R. v. Colpaert, 2020 BCPC 245

Citation: R. v. Colpaert 2020 BCPC 245 Date: 20201127 File No: 6772-1 Registry: Masset File No: 30062-2-B, 30352-1, 30404-1, 30405-1, 30413-1, 30424-1 Registry: Prince Rupert IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICHARD GERARD COLPAERT ORAL REASONS FOR JUDGMENT AT

JUDICIAL INTERIM RELEASE HEARING OF THE HONOURABLE JUDGE D. PATTERSON Provincial Crown Counsel: A. Thomas Federal Crown Counsel: A. Thomas (as Agent for A. Switzer) Defence Counsel appearing by teleconference: K.W. Anderson Place of Hearing: Prince Rupert, B.C. Date of Hearing: November 27, 2020 Date of Judgment: November 27, 2020 [ 1 ] THE COURT: This is my ruling in relation to Richard Gerard Colpaert’s application for interim judicial release. BACKGROUND TO THE FIRST RELEASE ORDER [ 2 ] On June 5, 2020, after a contested judicial interim release hearing, I released Mr. Colpaert on a Release Order .

I crafted the Release Order specifically for Mr. Colpaert, taking into consideration the many factors both Crown Counsel and defence counsel told me about Mr. Colpaert’s criminal history, the various allegations of unlawful behaviour presently before the court, the substantial likelihood Mr. Colpaert would commit further criminal offences if released from custody, and the personal circumstances of Mr. Colpaert. It should be noted that the Release Order contained a “no go” to the City of Prince Rupert, except in very limited circumstances. [ 3 ] I had some hesitancy releasing Mr.

Colpaert on June 5, 2020, as I had real concerns with the secondary ground per s. 515(10) (

b) of the Criminal Code and Mr. Colpaert’s ability to comply with the terms of a Release Order , especially if the Release Order did not include supervision by way of the Electronic Supervision Program. Unfortunately, for reasons related to the ongoing COVID-19 pandemic, on March 20, 2020, BC Community Corrections had suspended the Electronic Supervision Program for new intakes, meaning, of course, that I was not able to place Mr. Colpaert onto electronic monitoring. I determined that it was not Mr.

Colpaert’s fault that BC Community Corrections had suspended the Electronic Supervision Program for new intakes and, according, I released Mr. Colpaert from custody on a Release Order without requiring monitoring by way of electronic supervision. BACKGROUND TO THE SECOND RELEASE ORDER [ 4 ] Mr. Colpaert was arrested on September 6, 2020. He was charged with five counts on Prince Rupert Court Information 30404-2- A. All five counts related to allegations of Mr. Colpaert breaching the June 5, 2020, Release Order on September 6, 2020, when he was unlawfully in the City of Prince Rupert.

All five counts were pursuant to s. 145(5) (

a) of the Criminal Code . The BC Prosecution Service gave notice that it would be seeking to detain Mr. Colpaert in relation to the new breach charges and to revoke Mr. Colpaert’s bail in relation to Prince Rupert Court Files 30062-2-B, 30352-1, 30405-1, 30413-1, and 30404-1. The Public Prosecution Service of Canada took no position in relation to Masset Court File 6772-1. [ 5 ] Mr. Colpaert remained in custody, making telephone or video court appearances on September 6, 8, 9, and 10. On September 29, 2020, he appeared in court by video from the Prince George Regional Correctional Centre. Mr.

Colpaert entered guilty pleas before me on Prince Rupert Court Information 30404-2-A to Count Number 2 which was a breach of his curfew; to Count Number 3, which was possessing a weapon designed to cause injury to a person, to wit: a canister of bear spray; to Count 5, possession of a screwdriver. As I mentioned earlier, he was under a "no go" to the City of Prince Rupert during the time that he committed these particular offences. As a result of the guilty pleas, I found, pursuant s. 524(3) (

a) of the Criminal Code , that Mr. Colpaert had contravened the Release Order and I cancelled the Release Order as I was required to do. [ 6 ] We then proceeded to the sentencing on Prince Rupert Court File 30404-2-A. As Mr. Colpaert had spent 23 actual days in custody, I gave Mr. Colpaert credit at a rate of 1.5, resulting in a credit for 35 days' presentence time in custody. I then sentenced Mr. Colpaert to time-served 30 days' jail concurrent on each of Counts 2 and 3, plus time-served 23 days' jail concurrent in relation to Count 5. The result was that Mr.

Colpaert had served his jail sentence. [ 7 ] As the Release Order had been cancelled, Mr. Colpaert applied for judicial interim release as allowed by s. 524(4) of the Criminal Code in relation to Prince Rupert Court Files 30062-2-B, 30352-1, 30405-1, 30413-1, and 30404-1, plus Masset Court Information 6772-1. The BC Prosecution Service sought Mr. Colpaert’s continued detention and the Public Prosecution Service of Canada took no position.

After hearing from counsel, I adjourned the judicial interim release hearing to allow for the preparation of a Technical Suitability Report, as BC Community Corrections had solved its COVID-19-related issues and was now accepting new intakes to the Electronic Supervision Program. [ 8 ] We reconvened the judicial interim release hearing on October 6, 2020. In light of the fact that Mr. Colpaert was eligible for electronic monitoring, I released Mr. Colpaert on a Release Order that I had crafted specifically for Mr.

