R. v. Shanoss, 2020 BCPC 102

Citation: R. v. Shanoss 2020 BCPC 102 Date: 20200514 File Nos: 25709-1-B, 25830-1, 109574-1-A, 109655-1, 34351-1 Registries: Hazelton, Smithers, Kamloops, Terrace IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BUDDY DOUGLAS SHANOSS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.J. BRECKNELL Counsel for the Crown: S. Avery , by phone Counsel for the Defendant: P.

Mikolayczyk , by phone Place of Hearing: Prince George , B.C. via teleconference Date of Hearing: May 12, 2020 Date of Judgment: May 14, 2020 INTRODUCTION [ 1 ] Buddy Douglas Shanoss comes before the Court seeking his release on five Informations from three different communities totalling 18 Counts. [ 2 ] The Crown seeks Mr. Shanoss’ detention on the secondary ground on the basis that detention is necessary for the safety and protection of the public given his past criminal history and the present allegation before the Court. The Crown points out that Mr.

Shanoss is in a “reverse onus” situation when considering release. [ 3 ] Defence counsel submits that Mr. Shanoss should be released to a house arrest living arrangement with a named surety who is

also his intimate partner. [ 4 ] Although neither counsel mentioned the Covid-19 pandemic but Mr. Shanoss raised the issue and the living circumstances of prisoners in correctional facilities. MR. SHANOSS’ CIRCUMSTANCES [ 5 ] Mr. Shanoss is a 28-year-old indigenous person. He is a member of the Gitxsan Nation and was raised in the village of Kispiox, near Hazelton, B.C. [ 6 ] Counsel referred to Mr. Shanoss’ father and siblings, who live in the general area and, according to the Crown, are well known to the RCMP and the Court. [ 7 ] Mr. Shanoss has worked in his local community in the silviculture industry.

He is laid off now but expects some work will become available in the near future. [ 8 ] He is the father of two children aged five and six, who live with their mother. He provides financial assistance for them when he has money available. [ 9 ] He is in an intimate relationship with Kateri Haskell that started approximately one year ago. [ 10 ] He has a very serious drug abuse history mostly involving opioids. He went to treatment centres in the past but they were not successful. Defence counsel says Mr. Shanoss wishes to pursue treatment and counselling again. [ 11 ] Mr.

Shanoss was described as having some health concerns including ADHD and seizures but counsel did not specify whether those seizures were organic or related to his severe drug addiction. [ 12 ] Mr. Shanoss spoke at the bail hearing and told the Court that at the age of 28 he is too old to continue a criminal lifestyle, that he wants to do what he can to get off drugs and that living at the Prince George Regional Correctional Centre (PGRCC) frightens him because of the Covid-19 situation. INFORMATIONS [ 13 ] The Crown detailed allegations of Mr. Shanoss’ criminal activity spanning over the last six months.

Although they are allegations only the Court must consider them, along with other factors, in determining whether or not Mr. Shanoss has met the onus of satisfying the Court, on the balance of probabilities, that he should be released. Hazelton Registry File #25709-1-B [ 14 ] On December 24, 2018, Mr. Shanoss was sentenced to jail followed by a one year probation order. That probation order required that he report to a probation officer as directed. [ 15 ] Mr. Shanoss was released from custody on October 23, 2019, and was directed to report to a probation officer on November 7, 2019.

He failed to report to the probation officer on that date or on a subsequent date of November 20, 2019. He made no report to the probation officer prior to his arrest on November 29, 2019, on other matters. Terrace Registry File #34351-1 [ 16 ] On November 29, 2019, at approximately 0900, the RCMP received a report of an impaired driver in a pickup truck on Highway 16 near Terrace. The pickup was described and was very similar to one the RCMP had engaged in a chase the day before but were unable to stop the vehicle on that occasion. [ 17 ] On this day the RCMP found the vehicle in a community near Terrace.

