R. v. T.J.J. Date:, 2011 BCPC 155

Citation: R. v. T.J.J. Date: 20110223 2011 BCPC 0155 File No: 55878-2-KC Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. T.J.J. REASONS At JUDICIAL INTERIM RELEASE HEARING OF THE HONOURABLE JUDGE J. C. CHALLENGER Counsel for the Crown: G. Parson Counsel for the Defendant: A. Picard Place of Hearing: North Vancouver, B.C. Date of Judgment: February 23, 2011 [ 1 ] THE COURT: These are my reasons on a judicial interim release application, in the matter of T.J.J. Mr. J. is before the court on four counts, all arising November 13th, 2010.

The first alleges an aggravated assault of a R.L.; the second an assault with a weapon on the same complainant, Mr. L.; the third, an assault of a M.S.; and the fourth, having a weapon, a knife and a rock, for a purpose dangerous to the public peace. [ 2 ] The Crown is seeking his detention on what I understand to be the secondary ground. [ 3 ] Mr. J. was taken into custody shortly after this offence occurred and released on November 29th. On January 19th, a s. 524 allegation was brought, and the accused came back into custody. A second judicial interim release hearing was held January 28th.

A s. 524 finding was made and Mr. J. was released again on very strict terms. In particular, as pertains to the reason we are back before the court, he was bound by a curfew of 8 p.m. to 6 a.m. and an abstain from alcohol condition. [ 4 ] He is now before the court on a second s. 524 allegation arising February 7th, 2011.

If I make the finding that he did breach his bail or a 524 finding, this puts him in a reverse onus position. [ 5 ] The circumstances of the substantive offence are that on January 28th about one in the morning the police got a call regarding a loud party and then a call that there was a fight with weapons going on. They found Mr. L. with two slashes, both large flesh wounds, both requiring stitches. One was on the side of the face and will doubtless leave a scar, and one on his shoulder, which I would expect would similarly leave a scar. [ 6 ] The complainant was found to be intoxicated.

He initially refused to identify his assailant and then later said it was Mr. J. The

only circumstances I have had put before me from the complainant are that a fight broke out between Mr. J. and his girlfriend, that Mr. J. was "freaking out" and that the fighting spilled onto the street. [ 7 ] Ms. S. was also interviewed, if we can call it that. She was intoxicated. She confirmed that she was the ex-girlfriend of Mr. J. They had had a verbal argument and Mr. J. was asked to leave by others and refused to do so. She slapped him in the face, and he responded by pushing her against the wall. She said she hit her head when she was pushed and fell, but got up and hit him again.

He then pushed her again, she fell, got up and pushed him out of the house. She said she did not see what happened outside. [ 8 ] The only other witness referred to by the Crown gave a statement saying that a fight broke out involving the accused, that several people were intoxicated, and everyone was trying to get the accused out of the house. This witness said the accused had a knife and was swinging it at people, and she was unsure if anyone was cut. She then said he picked up a rock and chased people with it. [ 9 ] Mr. J. was found a few houses away from the party house with a baseball bat in hand.

He fled on foot when he saw the police, but was apprehended very shortly thereafter. He was found to have in his possession a knife handle which had no blade. He had blood on his nose and it was later determined he had a broken nose. He also had a torn shirt. [ 10 ] All of the witnesses expressed fear of retaliation by the accused. [ 11 ] Counsel for Mr. J. advised the court, and this was not contested by the Crown, that the home at which the party was occurring was a known party house, and the residents of that house were known by the police to be violent.

There were many people present at the party and many were intoxicated. As Mr. Picard said, "Almost no one had anything to say about seeing anything." [ 12 ] Counsel also alleges that by the time the police arrived on scene, there was already a blending of recollection and that people appeared to be talking about what other people had told them, rather than giving the police their own observation. [ 13 ] The witnesses for the Crown refused to go to the police station to give statements. There are only recordings of verbal statements given to the police at the scene. [ 14 ] Counsel for Mr.

J. says that there was an altercation outside the home between Mr. J. and other males. It was these other males that had the baseball bats and other weapons and were beating on Mr. J. There was one witness who originally said that they had seen Mr. J. running but now denies saying that. [ 15 ] Mr. Picard described the complainant's statement as bizarre, rambling and paranoid. Mr. L., the complainant, was also described as violent and uncooperative by the police. [ 16 ] Given what counsel has said on behalf of Mr.