Colpaert in keeping with the teachings of Madame Justice Martin of the Supreme Court of Canada in R. v. Zora , 2020 SCC 14 . The new Release Order included supervision by electronic monitoring and a “no go” to the City of Prince Rupert. Given the COVID-19 pandemic and the way the courts

were operating in October of 2020, Mr. Colpaert could appear for his various subsequent court appearances by telephone, video, or through his legal counsel as long as he had signed a Counsel Designation Form. The Release Order would have to be modified in the future to allow for Mr. Colpaert to attend the Prince Rupert Courthouse for his various trials. When and if they took place. [ 9 ] It is important to note that I spent a considerable amount of time explaining each of the conditions of the Release Order to Mr. Colpaert. I explained to Mr.

Colpaert that if he did not understand any of the conditions, he could ask me to clarify the condition or he could speak in private with Mr. Anderson. I asked him on several occasions if he understood the conditions. He indicated that he did. I asked him on several occasions if he would abide by the conditions, which I explained to him meant follow and obey the conditions, including electronic monitoring, and he said he would. I also explained to Mr. Colpaert that failure to abide by any of the conditions of the Release Order could result in his arrest, detention, and/or further criminal charges. Mr.

Colpaert confirmed that he understood. THE PRESENT SITUATION [ 10 ] On November 20, 2020, a Warrant for the Arrest of Richard Gerard Colpaert was issued by a justice who was satisfied that there were reasonable and probable grounds to believe that Mr. Colpaert had contravened the Release Order I made on October 6, 2020. [ 11 ] Mr. Colpaert was arrested on November 23, 2020. The BC Prosecution Service made an Application to the Court pursuant to s. 524(1) (

b) of the Criminal Code to have the matter brought before a justice for hearing and to have the Release Order from October 6, 2020, cancelled. The BC Prosecution Service wanted Mr. Colpaert detained in custody. The BC Prosecution Service also asked me to cancel the undertaking Mr. Colpaert had entered into on May 19, 2020, in relation to Prince Rupert Court File 30424-1. The Public Prosecution Service of Canada did not apply to revoke bail in relation to Masset Court Information 6772-1.

The hearing was set for November 25, 2020, in my courtroom. [ 12 ] The BC Prosecution Service alleged that from October 7, 2020, to November 18, 2020, Mr. Colpaert failed to comply with his electronically monitored curfew in breach of the condition 5 of the Release Order . Condition 5 states:

(1) You must obey a curfew by being inside your residence daily, between the hours of 8:00 p.m. and 8:00 a.m.

(2) You must present yourself immediately at the door to your residence or answer your telephone when any peace officer or bail supervisor attends at your residence or calls to check on you during the curfew.

(3) You may be away from your residence during the curfew with the prior written permission of your bail supervisor. Such permission is to be given only for employment or other compelling reasons. You must carry the permission when you are outside of your residence during the curfew hours. [ 13 ] The BC Prosecution Service further alleged that from October 7, 2020, to November 18, 2020, Mr. Colpaert failed to comply with his electronically monitored exclusion zone in breach of condition 7 of the Release Order , in other words, he went to Prince Rupert.

Condition 7 states: You must not go to or be found within 100 metres of the City of Prince Rupert, British Columbia, unless you are on a commercial fishing vessel in the course of your employment. If you are on a commercial fishing vessel in the course of your employment, you must not leave that commercial fishing vessel while it is within the City of Prince Rupert or 100 metres of the City of Prince Rupert. [ 14 ] I was told the following about the incidents by Ms. Ducluzeau: 1. On October 8, 2020, there was a Central Monitoring Unit, which I will now refer to as "CMU," Event Report. Police were called to Mr.

Colpaert's hotel in Prince George. Keep in mind this is the day after I gave him bail. Police directed him to turn on his phone and plug in his beacon, which was done successfully. On October 9, 2020, Probation Officer Nguyen called Mr. Colpaert and Mr. Colpaert explained to Mr. Nguyen that the breaker blew while he was sleeping. 2. On October 16, 2020, Constable Clelland of the RCMP emailed Mr. Nguyen to advise of a dispute between Mr. Colpaert and the owner of the residence, Myrna Matteese, M-a-t-t-e-e-s-e. Constable Clelland suggested a change of residence for Mr. Colpaert. Also on this date, Ms.

Matteese called Mr. Nguyen and advised she wanted Mr. Colpaert out of her house due to Mr. Colpaert and his girlfriend bringing crack cocaine into the home. 3. On October 18, 2020, there was a CMU Event Report of Mr. Colpaert entering his exclusion zone, that being the City of Prince Rupert, due to Mr. Colpaert being evicted from 295 Nelson Avenue, Port Edward, B.C. Mr. Nguyen subsequently gave Mr. Colpaert approval to reside at 866 Oceanview Drive, Port Edward, BC. 4. On October 20, 2020, Mr. Nguyen received a call -- sorry, an email from CMU that explained the strain that the October 18 incident with Mr.

Colpaert had caused both the CMU team and the Royal Canadian Mounted Police. The CMU team were concerned about Mr. Colpaert’s residency and potential homelessness while on electronic monitoring, which would clash with the Electronic Supervision Agreement and Release Order , requiring the arrest and detention of Mr. Colpaert in the future. 5. On October 30, 2020, Mr. Nguyen received a telephone call from Mr. Colpaert. Mr. Nguyen advised Mr. Colpaert to get his lawyer to submit an application to vary his release conditions, because Mr.

