R. v. E.Z.L. Date:, 2013 BCPC 65

Citation: R. v. E.Z.L. Date: 20130304 2013 BCPC 0065 File No: 59125-1-K Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. E.Z.L. EXCERPTS FROM PROCEEDINGS REASONS AT JUDICIAL INTERIM RELEASE HEARING OF THE HONOURABLE JUDGE CHALLENGER Counsel for the Crown: R. Edwards Counsel for the Defendant: E. Chu Place of Hearing: North Vancouver , B.C. Date of Judgment: March 4, 2013

[ 1 ] THE COURT: These are my reasons on an application for Judicial Interim Release. E.Z.L. is before the court on Information 59125. This Information contains a total of eight counts. Count 1 alleges an aggravated assault of a C.J. arising on February 23rd, 2013, in West Vancouver. Count 2 alleges a forcible confinement of the same complainant arising on the same date, as well as committing or attempting to commit the indictable offence of aggravated assault by striking the complainant with the stock of a rifle, contrary to s. 85(1) of the Criminal Code .

That offence, if proved, carries a one-year minimum jail penalty. The balance of the counts all respect unsafe storage of firearms. [ 2 ] We commenced the bail hearing on Friday, March 1st, and the matter was adjourned over to today, and in the meantime, the Crown has now determined through the police that it is likely that only one count of unsafe storage of a firearm will be proceeding at the end of the day. [ 3 ] The Crown is seeking Mr. L.'s detention on the secondary and tertiary grounds. There are also, in my view, primary ground concerns. [ 4 ] The circumstances of the offence involve Mr. L.'s wife, Ms.

J., the complainant; his daughter was also present in the home during the course of the alleged offences. The couple has had a 12-year relationship. Their daughter is currently ten years of age. They came to Canada in mid-August of 2010. They are now permanent residents. [ 5 ] Ms. J. advises that there has been no physical violence since they moved to Canada. She did describe to the police some incidents that occurred in China, the most recent being when Mr. L. threw a chair causing injuries to her face and eye and bruising to her arm. The child was apparently present for that offence.

She described other incidents which were less serious and did not result in any visible injuries. [ 6 ] She says that Mr. L. threatens to kill her and that that has occurred more in the past than in recent times, but that it has been repeated. She says that it has been a better relationship or at least an easier relationship since being in Canada. She did describe that Mr. L. will lose his temper and break articles in the home, throw articles in the home and, in fact, damage the home, and that he acts out in this fashion while his child is present. [ 7 ] At the time of the offence, Mr.

L. legally possessed, pursuant to a firearms acquisition certificate, 16 long-guns and 12 pistols. Ms. J. advised that she signed his firearms application because she was afraid not to. She also described that his anger becomes worse after he has consumed alcohol. She told the police that he does not drink every day, but when he does consume alcohol, he consumes excessive amounts. [ 8 ] As to the incident which gives rise to the allegations before the court, she said they went out as a family to a Chinese New Year's celebration at a friend's home. There were both couples and children present at the home.

She said the accused, Mr. L., drank to excess at the party, and that by 10:30 in the evening he was drunk, told her he was tired and he wanted to go home. She suggested to him that he should not drive and that she should drive instead, but he refused and drove home. She and her daughter noted that he was speeding and his driving scared them. They also advised the police that he appeared angry en route home, but they were uncertain as to why.

When they got back to their residence, he collided with the garage door. [ 9 ] Once parked inside the garage, he told his daughter to get out of the car and go inside the home, which she did. He then struck his wife twice in the face while she was in the car. She said she was not certain if he hit her with an open hand or a fist. When the police investigated, they found blood in the passenger seat of the vehicle and outside the passenger side of the vehicle in the garage. Once outside of the vehicle, he struck her again in the forehead and, again, in the left eye leaving her eye blackened and bleeding.

She described him as yelling and swearing and not making any sense. [ 10 ] He then pulled her into the basement of their residence and took her to what is referred to in the family as the "gun room". He said as follows, "I want us to die together." He told her to sit on a couch which she did, and then he attempted to get into a gun locker in the room. However, due to his level of intoxication, he was apparently unable to get the locker open. [ 11 ] He then went to a corner of the room, picked up a long-gun that was in the corner and some bullets from the floor.

He then approached his wife, put the gun against her head and told her he was going to kill her and that they were going to go together. Not surprisingly, Ms. J. believed that she was going to die. She then heard what sounded like the trigger mechanism, but the gun did not go off. Instead, Mr. L. hit her in the head and mouth with the gun. [ 12 ] While all of this was going on, their 10-year-old daughter was upstairs listening to her mother's distress. She attempted to call 911, but was dialling the wrong number. She called out, but her father told her to stay away.