The first RCMP member on the scene tried to stop the pickup but it smashed into the member’s vehicle and fled. Other RCMP members in their vehicles, set up a roadblock nearby in an attempt to stop the pickup. However, the pickup drove through the blockade nearly striking two members and seriously damaging some RCMP vehicles. [ 18 ] A very short distance away from that incident, the pickup was involved in a further collision and ended up in the ditch. The driver of the pickup ran from the scene pursued by the RCMP into a nearby park. A Police Service Dog was deployed and Mr. Shanoss was located and arrested.

He received some injuries from his interaction with the Police Service Dog. [ 19 ] When he was arrested, Mr. Shanoss was extremely intoxicated and complained of having taken an excessive amount of heroin shortly before his interaction with the RCMP. He was taken to the local hospital for treatment and then returned to the detachment. [ 20 ] As a result of those circumstances, Mr.

Shanoss faces the following charges: a. two counts of assaulting a peace officer, with the pickup; b. possession of stolen property - the pickup; c. resisting or obstructing a peace officer; d. driving well prohibited; e. dangerous driving;

f. failing to stop for a peace officer; g. impaired operation of a conveyance. Kamloops Registry File #109574-1-A [ 21 ] Mr. Shanoss remained in custody until March 19, 2020. After a contested bail hearing, he was granted a Release Order with a promise to pay $1000 without deposit or surety. That Release Order was very strict and included the specific requirement that Mr. Shanoss reside at the Vision Quest Recovery Society facility at Savona, B.C. Additional terms required Mr.

Shanoss not to occupy the driver seat of any motor vehicle and to not consume any narcotics not approved by Vision Quest. [ 22 ] On March 20, 2020, Mr. Shanoss was released from the Kamloops Regional Correctional Centre into the care of a staff member of Vision Quest. On March 21, 2020, Mr. Shanoss complained of medical distress and was taken to Royal Inland Hospital in Kamloops, by a representative of Vision Quest. [ 23 ] He did not return to the Savona facility. The Crown contends that Mr. Shanoss ran away from the hospital and the matter was reported to the RCMP by Vision Quest. Mr.

Shanoss contends that he was told by the Vision Quest representative that he would not be permitted to return to that facility so he left the hospital. [ 24 ] The Release Order required Mr. Shanoss to immediately call 911 and report himself and follow directions of the RCMP, including attending at the nearest detachment to surrender himself if he was expelled from Vision Quest. There was no suggestion that he took those steps. [ 25 ] Mr. Shanoss faces charges of failing to reside as directed and failing to attend the Vision Quest Recovery Society program as directed.

Kamloops Registry File #109655-1 [ 26 ] On the morning of March 22, 2020, Kamloops RCMP received a report of a stolen SUV. The owner advised that he was in possession of all of the keys and had not given anyone else permission to drive the vehicle. [ 27 ] There was video surveillance footage of the location of the theft showing an adult male getting into and then driving off in the SUV. That person’s face was visible in the video. Sometime later that person was identified as Mr.

Shanoss by a Hazelton detachment RCMP member who knew him from previous dealings. [ 28 ] On March 26, 2020, the RCMP in Kispiox observed the stolen SUV. There was an attempt to stop the vehicle but it drove off at high speed and the RCMP member chose not to pursue it. That member did get a partial look at the driver and believed it to be either Mr. Shanoss or one of his adult male siblings. [ 29 ] On March 27, 2020, the SUV was found off the road near Kispiox. RCMP forensic identity specialists lifted fingerprints from the vehicle that were subsequently matched to Mr.

Shanoss. [ 30 ] As a result of these events, Mr. Shanoss was charged with theft of the pickup truck, breach of bail by being in the driver seat of a vehicle, prohibited driving and driving while his license was suspended. [ 31 ] Mr. Shanoss was not immediately located by the RCMP and remained at large until approximately six weeks later. Smithers Registry File #25830-1 [ 32 ] On May 6, 2020, a member of the Smithers RCMP noted an unoccupied vehicle of interest related to other matters in which it was suspected that Mr. Shanoss had been the driver.

