R. v. Alex Louie Date:, 2017 BCPC 54

Citation: R. v. Alex Louie Date: 20170202 2017 BCPC 54 File No: 45572-1 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA JUDICIAL INTERIM RELEASE REGINA v. ALEX LOUIE RULING OF THE HONOURABLE JUDGE G. KOTURBASH Counsel for the Crown: Federal Crown: A. Baylis Counsel for the Defendant: Appearing in person Place of Hearing: Penticton , B.C. Date of Hearing: February 2, 2017 Date of Judgment: February 2, 2017

Introduction [1] This is a judicial interim release hearing. [2] In R. v. St. Cloud, 2015 SCC 27 , 2015 S.C.C. 27, Wagner J. emphasized the importance of recognizing that detentionis not the rule but the exception. [3] Mr. Louie is charged with multiple counts relating to the possession of two handguns along with ammunition. Early yesterdaymorning Mr. Louie was stopped at the Osoyoos border crossing. Police searched his vehicle and located ammunition hidden below thedashboard and two handguns strapped with wire to the undercarriage of his vehicle.

They also found a spool of wire and a receipt for itspurchase that was made earlier that day. [4] The Crown is opposed to Mr. Louie’s release on the primary, secondary and tertiary grounds. The onus is on the Crown toshow why Mr. Louie’s detention is necessary. Analysis 1. Is Mr. Louie’s detention required on the primary ground?

a) Primary Ground [5] The primary ground will justify detention where detention is necessary to ensure the accused’s attendance in court and preventhim from fleeing the jurisdiction. [6] The case against Mr. Louie is a strong one. He is charged with some very serious offences which if convicted, will likelytranslate into years in jail. The potential for a lengthy prison sentence can sometimes present as powerful motivation for the accused toflee. [7] Mr. Louie is of Aboriginal ancestry and I am told does not require a passport to travel to and from the United States.

He alsoholds a Washington State driver’s licence, which, as the Crown points out, enhances the possibility of flight from the jurisdiction. Thefact that Mr. Louie can cross the border freely, however, is not in itself reason enough to detain on the primary ground. In Hope,although the accused was charged with murder and Aboriginal, meaning he could cross the border without a passport, he was notconsidered a flight risk because of his strong ties to the community and the fact that he returned to Canada voluntarily and remained untilhe was arrested. R. v.

Hope, 2016 ONCA 648. [8] A further consideration on the primary ground is Mr. Louie’s deeply engrained radicalized belief system that the laws ofCanada and the authority of this court do not apply to him. Mr. Louie is not alone in his belief. The criminal justice system has seen anincreased presence of these types of people who are often labelled as Freemen or de-taxers or sovereign citizens. They all have acommon collection of conspiratorial, legally incorrect and spurious beliefs. Some are more militant or aggressive than others. [9] Mr. Louie shares many of those beliefs.

At the outset of these proceedings, he personally accused the Crown and this court ofbeing complicit in genocide. The court is sympathetic for the plight of his people and past wrongs but that is not an issue to bedetermined today. [10] The belief most concerning for the purposes of this hearing is Mr. Louie’s belief that criminal laws, or any laws for that matter,do not apply to him. He is well known to this court. He has attended frequently on his own behalf and the behalf of others.

On eachoccasion, he engages in a verbal standoff with the Crown and the court alleging neither has any jurisdiction to deal with the offences overhim or the people he seeks to represent. [11] Although I am not aware of any physical altercations during these court attendances, Mr. Louie is routinely highly disruptiveand demonstrates a great deal of hostility and aggression always warranting the presence of extra sheriffs. [12] He has been convicted multiple times for driving while prohibited and even spent time in jail as a result. The current allegationsthat he was driving is yet again another example of Mr.

Louie’s belief that the laws of Canada do not apply to him, and that thelikelihood of him obeying any form of release document going forward is nil. [13] Although I am not aware of Mr. Louie suffering from any mental disorders, his irrational belief system and disjointed train ofthought demonstrated today, yesterday and on other occasions gives me some pause for concern. [14] On the positive side, Mr. Louie has not been one to miss court dates in the past. Indeed there are no convictions for failing toappear.

b) Secondary Ground [15] Detention will be justified on the secondary ground when it is necessary for the protection and safety of the public includingany victim or witness. In addition, it also seeks to prevent any interference with the administration of justice. [16] 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. [17] 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 on

bail. 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 , 2005 B.C.S.C. 1785 [18] Establishing a substantial likelihood does not require proof beyond a reasonable doubt that the accused will commit furthercriminal offences.

However, there must be a real, not conjectural or illusory, likelihood. [19] With respect to the secondary ground, the relevant factors can be categorized in the following way: Offence, Criminal History,and Personal Factors. Offence Factors Nature of the Alleged Offending Behaviour [20] I must consider the nature of the alleged offending behaviour and determine whether it is of the type that supports a stronglikelihood of reoffending. [21] Although Mr.

Louie’s motivation for possessing two handguns with accessible ammunition is unclear, it is clear from thealleged facts that there was some careful planning and deliberateness on his part to secrete the handguns in the undercarriage of hisvehicle and that he was aware of their presence. [22] In considering the nature of the alleged offending behaviour, I must consider the risk to the public if the accused were toreoffend. [23] The more serious the crime, the greater the potential for serious harm if the behaviour is repeated.