She did make her way downstairs and found her mother face down on the carpet with a small pool of blood near her face. Her father then told her to call 911, which she did. [ 13 ] As the child reported what the police took to be an attempt murder, they came in force. When they entered the basement, they found Mr. L. kneeling over his wife. He was removed and handcuffed. She was bleeding from the forehead. There were a number of guns found in the room as well as significant amounts of ammunition and the police eventually seized all of the firearms they located in the house.

There was a gun found under a bed in the room next to the gun room. It is being tested to see if it is the gun which was used to allegedly strike Ms. J. in the head. Mr. L. had blood on his hands and a strong odour of liquor on his breath. [ 14 ] Crown has filed a catalogue of the firearms seized as Exhibit 1 in these proceedings and as Exhibit 2, photos of the injuries to Ms. J. [ 15 ] Ms. J. has advised the police that she no longer wishes to be in a relationship with Mr. L. [ 16 ] Mr. L., as indicated, immigrated to Canada in 2010 from China. He lives in West Vancouver in a home that he owns.

His occupation is as president of an investment company and he has no criminal record. His counsel points out that he has roots now in

Canada and that he was cooperative with the police and remained on scene. [17] There was an argument that there are triable issues regarding the assault and causation, and upon clarification, counsel for Mr.L. has indicated that the issue has to do with whether or not he is guilty of using the firearm to commit an aggravated assault. Thephotographs actually show splits to Ms. J.'s scalp which appear consistent with being hit by the butt of a gun. Mr.

L. is apparently ahunter and, of course, as I have already noted, he lawfully possessed all of the firearms and there is now only one allegation of unsafestorage. [18] Counsel for Mr. L. also suggested that this was not a serious offence because Ms. J. was treated and released from hospital afteronly a few hours.

In my view, the more serious injury is clearly the psychological one which she alleges -- arising from her allegationsthat her husband put a gun to her head and that she believed at that moment she was going to die. [19] In my view, the Crown's case is a strong one and carries with it a probability of conviction and in particular a probability ofconviction on Count 3. This alleged assault on his wife was unprovoked; his conduct is unexplained. At best, his conduct could bedescribed as horrifying and sadistic. He picked up ammunition, leading Ms.

J. to believe that she was about to be executed by being shotin the head. All of this while their ten-year-old child was in the residence. There was a clear potential for serious injury by striking herin the head with the gun. As I have noted, there is no question but that Ms. J. will have suffered serious psychological damage from thisincident. [20] The Crown witnesses are Mr. L.'s wife and child. He has a history of alcohol abuse and a history of being unable to control histemper. He has allegedly engaged in ongoing abusive conduct and intimidation of his wife and child.

He has no criminal history and heis a successful and wealthy businessman. He is entitled to the presumption of innocence, and I am mindful of the words of Mr. JusticeIacobucci of the Supreme Court of Canada in R. v. Hall, 2002 SCC 64 , [2002] S.C.J. No. 65, and although in dissent, thesewords are important. 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. In the context of the criminal law, this fundamental freedom is embodied generally in the right to be presumed innocent until provenguilty, and further in the specific right to bail.

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

Section 11(

e) of the Canadian Charter of Rights and Freedoms calls particularly on courts, as guardians of liberty, to ensure that pre-trialrelease remains the norm rather than the exception to the norm, and to restrict pre-trial detention to only those circumstances where thefundamental rights and freedoms of the accused must be overridden in order to preserve some demonstrably pressing societal interest.

The duty to protect individual rights lies at the core of the Judiciary's role, a role which takes on increased significance in the criminallaw where the vast resources of the state and very often the weight of public opinion are stacked against the individual accused. Courtsmust not, therefore, take lightly their constitutional responsibility to scrutinize the manner by which the legislature has authorized thedetention of the accused in the absence of a conviction. [21] With respect to the primary ground, Mr. L. is currently a permanent resident. He has been in Canada for only two and a halfyears.

Although he is willing to surrender his passport, I am not certain that this would guarantee his remaining in Canada to face thesecharges and, in particular, a minimum term of imprisonment of one year. According to Ms. J., his marriage to her has ended. He will notbe permitted contact with her. With respect to his child, I would anticipate that any contact between him and her will result in protectionconcerns and the involvement of the Ministry of Children and Family Services. In this sense, he no longer has "roots" in Canada or inthis community, save and except for owning his home.