Colpaert claimed that he needed to go into Prince Rupert to go to the bank and to the Money Mart. After the telephone call between Mr. Nguyen and Mr. Colpaert, there was a CMU Event Report that Mr. Colpaert had entered Prince Rupert and was at the courthouse. Mr. Colpaert then travelled to Service Canada, before returning to Highway 16 and leaving Prince Rupert. 6. On November 7, 2020, there were three separate CMU Event Reports during Mr. Colpaert’s curfew hours. On the first occasion, Mr.

Colpaert was consistently outside his green zone, the green zone being the area that he was allowed to be in during his curfew hours. Prince Rupert RCMP were called by CMU to check on Mr. Colpaert. Mr. Colpaert moved back into his green zone and so the CMU called off the RCMP. There was a second CMU Event Report later that evening, as Mr. Colpaert walked down to the boardwalk and returned home. There was a third CMU Event later that night, when Mr. Colpaert left his residence to go down the wharf and then returned home.

7. On November 10, 2020, there was a CMU Event Report when Mr. Colpaert left his residence after 10 p.m. to go to a wharf on Skeena Drive. CMU left a voicemail for Mr. Colpaert. After seven minutes, Mr. Colpaert was on a different wharf on Skeena Drive. The total time absent from his residence was 22 minutes. 8. On November 18, 2020, Mr. Nguyen received a telephone call from Mr. Colpaert who stated he needed to go to court, stop by the government office to pick up a cheque, and go to the Money Mart to pay rent. Mr. Nguyen advised Mr. Colpaert that he cannot give permission to enter Prince Rupert. Mr.

Nguyen erroneously advised Mr. Colpaert that he is only allowed to enter Prince Rupert and go directly to the courthouse. Apparently Mr. Nguyen was unaware that I had changed condition number 7 of the Release Order from the June 5 previous Release Order . Mr. Nguyen advised that should Mr. Colpaert go to Service Canada or Money Mart, that a court appearance would be required first. However, Mr. Nguyen also told Mr. Colpaert that he would be reluctant to breach Mr. Colpaert for trying to pay rent. Mr. Colpaert was directed to obtain permission from the court to enter the City of Prince Rupert.

Instead of getting the court’s permission, Mr. Colpaert unilaterally caused a CMU Event by entering the City of Prince Rupert. Mr. Colpaert travelled to both Service Canada and Money Mart, spending a total of 70 minutes in the City of Prince Rupert. [ 15 ] I note that CMU does not make any case management decisions. CMU does not minimize or allow any exemptions or allowances, no matter how seemingly minor, that deviate from an electronically monitored supervision plan. Since Mr. Colpaert began his electronic monitoring, Mr.

Colpaert has generated eight separate CMU Event Reports for noncompliance with my Release Order of October 6, 2020. That was only six weeks ago. [ 16 ] After hearing from Ms. Ducluzeau for the BC Prosecution Service and Mr. Anderson, counsel for Mr. Colpaert, I found that Mr. Colpaert had contravened the Release Order on multiple occasions. I then cancelled the Release Order as I am required to do pursuant s. 524(3) (

a) of the Criminal Code . I also cancelled the May 19, 2020, undertaking that Mr. Colpaert was subject to in relation to Prince Rupert Court File 30424-1. [ 17 ] As part of the hearing on November 25, 2020, Mr. Anderson asked per s. 524(4) of the Criminal Code for Mr. Colpaert’s release from custody on a new Release Order . Mr. Anderson confirmed that Mr. Colpaert continues to deny the facts of the various substantive offences and explained that Mr. Colpaert will be undertaking a vigorous and active defence, including the calling of defence evidence. [ 18 ] Mr. Anderson also reminded the court that Mr.

Colpaert has not been charged with any new substantive offences since May 20, 2020, and that Mr. Colpaert has an explanation for most of the alleged CMU Events outlined by the prosecutor, although given the passage of time, he does not recall all eight of the alleged CMU Events. [ 19 ] I adjourned the matter to today, November 27, 2020, to allow me time to consider the matter. DISCUSSION [ 20 ]

Section 11(

e) of the Charter of Rights and Freedoms provides that any person charged with an offence has the right not to be denied reasonable bail without just cause. The right to bail under s. 11(

e) of the Charter includes the presumption of innocence. [ 21 ] The default position, as per the Supreme Court of Canada, is that the accused should be released at the earliest opportunity and on the least onerous terms available in the circumstances, R. v. Zora , 2020 SCC 14 , at paragraph 1 ; R v. Myers , 2019 SCC 18 , at paragraph 1 ; R. v. Antic , 2017 SCC 27 , at paragraphs 29 and 67 (d) .

Detention in custody is the exception and should be regarded as the option of last resort, Myers at paragraph 67 . [ 22 ] In Antic , the Supreme Court of Canada set out the proper approach to the Criminal Code ’s bail provisions when it addressed the overuse of cash bails and sureties.

In Zora , the Supreme Court of Canada built upon the Antic framework and provided guidance to bail court judges, such as myself, on non-monetary conditions of bail and the serious consequences which flow from their breach. [ 23 ] In Myers , Chief Justice Wagner outlined in paragraph 1 that: [1] The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release — at the earliest opportunity and in the least onerous manner — is the default presumption in Canadian criminal law.

Pre-trial detention is the exception, not the rule. [ 24 ] From Antic , again per the now Chief Justice Wagner, we are instructed that: 1. The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons. 2.