A risk for violence in thefuture will weigh more heavily in favour of detention than minor property crime. [24] Handguns on the street have only one purpose, to kill human beings. [25] Given the type and nature of the firearms possessed, and Mr. Louie’s engrained radicalized belief system there is heightenedrisk that if he is released and does reoffend, the consequences could be very serious. [26] Mr. Louie has a criminal record. The record consists of several convictions for driving while prohibited and obstructing police.

His history of driving while prohibited convictions is further evidence of his lack of respect for orders and the laws of this country. [27] However, the conviction that is most concerning is his conviction for assaulting a police officer. This conviction demonstrateshis lack of respect for law enforcement and his capability for violence. [28] The alleged possession of handguns with ammunition appears to be a marked escalation in criminal activity by him. [29] I am satisfied that there is a substantial likelihood that if Mr. Louie were to be released that he would reoffend.

Tertiary Ground [30] The tertiary ground justifies the detention of the accused when: “it is necessary to maintain the public’s confidence in theadministration of justice”. [31] The tertiary ground is a distinct ground that provides a basis for ordering the pre-trial detention of an accused. [32] 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, re-offending or interfering with the administration of justice.” (The Law of Bail, 3rd ed. pp. 3-27) [33] In St. Cloud, Wagner J. put to rest the debate as whether the

section only applies to heinous or unexplainable crimes. It appliesto all offences, but as he points out, detention pursuant to this ground will still be rare, not as a precondition but as a result of itsapplication. R. v. St. Cloud, 2015 SCC 27 , 2015 S.C.C. 27. (

i) Strength of the Prosecution’s case [34] The first enumerated consideration is the strength of the prosecution’s case. Although, the court in St. Cloud did not rank theimportance of the statutory criteria in section 515(10)(c), as the Ontario Court of Appeal in Heyden, 2009 ONCA 494, observed, it makessense that the strength of the case enjoys some prominence in the mix. Notwithstanding, the seriousness of the allegations, and thepotential penalty, detention based on a weak case tends to undermine, not maintain the administration of justice. [35] The case against Mr. Louie is particularly strong. Although

section 8 of the Charter is usually engaged when searches areconducted, Mr. Louie does not believe the Charter has any application to him. I am also mindful that the search occurred at a bordercrossing where the expectation of privacy is significantly reduced. Although the car he was driving was registered to someone else, asthe Crown points out, the wire and its accompanying receipt provide a strong circumstantial evidence of knowledge. (ii) Gravity of the Offence [36] The gravity of the offence is to be determined by the minimum and maximum penalties available in the Code.

Although, in thecase at hand, this consideration favours detention, like all the other factors it is not determinative. As the court pointed out in Nguyen,no offence in the Code is too serious for bail. Even people charged with murder can, in the appropriate circumstances, be released. R. v.

Nguyen, (BCCA). (iii) Circumstances Surrounding the Commission of the Offence [37] The third factor that I must consider is the circumstances surrounding the commission of the offence, including whether afirearm was used. [38] The circumstances are very serious.

The circumstances of the alleged offences demonstrate that there was some degree ofplanning, and that the alleged crimes were neither spontaneous nor attributable to youthful spontaneous foolishness. [39] The accused did not appear deterred by the presence of border guards. [40] Although the unlawful possession and use of a handgun might not weigh heavily in the public’s assessment in the confidence ofthe administration of justice in a larger centre, it can reasonably be inferred that it does for the reasonable citizens of Osoyoos, Oliver,Penticton and every other community in the Valley, especially when one looks at the possession of the guns in the context of Mr.Louie’s belief system. (iv) Potential for a lengthy term of imprisonment [41] The final of the four factors is whether the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, inthe case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of threeyears. [42] This factor appears somewhat redundant given the second factor, however, as instructed by the Supreme Court of Canada, thecourt is required to engage in a more fulsome analysis and consider the potential aggravating and mitigating factors in determiningwhether a lengthy prison sentence is likely. [43] In some cases judges have gone so far as to quote from sentencing precedents in an effort to establish a likely range. [44] Given all of the potential aggravating factors in this case, including: the planning and the type and nature of gun possessedalong with ammunition; and his belief system, and the apparent absence of any mitigating factors, I am able to safely conclude, withoutreferring to any case law, that the accused is liable on conviction to a lengthy term of imprisonment. [45] All four factors enunciated in the Code favor detention.

However, even where all four factors are present, detention under thetertiary ground is not automatic. [46] The four factors are not exhaustive. [47] Justice Wagner in St. Cloud attempts to provide some guidance by identifying other factors that might be worthy ofconsideration when he writes: I would add that the personal circumstances of the accused, age, criminal record, physical and mental condition, membership in acriminal organization, 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 take into account the fact that the trial of the accused will be held at amuch later date. R. v. St. Cloud 2015 SCC 27 [48] A proposed release plan is often an important consideration. [49] In the case at hand, Mr. Louie has chosen not to speak. He is unwilling to share any information about his roots in thecommunity, employment, or marital status. As such I am unable to conceive of any type of release plan that would satisfy the groundsfor detention. [50] Given the deadly combination of handguns and Mr.

Louie’s irrational belief system, I have no choice but to detain him tomaintain the confidence in the administration of justice. [51] Unfortunately Mr. Louie, I am detaining you on the primary, secondary and tertiary grounds. The Honourable Judge G. Koturbash Provincial Court of British Columbia