J., self-defence would appear to be a live issue in this matter, and the reliability and credibility of all the Crown witnesses is also clearly in issue. As far as I am aware, these witnesses have never been interviewed further. [ 17 ] The circumstances of the first s. 524 allegation are that on January 19th about 9 p.m. Mr. J.'s mother called the police to attend at her residence. Mr. J. had been present and he was intoxicated. He and his brother got into what was described originally by the Crown as a consensual fight.

On the most recent bail hearing, the Crown alleged "the brother wouldn't cooperate." [ 18 ] I am unable to reconcile those two comments and will rely on what I was originally told, that it was a consensual fight with his brother. [ 19 ] Mr. J. threw a cup through a window and then left the premises. He turned himself in on January 28th. During that period of time, however, he was, as I understood it, residing at John Howard Society resource. [ 20 ] The second s. 524 allegation arose February 7th. He was found at 11:30 p.m. at the Broadway SkyTrain station.

He fled on foot when he saw the police, but was apprehended at the scene. The police allege that he was under the influence of alcohol. They say they noted an odour of liquor on his breath and slurred speech. [ 21 ] I pause to note that I have not heard Mr. J. speak, but counsel says that he, in fact, has a manner of speech which might be mistaken for slurring. [ 22 ] As Crown points out, this was only eight days after being released on very strict terms on January 28th. The police allege that Mr. J. was seen in a hand-to-hand drug transaction.

However, there is nothing to corroborate that suspicion before the court, and it is denied by Mr. J. [ 23 ] Mr. J. has a criminal history that commences January 28th of 2004. At that time he was convicted as a youth of an offence of assault causing bodily harm. He received an intensive supervision and support order with probation for a period of 12 months. [ 24 ] He was next convicted on March 29th, 2004, of an assault.

He received probation for nine months. [ 25 ] On September 30th of 2004, he was convicted of a break and enter and uttering threats and possession of a weapon for a purpose dangerous to the public peace. He received an intensive support and supervision order for six months and probation for two years. [ 26 ] His last youth conviction was April 1st, 2005. It was for breach, and he received a sentence of time served, 17 days. [ 27 ] His first adult convictions are on May 26th, 2005, and July 6th, 2005, for failing to comply with a Youth Court order.

On the first he received 24 days time served, and on the second he received a jail sentence of 60 days. [ 28 ] His next convictions were registered December 19th, 2005. They are for offences which occurred over August and September 2005, all of which are breaches of a youth order. He received time served of 34 days and probation for 12 months.

[ 29 ] On May 19th, 2006, he was convicted of some very serious offences, being unlawful confinement, uttering threats and assault with a weapon. He received a two-year jail sentence and probation for one year. At the same time, he pleaded guilty to an offence of robbery which arose March 19th. The previous offences arose March 3rd, and a concurrent sentence was imposed. [ 30 ] On July 15th, 2008, he was convicted of break and enter with intent and possessing a weapon for a purpose dangerous to the public peace.

He received another two years less a day jail sentence and probation for two years. [ 31 ] On March 29th, 2010, he was convicted of assault and received a two-month jail sentence. [ 32 ] By my calculation, at the latest, Mr. J. would have been released September of 2007, after that original two-year sentence was imposed in March of 2006. [ 33 ] His next offence involving violence was March 2010. That March 2010 assault occurred on the Downtown Eastside.

Crown was not certain whether that assault related to a man whose face was bleeding and who said the accused had assaulted him and had no idea why, or whether that assault was in relation to the accused kicking a male who was in the area. It is difficult for the court to ascribe any weight when I am not certain what the circumstances were. [ 34 ] The Crown also alleges that between October of 2007 and January 10th Mr. J. had committed six parole breaches, one of which was the March 2010 assault on the Downtown Eastside.

There is no information put before the court as to what these breaches were or how much time he served, so it is difficult for the court to, again, place any weight on those breaches. [ 35 ] Mr. J. is currently 23, about to turn 24 on March 1st. He is a member of the Squamish First Nations. He has lived on the North Shore or in the Lower Mainland for his entire life. [ 36 ] He suffers from a severe form of Fetal Alcohol Syndrome Disorder. Counsel says his IQ is estimated in some areas to be as low as 50.

