R. v. Yaman, 2020 BCPC 56

Citation: R. v. Yaman 2020 BCPC 56 Date: 20200403 File Nos: 178537-1, 178537-3-A, 179201-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. FARAH JAMES ROBERT YAMAN REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE T. GOUGE Counsel for the Crown: S. Bakken Counsel for the Accused: S. Grewal Place of Hearing: Victoria , B.C. Date of Hearing: April 2, 2020 Date of Judgment: April 3, 2020

The Issue [ 1 ] Mr. Yaman is in custody on three charges, two of breaking and entering and one of breach of a previous release order. He applies for judicial interim release. The Crown opposes the application. The Allegations [ 2 ] The Crown alleges that Mr. Yaman committed a break and enter in Esquimalt (a suburb of Victoria) on October 1, 2019. No one was at home at the time of the offence. [ 3 ] Mr. Yaman was released on bail on November 29, 2019. One of the conditions of his bail was that he reside at the New Visions Recovery Centre in the Fraser Valley. It is alleged (and not seriously disputed by Mr.

Yaman) that he left the New Visions Recovery Centre without permission on December 21, 2019. [ 4 ] It is alleged that Mr. Yaman committed another break and enter at a home in Victoria on December 29, 2019. It is alleged that the homeowners returned to their home just as Mr. Yaman was leaving. A brief scuffle ensued. He fled, pursued by the homeowners and some neighbours. They were able to surround him and detain him until police officers arrived and placed him under arrest. Mr. Yaman [ 5 ] Mr. Yaman is 37 years of age. His formal education ended on completion of grade seven.

He began using alcohol and marijuana at age 13 and cocaine at age 18. He is presently addicted to opiates. His criminal record began in 1997 with a youth court conviction for possession of narcotics for the purpose of trafficking. Between 1997 and 2019, he was convicted of 19 charges of breaking and entering, four further drug offences (including trafficking) and four charges of possession of stolen property. His most recent conviction for breaking and entering was in March 2017, for which he received a sentence of two years’ jail. [ 6 ] Ms. Bakken informs me that all of Mr.

Yaman’s convictions for breaking and entering arose from breaking into residences. Mr. Yaman did not contradict that assertion. [ 7 ] Mr. Yaman has a history of lung disorders, including asthma and a collapsed lung. He suffers from depression, for which he takes prescription medication, and opiate addiction, for which he has a Suboxone prescription. While he is in custody, his prescription medications are provided to him without charge.

He told me that he was unable to access his prescription medications when he was released on bail on November 29, 2019 because of a delay in restoring his social assistance benefits. If he is released again, as he asks, there will be a similar delay before he begins to receive social assistance benefits again. [ 8 ] Mr. Yaman describes his experience in custody since his arrest on December 29, 2019 in positive terms. He has attended Alcoholics Anonymous and Narcotics Anonymous meetings, from which he reports that he has derived great benefit.

He has received counselling from the prison psychologist, whom he describes as an “awesome lady” who has assisted him to gain insight into his criminal behaviour. He describes himself as suicidal at the time of his arrest, and says that he no longer suffers from those feelings. He says that the psychologist has helped him to realize that he is “not a bad person”, and that he is “worth taking a chance on”. He says that he feels ready to start a new life. The Treatment Centres [ 9 ] Mr. Yaman describes New Visions as a “tough place”, and says that many of the residents were active drug users.

He proposes that, if he is released again, he will go to the Mann Ford Recovery Centre, another addiction treatment facility in the Fraser Valley, where a bed is now available for him. He thinks that Mann Ford will provide him with a better experience, but there is no collateral support for that assertion. [ 10 ] Ms. Bakken made enquiries of Mann Ford, and is informed that it is a government-approved treatment centre which offers seven rooms housing a total of 11 residents. Analysis (Excluding the Pandemic) [ 11 ] Leaving aside, for the present, the issues raised by the COVID-19 pandemic, I would refuse Mr.

Yaman bail on the “secondary ground”; i.e. because his detention “… is necessary for the protection or safety of the public …, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice …”: Criminal Code , s. 515(1) (b). [ 12 ] The principles to be applied were stated by Justice Halfyard in R. v. Abdel-Rahman [2010] BCJ No. 238 ; 2010 BCSC 189 at para. 23 .

In order to justify detention on the secondary ground, the Crown must establish: First, that there is a risk that the accused will either commit an offence, or will interfere with the administration of justice, if he is released; Second, that this risk is of such magnitude that it amounts to a "substantial likelihood;" Third, that the said risk would constitute a danger to public safety (in general, or to a specific victim or witness) if the accused is released; and Fourth, that the detention of the accused is "necessary," because the identified danger to public safety cannot be prevented or reduced to an acceptable level by bail conditions (such as reporting to authorities, curfew, no-contact, mobility restrictions, sureties or cash bail). [ 13 ] In light of his personal history and criminal record, it is highly likely that, if released on bail now, Mr.

