R. v. T.D. Date:, 2016 BCPC 210

Citation: R. v. T.D. Date: 20160603 2016 BCPC 210 File No: 60320-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. T.D. RULING ON APPLICATION OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: K. Boland Counsel for the Defendant: I. Donaldson, Q.C. Place of Hearing: Surrey , B.C. Date of Hearing: May 26, 2016 Date of Judgment: June 3, 2016

[1] THE COURT: T.D. is before the court on Information 60320-1. It is an indictment that has two counts on it. He seeks hisrelease by way of judicial interim release on that Information. [2] The first count is a s. 239(1)(a), a Criminal Code offence of attempted murder of M.P., arising from a shooting with aprohibited or restricted weapon allegation, with an offence date of August 21st, 2015. [3] The second charge is an allegation of unlawfully discharging a prohibited or restricted firearm at the same complainant,contrary to s. 244(2)(

a) of the Criminal Code. The Onus [4] Both the Crown and Mr. Donaldson, counsel for the defendant, agree that this is a reverse onus for two reasons: First, T.D.was on release from an Alberta indictable offence of an alleged aggravated assault; and second, the attempt murder charge also creates areverse onus situation. With respect to that onus, I agree with the defence submission found on paragraph 7 of their written submissions. The Positions of Crown and Defence [5] The Crown seeks T.D.'s detention.

They do not raise the primary ground as a main concern; however, they do seek hisdetention on the secondary and tertiary grounds. [6] Specifically, Mr. Boland, on behalf of the Crown, summarized his position at the end of his submissions by saying that T.D."has a terrible record, zero respect for court orders, that there is no way he can meet any type of onus, and that the tertiary condition isengaged because it is a serious offence; he is associated to a criminal gang." [7] Mr.

Donaldson, on behalf of his client, argues that his "client's record appears to stand in the way of release, but it must betempered with what the case is." For a number of compelling reasons, Mr. Donaldson argues that the case for the Crown is not strong atall. [8] I have had the benefit of oral submissions from the Crown. Defence counsel has provided written submissions, a book ofauthorities, and other bail materials, including a letter to the court from T.D.

The Law on the Secondary Ground [9] Section 515(10) sets out the statutory provisions concerning detention on either the primary, secondary or tertiary grounds. Justification for Detention in Custody, 515(10) [10] The

section reads: For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or anyperson under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, ifreleased from custody, commit a criminal offence or interfere with the administration of justice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances,including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence thatinvolves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [11] As a starting point, I agree that T.D. is entitled to the presumption of innocence, and I am mindful of the words of JusticeIacobucci in the Supreme Court of Canada in R. v.

Hall, 2002 SCC 64 , 2002 S.C.C. 64, found at CanLII, or at [2002] S.C.J. No.65, and although in dissent, his words are important.

[12] 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. 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 … [13] The justice in referring to the previous case: … one in which the “golden thread” that runs through our system of criminal law is placed in jeopardy. And this is the context in whichlaws authorizing pre-trial detention must be scrutinized.

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.

Necessary for Protection or Safety of the Public [14] In trying to determine if detention is necessary, the court must consider whether, if there is a substantial likelihood that theaccused will, if released, commit a criminal offence. [15] R. v. Abdel-Rahman, a decision of Justice Halfyard, is a useful authority in considering the meaning of 515(10). He quotes Mr.Chief Justice Lamer in R. v.

Morales, found at, (SCC), [1992] 3 S.C.R. 711, at paragraph 39, with 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 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 . . . [16] I believe it is agreed by everyone that T.D.'s criminal record is something that needs to be considered. His record shows thatwhether he was on bail or probation he found himself before the courts on new offences. The pattern of reoffending while on release isclear and apparent. [17] However, the accused has provided a letter to the court on this issue. The letter is Exhibit 2 in these proceedings. In the letterT.D. acknowledges that the charges are serious and that he has a history of past breaches.

He provides an explanation that he wishes meto take into account. Specifically, he says that, "I didn't take my previous conditions seriously because I was at a low point in my life." [18] He describes himself as a person who has suffered from a gambling addiction. I take it that this gambling addiction no longerexists. He expresses a desire to improve his life by using his current positive influences to focus on the healthier aspects of his life, suchas pursuing his education and employment opportunities.

In short, he suggests that he "is only 20 years old and believes this is an idealtime for himself to reform." That is a quote from his letter. [19] I acknowledge that it is unusual for an accused person to provide such a well thought out letter at a bail hearing. As we know,an accused is entitled to remain silent or rely on submissions of his counsel. I thought the letter was very well written and shows a greatdeal of insight as to the reality of his situation. [20] However, I cannot escape a full consideration of his record.