He also suffers from depression. [ 37 ] He has recently, and I mean since his last release from custody, been residing at a John Howard assisted living facility. He receives daily support and has a one-to-one worker. He is supervised from 8 a.m. to 8 p.m., as I understood it, Tuesdays through Sundays but only till 6 p.m. on Mondays. They report that he does very well day to day. He acts out antisocially when under the influence of alcohol.

That issue was dealt with on January 28th bail, by the court requiring him to assign his disability cheque to the John Howard Society so that they could administer his funds to him to prevent him from being taken advantage of by other people, and to keep him from going out and buying alcohol. [ 38 ] He is currently on a waiting list for the Burnaby Mental Health Treatment Centre. That centre addresses people like Mr. J. who have what is referred to as dual diagnosis. In other words, Mr.

J. has not only the challenges he faces from his Fetal Alcohol Syndrome Disorder but also an addiction to alcohol. [ 39 ] His mother and father have been present most days in court. They acted as sureties for him on the January 28th bail order and continue to be supportive of him. They visit him regularly at his residence. [ 40 ] More recently, the family has suffered a significant tragedy, in that one of his brothers committed suicide on or about February 18th.

The funeral, as at the time I heard submissions, had yet to be planned. [ 41 ] I am advised by his counsel that his admission to the Burnaby Mental Health Treatment Centre could be within the next 30 days. That is, in my view, a very important and meaningful intervention and resource for this young man with his disabilities and addiction. [ 42 ] The accused concedes and I so find that he was in breach of the curfew condition of his January 28th recognizance. I, therefore, find that the onus is on Mr.

J. to show cause for his release in these circumstances. [ 43 ] I am not satisfied the Crown has established he was under the influence of alcohol. He denies this, as does his girlfriend, who says she was present. [ 44 ] In R. v. Gladue the Supreme Court of Canada dealt with how this court must deal with First Nations' offenders. Gladue principles apply equally to bail as they do to sentence. At paragraph 62 of that judgment, the court quoted from the Royal Commission on Aboriginal Peoples .

It says: The principal reason for this crushing failure is the fundamentally different world views of Aboriginal and non-Aboriginal people with respect to such elemental issues as the substantive content of justice and the process of achieving justice. 65 It is clear that sentencing innovation by itself cannot remove the causes of aboriginal offending and the greater problem of aboriginal alienation from the criminal justice system.

The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people. It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders. There are many aspects of this sad situation which cannot be addressed in these reasons.

What can and must be addressed, though, is the limited role that sentencing judges will play in remedying injustice against aboriginal peoples in Canada. Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system.

They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime. 67 The background factors which figure prominently in the causation of crime by aboriginal offenders are by now well known. Years of dislocation and economic development have translated, for many aboriginal peoples, into low incomes, high unemployment,

lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, and community fragmentation. These andother factors contribute to a higher incidence of crime and incarceration.

A disturbing account of these factors is set out by Professor TimQuigley, "Some Issues in Sentencing of Aboriginal Offenders", in Continuing Poundmaker and Riel's Quest (1994), at pp. 269-300.Quigley ably describes the process whereby these various factors produce an overincarceration of aboriginal offenders, noting (at pp.275-76) that "[t]he unemployed, transients, the poorly educated are all better candidates for imprisonment.

When the social, political andeconomic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentencesmore of them to jail." 68 It is true that systemic and background factors explain in part the incidence of crime and recidivism for non-aboriginal offendersas well.

However, it must be recognized that the circumstances of aboriginal offenders differ from those of the majority because manyaboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantiallyaffected by poor social and economic conditions.

Moreover, as has been emphasized repeatedly in studies and commission reports,aboriginal offenders are, as a result of these unique systemic and background factors, more adversely affected by incarceration and lesslikely to be "rehabilitated" thereby, because the internment milieu is often culturally inappropriate and regrettably discrimination towardsthem is so often rampant in penal institutions. [45] In R. v. Brant, the Ontario Superior Court of Justice said this with respect to the impact of Gladue on bail at paragraph 14. Thecite is [2008] O.J. No. 5375.

