R. v. A.V.G. Date:, 2015 BCPC 438

Citation: R. v. A.V.G. Date: 20150615 2015 BCPC 0438 File No: 61872-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. A. V. G. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: B. MacFarlane Counsel for the Defendant: M. Nathanson Place of Hearing: North Vancouver , B.C. Date of Hearing: May 29, 2015 Date of Judgment: June 15, 2015 [ 1 ] A.V.G. is charged with the manslaughter of L.G. arising in the early morning hours of May 17 th , 2015 in Whistler. Briefly, the

allegations are that the accused and the deceased knew each other and that there was animus between them. Over the Victoria Day weekend that animus came to a head and resulted in an attack by the accused and others on the victim which resulted in his death by stabbing. [ 2 ] The Crown is seeking his detention on the secondary or the tertiary grounds. Mr. Nathanson, counsel for the accused, submits his client can be released with conditions which if complied with will address any secondary ground concerns. The defence says that detention on the tertiary ground is not made out in all the circumstances.

Case for the Crown [ 3 ] The accused is just over 18 years of age. The other accused are youths just under 18. The deceased was of a similar age and the witnesses are also in their late teens. Many of the witnesses were familiar with the accused or the deceased or both. [ 4 ] The accused had been dating a female peer also known to the deceased. They had broken up in the early part of 2015. The accused did not take that breakup well and is alleged to have been bothering the female.

The deceased is said to have been speaking about the conduct of the accused toward this female to others and a friend of the deceased confronted the accused that weekend about this behaviour. [ 5 ] The accused is alleged to have spoken to the female on Saturday the 16 th and told her he was going to stab the deceased. She also said he texted her saying that he was going to stab the deceased and then kill her and her friends. However, the only text found on her phone was one which said the accused was meeting up with the deceased.

Several witnesses were aware of the animus between the two young males and that it had been an active issue for both on the Saturday. [ 6 ] Around 00:30 hours on Sunday the 17 th , the deceased and a number of his friends were milling about near some restaurants and a convenience store in the Marketplace area of the village. One of the restaurants had a surveillance camera inside which captured some events on the walkway outside.

According to the Crown the video is of little evidentiary value for identification purposes or as to the events of the attack itself. [ 7 ] The deceased was having a snack and using his phone as he socialized. A group of males approached and began commenting about having located him and using epithets such as “little bitch” and inviting him to fight. The deceased dropped his snack, put his phone away and according to one witness squared himself toward these males saying, “Let’s do this.” He was then isolated and surrounded by this group who attacked him.

There were apparently as many as 6 to 8 young males involved including this accused and three youths who have also been arrested and charged. [ 8 ] During the course of the attack the deceased was stabbed three times. One wound was on his arm, another was on his chest and the fatal wound pierced his heart. The group who attacked him immediately retreated the way they had come leaving one knife behind on the ground. The deceased collapsed and died. [ 9 ] The three youths who have been charged in this matter were arrested nearby within 10 minutes. Mr.

Z., who is believed to be the first male to have approached and isolated the deceased, was found with a bloody knife in his pants. The accused before me was arrested the following Wednesday after reporting to his youth worker. [ 10 ] There are no witnesses who say this accused stabbed the deceased. There is one witness who says a male matching the description of the accused flashed an object in his belt which was shiny and was believed to be a knife or gun.

As this object was shown to the deceased, this person is alleged to have said, “Are you sure you want to do this?” [ 11 ] Another witness who knew the accused recognized him once he turned to face her. She said he was hitting the victim quite hard. I am not clear if it was this witness or another who described the accused as having a short beard and he did have such a beard when he was arrested. Another witness said the accused was present but did not describe him being involved in the attack.

Another witness who was familiar with the accused did not place him there. [ 12 ] Defence Counsel submitted that other witness statements point to two of the youths, Mr. Z. and another as the perpetrators of the stabbing. [ 13 ] According to the video the entire attack occurred in approximately 20 seconds. It was dark in the area. It was a very sudden and traumatic event. No photo pack line ups have been conducted and at this time the investigation is ongoing and full witness statements have not been produced to the Crown.

Antecedents of the Accused [ 14 ] The accused was born [omitted for publication] and turned 18 this year. He lives at home with his parents, 7 year old brother and his grandmother. His parents emigrated from Bosnia during the civil war in the mid 1990’s. The accused has enjoyed a stable upbringing. He has no health or mental challenges but did not excel at school and has completed only grade 9. He is now pursuing his high school diploma at an alternate school. He has been employed at various jobs since leaving school.

Several other letters of support for the accused were also filed attesting to his otherwise good character.