After a few moments three people, two males and one female got into the vehicle and the RCMP member blocked it from departing with the RCMP vehicle. [ 33 ] The male driver was properly identified. The female passenger was identified as Kateri Haskell, Mr. Shanoss’ partner. The other male provided what was quickly determined to be a false name. The RCMP member matched identification photographs from PRIME to Mr. Shanoss. [ 34 ] Mr. Shanoss was arrested. He almost immediately complained of medical distress and exhibited what appeared to be a seizure.

He was taken to the local hospital, was examined, released and then taken to the Smithers RCMP detachment. He has remained in custody since then. MR. SHANOSS’ CRIMINAL HISTORY [ 35 ] Mr. Shanoss has an extensive criminal history dating back to 2008 when he was 16 years old. His youth criminal history has 14 convictions including: a. seven theft or possession of stolen property offences; b. two break and enters; c. four breaches of court orders; and d. one flight from a peace officer. [ 36 ] Mr. Shanoss adult criminal history commences in 2010 and has 73 convictions including:

a. 36 breaches of court orders including three breaches of Conditional Sentence Orders; b. 10 assaults or assault with a weapon; c. three uttering threats; d. three impaired driving or refusals; e. one break and enter; f. three thefts; g. two mischiefs; h. one drug possession; i. one driving while disqualified; j. one personation; k. one being unlawfully at large; l. two flights from a peace officer; m. two assaults of a peace officer; and n. seven resist or obstruct a peace officer. [ 37 ] During the timeframe encompassing the allegations before the Court, Mr.

Shanoss was on at least one and in some cases two Probation Orders and since March 2020, on a Release Order. All of these orders required him to conduct himself in a lawful manner and to comply with certain Court directions. He was also disqualified from driving. [ 38 ] A review of Mr. Shanoss’ criminal history demonstrates an almost continuous stream of offending during any time when Mr. Shanoss was not actually in custody. SUBMISSIONS Crown [ 39 ] The Crown’s submissions opposing Mr. Shanoss’ release based only on the secondary grounds include:

a) even though he remains a youthful offender, he has an extremely serious criminal record practically unbroken since he was 16;

b) many of his convictions are for the very same offences he now faces in the Informations before the Court, including the very serious matters of operating a conveyance while both intoxicated and disqualified and his assaultive and resistant behaviour towards the RCMP. His actions indicate a complete disregard for the safety of the community and particularly members of the RCMP;

c) he refuses to comply with any direction of the Court whether it be while on bail, on probation or serving a conditional sentence. He simply refuses to control his behaviour in the community under the direction of the Court;

d) his bail plan is deficient in many aspects. He ran away from Vision Quest representatives after advocating to be able to attend that facility. The proposed surety, Ms. Haskell, is not a good candidate for that position given that she was present at Mr. Shanoss’ last arrest and did not intervene when he obstructed the RCMP member who was trying to ascertain his identity. The alternate suggestion of having Mr. Shanoss reside with his father is also problematic because his father has been regularly engaged in criminal activity over the past decade. Defence [ 40 ] Defence counsel’s submissions in support of a Release Order and a “bail plan” include:

a) Mr. Shanoss has the possibility of obtaining employment if released which would allow him to support himself and his children who reside with their mother;

b) he suffers from a number of health issues including forgetfulness;

c) he wants to stop using drugs, go on the methadone program, attend rehabilitative treatment and couples treatment. He wants to improve his situation for the benefit of his two young children;

d) his surety, Ms. Haskell, resides with a roommate and they live in a home free of drugs and alcohol. The roommate has been working on her sobriety for the past few years;

e) when Mr. Shanoss and Ms. Haskell are together, they do not consume drugs and they live a quiet prosocial lifestyle. Mr. Shanoss has run into legal difficulties when they are not residing together;

f) if Ms. Haskell’s home is not deemed appropriate by the Court, Mr. Shanoss could reside with his father and other family members in Kispiox where he has lived most of his life;

g) Mr. Shanoss would agree to weekly drug testing. He would also agree to live under a curfew or house arrest in addition to the usual terms of release. DISCUSSION Bail Hearing Guiding Principles [ 41 ] All accused persons are presumed innocent of unproven charges.