The first issue to be dealt with is the application of the principles of Regina v. Gladue to a bail review. The Gladue case dealt specificallywith sentencing and the role that

section 718.2(

e) of the Criminal Code of Canada played in the sentencing of Aboriginal offenders.However, it has since been held that the principles set out in Gladue apply to any situation where the liberty of an Aboriginal person is atstake, including a bail hearing (see Regina v. Bain, [2004] O.J. No. 6147, unreported, February 18th, 2004; Regina v. Crawford,unreported, August 17th, 2007; and Regina v. Williams unreported, October 26th, 2008). [46] That principle was also adopted by my sister Judge Warren in R. v. Wesley, [2002] B.C.J.

No. 3401. [47] With respect to how the court should deal with people with Fetal Alcohol Syndrome Disorder, I quote from the decision ofJustice Lilles of the Territorial Court of the Yukon in R. v. Harper, 2009 YKTC 18, at paragraph 25. There he was quoting from thenational conference on Access to Justice for Individuals with FASD materials: 2. The person with FASD is entirely blameless - an innocent victim of maternal alcohol use during pregnancy. FASD can affectevery part of the developing brain.

This can result in problems with learning, memory, storage and retrieval of information, adaptivebehaviour, attention, impulse control, speech and language abilities, motor development, reasoning, and problem solving. Approximatelyhalf of individuals with FASD meet standard criteria for mental retardation (IQ less than 70). The brain abnormalities associated withFASD are different for every person with this disability. 3. Improving access to justice for individuals with FASD requires a better understanding of this disability and a concerted effort tokeep FASD individuals out of the justice system.

The justice system should not be used as a substitute for social services and supports forthese most vulnerable citizens. 5. FASD-affected individuals do not do well in school or in society generally. By the time they reach adulthood they have oftenexhausted and alienated their family members.

Out on their own, a multitude of factors combine to result in social isolation, poor jobperformance, poverty, mental and physical health problems, homelessness, victimization and involvement in the criminal justice system. [48] At paragraph 38 Judge Lilles said as follows: Where FASD is diagnosed, failing to take it into account during sentencing works an injustice to both the offender and society at large.The offender is failed because he is being held to a standard that he cannot possibly attain, given his impairments. As noted by JudgeBarry Stuart in R. v. Sam [1993] Y.J.

No. 112 (T.C.), FASD takes away someone's "ability ... to act within the norms expected bysociety" (para. 17), and it is manifestly unfair to make an individual pay for their disability with their freedom. Society is failed because asentence calculated for a "normal" offender cannot serve the same ends when imposed on an offender with FASD; it will not contributeto respect for the law, and neither will it contribute to the maintenance of a just, peaceful and safe society. [49] I adopt those words. [50] Going to ss. 11 (

d) and (

e) of the Charter of Rights, Mr. J. is entitled at this stage of the proceedings to the presumption ofinnocence. He is also entitled to be released on bail. [51] In R. v. Hall, a decision of the Supreme Court of Canada, 2002 SCC 64 , [2002] S.C.J. No. 65, Mr. Iacobucci for thedissent, including Justices Major, Arbour and LeBel, said at paragraph 47 as follows: 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. 48 In the context of the criminal law, this fundamental freedom is embodied generally in the right to be presumed innocent untilproven guilty, and further in the specific right to bail.

When bail is denied to an individual who is merely accused of a criminal offence,the presumption of innocence is necessarily infringed. This is the context of this appeal, one in which the "golden thread" that runsthrough our system of criminal law is placed in jeopardy. And this is the context in which laws authorizing pre-trial detention must bescrutinized. 49

Section 11(

e) of the Canadian Charter of Rights and Freedoms calls particularly on courts, as guardians of liberty, to ensure thatpre-trial release remains the norm rather than the exception to the norm, and to restrict pre-trial detention to only those circumstances

where the fundamental rights and freedoms of the accused must be overridden in order to preserve some demonstrably pressing societalinterest. 50 The duty to protect individual rights lies at the core of the judiciary's role, a role which takes on increased significance in thecriminal law where the vast resources of the state and very often the weight of public opinion are stacked against the individual accused.Courts must not, therefore, take lightly their constitutional responsibility to scrutinize the manner by which the legislature has authorizedthe detention of the accused in the absence of a conviction. [52] With respect to the secondary ground, R. v.