The “ladder principle” [that is L-a-d-d-e-r, principle], which is codified in s. 515(3) of the Code , requires a justice or a judge to impose the least onerous form of release on an accused unless the Crown shows why that should not be the case. [ 25 ] I am reminded of the powerful dissent in R. v. Hall , 2002 SCC 64 , at page 467 : 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. [ 26 ] In Zora , at paragraphs 67 and 68 , we are taught that: [67] Revocation under s. 524 ensures that those who do not follow bail conditions can be arrested to re-assess whether, and on what conditions, they should be released into the community, where it becomes apparent that the accused will not or cannot abide by the conditions originally set.

Revocation provides the court with greater flexibility in determining whether, despite a contravention of bail,

the accused has shown cause that they should be released again either on the same conditions or different conditions (see, e.g., R. v.Badgerow, 2010 ONCA 236, 260 O.A.C. 273, at para. 36; R. v. T.J.J., 2011 BCPC 155, at paras. 57-59 ; R. v. Mehan, 2016BCCA 129, 386 B.C.A.C. 1).

Conditions can be revised to address the risk of further breach while ensuring the accused can reasonablycomply. [68] If detention is the proportionate result for the accused’s breach of bail then revocation under s. 524 is the appropriate avenue.Bail revocation was the process designed for determining whether a person’s risk factors are such that their failure to abide by bailconditions means they ought to be detained rather than released on different conditions. Revocation can therefore address negligent andcareless breaches of bail conditions without creating additional criminal liability.

While revocation carries the threat of detention andshould be sought only when the negative impacts that can arise from detention are justified, it can address risks arising from breaches ofbail conditions without adding offences against the administration of justice to the criminal record of the accused. SECTION 524(4) OF THE CRIMINAL CODE [27] In light of the case law that I have read out, I have considered the wording of s. 524(4) of the Criminal Code. It reads:

(4) If the judge or justice cancels the summons, appearance notice, undertaking or release order, the judge or justice shall order thatthe accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why theirdetention in custody is not justified under subsection 515(10). [28] The result of s. 524(4) of the Criminal Code is that Mr. Colpaert is in what we call a “reverse onus situation.” In order tosucceed, Mr.

Colpaert must establish, on the balance of probabilities, that his detention is not necessary on any of the three grounds in s.515(10) of the Criminal Code, which I briefly summarize as: (1) to ensure attendance at court per s. 515(10)(a); (2) the protection or safety of the public, including any victim of or witness to the offence, per s. 515(10)(b); and (3) to maintain confidence in the justice system, otherwise known as “the tertiary ground”, per s. 515(10)(c). THE CHARGES AND CIRCUMSTANCES [29] In relation to Masset Information 6772-1, Mr. Colpaert is charged with two counts.

He is charged that on September 20, 2019: … at or near Masset, in the Province of British Columbia, being older than sixteen years of age, he did engage in commercial fishing orbe on board a vessel that was being used in commercial fishing, without being registered, contrary to

Section 25 of the Pacific FisheryRegulations, and did thereby commit an offence contrary to

Section 78(

a) of the Fisheries Act. [30] Count 2 that on or about the 20th day of September, 2019: … at or near Masset, in the Province of British Columbia, did make a false or misleading statement to a fishery officer, to wit: RyanFairgray, contrary to Section 63(1) of the Fisheries Act, and did thereby commit an offence contrary to

Section 78(

a) of the Fisheries Act. [31] I note that this offence occurred just 10 days after my brother judge, Stewart, sentenced Mr. Colpaert to 231 days in jail, timeserved, plus 18 months' probation. Condition 1 of the Probation Order required Mr. Colpaert to keep the peace and be of good behaviour. [32] So it was just 10 days later that it is alleged Mr.

Colpaert was engaged in commercial fishing or was otherwise on board acommercial fishing vessel, without being registered and, while interacting with the fishery officer, made a false or misleading statementto the fishery officer. [33] Information 30062-2-B is a single-count information that alleges: … from the 1st day of October, 2019 to the 18th day of December, 2019, inclusive, at or near Prince Rupert, in the Province of BritishColumbia, while bound by a probation order made by the Honourable Judge Stewart on September 10, 2019, [Mr.

Colpaert] did withoutreasonable excuse fail to comply with such order by failing to report as directed, contrary to

Section 733.1(1) of the Criminal Code. [34] Condition 4 of Judge Stewart's September 10, 2020 Probation Order required Mr. Colpaert to report to a probation officer as andwhen directed. [35] On September 7, 2020 -- sorry, the day after he got out of custody, Mr. Colpaert reported in person to his probation officer, whodirected Mr. Colpaert to next report in person on October 1, 2020. Mr. Colpaert did not report as required. Rather, Mr. Colpaert phonedthe Community Corrections office on October 8 and told them that he was fishing. [36] Mr.

Colpaert called the Community Corrections office again on October 15 and advised that he had returned from fishing.Community Corrections told Mr. Colpaert to report in person on October 18. Mr. Colpaert did not attend on October 18, leaving avoicemail message instead, saying that he was going back fishing. [37] On October 25, Mr. Nguyen of the Community Corrections office telephoned and spoke to Mr. Colpaert. Mr. Nguyen toldMr. Colpaert that he had to attend the Community Corrections office in person on November 1. On October 30, Mr.