Section 11(

e) of the Canadian Charter of Rights and Freedoms requires that an accused “not to be denied reasonable bail without just cause”. The Court must also give primary consideration to release of an accused at the earliest opportunity and on the least onerous conditions that are appropriate as set out in

Section 493.1 of the Criminal Code . [ 42 ] In R. v. St Cloud 2015 SCC 27 , the Supreme Court of Canada noted “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception: These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case.” [ 43 ] In R. v.

Antic , 2017 SCC 27 , the Supreme Court of Canada clearly stated that pre-trial custody affects the mental, physical and social life of the accused and his family, and may also have a substantial effect on the result of the trial itself. Each rung of the “bail ladder” must be considered and rejected before moving to a more restrictive form of release. In this case Mr. Shanoss proposes a surety and to be under house arrest; two of the more restrictive forms of release. The “ladder principle” in bail consideration is codified in Section 515(3) of the Criminal Code . [ 44 ] In R. v.

Myers , 2019 SCC 18 , the Supreme Court of Canada re-emphasized the following:

a) release is favoured at the earliest reasonable opportunity and on the least onerous grounds;

b) the experience of pre-trial detention can have serious detrimental impacts on an accused person’s ability to raise a defence.

c) an accused person in pre-trial detention may experience dire living conditions including limited access to recreation, health care or basic programming;

d) pre-trial detention comes at a significant cost to an accused person in terms of their loss of liberty, the impact on their mental and physical well-being and on their families, and the loss of their livelihoods; and

e) that an accused person should expect their release to be the default position in most bail hearings and that detention should be a last resort. This is particularly relevant to Indigenous accused who make up a disproportionate segment of prison populations in Canada. [ 45 ] When considering bail conditions it must be remembered that bail is not imposed to change an accused person’s behaviour or to punish an accused person but rather to safely control them in the community pending trial. Covid-19 Considerations [ 46 ] Covid-19 has gripped the public’s attention around the globe.

This pandemic affects everyone, even if not infected. The number of infections and resulting deaths in certain parts of the world are staggering. [ 47 ] Some countries, and even some provinces, have faced an unprecedented health crisis. Many places have suffered catastrophic financial and economic disruption. Everyone is being asked to take extreme measures to protect themselves, their loved ones and all members of the community. [ 48 ] Some communities such as prisons, care homes and hospitals are particularly vulnerable to viral outbreaks. Prison inmates live in close quarters for prolonged periods.

Many arrive at a correctional centre not having the benefit of social distancing or self-isolation due to homelessness, mental illness or drug addiction. The World Health Organization has stressed that coordination and collaboration between health and justice sectors are crucial. [ 49 ] In a letter dated April 6, 2020, from the Assistant Deputy Minister for BC Corrections indicates that BC Corrections has been working closely with the Provincial Health Services Authority and other agencies to implement the Provincial Health Officer’s recommendations.

Many precautions have been taken to protect all inmates, including limiting movements of individuals in and out of custody for court, limiting transfers between correctional centres, reducing contracted services, suspending visits unless urgent, infection prevention and control and where possible, reducing inmate populations. The overall count of persons in BC Corrections custody has decreased from 2,200 to about 1,850 in the past few months. [ 50 ] There is a troubling outbreak at the Correctional Service of Canada institution in Mission where over 100 inmates and staff have tested positive for Covid-19.