I infer that should he choose to, he would have the financial ability to abscondfrom Canada to avoid facing these charges. [22] There is an affidavit before the court filed by an G. X. H., a businessman, who says he is a permanent resident of Canada with awife and two children, and a long-term friend of Mr. L., and says that he is able to provide cash from $75 to $150,000 and/or act as asurety for Mr. L. At the request of the court, the Crown had the police investigate Mr. H. It is apparent that he does not have a criminalrecord.

However, he does possess a firearms acquisition certificate and it is uncertain whether he possesses any weapons. In my view inthese circumstances, he is not a suitable surety. [23] With respect to the secondary grounds, the circumstances of the offence itself give rise to secondary ground concerns, that therewill be or that there is a substantial likelihood Mr.

L. will interfere with the Crown witnesses, and thereby endanger the protection andsafety of the public and specifically his wife and child who are the sole Crown witnesses. [24] He is facing a significant jail term especially for a first time offender, and the circumstances of this offence can only bedescribed as particularly cruel and egregious. [25] With respect to the tertiary ground, Crown counsel has provided a decision of my sister Judge Lytwyn, and I do not have acitation. It is a Surrey Registry decision May 22nd, 2009, on file 174795-2-C. This case involved the accused following a woman froma bar.

He caught up with her and pushed her against a wall and tried to kiss her. The woman fought back pushing the offender off and he

then took what the Crown alleged was a loaded 40-caL.bre Glock handgun from his pants. He put the gun against the side of thewoman's head. She also said he put it in her mouth for a moment stating, "I'm going to fucking shoot you." He then attempted to put hishands down the woman's pants but she screamed and he fled. [26] That offender was 32 years of age, single and had no criminal record and was employed as a security officer with a securitycompany. At paragraph eight, Judge Lytwyn said as follows [as read in]: Crown concedes that Medina's detention is not justified on the primary or secondary ground, but seeks his detention on the tertiaryground. That is s. 515(10)(

c) of the Criminal Code. Section 515(10)(

c) of the Criminal Code provides that detention may be necessaryto maintain public confidence in the administration of justice having regard to all the circumstances, but in particular the administrationof justice having regard to all the circumstances but in particular the apparent strength of the Crown's case, the gravity of the nature ofthe Crown's case, the circumstances surrounding its commission, including whether a firearm was used and the potential for a lengthyperiod of imprisonment of a minimum of three years or more. As was pointed out by Justice Romilly in the case of R. v.

Adiwal, 2003 BCSC 740 , [2003] B.C.J. No. 3233, the public'sconfidence in the administration of justice must be analyzed in two important contexts. The first is it must be analyzed in the context ofthe presumption of innocence. Vital to the proper functioning of the administration of justice in our society is an understanding andrespect for the presumption of innocence. Second, the public confidence aspect must be analyzed from the basis of an informedreasonable person.

The public confidence grounds should not be determined on the basis of gaging public opinion or to accord with thegeneral public expectation that bail will be denied to all persons charged with serious offences. As was pointed out in R. v. Bhullar, 2005BCCA 409, Courts must be careful not to pander to public opinion or take account of the overly excitable...

A reasonable person...[being considered] must be one properly informed about "the philosophy of the legislative provisions, Chartervalues and actual circumstances of the case." Having said that, there are situations, comparatively rare cases, where a horrific offence carrying a lengthy term of imprisonment may bestrongly linked to the accused and detention will be necessary on the tertiary ground. [27] In R. v.

Hall [sic], the Supreme Court of Canada stated that [as read in]: Given the importance of the presumption of innocence to our justice system, public confidence in the administration of justice will inmost circumstances be maintained and enhanced by the pre-trial release of accused where not required to be retained on the primary orsecondary ground, but there are those cases, those comparatively rare cases, where the tertiary ground in detention is necessary tomaintain public confidence in the administration of justice. [28] Judge Lytwyn went on to say, And this is one of those rare cases where detention is necessary to maintain public confidence. [29] The defence argued two cases in addition to R. v.

Bhullar, those being R. v. I.H., a decision of my brother Judge St. Pierre,[2010] B.C.J. No. 1688, and R. v. Brotherston, 2009 BCCA 431 , [2009] B.C.J. No. 2294. Each of these cases involves verydifferent offenders and very different offences, although serious offences where those offenders were released. [30] I find that the circumstances in this matter are at least as horrific as those in R. v. Medina, if not more so. Again, Mr. L. isalleged to have assaulted his wife in what I will repeat was a sadistic manner if her evidence is accepted at the end of the day.

He did sowhile their ten-year-old child was present in the home. [31] In my view, his detention is justified as one of those rare cases on the tertiary ground, on the primary ground and on thesecondary ground on the basis I stated previously. (REASONS CONCLUDED)