It shows a disturbing pattern of behaviour that creates a belief inme that if released there is a substantial likelihood that he would not abide by some of his conditions. But now I consider whether thoseoffences would endanger the public, and if so, are there conditions that could lessen the risk to the public to an acceptable level? [21] In fairness, many of those new offences were breaches of his conditions. So, if released, would he simply be at risk ofbreaching his conditions, such as a curfew?

If this was so, then the risk to the public might be considered minimal. [22] The Crown submits that this 20-year-old man has a lengthy criminal record. The record that has been admitted for the purposesof the judicial interim release, updated by way of oral submissions, has 26 convictions. It is not the number of convictions that the

Crown focused on, but rather, the timing of it. [23] Specifically, they pointed to a court date upon which T.D. pled guilty to an assault and was placed on probation. The Crowncontends that five days after that court date he was charged for 'swarming on people outside a nightclub where three people werestabbed.' Ultimately, he denied being the one with the knife, that is the accused denied being the one with the knife, and pled guilty tostriking one of the victims.

But it was the timing of the second offence that was emphasized. [24] Further, the Crown says that even while released on a serious aggravated assault charge, T.D. is seen by the police breachinghis conditions within six weeks of his release. [25] At one point he pled guilty to six of 12 breaches, mostly for curfew breaches. Some of those dates include July 9th, September21st, October 5th, October 6th and October 12th breach of curfew.

These convictions are apparent on his record. [26] The Crown then says even after being released and sentenced for breaching his conditions he is almost immediately arrestedagain for another curfew breach and is found in possession of a knife. I am told he was released that day, once more on a condition toabide by certain conditions, one of which is not to be in possession of any knives. It appears by way of police surveillance thatimmediately upon his release he goes directly to the store and purchases a knife. [27] The immediacy and blatant breach of his conditions to do with the knives is disturbing.

Even if he wanted a knife for self-defence purposes, I am bothered at two levels; first, that he perceives the knife to be a weapon, one that can be used against othermembers of the public. Second, that for whatever purpose, he feels that it is okay for him to carry a knife even though he knows thecourt has forbidden it. [28] On the topic of knives and charges, Mr. Donaldson has asked me not to make too much over the fact that the accused is nowcharged with an incident to do with stabbing five people in 2012. Part of the submission is based on the timing of the charge.

It appearsthat the accused was caught on surveillance quite some time ago mentioning some 'sort of involvement' with the stabbing incident. [29] I treat this new charge as I would treat any charge, simply that there is an allegation. Further, that the accused is entitled to thepresumption of innocence. I am told that he denies any involvement in the incident and has every intention of taking the matter to trial. [30] However, before me is a 20-year-old with 26 convictions. By my count, eight of those are breaches of bail which, bythemselves, give rise to secondary ground concerns.

Seven more of those convictions are for failing to abide by conditions of probation,which also raise secondary ground concerns. Some of those breaches have to do with being in possession of a knife in contravention ofhis conditions. [31] With respect to the danger to public, I must take into account that approximately nine of his convictions are for violent orweapons-related offences. I did an extensive analysis of his criminal record to try and find a gap. Specifically, I was interested in tryingto see whether he made it through any period of bail or probation without committing further offences.

Unfortunately, even when boundby bail and probation conditions, T.D. often found himself before the court on new matters, many of which involved allegations to dowith knives. [32] I recognize that he was on bail at the time of this allegation for an incident involving the stabbing of individuals, but thosecharges were dealt with and he has been sentenced for his participation in that fight, which I accept was limited to striking an individualversus any assault with a knife. [33] I also recognize that the more recent set of charges, which I have not seen, are alleged to arise from the stabbing of individualswith a knife.

Those charges are older, and he was not on any form of release from those charges, and ultimately, they do not affect mydecision with respect to bail one way or the other. [34] In looking at the totality of circumstances, and upon considering this gentleman's criminal record, I do find that there aresecondary ground concerns. The conclusion with respect to secondary ground concerns I will discuss shortly. [35] I believe that, if released, there is a substantial likelihood that T.D. will commit further offences.

I largely believe this becausehis record shows a pattern of behaviour of breaches of bail and probationary conditions. I believe that those offences might be simplebreaches of curfew, but I also believe that they could involve weapons or violence, and thus, the public needs to be protected. Oncemore, to me, his record shows a pattern of behaviour that includes being in possession of knives. The remaining question, again, iswhether the release plan mitigates or lowers the risk to the public to an acceptable level.