Colpaert calledCommunity Corrections and left them a voicemail stating that he was going fishing. He did not show up for his November 1appointment. [38] Then on November 12, 2019, Mr. Colpaert was arrested in connection with Prince Rupert Court File 30352-1 and charged withnot only the offences on that information but breach of probation. Police released Mr. Colpaert on an Undertaking Given to a PeaceOfficer or an Officer in Charge dated November 12, 2019. One of the conditions of the Undertaking Given to a Peace Officer or an

Officer in Charge was that Mr. Colpaert had to attend Community Corrections on November 13, 2019. He did not do so. [ 39 ] Community Corrections then sent Mr. Colpaert a letter, directing that he report in person to Community Corrections on December 12, 2019. He did not report. [ 40 ] In relation to Information 30352-1, this is a three-count information: Count 1, that Mr. Colpaert: … on or about the 11th day of November, 2019, at or near Prince Rupert, in the Province of British Columbia, in committing assault of Ethan Joel Martinson, did carry, use, or threaten to use a weapon or an imitation weapon, contrary to

Section 267 (

a) of the Criminal Code . Count 2, that Mr. Colpaert: … on or about the 11th day of November, 2019, at or near Prince Rupert, in the Province of British Columbia, did carry or have in his possession a weapon, to wit: a conductive energy device, for a purpose dangerous to the public peace [and] for the purpose of committing an offence, contrary to Section 88(1) of the Criminal Code . And Count 3, that Mr.

Colpaert: … on or about the 11th day of November, 2019, at or near Prince Rupert, in the Province of British Columbia, while bound by a probation order made by The Honourable Judge DMD Stewart, on September 10, 2019, did without reasonable excuse fail to comply with such order by possessing a weapon, contrary to

Section 733.1 of the Criminal Code . [ 41 ] The BC Prosecution Service alleges in relation to this particular offence that at approximately 5:20 p.m. on November 11, 2019, while subject to Judge Stewart's Probation Order, Mr. Colpaert and some other men were standing on the sidewalk on Pigott Street, that is P-i-g-o-t-t Street, in Prince Rupert, British Columbia. Mr. Colpaert had a backpack on his back. Ethan Joel Martinson, who was walking his dog, approached the group. Mr. Martinson noted that Mr. Colpaert was showing the other men a Taser. As Mr. Martinson approached Mr. Colpaert, he heard a zapping sound.

Because Mr. Colpaert was taking up the entire sidewalk and there was a car approaching, Mr. Martinson asked Mr. Colpaert if he could get by. Mr. Colpaert did not move. Mr. Martinson elected to try to pass behind Mr. Colpaert. In the process, Mr. Martinson brushed the backpack worn by Mr. Colpaert. Apparently not liking the fact that Mr. Martinson had brushed his backpack, Mr. Colpaert held up the Taser in a threatening manner towards Mr. Martinson and the Taser went “zap, zap.” Mr. Colpaert then said to Mr. Martinson, “I’ll shove this in your eye and we’ll see what happens.” Mr.

Colpaert then said to Mr. -- sorry, Mr. Colpaert flashed the Taser on and off. Mr. Martinson saw the Taser give off blue sparks of electricity and he heard the Taser make the "zap, zap" sound. [ 42 ] Condition 8 of the Probation Order imposed by Judge Stewart on September 10, 2019, prohibited Mr. Colpaert from possessing any weapon as defined by s. 2 of the Criminal Code . [ 43 ] Police interviewed Mr. Colpaert after they had arrested him for the November 11, 2019, incident. Mr.

Colpaert told police that he had purchased an “eight-ball” (which I take to be street slang for 3.5 grams of powder cocaine) to celebrate his first day off house arrest when a man walked down the street and bumped into him. The man told Mr. Colpaert “to get the fuck out of the way.” Mr. Colpaert then held up an electric prod that had an electric energy device attached to it, flicked it on and off, but did not engage the electric current. Mr. Colpaert said that, although he did not know the man, he knows the man’s father. Police released Mr.

Colpaert on an Undertaking Given to a Peace Officer or an Officer in Charge dated November 12, 2019. [ 44 ] In relation to Prince Rupert Information 30405-1, the Crown has proceeded by indictment on this matter. It is a three-count information. Count 1 alleges that Mr. Colpaert: … on or about the 26th day of April, 2020, at or near Prince Rupert, in the Province of British Columbia, did commit extortion of Evan Lewis, contrary to Section 346(1.1) (

b) of the Criminal Code . I should note that that particular offence calls for a maximum penalty of life imprisonment. Count 2, Mr. Colpaert: … on or about the 26th day of April, 2020, at or near Prince Rupert, in the Province of British Columbia, being at large on a release order, did fail to comply with a condition of that release order by failing to abstain from consuming alcohol and drugs, contrary to Section 145(5) (

a) of the Criminal Code . And Count 3, that Mr. Colpaert: … on or about the 26th day of April, 2020, at or near Prince Rupert, in the Province of British Columbia, did commit forcible entry on the real property of Evan Lewis, contrary to Section 72(1) of the Criminal Code . [ 45 ] The BC Prosecution Service alleges that the facts are as follows. On April 26, 2020, while Mr. Colpaert was subjected to an Undertaking Given to a Peace Officer or an Officer in Charge dated November 12, 2019, Mr. Colpaert attended the residence of Evan Lewis. Apparently Mr. Colpaert had briefly resided with Mr.

Lewis at the residence, but not respecting the rules of the house as to how many people Mr. Colpaert could have over, Mr. Lewis had required Mr. Colpaert to move out. [ 46 ] When Mr. Colpaert arrived at the residence on April 26, 2020, he impersonated a police officer by yelling words to the effect of, “It's the police, let me in,” and he demanded that Mr. Lewis open the door to the residence or the police “would kick it open.” When Mr. Lewis opened the door, Mr. Colpaert pushed his way into the residence and demanded money from Mr. Lewis. Mr. Colpaert continued by threatening to kill Mr. Lewis if Mr.