Yaman will resume his

former pattern of behaviour; i.e. illicit drug use supported by residential break and enters. I accept that he has made good progress with the support of the psychologist in the correctional centre where he is now detained, but few addicts fully recover as a result of a three month course of treatment. Recovery is a long and vulnerable process which requires consistent support. If he were released today: (

i) he would be deprived of the support of the psychologist who has been so helpful to him; and (ii) he would, once again, be deprived of his prescription medications until his social assistance payments resume. In short, he would have the same experience which he found to be so difficult when he was released in November 2019. [ 14 ] Residential break and enters often create a material danger to public safety. The incident of December 29, 2019 provides a good example. No one was seriously injured when Mr. Yaman was interrupted by the return of the homeowners, but they might easily have been.

Many people react violently when they find an intruder in their home. An opiate addict in need of a “fix” is not an individual to be trifled with. [ 15 ] In my view, Mr. Yaman’s detention is necessary to manage the risk which he poses to public safety when he is in the community. The experience of December 2019 demonstrates that necessity. The Pandemic [ 16 ] The remaining question is whether the COVID-19 pandemic mandates a different outcome. Ms.

Grewal referred me to a number of articles in the press, in which politicians in Canada and other countries have expressed concern that, by reason of overcrowding and poor sanitation, prisoners are exposed to higher risks of contracting the disease than are the general public. She also asserts that hand sanitizer is not dispensed to prisoners at British Columbia jails because some prisoners are inclined to drink it as a substitute for beverage alcohol. Ms. Grewal says that the increased risk of infection in jail is a reason to grant bail. [ 17 ] Ms.

Bakkan objected to the admissibility of those articles on grounds of hearsay. I am disinclined to give effect to that objection. As is customary on bail applications in this Court, none of the information I was provided was given under oath. Much of the information upon which Ms. Bakkan relies is also hearsay. When assessing such information, it is always prudent to have regard to the source, but I do not think that I should ignore the existing public health emergency simply because no qualified expert was called. [ 18 ] Ms. Bakken also submits that the risks to Mr.

Yaman’s health are not a relevant matter to be considered on this application. She referred me to R. v. Alexander [2020] NJ No. 69 , in which Justice Gorman said at para. 7: My decision must be based upon the bail provisions set out by Parliament in the Criminal Code . A judge cannot ignore these provisions in determining if release should or should not be granted.

I do not accept, therefore, that "the greatly elevated risk posed to detained inmates from the coronavirus, as compared to being at home on house arrest is a factor that must be considered in assessing" whether the Criminal Code requires detention (see R. v. J.S. , ONSC 1710, at paragraph 18). It may be that a judge can take judicial notice that a virus can be more easily transmitted in most prisons than elsewhere, but that cannot be the basis for release. The health and safety of remand prisoners is the responsibility of prison officials.

Those who pose a substantial risk to the safety of the public cannot be released on the basis that detention might pose a heightened health risk to them. Ms. Bakkan relies upon that passage in support of the proposition that I cannot grant bail to Mr. Yaman simply because he would be exposed to a greater risk of contracting the virus in jail than he would in the community. [ 19 ] If Alexander is authority for that proposition, I respectfully disagree with it. Mr. Yaman has the right “… not to be denied reasonable bail without just cause …”: Canadian Charter of Rights & Freedoms , s. 11(e).

What is reasonable depends upon all of the circumstances, both those individual to Mr. Yaman and those which are common to all prisoners. The conditions under which prisoners are held may be a relevant factor to consider in some cases. So, if it were established that the prevalent conditions in jail present a significantly greater risk to Mr. Yaman’s health than those prevalent in the place where he will live if bail is granted, that would be a factor to consider on this application. [ 20 ] However, the information provided to me on this application does not establish that.

Mann Ford is a treatment facility for recovering addicts. Most of its clientele does not differ, in terms of personal history and lifestyle, from the jail population, and may be reasonably assumed to have a similar risk of pre-admission infection. They are housed two to a room, as are prisoners in jail. I have been provided with particulars of the steps now being taken by correctional authorities to reduce the risk of infection among prisoners. They are detailed, meticulous and well thought-out. I was given no corresponding particulars in relation to Mann Ford. There is no basis on which I could infer that Mr.

Yaman’s risk of infection at Mann Ford would be lower than his risk of infection in jail. [ 21 ] If Mr. Yaman remains in jail, he will have the assistance of the staff psychologist and of AA and NA, each of which he describes as exceptionally helpful to him. If he is released to Mann Ford, he will lose those supports. He will also run the risk of repeating the experience which he had in December 2019, i.e. because his social assistance benefits were delayed, he was unable to purchase his medication.

I have no doubt that it was the search for non-prescription substitutes which led him to leave New Visions and resume his criminal life-style. There are many more health risks for addicts on the street than there are in jail. [ 22 ] It would be an error in principle to detain Mr. Yaman in order to allow him to access the services provided in jail. The Criminal Code does not authorize detention for such a purpose. However, in this case, Mr. Yaman grounds his bail application on the proposition that the health risks in jail are greater than those at Mann Ford.

In order to assess that proposition, it is necessary to compare the health risks and benefits in each of the two proffered scenarios. Doing the best I can with the limited information I have been given, I think that Mr. Yaman’s risk in jail is likely to be lower than his risk in the Mann Ford Treatment Centre. Disposition [ 23 ] Mr. Yaman will be detained.

_____________________________ The Honourable Judge T. Gouge Provincial Court of British Columbia