Baltovich (1991), (ON CA), 68 C.C.C. (3d) 362, a decision of theOntario Court of Appeal, Mr. Justice Doherty said as follows: The cogency of the Crown's case is a relevant factor in determining whether an accused should be released on bail pending trial. Section518(1)(c)(iv) provides that the prosecution may adduce evidence of the circumstances of the offence as they "relate to the probability ofconviction". In our view, the evidence as revealed to this point does not permit any firm conclusion as to the probability of conviction.

Inso holding we do not usurp the role of the jury, nor do we express any conclusion or opinion as to the applicant's guilt. Rather, we holdthat the evidence is not so cogent as to provide a satisfactory basis for the continued pre-trail detention of the applicant. [53] And further Ewaschuk, Criminal Proceedings and Practice in Canada, 2nd Edition, says as follows [as read in]: The probability of the accused's conviction must bear on either the primary or secondary ground of detention, so the improbability ofconviction is an important factor against detention. [54] In R. v.

Morales (1992), (SCC), 77 C.C.C. (3d) 91, at page 107, Mr. Justice Lamer said as follows: 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 or interfering with the administration ofjustice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover, detention is justifiedonly when it is "necessary" for public safety.

It is not justified where detention would merely be convenient or advantageous. [55] The Crown's case in this matter, based on the submissions before me, is a weak one. In my view, there is, in fact, no substantiallikelihood of conviction. [56] With respect to whether there is a substantial likelihood of Mr. J. committing offences, in my view, the only substantiallikelihood or any likelihood is that he will again breach his bail. So far, this has not endangered the protection or safety of the public. [57] In particular, in the circumstances of this offender, such breaches are to be expected.

He has limited cognitive capacity. [58] In my view, it would be manifestly unfair to make him pay for his disability with his liberty. The safeguards which were put inplace with his bail which was imposed on January 28th address the risks. There is a better understanding by at least one of his supportpeople, being his girlfriend who was out with him at the time of the breach before the court.

He has an upcoming opportunity tosignificantly improve his functioning and reduce his risk to offend overall when his placement at the Burnaby Centre becomes available. [59] I find the accused has met the burden upon him and has established that he should be released. [60] So he will again be released.

It will be on a recognizance in the amount of $1,000 without deposit with one or more sureties. [61] The terms will be that he will keep the peace and be of good behaviour. [62] He is to report to the Vancouver East Bail Supervision Office on Commercial Drive by no later than 4 p.m. today in person andreport thereafter as and when directed by the bail supervisor. [63] You are to reside where directed by your bail supervisor, to include the Burnaby Mental Health Treatment Centre, and do notchange that residence without the prior written permission of the bail supervisor. [64] You are to abstain absolutely from the possession and consumption of alcohol or other non-prescription drugs. [65] You are to have no contact directly or indirectly with M.S., R.L. and A.N. [66] You are not to go to the North Shore or the Reserves in either North Vancouver or West Vancouver, except when attendingcourt. [67] You are not to be in possession of any firearm, crossbow, prohibited weapon, restricted weapon, imitation weapon, prohibiteddevice, ammunition, prohibited ammunition, explosive substances or all such things and any related authorization devices andregistration certificates until you are dealt with according to law pursuant to the Criminal Code. [68] So it just occurs to me if he is with the no go North Shore, I am going to provide: or in the company of your surety as approvedof in advance by your bail supervisor for attending to any family or cultural function. [69] You are not to possess any knives except for the immediate preparation or consumption of food. [70] You will abide by a curfew of 8 p.m. to 6 a.m. seven days a week.

You may be outside your residence during your curfew hoursonly if you are in the immediate company of a staff member of the John Howard Society, a staff member of the Burnaby Mental HealthTreatment Centre, or one of your parents, C.J. or J.J., and I expect they will again be sureties. [71] You will assign your disability cheque immediately upon receipt each month to the John Howard Society, who will distribute

those funds to you in their discretion. [ 72 ] You will keep the John Howard Society informed of the name of your bail supervisor. [ 73 ] You will comply with all of the directions and rules of the electronic monitoring program as soon as it is made available to you. [ 74 ] I am going to order that he be subject to the electronic monitoring program as soon as the telephone line is installed at his residence at the John Howard Society. (REASONS AT JUDICIAL INTERIM RELEASE HEARING CONCLUDED)