R v. McDonald, 2022 BCPC 312

Citation: ☼ R v. McDonald 2022 BCPC 312 Date: ☼ 20220621 File Nos: 35897-1, 35914-1, 35917-1, 35923-1, 36032-1, 36117-1 Registry: Cranbrook IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BOWE LEE WAD MCDONALD REASONS FOR JUDGMENT AT JUDICIAL INTERIM RELEASE HEARING OF THE HONOURABLE JUDGE D. PATTERSON Counsel for Crown (appearing by videoconference): B. Pankoff Counsel for the Defendant (appearing by videoconference): B. Westrate Place of Hearing: Kelowna, B.C. Date of Hearing: June 21, 2022 Date of Judgment: June 21, 2022

Overview [1] THE COURT: Twenty-four year old Bowe Lee Wade Mcdonald is seeking his release from custody in relation to ChilliwackCourt Files 35897-1, 35914-1, 35917-1, 35923-1, 36032-1, and 36117-1. The charges he faces include: multiple counts of failing to stopa motor vehicle while being pursued by the police, multiple counts of breaching of a release order by being in the driver’s seat of a motorvehicle, multiple counts of driving while prohibited, multiple counts of obstruction of a police officer, break and enter into a compoundat Alpine Toyota, and theft from the Real Canadian Superstore.

Crown counsel is seeking his detention. Mr. Mcdonald is in a reverseonus situation because of s. 515(6)(

c) of the Criminal Code: the Crown alleges that Mr. Mcdonald breached his June 11, 2022, releaseorder on June 12, 2022. He does not have a criminal record. The Law [2] As bail court judges, we are instructed by the Supreme Court of Canada that the default position is that an accused should bereleased at the earliest opportunity and on the least onerous terms available in the circumstances: R. v. Zora, 2020 SCC 14 ,2020 S.C.C. 14; R. v. Myers, 2019 SCC 18 , 2019 S.C.C. 18; and R. v. Antic, 2017 SCC 27 , 2017 S.C.C. 27. [3]

Section 11(

e) of the Canadian Charter provides that: Any person charged with an offence has the right (

e) not to be denied reasonable bail without just cause. Furthermore, the right to bail under s. 11(

e) of the Charter includes the presumption of innocence. [4]

Section 493.1 of the Criminal Code says that: In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at theearliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions thatare reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or515(10), as the case may be. [5]

Section 493.2 says the following: In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of (

a) Aboriginal accused; and (

b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged inobtaining release under this Part. Particulars of Mr. Mcdonald’s Case [6] Based upon what Ms. Kelly, who as duty counsel made representations on Mr. Mcdonald’s behalf on day one of the bailhearing, has told me, I accept that Mr. Mcdonald belongs to a vulnerable population that is overrepresented in the criminal justice systemand that is disadvantaged in obtaining release under s. 515 of the Criminal Code. Why?

Because of his drug addiction and due to thefact that society has really let him down, just, quite frankly, if the allegations are true, as he has let society down. [7] It is far too common of an occurrence that individuals who develop a drug addiction find themselves integrated into the criminaljustice system, when really they suffer from one or more medical conditions, often exacerbated by a mental health and/or a social welfareproblem.

They then face hurdles getting bail, due to unstable or no housing, a lack of legitimate funds, family members havingdisassociated themselves, and the lack of a concrete plan to address their drug addiction in a manner that will substantially reduce thechances of their being involved in further criminal activity. [8] In Mr. Mcdonald’s case, the presumption of innocence acts in his favour concerning all six of the files that are before the court,even though it does appear that the Crown has some very strong cases. Most of the prosecution witnesses are police officers.

They willno doubt show up for trial and in all likelihood provide the evidence that they have written into the various Reports to Crown Counsel. Nevertheless, I temper what appears to be a number of strong cases for the Crown with the words of Justice Iacobucci in his powerfuldissent written some 20 years ago in R. v. Hall, 2002 SCC 64 , 2002 S.C.C. 64, at paragraph 47: At the heart of a free and democratic society is the liberty of its subjects.

