and the apparent absence of any mitigating factors at this stage, I amable to safely conclude that the accused is liable on conviction to a very lengthy term of imprisonment. [108] All four factors enunciated in the Code do favour detention. However, in St-Cloud, Mr.

Justice Wagner instructs that abalancing of the four factors and their combined effect is required. Even where all four factors are present, detention under the tertiaryground is not automatic and an accused still retains his or her basic entitlement to be granted reasonable bail. [109] The four factors are also not exhaustive. Mr.

Justice Wagner in St-Cloud attempts to provide some guidance by identifying whatother factors that might be important to consider when he writes: I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminalorganization, etc.) may also be relevant. The justice might also consider the status of the victim and the impact on society of a crimecommitted against that person. In some cases, he or she might also take account of the fact that the trial of the accused will be held at amuch later date. [110] As Mr.

Jensen points out, the proposed release plan is an important consideration. Support for this proposition can be found in

R. v. Dang , 2015 ONSC 4254 . In that case, Mr. Justice Trotter observed that an accused person's plan of release may be relevant on the primary and secondary ground, but can also be an important consideration in determining whether the public’s confidence can be maintained.

He provides the example that a reasonable person may take a different view of a person charged with a violent offence being released into the community with virtually no supervision, compared to one released with a strict plan to monitor the accused. [ 111 ] Another example might include a drug-addicted accused being released with a cogent treatment plan, versus one being released without any such plan. [ 112 ] In the case at hand, Mr. Morrison put forward a very robust release plan with three sureties: his mother and his grandparents.

His grandparents have a great deal of equity in their home and are also prepared to put up cash bail of $20,000. The plan would include Mr. Morrison returning to his old place of employment as a roofer and residing with his mother. [ 113 ] The weaknesses of the plan are: 1) the lack of supervision while he is at work; 2) the lack of supervision by his grandparents, who will be living in Aldergrove; 3) although Mr. Morrison's mother is not currently working and would be in a position to supervise him when he is at home, she has plans of attending school in September; and finally 4) the presence of Mr.

Morrison's young child inside the proposed residence. [ 114 ] Despite Mr. Morrison's mother and grandparents' best of intentions, I am not confident that they are able to adequately supervise him in the community. [ 115 ] Mr. Morrison is now 30 years old and has allegedly involved himself in some very serious crimes. He was on a recognizance of bail and a firearms prohibition, and did not appear to be deterred by the risk of returning to jail. I have little confidence that he will be deterred by the threat of his grandparents losing whatever they are prepared to pledge in this matter.

Conclusion [ 116 ] In closing, in my view, the allegations before the court paint a picture of serious criminal activity occurring. The case at this stage of the proceedings encompasses not only physical evidence obtained via the execution of a search warrant, text messages, it also includes independent civilian eyewitness statements in the case of Mr. Dunsford, and the witness statements of the police and Ms. Whincup. [ 117 ] I am not satisfied that Mr.

Morrison has met the reverse onus in establishing that his detention is not required on the secondary and tertiary ground, and I detain him on all the informations. [ 118 ] I am satisfied that his detention is indeed required for the protection of the public and to maintain the public's confidence in the administration of justice. [ 119 ] I would like to hear from Crown counsel regarding any non-communication orders pursuant to s. 515(12). [ 120 ] MS.

DEVJI: Yes, Your Honour, the Crown is seeking a no-communication order with Kayla Rock, and I will provide all the names for Madam Clerk, with Jordan Swanson, as well as Mr. Jamie Dunford, and let me just get the name now, Kayla Dore. [ 121 ] THE COURT: Kayla? [ 122 ] MS. DEVJI: Dore, D-o-r-e, that is -- [ 123 ] THE COURT: D-o -- [ 124 ] MS. DEVJI: R-e. [ 125 ] THE COURT: R-e, okay, anybody else? [ 126 ] MS. DEVJI: Not with respect to the Provincial Crown, Your Honour. [ 127 ] THE COURT: Do you want to name Mr. Musgrove and the other fellow or leave them off the list? [ 128 ] MS.

DEVJI: We can add the names Scott Musgrove, Michael Barnetson, and I'll provide you the spelling of everyone's names. [ 129 ] THE COURT: Okay. Ms. Holmes? [ 130 ] MS. HOLMES: Thank you, Your Honour, the only one who could be of relevance would be the individual who provided the statement. [ 131 ] THE COURT: That is Ms. Whincup? [ 132 ] MS. HOLMES: Yes, and it's Raven, R-a-v-e-n. [ 133 ] THE COURT: Okay,

[ 134 ] MS. HOLMES: And Whincup is spelled W-h-i-n-c-u-p. [ 135 ] THE COURT: Okay. Okay, so I will make an order that you not have any communication, directly or indirectly, with any of the named individuals, except through legal counsel. (REASONS CONCLUDED)