[ 15 ] The accused has a youth court history. At the time of the offence before the Court he was, and continues to be, bound by a 12 month Intensive Supervision and Support Order imposed in Vancouver Youth Court on January 26 th of 2015.

That order was imposed with respect to an offence of assault with a weapon which occurred on July 20 th of 2014 in Burnaby. [ 16 ] The terms of the ISSP include prohibitions against possessing knives except for eating or working or any other weapons. [ 17 ] According to the presentence report his response to supervision up to the time of the imposition of the ISSP was good. [ 18 ] The circumstances of that offence are that the accused and Mr. Z. encountered two other male youths on the street outside one of their families’ businesses. Mr. Z. hit one of them and that male struck him back.

The accused engaged in an altercation with the other male and produced a knife which he used to slash at him. Fortunately, the knife only cut the shirt of this male. [ 19 ] On May 26 th , 2014 the accused was placed on probation for 8 months for possession of a prohibited weapon. He was in the company of Mr. Z. and another male. They followed a female who had left a Skytrain station into a nearby laneway where she became frightened and ran away. Mr. Z. was convicted of assault.

This accused was found in possession of a switchblade. [ 20 ] He was bound by that probation order at the time the assault with a weapon occurred but not at the time of the offence before the Court. At the time of the assault with a weapon he was bound by terms not to have contact with Mr. Z. and not to possess knives except for eating or working. [ 21 ] This criminal history is of significant concern with respect to whether there is a substantial likelihood the accused will commit a further offence if released pending trial.

The Crown submits that his history of failure to comply with his probation and ISSP is a reliable predictor of the likelihood he will fail to comply with any terms of release imposed in this matter. [ 22 ] To assist the members of the public who are interested in these proceedings, the criminal history of the accused is presumptively inadmissible to prove his guilt at trial. [ 23 ] Defence Counsel submits that the jeopardy the accused now faces and just over three weeks in custody in North Fraser Pretrial Center has impacted his attitude toward the importance of complete compliance with any terms of release.

He has not been held in custody on his previous charges. [ 24 ] The accused is a very young adult and his prospects for rehabilitation are good. They submit that the proposed plan for his release and strict terms can address the secondary ground concerns. It is likely there will be a significant delay in bringing this matter to trial. Proposed Plan if Released [ 25 ] The accused says that he has an appreciation for the jeopardy he faces and the seriousness of the allegations against him. He is also aware of the considerable scrutiny he will be under if released.

He is willing to abide by any terms imposed and in particular will not do anything to cause his family to lose the $20,000.00 cash deposit they are prepared to post. [ 26 ] The parents of the accused are of limited means. The cash deposit they are offering to post represents a considerable sum for them and has apparently exhausted their resources. They are prepared to supervise the accused to ensure his good behavior and his compliance with any terms of release. [ 27 ] The father of the accused is disabled due to an injury and is not working. He is able to provide daily supervision of the accused.

His mother works regular hours; however, his grandmother is also in the home available to assist in this regard. Other family and friends of the accused have made themselves available to assist in his supervision and to provide support in the community. [ 28 ] The accused has an opportunity to work in landscaping and a letter was provided by that employer which indicates he has known the accused for some time and is aware of the charges the accused is facing. He is unable to work at present due to a soft tissue injury. The accused is also planning to continue to pursue his Grade 12 equivalency certificate.

Applicable Law [ 29 ] In R. v. Hall , 2002 SCC 64 , Mr. Justice Iacobucci said in his dissenting judgement: 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 fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place 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 until proven 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 runs through our system of criminal law is placed in jeopardy. And this is the context in which laws authorizing pre-trial detention must be scrutinized. 49

Section 11 (

e) of the Canadian Charter of Rights and Freedoms calls particularly on courts, as guardians of liberty, to ensure that pre-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 societal

interest. 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. [30] Further at paragraph 128, Mr.

Justice Iacobucci said: 128 Finally, I emphasize that the role of this Court, and indeed of every court in our country, to staunchly uphold constitutionalstandards is of particular importance when the public mood is one which encourages increased punishment of those accused of criminalacts and where mounting pressure is placed on the liberty interest of these individuals. Courts must be bulwarks against the tides ofpublic opinion that threaten to invade these cherished values.

Although this may well cost courts popularity in some quarters, that canhardly justify a failure to uphold fundamental freedoms and liberty. [31] In the very recent case of R. v. St. Cloud, 2015 SCC 27 at paragraph 70, the Supreme Court of Canada reiterated thefundamental principles with respect to the constitutionally protected right to reasonable bail: 70. Finally, it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule anddetention, the exception: Morales, at p. 728.