Liberty lost is never regained and can never be fullycompensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, mustplace the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty. [9] On June 13, 2022, Mr. Mcdonald provided a release plan to the court, which I found to be deficient. In order to bolster his initialrelease plan, I suggested that he should attempt to get electronic monitoring. Accordingly, Mr.

Mcdonald was adjourned in-custody toallow for the preparation of a Technical Suitability Report. The Technical Suitability Report was completed and provided to the courtearlier today. [10] I agree with Crown counsel that the Technical Suitability Report is not positive. The unattached travel trailer that Mr. Mcdonaldproposes to live in while on bail is not suitable for electronic monitoring. It does not have a landline and Mr.

Mcdonald does notcurrently have a mobile telephone, although he says that he can get one once he is out of custody. [11] Part of the Technical Suitability Report’s negative findings highlight a failure on society's part. Because of Mr. Mcdonald’s drug

addiction, and because of his alleged criminal activity, Mr. Mcdonald has not only lost his job at Teck, which was a high-paying unionjob, but he has lost the support of his loved ones, friends and society. Despite Mr. Mcdonald telling the court that he wants to address hisdrug addiction, no government or private agency has stepped forward to assist Mr. Mcdonald in understanding and dealing with his drugaddiction. As a result, we have the alleged charges before the court. [12] Mr. Weststrate, who is now counsel of record for Mr. Mcdonald, has submitted today that these past ten days in custody havebrought Mr.

Mcdonald to a place in his life where Mr. Mcdonald can be: i. released from custody, and ii. trusted not to fall back into the drug lifestyle that led to his alleged criminal activity. With respect, experience in these courts tells me that ten days is not sufficient time to overcome the kind of drug issues that areapparently plaguing Mr. Mcdonald. [13] Regina v. Abdel-Rahman, 2010 BCSC 189 , 2010 B.C.S.C. 189, starting at paragraph 20, is particularly instructive inMr. Mcdonald’s case: [20]

Section 5.15(10)(

b) of the Criminal Code states that the detention of an accused in custody is justified on the secondaryground: (

b) Where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence,having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit acriminal offence or interfere with the administration of justice; [21] The limits within which detention on the secondary ground may be justified were described by Chief Justice Lamer in R. v.Morales, (SCC), [1992] 3 S.C.R. 711 (at para. 39) in the following words: . . .

Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice whileon bail. Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administrationof justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention isjustified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous. . .. [22] In R. v. Wilcox 2005 BCSC 1785 , 2005 B.C.S.C. 1785, Mr.

Justice Barrow (at para. 22) further clarified the limits ofthe secondary ground by stating that bail should not be denied unless “that risk cannot be adequately addressed by the imposition ofappropriate terms of release.” I take this statement to refer to the “necessity” of detention, and to mean that even significant risks can beaddressed by strict bail conditions, provided the risk to public safety does not amount to a “substantial likelihood.” [23] In my opinion, the decisions that a judge must necessarily make in order to reach the conclusion that detention is justified onthe secondary ground, are the following:

a) First, that there is a risk that the accused will either commit an offence, or will interfere with the administration of justice, if he isreleased;

b) Second, that this risk is of such magnitude that it amounts to a “substantial likelihood;”

c) Third, that the said risk would constitute a danger to public safety (in general, or to a specific victim or witness) if the accused isreleased; and

d) Fourth, that the detention of the accused is “necessary,” because the identified danger to public safety cannot be prevented orreduced to an acceptable level by bail conditions (such as reporting to authorities, curfew, no-contact, mobility restrictions, sureties orcash bail). [14] Crown counsel says that Mr. Mcdonald’s proposed release plan does not provide protection to the public. In particular, Crowncounsel says that it does not provide for the safety of the public, which includes not only other users of the roadway, but individualswhose property Mr.