Lewis did not give Mr. Colpaert money. Mr. Colpaert also threatened to have Mr. Lewis’ spouse “suck dick” until Mr. Lewis gave him the money. At some point during the exchange, while demanding money, Mr. Colpaert produced a machete and held it to Mr. Lewis’ neck, resulting in a slight cut to Mr. Lewis’ neck. Mr. Lewis was able to get away and he went to his mother’s residence.

[ 47 ] I note that one of the conditions of the Undertaking Given to a Peace Officer or an Officer in Charge required Mr. Colpaert to abstain from the consumption of alcohol, drugs, or other intoxicating substances, except in accordance with a medical prescription. I note this because, at the time of his arrest, Mr. Colpaert told the interviewing police officer that he had drunk a couple beers and smoked some weed. [ 48 ] In relation to Prince Rupert Court File 30424, the BC Prosecution Service alleges at Count 1 that Mr.

Colpaert: … on or about the 18th day of May, 2020, at or near Prince Rupert, in the Province of British Columbia, did … assault Christopher Haugan [H-a-u-g-a-n], contrary to

Section 266 of the Criminal Code . [ 49 ] In this particular incidence, Mr. Colpaert allegedly struck Mr. Haugan on the right cheek with a closed hand. Apparently Mr. Colpaert claimed that Mr. Haugan owed him money. Mr. Colpaert also threatened to pimp Mr. Haugan’s wife if he did not get his money. Mr. Colpaert then struck Mr. Haugan again [ 50 ] In relation to Court Information 30413-1, the BC Prosecution Service has proceeded by way of indictment and they allege the following two counts: Count 1, that Mr.

Colpaert: … on or about the 20th day of May, 2020, at or near Prince Rupert, in the Province of British Columbia, in committing [the] assault of Evan Lewis, did carry, use, or threaten to use a weapon or an imitation weapon, contrary to

Section 267 (

a) of the Criminal Code . That carries a 10-year maximum. Count Number 2, that Mr. Colpaert: … on or about the 20th day of May 2020, at or near Prince Rupert, in the Province of British Columbia, did break and enter a dwelling house situate at 833 Fulton St. and commit an indictable offence therein, assault with a weapon on Evan Lewis, contrary to Section 348(1) (

d) of the Criminal Code . That carries a maximum penalty of life imprisonment. [ 51 ] The facts as alleged are that at approximately 1:03 in the morning on May 20, 2020, police received a telephone call from the BC Ambulance Service asking them to attend to an incident at 833 Fulton Street, Prince Rupert. The police arrived on scene. Mr. Colpaert came to the police from the adjacent house. Mr. Colpaert was unkempt and appeared to be in some discomfort, with bloodshot eyes, wet clothes, and a wet face. He told the police that he had gone to Mr. Lewis’ residence to get his dog and that Mr.

Lewis had bear sprayed him. He said his dog was still inside the residence. Police went to the Lewis residence. They detected the strong smell of bear spray, but no one was present at the residence. Police did manage, however, to rescue the dog for Mr. Colpaert. I do not know how the police managed to do that. [ 52 ] At 1:23 a.m., so approximately 20 minutes later, the police received a telephone call from Evan Lewis’ mother. She reported on behalf of her son that Mr. Colpaert had kicked in her son’s door at 835 Fulton Street and pepper sprayed her son. Police returned to the Lewis residence.

Evan Lewis met police and claimed to be in pain from being pepper sprayed. Mr. Lewis zoned in and out of consciousness. He told police that Mr. Colpaert had hit him with a wooden stick. The police drove Mr. Lewis to the hospital. Police photographed swelling injuries to Mr. Lewis’ face and his left arm. [ 53 ] A few days later, in a follow-up interview, Mr. Lewis told police that he was at home with two other people around 12:30 a.m. on May 20, 2020, when Mr. Colpaert had come to his residence. Mr. Lewis had told Mr. Colpaert to “fuck off.” Mr.

Colpaert then kicked in the door, entered the house uninvited with two other men, and started yelling at Mr. Lewis’ female friend, Athena. Mr. Colpaert told Mr. Lewis that he owed him money, because Mr. Colpaert had brought Athena there. The implication being that Athena was a prostitute and that Mr. Colpaert was her pimp. Mr. Colpaert then picked up Mr. Lewis’ walking stick, which was by the door, and used it to hit Mr. Lewis several times on the head. A struggle ensued. Somebody deployed pepper spray, causing Mr. Lewis to temporarily go blind. Mr.

Lewis, Athena, and the third male who had been in the residence with Mr. Lewis and Athena then left the house. Mr. Lewis returned to the house sometime later and found Mr. Colpaert in the living room holding a machete. Mr. Lewis left again and went to his mother’s house. That is when his mother called the police. [ 54 ] Prince Rupert Information 30404-1, the Crown has proceeded by way of indictment on this particular information and the BC Prosecution Service alleges in Count 1 that Mr.

Colpaert: … on or about the 20th day of May, 2020, at or near Prince Rupert, in the Province of British Columbia, did commit aggravated assault of Maurice Demers, contrary to Section 268(2) of the Criminal Code . [ 55 ] This particular offence is punishable by a jail sentence not exceeding 14 years. The allegation is that at about 11:30 a.m. on May 20, 2020, so about 10 hours or so after the police incident earlier that same day, Mr. Colpaert assaulted Maurice Demers, breaking Mr. Demers’ jaw and causing Mr. Demers to require 20 stiches to head. Mr.