To automatically order detention would be contrary to the “basic entitlement to be grantedreasonable bail unless there is just cause to do otherwise” that is guaranteed in s. 11(

e) of the Charter: Pearson, at p. 691. Thisentitlement rests in turn on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d)of the Charter (Hall, at para. 13). These fundamental rights require the justice to ensure that interim detention is truly justified havingregard to all the relevant circumstances of the case. [32] At paragraph 75 of St.

Cloud, the Supreme Court of Canada adopted the following passage: [translation] With respect to the perception of the public, as we know, a large part of the Canadian public often adopts a negativeand even emotional attitude towards criminals or [potential] criminals. The public wants to see itself protected, see criminals in prisonand see them punished severely. To get rid of a criminal is to get rid of crime. It [unjustifiably] perceives the judicial system . . . and theadministration of justice in general as too indulgent, too soft, too good to the criminal.

This perception, almost visceral in respect ofcrime, is surely not the perception which a judge must have in deciding the issue of interim release. If this were the case, persons chargedwith certain types of offences would never be released because the perception of the public is negative with respect to the type of crimecommitted, while others, on the contrary, would almost automatically be released where the public’s perception is neutral or moreindulgent. . . .

Therefore, the perception of the public must be situated at another level, that of a public reasonably informed about oursystem of criminal law and capable of judging and perceiving without emotion that the application of the presumption of innocence, evenwith respect to interim release, has the effect that people, who may later be found guilty of even serious crimes, will be released for theperiod between the time of their arrest and the time of their trial. In other words, the criterion of the public perception must not be that ofthe lowest common denominator. [Emphasis added.] (R. v.

Lamothe (1990), (QC CA), 58 C.C.C. (3d) 530, at p. 541) [33] The grounds for detention are set out in s. 515 (10) of the Criminal Code:

(10) 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. [34] I need not address the primary ground as the Crown does not suggest this accused will not attend court as required. [35] In R. v.

Morales, (SCC), [1992] 3 S.C.R. 711 at paragraph 98, the Supreme Court of Canada addressed thesecondary ground for detention as follows: I am satisfied that the scope of the public safety component of s. 515(10)(

b) is sufficiently narrow to satisfy the first requirement under s.11(e). Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice

while on bail. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with theadministration of justice, and only where this "substantial likelihood" endangers "the protection or safety of the public". Moreover,detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient oradvantageous. Such grounds are sufficiently narrow to fulfil the first requirement of just cause under s. 11(e). [36] In R. v.

Perron, (1989) (QC CA), 51 C.C.C. (3d) 518 at paragraph 530, the Quebec Court of Appeal said: Strong evidence, even overwhelming evidence, is only one factor to be considered among several others. It alone must not lead thejudge to order the detention of the accused. The judge must, as out court did in Huard and in Montembeault, supra, take intoconsideration all the other indicia found in the evidence. If parliament had wanted an accused to be detained before trial in all cases where strong or even overwhelming evidence existed, itwould have said so.

Section 515 (10) clearly says that detention before trial is limited to cases where it is necessary based on the criteriamentioned therein. [37] In St. Cloud (supra), the Supreme Court dealt with the application of the tertiary ground at paragraph 87: I would summarize the essential principles that must guide justices in applying s. 515(10)(

c) Cr.C.as follows: • Section 515(10)(

c) Cr.C. does not create a residual ground for detention that applies only where the first two grounds fordetention ((

a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of anaccused. • Section 515(10)(

c) Cr.C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases orexceptional circumstances or only to certain types of crimes. • The four circumstances listed in s. 515(10)(

c) Cr.C. are not exhaustive. • A court must not order detention automatically even where the four listed circumstances support such a result. • The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances. • The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis. • No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case todetermine whether detention is justified. • This involves balancing all the relevant circumstances.

At the end of this balancing exercise, the ultimate question to be asked bythe court is whether detention is necessary to maintain confidence in the administration of justice.

This is the test to be metunder s. 515(10)(c). • To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person whois properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case.However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to theaccused. • This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to orderdetention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is notjustified. [88] In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim orvictims were vulnerable, pre-trial detention will usually be ordered. [38] Mr.

Nathanson submitted a comprehensive book of authorities dealing with the principles underlying our system of pre-trialrelease, the law as set out in the Criminal Code and the application of the law and principles. I have not mentioned all of these cases buthave considered them. The Crown took no issue with the submissions of Mr. Nathanson on the law.

Analysis [39] The Crown submits that they have a strong case which if proven would constitute a manslaughter committed in circumstanceswhich are close to murder based on the animus between the accused and the deceased and the alleged threat to stab the deceased made tothe female by the accused on Saturday. The circumstances make clear that the perpetrators were looking for the deceased and intendedto fight with him and brought knives to that fight.