Mcdonald would be tempted to steal in order to support his drug habit and criminal lifestyle. It therefore follows thatthe risk is of such a magnitude that it amounts to a substantial likelihood that if released, Mr. Mcdonald will commit further offencesbecause there are no release conditions that will stop Mr. Mcdonald from continuing with his crime spree. Therefore, it is necessary todetain Mr. Mcdonald. [15] Mr. Weststrate says, well, Your Honour, slow down.

Ten days in custody, while it may not be enough to get him over the hurdleof his drug addiction, certainly has acted as a wake-up call, and, quite frankly, has allowed Mr. Mcdonald’s mind to get to the placewhere now he is prepared to give it his best attempt at breaking the drug cycle. Mr. Mcdonald will abide by whatever conditions are inthe release order. He will be a law-abiding member of society pending the outcome of his trials on the six Informations that are beforethe court. Conclusion: [16] These are difficult cases, especially for an individual like Mr. Mcdonald who has no criminal history.

It is difficult for thecitizens of Cranbrook, it is difficult for the RCMP of Cranbrook, it is difficult for Crown counsel, who, quite frankly, has taken anappropriate position in this case. Nevertheless, when I look at the teachings of the Supreme Court of Canada, when I look at whatJustice Halfyard has told us in Abdel-Rahman, I am prepared to give Mr. Mcdonald one final opportunity.

[ 17 ] Crown counsel will be taking notes of the result. I will order a copy of the judicial interim release hearing transcript. And I will have it published. I do not believe there are any publication bans. Are there any that you are aware of, Mr. Pankoff? [ 18 ] CNSL B. PANKOFF: No, Your Honour, not on these files. [ 19 ] THE COURT: All right, Madam Clerk, if you could be so kind as to email the Cranbrook Court Registry for me, and order me a copy of the decision that I am about to give, I will have it published. Afterwards, if Mr.

Mcdonald finds himself back in custody, the next bail judge will know that Judge Patterson gave making a detention order serious consideration and released Mr. Mcdonald on what is sometimes referred to as "last chance bail". [ 20 ] I am not prepared to impose electronic monitoring, although I do think that electronic monitoring would be of assistance to Mr. Mcdonald in reminding him of his obligations. I am not going to impose electronic monitoring because I think that it will be problematic in the present circumstances, and I say that because whether it is the power generator not working or Mr.

Mcdonald not being able to get a mobile telephone, he would end up back in custody. [ 21 ] There will be a release order without any financial obligation. In saying this I have, as I am required to do pursuant to s. 515(13) of the Criminal Code , considered the safety and security of every alleged victim of the offences, plural, in making this order.

The alleged victims are, of course, the individuals within the Cranbrook community. [ 22 ] The conditions of the release order are as follows: [ 23 ] 1005-2, slightly modified, you must not go to or be within 50 metres of the Real Canadian Superstore, located at 2100-17th Street North, Cranbrook, British Columbia. You must not go to or be within 50 metres of Alpine Toyota, located at 1924 Cranbrook Street North, Cranbrook, British Columbia. [ 24 ] Mr. Mcdonald, you have been a lifelong resident of Cranbrook, so you know you can avoid those two businesses.

You know there are routes available that allow you to avoid Highway 95 and you can work your way around so that you do not have to get within 50 metres of either of those two businesses. So if you are within 50 metres of either business, there are no exceptions, you will become arrestable.

Do you understand that, sir? [ 25 ] THE ACCUSED: Yes, sir, I do. [ 26 ] THE COURT: 1103 , you must report by telephone to a bail supervisor at Cranbrook Community Corrections at 101-117-10th Avenue, Cranbrook, British Columbia -- Madam Clerk, I do not have the telephone numbers so those will have to be put into the release order, please -- by 3:00 p.m. today, June 21, 2022. If the office is closed, you must continue calling daily during regular business hours until you have spoken to a bail supervisor and received further direction to report.

After that, you must report in person to the bail supervisor at Cranbrook Community Corrections, 101-117-10th Avenue, Cranbrook, British Columbia, as directed by the bail supervisor. [ 27 ] 1201, when first reporting to the bail supervisor, you must provide them with the address where you live and your phone number. You must not change your address or phone number without prior written permission from your bail supervisor.