The Law on the Tertiary Ground [36] The Crown also seeks T.D.'s detention on the tertiary ground, that is, specifically, detention founded upon the principles in s.515(10)(

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

c) of the Criminal Code provides that detention may be necessary to maintain publicconfidence in the administration of justice, having regard to all the circumstances. In particular, the administration of justice, havingregard to the apparent strength of the Crown's case, the gravity of the nature of the Crown's case, the circumstances surrounding itscommission, including whether a firearm was used, and the potential for a lengthy period of imprisonment for a period of three years, ormore. [37] As was pointed out by Justice Romilly in the case R. v.

Adiwal, 2003 BCSC 740 , 2003 B.C.S.C. 740, at CanLII, or[2003] B.C.J. No. 3233, the public's confidence in the administration of justice must be analysed in two important contexts. First, it mustbe analysed in the context of the presumption of innocence. Vital to the proper functioning of the administration of justice in our societyis an understanding and respect for the presumption of innocence. [38] Second, the public confidence aspect must be analysed from the basis of an informed reasonable person.

The public confidenceground should not be determined on the basis of gauging public opinion, or to accord with the general public expectation that bail will be

denied to all persons charged with serious offences. [39] As was pointed out in R. v. Bhuller, 2005 BCCA 409 , 2005 B.C.C.A. 409, at CanLII, also found at tab 6 of thedefendant's book of authorities: Courts must be careful not to pander to public opinion or to take account of only the overly excitable [40] Next paragraph: … the reasonable person making this assessment must be one properly informed about "the philosophy of the legislative provisions,Charter values and the actual circumstances of the case." [41] In R. v.

Hall, 2002 SCC 64 , 2002 S.C.C. 64, found at tab 1 of the defendant's book of authorities, the Supreme Courtof Canada stated that: 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 pretrial release of accused who are not required to be detained on the primary orsecondary grounds.

But there are those cases, those comparatively rare cases, where the tertiary ground in detention is necessary tomaintain confidence in the administration of justice. [42] With respect to T.D.'s case, the allegations are simple. The Crown contends that T.D., along with Mr. A., lured the victim to aparticular spot with the intention of killing him. The victim was shot in the face and in the back.

Crown submits that the crime, alongwith the fact that the accused was on bail for aggravated assault and is now charged with the 2012 allegation involving the stabbing offive different people, requires T.D.'s detention in order to maintain public confidence in the administration of justice. [43] I should note as well, that there has been some discussion in this case to do with 'associations with gangs.' Specifically, it wassubmitted and ultimately objected to by defence counsel that T.D.'s crime is further aggravated by his association with the UnitedNations Gang.

I have not been given enough evidence on this topic to find that T.D. had anything to do with this gang. It appears hemay have made some comment that he considers himself associated with a gang.

However, it is agreed by both counsel that any actionstaken by T.D. on this day were not prompted by his self-proclaimed affiliation. [44] On the topic of the public's confidence in the administration of justice, I again emphasize the idea that just because a person isalleged to be associated to a gang, or that a firearm was used, or that they have a criminal record, in itself, does not necessarily mean thatthe person must be detained prior to trial. [45] However, I would like to quote Mr. Justice Holmes in R. v.

Ali, a B.C.S.C., Vancouver docket number 2656, from December18th, 2015 case, wherein he discusses the effects of these sorts of crimes on the community at paragraph 27. [46] And while on the topic of sentencing, I believe the comment is worthy of some consideration on the bail analysis whenconsidering the tertiary ground. The general proposition that shootings disturb the community in which they take place and reduce the public's sense of safety seems aself-evident one. It is a proposition that is also implicit in the reasons given by numerous judges when imposing sentences for shootingsin public places.

Judges often note, without requiring or receiving evidence in support, that shootings and other firearms-related offences necessarilyproduce fear for personal safety and the safety of others and, therefore, reduce the quality of life in the community. To require or expect evidence to support such basic conclusions about the human experience would impose unnecessary and unhelpfulburdens on the community and would unnecessarily encumber the sentencing process.

I find the same to be true with respect to the judicial interim release hearing process. [47] To put it another way, it is not lost on me that a member of the public may feel that all people supposedly associated with agang who would try to kill anyone else should be kept in jail until their trial date. Strength of the Crown's Case [48] Mr. Donaldson calls the case for the Crown "weak and thin." He makes compelling arguments with respect to the admissibilityof intercepted communications.

Although my ability to predict what evidence might be admissible versus not admissible at trial islimited by the fact that we are at a very early stage of these proceedings. [49] For our purposes, I am left with the premise that the Crown believes they have a strong case, a case strong enough to laycharges, and a case strong enough to proceed to trial.

[ 50 ] Ultimately, as I understand the defence argument, without the intercepted communications there really is no case. There are no forensics, and most importantly the complainant, M.P., does not wish to provide any evidence in support of the prosecution.