There have been no confirmed positive cases at the Prince George Regional Correctional Center where Mr, Shanoss is housed. But, I accept for the purposes of this decision, that the COVID-19 situation in BC Corrections facilities may get worse before it gets better. [ 51 ] The risk posed to inmates by the coronavirus while incarcerated in detention centres is an important factor for the Court’s consideration. In R. v.

Leppington , 2020 BCSC 546 , the BC Supreme Court adopted these words from Justice Goodman in Ontario: … even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in various institutions, while at the same time exercising the balancing required to sustain its fundamental role in the administration of justice and protection of the public. [ 52 ] It is that type of “balancing” that the Court must include in addition to all the other factors normally considered in a bail hearing.

[53] However, it should also be noted that there was no suggestion that any of Mr. Shanoss’ health issues as described by counselplace him into the vulnerable health status referred to in other cases when it comes to Covid -19. Gladue Considerations [54] Mr. Shanoss’ personal circumstances, as well as the larger historic and systemic discrimination of Indigenous persons inCanada, as described in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13 , [2012] 1S.C.R. 433, must be considered in an application for a release order. (See R. v.

Louie, 2019 BCCA 25) Reverse Onus Considerations [55] The obligation on an accused in a “reverse onus” situation does not change the standard of proof. The onus is on the accused toestablish, on a balance of probabilities, that detention is not justified under any of the enumerated criteria contained in s. 515(10) (

a) to(

c) of the Criminal Code, often referred to as the primary, secondary and tertiary grounds. This does not mean the accused must disprovethe commission of the offence or their involvement. Even when the reverse onus applies, the presumption of innocence remains such thatthe denial of bail should be the exception rather than the norm. Grounds for Detention [56] The Crown only advanced the secondary grounds as reason to detain Mr. Shanoss. In determining whether the secondarygrounds for detention have been met, the decision of Mr. Justice Halfyard in R. v Abdel-Rahman, 2010 BCSC 189, describes four factorsto consider:

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

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 accusedis released; 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). [57] In applying these factors to the Informations before the Court and Mr. Shanoss’ situation, the following results:

a) First – Based on Mr. Shanoss’ 87 convictions over 12 years there is clearly a risk that, if released, he would commit furthercriminal offences. That risk is heightened by the allegations of several offences since his most recent Release Order in March 2020;

b) Second – Looking at Mr. Shanoss’ past criminal behaviour the likelihood of him committing further offences is “substantial”;

c) Third – If Mr. Shanoss is released, the risk of his reoffending would place the general public at risk given his addictive lifestyleand his operating conveyances while impaired on drugs and prohibited from doing so. He would also place peace officers at particularrisk given his many convictions arising from his past interactions with the RCMP;

d) Fourth - Defence counsel has presented the best release plan possible for Mr. Shanoss. However, I agree with the Crown thatthe proposed surety does not meet the criteria to be an effective supervisor of his behaviour. In addition, I have concluded that no releaseplan can overcome the secondary ground concerns for Mr. Shanoss. [58] A release order cannot eliminate all risk. Nevertheless, based on what is before the Court, Mr.

Shanoss’ compliance withcommunity supervision, a reasonable reduction of the likelihood of his further offending and his possible endangerment of the public andRCMP members cannot be reduced to an acceptable level by any bail conditions that might be crafted. [59] Given that decision I must also consider any Covid-19 considerations. There is no evidence Mr. Shanoss has any related healthvulnerabilities. The factors suggesting his detention are manifold and the balancing of them with the Covid-19 situation still requires hisdetention on these matters.

DECISION [60] Based on all the information placed before the Court including Mr. Shanoss’ personal history, his criminal record includingconvictions for similar offences, the allegations now before the Court, the seriousness of many of the allegations, and an unsatisfactorybail plan I am not satisfied, on a balance of probabilities, that his release is appropriate at this time. [61] All previous Release Orders are revoked and Mr. Shanoss is detained on all of the outstanding Informations before the Court. ________________________________ The Honourable Judge M.J. Brecknell Provincial Court of British Columbia