If you are or become homeless, you shall provide your bail supervisor with a detailed accounting of where you will be sleeping and spending the majority of your time. [ 28 ] Do you understand that, Mr. Mcdonald? [ 29 ] THE ACCUSED: Yes, sir, I do. [ 30 ] THE COURT: 1209-1, you must obey a curfew by being inside your residence or on its lot between the hours of 8:00 p.m. and 8:00 a.m. every day, seven days a week. If you are homeless, you must stay within the designated area that you have told your bail supervisor is the place where you sleep and spend the majority of your time.

You must present yourself immediately at the door to your residence, or answer your telephone if you have a mobile telephone or a landline telephone, when any peace officer or bail supervisor attends or calls to check on you during the curfew. You may be away from your residence during the curfew with the prior written permission of your bail supervisor. Such permission is to be given only for employment or other compelling reasons.

You must carry the permission, which can be in electronic format, with you when you are outside your residence. [ 31 ] THE ACCUSED: Yes, sir. [ 32 ] THE COURT: You may also be away from your residence during the curfew hours while at or going directly to or returning directly from a health care facility because of a medical emergency. If asked, you must provide your bail supervisor with proof of your attendance at the facility -- and the second exception, Madam Clerk, is going to be: for the purpose of attending a scheduled court appearance.

You must immediately return and comply with your curfew hours after any court appearance. [ 33 ] Do you understand that, sir? [ 34 ] THE ACCUSED: Yes, sir, I do. I just want to thank you. [ 35 ] THE COURT: 1212, you must provide your bail supervisor with the details of your employment status. You must inform your bail supervisor within two business days of any change of your employment status. [ 36 ] Just so we are all clear, I am going to go back to the curfew. The reason I put the exception for court is in case Mr.

Mcdonald decides to reside outside the Cranbrook area, he can drive to Cranbrook, make his court appearance, and if he is still out of his residence between 8:00 p.m. and 8:00 a.m. while making a genuine effort to get home, he will have a lawful reason to be so.

[ 37 ] All right, you told me on the last occasion, and your counsel told me today, you will take whatever steps are necessary, will you consent to taking counselling and treatment -- [ 38 ] THE ACCUSED: Yes, sir. [ 39 ] THE COURT: -- if that will assist you in not committing further criminal offences? All right, yes? [ 40 ] THE ACCUSED: Yes, sir. [ 41 ] THE COURT: All right. [ 42 ] THE ACCUSED: Of course, any -- any outlet that will [indiscernible/videoconference]. [ 43 ] THE COURT: All right.

Well, listen to me then. 1401, Madam Clerk, you must not possess or consume alcohol, drugs or any other intoxicating substance, except with a medical prescription given to you by a medical doctor, who is a member in good standing of the College of Physicians and Surgeons of British Columbia. [ 44 ] So that is no alcohol, no marihuana, no drugs at all. The exception is as follows: you may have lawfully sold retail cigarettes in your possession, and you may consume said cigarettes.

So cigarettes are the only drug -- [ 45 ] THE ACCUSED: Yes, sir. [ 46 ] THE COURT: -- you can legally put into your body. [ 47 ] THE ACCUSED: Thank you. [ 48 ] THE COURT: 1403, you must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden or any other business from which minors are prohibited at any time by the terms of a liquor licence. [ 49 ] 1501, having consented in court, you must attend, participate in and complete any intake, assessment, counselling or education program as directed by your bail supervisor.

This may include counselling or programming for alcohol or drug addiction; or mental health issues. [ 50 ] 1502, having consented in court, you must attend, participate in and complete any intake, assessment, program, treatment or a full-time live-in treatment program as directed by your bail supervisor. This may include, programming or treatment for alcohol or drug addiction; psychiatric and psychological health. [ 51 ] I put the counselling and the treatment conditions in specifically, sir, because I agree with Crown counsel that you are, quite frankly, riding a whirlwind. You need help and a major time out.