Certainly, this submission has to be considered in looking at the strength of the Crown's case under the tertiary ground. [ 51 ] Alternatively, the Crown contends that they have a strong case, that visual and digital observations were made by police officers; that there are numerous factors that show that this is a premeditated, clear-cut, cold and calculated attempt to murder someone.

Timeline of calls, cabs, the finding of evidence that suggests corroboration are all part of what I might call the circumstantial evidence. [ 52 ] With respect to the strength of the Crown's case, I need not decide whether it is one that can be proven beyond a reasonable doubt.

I simply need to consider its strength as one of the factors, not the main factor, of whether this gentleman needs to be detained on the tertiary ground. [ 53 ] For the purposes of this analysis I find the Crown may have an uphill battle, especially without forensics, a fleeing co-accused and a reluctant complainant, but often that is the nature of a circumstantial case. Gravity of the Offence [ 54 ] The offence is serious. This is a crime that alleges the intentional killing of another human being.

The complainant was shot in the face and then shot in the back when trying to leave the area of where the first shot was administered. There is little doubt that the offence is grave by its very nature. Circumstances, Including Whether a Firearm Was Used [ 55 ] Unlawfully discharging a firearm is in itself a serious offence. Discharging a firearm with the intent to kill someone, that is attempted murder, is also, without a doubt, one of the most serious offences that our Criminal Code contemplates.

Potential Sentence [ 56 ] The accused, if found guilty for the attempted murder, could receive anywhere from four years to life imprisonment. Conclusion with Respect to the Tertiary Grounds [ 57 ] There are those cases, those comparatively rare cases, where the tertiary ground is used to find that detention is necessary to maintain public confidence in the administration of justice. I acknowledge that this crime is serious. [ 58 ] The use of the firearm by a gang member, or any other member of the public, strikes at the very heart of the community.

The act of attempting to murder someone by shooting them is a grave offence. But the act in this case is simply an allegation, one that the accused is presumed innocent of. He is entitled to a trial. [ 59 ] The case definitely has some issues, especially with the flight of the other co-accused. However, I believe a member of the public familiar with the principles of justice in Canada would not find this case to be so horrific as to require the detention of the accused. In any event, I do not find that detention of the accused is necessary on the tertiary grounds.

I rely on St-Cloud as an authority that supports my analysis on this ground. The Secondary Ground Concerns and Release Plan - Ms. Y. [ 60 ] The accused has some support in the community. He has been in a relationship with Ms. Y. for more than two years. Tab 3 of Exhibit 1 is an affidavit that provides evidence that she is a real estate agent, that she would be willing to act as a surety, and that she would be willing to call the police should she find T.D. in breach of his conditions. Letters of Support [ 61 ] It is unusual for an accused to have such supportive letters at the bail stage.

More often than not, courts do not have the benefit of letters of support until the sentencing stage. As a result of this, I have spent quite some time reviewing the letters, including the affidavit of Ms. Y., T.D.'s girlfriend. The letters are found from tabs 4 to 11 of the exhibit. [ 62 ] They describe him as a friend or family member that cares about other people's feelings. For the most part they appear to be shocked and find the allegations or the alleged acts totally contrary to his character.

It appears that each of the authors of the letters realize that he has a record, but had never imagined that he could be involved in a crime such as this. Work [ 63 ] A letter from R.T. confirms an offer of employment to T.D. The author says that T.D. will be able to do general labour, including mowing lawns and cleaning driveways. T.D.'s February 16th, 2016 letter to the court confirms that T.D. wants to be employed. Sureties [ 64 ] I understand that T.D. has family; however, they are out of the jurisdiction of B.C. and, while supportive, may not have assets to post as surety for his bail.

That being said, I am told that should a cash bail be ordered, with time, it is possible that T.D. could perfect bail. Conclusion [ 65 ] I believe that if T.D. is released, the public would be at great risk. The allegations before the court are serious. He has a history of carrying knives, and I find this history also to be serious. There were three individuals that were at one time alleged to have suffered a

stab wound from this accused. Those charges went away, but somehow T.D. was still found to be involved, albeit at a much more minor level in the incident. Now there are some older 2012 allegations coming back to haunt T.D. The allegations, I am told, involve the stabbing of five people. [ 66 ] More importantly to me is the idea that a man, just finishing a sentence of incarceration, would immediately upon release go and buy a knife in total disregard to his conditions not to possess a knife. There is no doubt in my mind that T.D., if released, would commit further offences.

I find that those offences might have to do with being in breach of his conditions. But I am not concerned about his curfew breaches. I am concerned with the idea of this man walking around the streets while carrying a knife. An order of this court for him to abstain from this behaviour has not been enough in the past. I do not think it will be enough now. [ 67 ] Accordingly, I detain T.D. on the secondary ground, and I do so mostly as a result of his criminal record. (RULING CONCLUDED)