Demers required surgery for his broken jaw. [ 56 ] The assault allegedly happened in the alleyway behind the Stardust Restaurant in Prince Rupert and was witnessed by a number of people. One witness gave police the description of Mr. Colpaert and his dog. [ 57 ] In his statement to police, Mr. Demers said that the altercation started when Mr. Colpaert grabbed Mr. Demers by the shirt and took a swing at him. A group of people then crowed around them. Someone other than Mr. Colpaert then came at Mr. Demers from behind, causing Mr. Demers to go to the ground. Mr.

Colpaert, and perhaps three or four other people, started to kick Mr. Demers. Mr. Colpaert kicked Mr. Demers in the head several times. Mr. Demers was able to get up and escape to a nearby liquor store, from where the police were telephoned. THE CIRCUMSTANCES OF THE ACCUSED [ 58 ] Mr. Colpaert is a 41-year-old man. I have considered the systemic and background factors that may have played a

part in

bringing Mr. Colpaert before the courts and the types of judicial interim release orders that may be appropriate in the circumstances. Indoing so, I have specifically considered the following: 1. the need to ensure the protection or safety of the community, including any victim or witness to the alleged offences; 2. the need to provide safeguards such that Mr. Colpaert is able to avoid committing a criminal offence or interfering with theadministration of justice if I released him on bail. [59] I note that Mr. Colpaert's criminal history includes in excess of 60 convictions dating back to 1994.

Highlights of thoseconvictions include: 11 failure-to-attend-courts, 15 failure-to-comply-with-a-recognizance-or-an-undertaking, three breach-of-probations, seven assaults, one assault causing bodily harm, one careless use of a firearm, one carrying a concealed weapon, oneunauthorized possession of a firearm, two uttering threats, one arson with disregard for human life, six possession of stolen property ortheft, two frauds, three break and enters or attempted break and enters, one unlawfully in a dwelling house, one impaired driving, and sixdrug possessions. THE PRIMARY GROUND [60] Despite Mr.

Colpaert’s 11 convictions for failing to attend court, I am actually not concerned on the primary ground. He is notcurrently charged with failure to attend court and his last conviction for failure to attend court was in Alberta back on March the 19th of2007, so more than 13 years ago. THE TERTIARY GROUND [61] I am not concerned with the tertiary ground and the British Columbia Prosecution Service has not asked me to consider it. THE SECONDARY GROUND [62] I am concerned about the secondary ground.

As such, I have given considerable attention to Justice Halfyard’s decision in R. v.Abdel-Rahman, 2010 BCSC 189, starting at paragraph 20: [20]

Section 5.15(10)(

b) of the Criminal Code states that the detention of an accused in custody is justified on the secondary ground: (

b) Where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence,having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit acriminal offence or interfere with the administration of justice; [21] The limits within which detention on the secondary ground may be justified were described by Chief Justice Lamer in R. v.Morales, (SCC), [1992] 3 S.C.R. 711 (at para. 39) in 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 whileon bail.

Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administrationof justice, 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. … [22] In R. v. Wilcox, 2005 BCSC 1785 … Mr.

Justice Barrow (at para. 22) further clarified the limits of the secondary ground bystating that bail should not be denied unless “that risk cannot be adequately addressed by the imposition of appropriate [release] terms…” I take this statement to refer to the “necessity” of detention, and to mean that even significant risks can be addressed by strict bailconditions, provided the risk to public safety does not amount to a “substantial likelihood.” [23] In my opinion, the decisions that a judge must necessarily make in order to reach the conclusion that detention is justified on thesecondary ground, are the following:

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

b) Second, that this risk is of such magnitude that it amounts to a “substantial likelihood;”

c) Third, that the said risk would constitute a danger to public safety (in general, or to a specific victim or witness) if the accused isreleased; and

d) Fourth, that the detention of the accused is “necessary,” because the identified danger to public safety cannot be prevented orreduced to an acceptable level by bail conditions (such as reporting to authorities, curfew, no-contact, mobility restrictions, sureties orcash bail). [63] We currently have two major health crises ongoing in British Columbia: 1. the completely unacceptable number of unintentional illicit drug toxicity deaths; and 2. the COVID-19 Pandemic. [64] I note that in October of 2020, there were 162 illicit drug overdose deaths in British Columbia.

As of October 31, 2020, in theyear 2020, there have been 1,386 illicit drug overdose deaths in British Columbia according to the British Columbia Coroners Service.Here in the North Health Region, we average 44 deaths per 100,000 people. Across British Columbia, 87 percent of deaths in BritishColumbia involved fentanyl and 49.5 percent of deaths in British Columbia included cocaine.

[ 65 ] I bring this up because of the fact that on at least two of the files before the court, it is alleged that Mr. Colpaert is a user of cocaine. The second is the COVID-19 pandemic. [ 66 ] According to the COVID-19 Dashboard created by the BC Centre for Disease Control, as of November 26, 2020, there have been 29,654 laboratory confirmed cases of COVID-19 in British Columbia, including 384 confirmed deaths. Of the B.C. laboratory confirmed COVID-19 cases, 697 have been in the Northern Region of British Columbia, with 198 active cases, 10 people currently in an intensive care unit, and six deaths.

As one can easily see, the number of deaths pales in comparison to the illicit overdose deaths in British Columbia. [ 67 ] As of November 22, 2020, the Government of Canada’s Epidemiological

Summary of COVID-19 Cases in Canada reports that the total number of COVID-19 cases in Canada is 330,503 with 11,455 deaths. Of significance, Ontario and Quebec have reported the majority of cases, 71.4 percent, and deaths at 90 percent. [ 68 ] Globally, as of November 23, 2020, the World Health Organization Dashboard sets out that worldwide there have been 58,425,681 confirmed COVID-19 cases, with 1,385,218 deaths attributable to COVID-19. [ 69 ] I have not been provided with any information that Mr.

Colpaert would be more at risk to contract COVID-19 than any other member of the general population of British Columbia. ELECTRONIC MONITORING [ 70 ] Mr. Colpaert has been subjected to the electronic monitoring since October 6, 2020. It was my thought when I released Mr. Colpaert on October 6, 2020, that electronic monitoring might have provided additional behavioural controls on him that would assist with: (1) ensuring the protection or safety of the public, including any victim of or witness to the offences; (2) motivate Mr.

Colpaert, upon his release from custody on a Release Order , to be more inclined to obey a curfew or house arrest condition; and (3) allow BC Corrections to know where Mr. Colpaert was at all times, thus mitigating some of the likelihood that Mr. Colpaert would commit a criminal offence or interfere with the administration of justice. [ 71 ] Simply put, I am very disappointed in Mr. Colpaert’s performance during the first six weeks of his being subject to electronic monitoring. [ 72 ] I take some comfort from the superior courts. Recently, Justice Frankel of the British Columbia Court of Appeal commented in R. v.

Moazami , 2019 BCCA 226 , at paragraphs 36 and 37 : [36] Given Mr. Moazami’s track record of ignoring supervisory court orders I am not satisfied he will, if released, refrain from reoffending. Further, given his mother’s track record as a surety, I am not satisfied she is better able now (when Mr. Moazami is in his mid-30s) to influence his behaviour, than she was in the past (when he was in his mid-20s). [37] I give no weight to Mr. Moazami’s suggestion electronic monitoring could be used to ensure he abides by any conditions I might impose.

To begin, there is nothing before me with respect to the availability and suitability of this technology. However, assuming that technology could be used to monitor his movements and provide information as to his geographic location, it would not adequately address the concerns I have with respect to his risk to reoffend. That is because electronic monitoring cannot stop a person from engaging in criminal activity within the allowed geographic locations or guarantee the intervention of the police if a breach or offence is in progress. Apposite is the following from the judgment of Justice Nordheimer in R. v.

Bahman , [2007] O.J. No. 4976 at para. 23 (S.C.J.) : [E]lectronic monitoring, at best, only establishes where a person is. It does not establish what that person is doing. Electronic monitoring does not, therefore, address the secondary ground concerns where the subject may be able to engage in criminal activity but remain within the geographic area that is the focus of the electronic monitoring.

Electronic monitoring does not, therefore, displace the need to have capable sureties who will monitor the activities of the accused person and report any breaches of the conditions of release without hesitation to the authorities. See also: R. v. Chun , 2015 QCCA 1021 at paras. 30 −31, review dismissed, 2016 QCCA 164 : “In the absence of appropriate sureties, electronic monitoring will rarely be sufficient in itself to support the release of an appellant” (per Mainville J.A.). [ 73 ] I have not been given any potential sureties for Mr. Colpaert. CONCLUSION [ 74 ] I have considered the release plan of Mr.

Colpaert and the reverse onus he faces. He urged on me to simply reinstate bail terms as they were in my October 6, 2020, Release Order . Mr. Colpaert’s release plan does not afford me with sufficient confidence. In looking at Mr.

Colpaert’s criminal record and the allegations he now faces, I am of the opinion that I have already tried all reasonable tools available to me. [ 75 ] At the end of the day, it is unnecessary for me to decide if: (1) there is an elevated risk to incarcerated accused persons of contracting COVID-19 in BC correctional centres or dying of an illicit drug overdose while in a BC correctional centre; (2) if there is an elevated risk to incarcerated accused persons of contracting COVID-19 in BC correctional centers, does the elevated

risk conceivably count as a public interest factor favouring the release of Mr. Colpaert in this case? [ 76 ] In all the circumstances of this case, doing so would change my view -- sorry, would not change my view that the BC Prosecution Service has shown why the detention of Mr. Colpaert in custody is justified on the secondary ground. Accordingly, I detain Mr.

Colpaert on the secondary ground in relation to Prince Rupert Court Files 30062-2-B, 30352-1, 30405-1, 30424-1, 30413-1, and 30404-1, as he has not met the reverse onus on him. [ 77 ] Because the Public Prosecution Service of Canada did not apply to revoke bail in relation to Masset Court Information 6772-1, I do not detain Mr. Colpaert on Masset Court File 6772-1. Accordingly, Mr.

Colpaert will be released on Masset Court Information 6772- 1 on a Release Order with no conditions per s. 515(1) of the Criminal Code . [ 78 ] In light of how the courts are currently operating, Crown Counsel must understand its obligation to devote resources sufficient to ready this matter for trial, including in relation to disclosure and witness availability. Failure to do so moving forward could, despite the considerations that currently favour detention, tip the balance in favour of reviewability of my Detention Order . NEXT COURT DATE AND TIME [ 79 ] All of Mr.

Colpaert's files are adjourned over to December 9, 2020, by video -- what time do we get Prince George out on? [ 80 ] THE CLERK: 10:00. [ 81 ] THE COURT: At 10:00 a.m. [ 82 ] Thank you very much. (REASONS FOR JUDGMENT CONCLUDED)