It is in your best interest to get the counselling and the treatment in order to assist you in not being tempted to consume drugs or commit further criminal activity, as alleged by the Crown counsel. [ 52 ] THE ACCUSED: I agree, sir. [ 53 ] THE COURT: All right. 1610, Madam Clerk, slightly modified, you must not possess, directly or indirectly, any weapon as defined by the Criminal Code of Canada , including, but not limited to: a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance, or all of these things. [ 54 ] 1616, you must not possess any knife outside your residence, except for the immediate preparation or eating of food.

The exceptions are as follows: a. while on your property; b. while at work, or going directly to and from work.

If asked, you must provide your bail supervisor with the details of your location and hours of employment; c. with the prior written permission of your bail supervisor, if you get that permission, you must carry a copy of it, which can be in electronic format, with you whenever you possess a knife. [ 55 ] 1617, you must not possess any tools or instruments capable of use for criminal activity, including pry bars, screwdrivers, bump keys, bolt cutters, pliers, blow torches, grinders, night vision goggles, slim jims, or lockpicks.

The exceptions are as follows: a. while on your property; b. while at work, or going directly to and from work. If asked, you must provide your bail supervisor with the details of your location and hours of employment; c. with the prior written permission of your bail supervisor. You must carry the permission, which may be in electronic format, when you possess any of these items outside your residence or place of work. [ 56 ] 1618, you must not possess any keys except for -- sorry. You must not possess any keys for motor vehicles.

Period. [ 57 ] 1628, you must not use or possess anything intended to enable you to mask or disguise your face, including but not limited to a balaclava. For greater certainty, if you are wanting to enter a business or other place that requires you to wear a COVID-19 mask, you shall use a disposable face mask, and you shall discard it immediately after leaving that particular premises.

[ 58 ] 1624, you must not occupy the driver’s seat of any motor vehicle. [ 59 ] 1626, you must not enter any motor vehicle, other than public transportation, unless the registered owner is present in the vehicle. [ 60 ] 1627, you must not loiter in any parkade, parking lot, vehicle dealership lot, or property where the primary business is the repair, sale or rental of vehicles or trailers. [ 61 ] 1632, you must not sell, or give anything as security for money borrowed, to a pawnbroker. [ 62 ] Any questions by any of those conditions, Mr.

Mcdonald? [ 63 ] THE ACCUSED: Just the firearms one because I do -- I do hunt and fish. [ 64 ] THE COURT: Now you do not.

So you are going to surrender -- I am going to make a surrender clause, Madam Clerk, there is going to be a 1614 surrender clause: If you possess any of the items prohibited by this order, you must arrange to surrender them to the Cranbrook RCMP as a precondition to your release from custody. [ 65 ] So if you have any of the prohibited items, you are going to contact the Cranbrook RCMP, and tell them, if you have a rifle, if you have ammunition, if you have a possession and acquisition licence, otherwise known as a firearms licence.

Those go to the RCMP. [ 66 ] THE ACCUSED: No, I [indiscernible/videoconference]. [ 67 ] THE COURT: They will hold onto them. You can go hunting with another person, you just cannot touch the ammo or the firearms.

So in other words, somebody else is going to have to do the shooting, gutting, and so on. [ 68 ] THE ACCUSED: [Indiscernible/videoconference] okay with that. [ 69 ] THE COURT: All right, you can pack out the game, but you cannot possess the knife, you cannot do the gutting. [ 70 ] THE ACCUSED: Okay. [ 71 ] THE COURT: Okay. [ 72 ] THE ACCUSED: Sounds good. [ 73 ] THE COURT: Okay, stay where you are, I know you are excited, but stay where you are. [ 74 ] Mr. Pankoff, any questions about that release order? [ 75 ] CNSL B. PANKOFF: No. No, Your Honour. [ 76 ] THE COURT: All right, Mr.

Weststrate anything from your perspective. [ 77 ] CNSL B. WESTSTRATE: No, Your Honour. (REASONS CONCLUDED)