At least one person used a knife even though the deceased was overwhelmed anddefenseless. [40] The observations of the witnesses as to the identity and the activities of the males involved in the attack must be considered inlight of the human ability to accurately perceive and recollect events and identify other people in such circumstances. It is wellestablished that our abilities in this regard are generally very poor. At law such evidence is to be considered inherently frail and in orderto meet the standard of proof beyond a reasonable doubt corroboration is often required.

[41] The circumstances of this offence as put before the Court at this early stage are such that I cannot find the case for the Crown isa strong one. I come to this conclusion based on my experience as counsel prosecuting and defending similar matters and based on myexperience as a judge sitting on such matters and the proper application of the law. [42] The attack on the deceased in this matter can aptly be described as a melee. It came about very suddenly and occurred in amatter of seconds in poor lighting.

At this time, the case against the accused is based on uncorroborated eyewitness identification incircumstance which will bring into question its basic reliability.

In my view, the reliability of the female who alleges the accused made athreat to stab the deceased is in issue given the text she reportedly received was not found on her phone. [43] I find the proposed release plan is such that the likelihood of this accused committing further offences or interfering with thecourse of justice while in the community is sufficiently reduced to justify his release despite his criminal history and previous lack ofcompliance with his ISSP and Probation. See R. v. Hadani, (1999) 1999 BCCA 334 , 125 B.C.A.C. 155.

This accused must beaware that any breach of his terms will likely result in a detention order in the future. [44] As to the tertiary ground I find that, considering the apparent strength of the Crown case and all the circumstances, the Crownhas failed to establish the detention of the accused is warranted in order to maintain confidence in the administration of justice. [45] The death of L.G. can only be described as a senseless tragedy. However, as was argued by counsel for this accused, under ourlaw punishment for such a crime is reserved for those who have been found guilty after a fair and impartial trial.

The extent, if any, ofthis accused’s criminal responsibility for the death of L.G. has yet to be determined. At this time and for the purposes of determining hisright to reasonable bail, he is entitled to the presumption of innocence. See R. v. A.B., (ON SC), [2006] O.J.

No. 394at paragraph 19. [46] The accused will be released on his own recognizance with a $20,000.00 cash deposit. [47] The terms of the recognizance are that the accused shall: • Keep the peace and be of good behaviour; • Appear before the Court when required to do so by the Court; • Report in person immediately after his release from custody today to the Community Corrections office located at 100-233 West 1st Street and report thereafter at the times and to the places and in the manner directed by a bail supervisor but not less than once perweek in person; • Surrender his passport to the registry of the Provincial Court in North Vancouver by no later than Tuesday June 16th at 3:00 p.m.

He must apply to the Court for return of his passport for specific purposes only; • Reside at the home of his parents which address shall be provided to the Justice of the Peace in the registry and inserted in hisrecognizance document; • Not move from his parents residence without the prior permission of the Court; • Not possess knives except those necessary for the immediate preparation and consumption of food; • Pursuant to s. 515 (4.1) of the Code he must not possess a firearm, cross-bow, prohibited weapon, restricted weapon, prohibiteddevice, ammunition, prohibited ammunition or explosive substance, or all those things, until he is dealt with according to law and must surrender any such items in his possession to the Burnaby R.C.M.P. by not later than 9:00 p.m. today June 15th, 2015; • Not possess any weapons or imitation weapons as defined by the Criminal Code; • Abstain absolutely from the possession or consumption of alcohol or any drugs or substances scheduled in the Controlled Drugsand Substances Act save and except those taken according to a medical prescription and then only according to the dosage prescribed; • Attend school regularly and complete coursework to the satisfaction of your bail supervisor;

• Seek and maintain employment to the satisfaction of your bail supervisor; • Have no contact direct or indirect with the three youths charged with the manslaughter of L.G., any witnesses for the Crown and any person you know to be a member of the deceased’s immediate family which names shall be provided today to the Court on the record; • Not attend any residence, workplace or place of education of any of those persons you have been ordered to have no contact with; • Obey a house arrest curfew.

He may be outside his place of residence only for the purpose of a medical emergency for him or any member of his immediate family.

His bail supervisor may give him written permission to be outside his residence between the hours of 6:00 a.m. to 11:00 p.m. only in the immediate company of his mother or father or in the company of a third person approved of in advance by his bail supervisor or on his own for the sole purposes of going directly to any place of education or workplace, studying or working and returning directly home thereafter; • Present himself immediately to the door of his residence upon the request of a peace officer or a bail supervisor to determine compliance with the house arrest curfew condition of his recognizance. [ 48 ] I will now hear from Crown Counsel and Mr.

Nathanson with respect to any further terms which should be considered or any comments or concerns they may have with the terms I have set out above. ________________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia