R. v. A.S.A., 2018 BCPC 405

Citation: R. v. A.S.A. 2018 BCPC 405 Date: 20180927 File Nos: 221618-1, 221619-1, 230158-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. A.S.A. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. JAHANI Counsel for the Crown: K. Johnston Counsel for the Defendant: M. Beckett Place of Hearing: Surrey , B.C. Date of Hearing: September 21, 2018 Date of Judgment: September 27, 2018 [ 1 ] This is an application by the accused Mr. A.S.A. (“Mr. A.A.”) seeking his release from custody pursuant to s. 523(2) (1)(

a) of

the Criminal Code . [ 2 ] Mr. A.A. is before this court on a seven-count indictment involving the following charges, each alleged to have occurred on or about September 28, 2017 in the City of Langley, B.C.

The charges are: break and enter of a dwelling house; two counts of robbery; two counts of using an imitation firearm while committing or attempting to commit robbery; having his face masked with intent to commit an indictable offence; and theft of a motor vehicle. [ 3 ] The Crown is opposing his release on the secondary and tertiary grounds and is, furthermore, seeking to revoke his existing bail on Information 221618 and 221619, pursuant to s. 524 of the Criminal Code . [ 4 ] Information 221618 alleges the commission of two indictable offences; namely, possession of a loaded or prohibited firearm without a licence and possession of a firearm knowing that its serial number was altered. [ 5 ] Information 221619 alleges the commission also of an indictable offence; namely, possession of a firearm contrary to a prohibition order. [ 6 ] All of these are alleged to have been committed on or about November 15, 2016. [ 7 ] The firearms prohibition order which is alleged to have been breached in Information 221619 arises from a prior probation order.

Being newly charged with indictable offences while being on judicial interim release in relation to other indictable offences puts Mr. A.A. in a reverse onus situation. The new charges involve and arise from what is commonly referred to as a home invasion. CURRENT CHARGES [ 8 ] At approximately 1:38 a.m., on September 28, 2017, police were called to a residence located at [omitted for publication] in Langley, B.C. This is a large residence located on a large parcel of land in rural Langley. There is also an outbuilding on the property which houses a licensed marihuana grow operation.

As a result of the grow operation, the property is equipped with surveillance cameras and a ring-door cam at the front door to the main residence. [ 9 ] The surveillance camera showed that at 1:30 a.m., four individuals gained entry from an unsecured side door into the residence. Three of these individuals were masked while the fourth had face covering. Two of the four individuals were carrying firearms. The firearms were never recovered. However, Crown weapons expert stated the two weapons appeared to be (1) an assault rifle with large magazine known to use 7.62 millimetre ammunition and

(2) TEC-9 which is a small rifle, fully automatic machine gun with 9 millimetre ammunition. [ 10 ] The owner of the residence, Mr. C.S., lived there with his girlfriend, Ms. W. and their combined five children. Two of the children were not home. Each of the five children have some degree of special needs but the oldest daughter, T.S., who was 17 at the time, is autistic. [ 11 ] The master bedroom in which Mr. C.S. and his partner were sleeping is on the main floor of the residence. One of the masked assailants, however, mistook T.S.'s room for the master bedroom.

He broke into the room carrying a rifle, shouting at her to get out of the bed with her husband. She is brought downstairs and confronted by another masked individual. [ 12 ] Hearing the commotion on the main level, Ms. W. exits the master suite and gets in between her daughter and the assailant. She manages to get her daughter upstairs with their other children. [ 13 ] The assailants were looking for money. The ring cam, equipped with audio, shows the man carrying the TEC-9 firearm walking in and out of the residence asking where the money is.

The assailants take cell phones, the home's cordless phone and two large plastic containers containing plastic bags. It is later on discovered that the plastic containers contain baggies of marihuana. [ 14 ] The cameras further show that the assailants first attempted to leave the owner's Escalade but having taken the wrong set of keys, they leave with the owner's Yukon, as it is shown that they transferred the plastic containers from the Escalade into the Yukon. The Yukon travels down the driveway of the property and bursts through the main gates onto the road. [ 15 ] Mr.

C.S., who had remained in the master suite, called 9-1-1. [ 16 ] One police car en route to the residence flags the Yukon and follows it at a distance. Air 1 assists providing air pursuit and surveillance. The Yukon is followed for quite a distance and eventually crashes into a ditch as it drives over stop sticks laid by the police on or about 80th Avenue near 168th Street. The video from the Air 1 reveals four suspects fleeing out of the Yukon into the rural forest and fields nearby. [ 17 ] Police arrive immediately on scene and two of the four individuals were found in the nearby bushes and arrested.

One was a Mr. Japal, who was the passenger in file 221618. The other was a youth, Mr. S. Both were detained at their bail hearing. THE EVIDENCE [ 18 ] The police investigation was extensive. The Toyota Camry [ 19 ] A Toyota Camry was found parked near Mr. C.S.'s home. It is the Crown's theory that the individuals drove the Camry to the target residence and then took off with Mr. C.S.'s Yukon.

Upon running the plate it was discovered that it was stolen two days prior to the home invasion from an underground parkade of an apartment complex directly across from where the accused was residing at the time of these allegations. Mr. A.S.A. address was known as he had provided it to his bail supervisor. He had also provided his cell number to probation as he was under conditions to only possess one cell phone.

[ 20 ] The search of the Camry revealed the following: several rounds of 7.62 millimetre ammunition and one round of 9 millimetre ammunition, two cell phones, two walkie-talkies and one packaging of Halloween masks. [ 21 ] The search of the cell phones revealed nothing of significance; however, the call log of the iPhone seized showed calls being made the day prior between that iPhone and the accused's cell number which was the same number previously given to probation. [ 22 ] The Camry was examined for fingerprints. The accused's prints were not found in the car.

Where the Yukon was abandoned [ 23 ] Search of this area revealed the following: loaded magazine with 7.62 millimetre ammunition, a cordless home phone matching the description provided by Ms. W., a glove, a pair of latex gloves, a black balaclava, a piece of a long gun, a Rona receipt showing glove purchases. The Yukon [ 24 ] The search of the Yukon resulted in the following: two large containers containing packaged marihuana and three Halloween masks.

The masks were sent for DNA analysis and the accused's DNA was found on the green mask. [ 25 ] Further investigation was done to see if the other two individuals who remained at large could be located. As such, police contacted cab companies to see if anyone had requested a cab within the area where the Yukon was abandoned. It was discovered that a call was placed to the Pacific Cab Company of Surrey at 4:15 a.m., by a male asking to be picked up from [omitted for publication] Street, close to the area of the Yukon.

However, upon the cab's arrival the male was no longer there. [ 26 ] Review of the traffic camera footage around that area revealed that a cab from Surdel Cab Company attended at that address. The cab driver told the police that he had received a call for service at 4:48 a.m. and arrived within three minutes, or 4:51 a.m., on location at [omitted for publication] Street to pick up his fare. His fare was dropped off seven minutes later or around 4:57 or 4:58 a.m., at the destination which was in the area of [omitted for publication] Avenue. There were no video cameras in the cab or at the drop-off location.

The telephone number that contacted both cab companies was the same telephone number given by the accused to his probation officer. [ 27 ] A review of the surveillance camera of the lobby of the accused's apartment complex showed the accused exiting the lobby on September 28 at 5:01 a.m. and returning at 8:45 a.m. [ 28 ] During these same hours, specifically between 7:15 a.m. and 7:45 a.m., several neighbours in the area of [omitted for publication] Street reported a car pulling into the driveway, a male with hoody exiting the car, pacing around and locating a piece of metal from a nearby bush and then driving away.

From the description of the car, it was determined that it was a rental. In concluding surveillance of the accused's home on October 5, 2017, the accused is seen driving this same car. He was arrested the next day for driving while prohibited as, at the time, he was prohibited from driving. [ 29 ] On October 13, 2017, a search warrant was executed on the accused's home. Nothing relating to the home invasion was found; however, five cell phones and $55,000 in cash were seized. The accused was charged with cell phone and curfew breaches by the Federal Crown without seeking bail revocation.

Information 221618 [ 30 ] At the time of his arrest on the current charges, Mr. A.S.A. was on a judicial interim release order in relation to Information 221618, out of incidents alleged to have occurred on November 15, 2016. Essentially, Mr. A.S.A. was the driver of a vehicle in which a loaded gun was found. The firearm was located under the front seat passenger. The front passenger of the car was arrested on scene. The accused was not arrested as he had entered his apartment complex in which the police could not gain entry.

Later on when fingerprint analysis were completed, the accused's prints were found on the firearm and on a cup in the car. The front passenger of the vehicle was Mr. Japal. [ 31 ] At the time of these allegations the accused was bound by a probation order and was subject to a firearm prohibition. A warrant was issued for his arrest on March 29, 2017, as it took some time for the fingerprint analysis to be completed. Mr. A.S.A. was arrested on these charges on April 24, 2017. These charges are currently in trial.

JUDICIAL INTERIM RELEASE [ 32 ] With respect to Information 221618 and 221619, the accused was released on $5,000 cash bail on May 4th, 2017 with strict conditions involving curfew, firearm prohibition and having no more than one cell phone. This bail order also covers the federal drug- related charges on Information 219979-2-C.

Counsel submits that the federal drugs charges have been withdrawn. [ 33 ] A second judicial interim release order was granted on November 23, 2017 by the Honourable Judge Gaffar on the breach charges relating to possession of more than one cell phone which came about as a result of the execution of the search warrant at the accused's home. This bail order required a $10,000 cash deposit, without sureties, and imposed a house arrest. This matter is set for trial. [ 34 ] The Recognizance of Bail ordered by the Honourable Judge Gaffar was varied on February 9, 2018 by the Honourable Judge Ormiston to allow Mr.

A.S.A. to attend an employment work-related workshop in February 2018, which he did attend. THE ACCUSED'S BACKGROUND [ 35 ] The accused is 23 years of age, born in Montreal, Quebec. He is the eldest of two children. His father is on disability and his mother is gainfully employed. He has no dependent children of his own. He and his family moved to the Lower Mainland in 2002.

[36] In terms of personal health, he suffers from scoliosis but is otherwise healthy. There are no mental health concerns. He iscurrently on the methadone program due to recreational drug use a few years past. [37] He was gainfully employed as a general labourer; however, due to the curfew and house arrest he was unable to secureemployment and remains on social assistance. [38] It is submitted that Mr. A.S.A. is taking steps to turn his life around, learn skills and reintegrate himself into a prosociallifestyle. [39] Mr. A.S.A. has both a youth and adult record.

The adult record shows convictions from September 2015 to April 2017. Theearliest adult offence has an offence date of July 2014. The criminal record shows adult convictions for serious and related offences;break and enter of a dwelling house, four counts of possession for the purposes of trafficking and a breach of undertaking. POSITION OF THE PARTIES [40] Crown seeks detention and revocation of bail on secondary and tertiary grounds based on the seriousness of the charges, theaccused already being on a release order for other offences and the evidence connecting him to the new charges. [41] Mr.

A.S.A. seeks his release on strict conditions and additional cash bail. THE LAW [42] The purpose of judicial interim release is not to try the merits of the allegations before the court, nor is it to assess guilt orinnocence. It is to balance and analyse the risk that an accused poses to the public as against the possibility of management and controlof that risk with release conditions. [43] An accused is presumed innocent until proven guilty. However, despite this presumption, there are circumstances that warrantthe detention of an accused.

Crown usually bears the burden of showing the court why the detention of an accused is justified. However,in certain circumstances, such as those enumerated in s. 515(6)(

a) to (

d) of the Criminal Code, an accused is required to show cause as towhy his detention is not justified. One such situation is when an accused is alleged to have committed an indictable offence while on arelease order for another indictable offence, as is the case here. [44] In a reverse onus situation, it is not required that an accused disprove his involvement in the commission of an offence but hemust satisfy the court, on a balance of probabilities, that his or her detention is not justified. Secondary Ground [45] Pursuant to s. 515(10)(

b) detention of an accused can be justified on the secondary ground for the protection of the public,victim, or witness to the offence, or any person under the age of 18, and preventing interference with the administration of justice. [46] In R. v. Abdel-Rahman, 2010 BCSC 189 , 2010 BCSC189, Mr. Justice Halfyard set out at paragraph 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 heis released;

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 accusedis released; 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). [47] In R. v. Morales, [1992] 2 S.C.R. 711, at paragraph 39, the Supreme Court held: 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. [48] The substantial likelihood test means that the risk of committing an offence while on bail must be so substantial that detentionbecomes necessary for public safety.

Proof beyond a reasonable doubt is not required to establish substantial likelihood but a reallikelihood must exist. [49] The fact that an accused was already bound by a bail order is a strong factor to consider under s. 515(10)(b). In Morales, thecourt stated at paragraph 41: In my view, the bail system also does not function properly if individuals commit crimes while on bail. One objective of the entiresystem of criminal justice is to stop criminal behaviour.

The bail system releases individuals who have been accused but not convicted ofcriminal conduct, but in order to achieve the objective of stopping criminal behaviour, such release must be on condition that the accusedwill not engage in criminal activity pending trial. In Pearson, the reality that persons engaged in drug trafficking tend to continue their

criminal behaviour even after an arrest was one basis for concluding that there is just cause to require persons charged with certain narcotics offences to justify bail. Similarly, if there is a substantial likelihood that the accused will engage in criminal activity pending trial, it furthers the objectives of the bail system to deny bail. [ 50 ] In this court, assessing and determining the issue of whether there is substantial likelihood to reoffend, an accused's record is relevant but not determinative.

The nature of the convictions, the dates and gaps in relation to the convictions, their frequency, whether they are related offences, and breaches are all relevant considerations. Tertiary Ground [ 51 ] With respect to the tertiary ground, s. 515(10)(

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

a) the apparent strength of the prosecution's case; (

b) the gravity of the offence; (

c) the circumstances surrounding the commission of the offence including whether a firearm was used; and (

d) the fact that an accused is liable on conviction for a potentially lengthy term of imprisonment, or in the case of an offence that involves or whose subject matter is a firearm and minimum punishment to imprisonment for a term of three years or more. [ 52 ] In R. v. St-Cloud , 2015 SCC 27 , at paragraph 87 , the Supreme Court of Canada summarizes the principles that can guide the court in the application of s. 515(1)(c).

It states that all the "relevant circumstances must be balanced and at the end of such an exercise the court must determine whether detention is necessary to maintain confidence in the administration of justice." [ 53 ] In doing so, the perspective of the public ought to be adopted by the court and that “a reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified”. [ 54 ] At paragraph 88 of St-Cloud the court states that “if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered.” ANALYSIS [ 55 ] The Information relating to the current charges was sworn on September 12, 2018, almost a year after the date of the alleged offence, and Mr.

A.S.A. was arrested on September 14, 2018. Crown submits that the investigation was extensive and it took a while for the fingerprints to be analysed. The court should look at the totality of the circumstances. [ 56 ] In assessing the secondary ground, the accused's criminal record shows that he has a lengthy youth record. His adult record is short but he has accumulated serious and related offences during a short period of time.

He also has one conviction for breaching an undertaking. [ 57 ] Despite the above and although I find that there is a substantial likelihood that he may reoffend, the court should consider whether a strong and strict plan of release is capable of minimizing these risks. [ 58 ] There is evidence before the court that the accused has done well while placed on the release order of November 23rd, 2017. In fact, his house arrest was relaxed for a few days to permit him to attend a work-related workshop in February 2018. Mr.

A.S.A. has abided by the house arrest and his other strict bail conditions for the last 10 months. A strong release plan can, in fact, assist in addressing the substantial likelihood of reoffending and protection of public test. As such, and especially because Mr. A.S.A. has shown success in following the house arrest bail order, I find that his detention on the secondary ground is not justified. [ 59 ] With respect to the tertiary ground, the Crown's case is based on circumstantial evidence but it is a strong case. There is video evidence that four individuals went to Mr.

C.S.'s as the perpetrators were all masked, the accused's DNA was found on one of the masks in the Yukon. The log of the iPhone found in the Camry showed calls made between that phone and the phone number the accused had given as his contact number to probation. This same telephone number was used within the vicinity of where the Yukon was abandoned and within a close time period to the time of the offence, to call a cab. [ 60 ] The offences are serious offences.

Invading someone's home, especially with this set of facts where an autistic 17-year-old was woken up at night with a firearm being pointed at her, is egregious and extremely concerning. [ 61 ] The offences involved the use of a firearm and if convicted, there is likelihood of a lengthy jail sentence. [ 62 ] Notwithstanding the seriousness of the charges and the strength of the prosecution's case, this factor, in and of itself, does not justify detention. [ 63 ] As to this accused, it is not clear, based on the evidence, if the accused was one of the two individuals carrying a firearm, and the degree of his involvement in this home invasion is not clear.

There are also issues as to whether he was the person the cab driver dropped off. These are triable issues and it is not the job of this court to make determinations on those issues at this stage. However, I have to keep in mind that “release of an accused person is the cardinal rule and detention the exception” ( St-Cloud ) and, as such, detention orders should be made in circumstances where release is not possible.

I also have to keep in mind that the administration of justice can also be undermined if a detention order is made when it is not justified ( St-Cloud ). [ 64 ] Balancing the above four factors, I am not satisfied that the detention of the accused is justified on the tertiary ground, and considering the circumstances from the perspective of a reasonable person, I find that confidence in the administration of justice will not be lost if the accused is released. [ 65 ] I will, therefore, release you, Mr.

A.S.A., on the following conditions. [ 66 ] You will be released on your own recognizance in the amount of $15,000 cash, without surety. The previous $10,000 deposited

shall apply towards the $15,000 deposit that I am ordering today. [ 67 ] You shall keep the peace and be of good behaviour. [ 68 ] You must attend court when it is required to do so of you by the court. [ 69 ] You must report to a bail supervisor by 3:00 p.m. on the next business day following your release at 102-14245 56th Avenue in Surrey and report thereafter as is directed. [ 70 ] You must reside at unit [omitted for publication] Avenue in Surrey, B.C. [ 71 ] You are to provide your current residential address and landline telephone contact information to your bail supervisor and not change your address or telephone number without the prior authorization of your bail supervisor or the court. [ 72 ] You are to obey the rules and regulations of your residence. [ 73 ] You are placed on house arrest as follows: You must remain inside your residence or the lot on which it is situated at all times except as follows: in the event of a medical emergency when you are permitted to proceed directly to and from and while attending at the emergency medical facility in which case you shall provide written proof of your attendance at the emergency medical facility to your bail supervisor within 72 hours of your attendance at that facility; while in the direct presence of either of your parents L.M. or S.A. to attend court and/or appointments with your legal counsel; in the presence of another person previously approved in writing by your bail supervisor; or as otherwise permitted in writing, by your bail supervisor. [ 74 ] You must carry any written permission given to you by your bail supervisor with you at all times. [ 75 ] You must carry a copy of this bail order with you at all times. [ 76 ] You shall present yourself immediately at the door of your residence or answer the phone immediately when a police officer or a bail supervisor attends at or calls your residence to ensure your compliance with the terms of this order. [ 77 ] You are to have no contact directly or indirectly with Ms.

W. or T.S. You must not attend at any place of residence, place of worship, place of education, place of employment known to you to be that of Ms.

W. or T.S. [ 78 ] You must not attend at the property located at [omitted for publication] Avenue in the City of Langley, B.C. [ 79 ] You must not have any contact directly or indirectly with Abdulhamid Sultan, and/or Farbin Japal. [ 80 ] You are not to possess nor consume any alcohol or illicit drugs as defined by s. 2 of the Controlled Drugs and Substances Act, except as prescribed by a licensed physician. [ 81 ] You are not to possess either personally or through another person any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, explosive substance, anything that resembles a weapon or a firearm or any related authorization, licenses or registration certificate. [ 82 ] You are not to possess any weapons as is defined in s. 2 of the Criminal Code including any knives except for the immediate purpose of preparing or consuming food. [ 83 ] If you do obtain employment or intend to participate in a scheduled or registered educational program you must seek leave of the court, in advance, to attend those activities. [ 84 ] You are not to be found in a private, non-commercial motor vehicle unless you are in the direct presence of the registered owner of that vehicle or in the direct presence of S.A. or L.M.; [ 85 ] You are not to possess, own or use any cell phones or mobile electronic device for any purpose. [ 86 ] You are not to possess any tools outside of your place of residence. [ 87 ] You are not to wear any masks or use any items to disguise your face. [ 88 ] I did consider whether GPS or electronic monitoring should be ordered.

However, because Mr. A.S.A. was able to successfully abide by his previous strict bail conditions, I do not see the need to order such monitoring condition. (PROCEEDINGS) [ 89 ] THE COURT: You are to have no contact directly or indirectly with Mr. C.S., any children of the S1 family and/or any family members related to the S1 family. [ 90 ] MR. JOHNSTON: And then also with respect to the no contact of the co-accused, Your Honour had mentioned -- [ 91 ] THE COURT: Abdulhamid Sultan, and Farbin Japal. [ 92 ] MR.

JOHNSTON: And the fourth individual, the other youth that was arrested is H.S. [ 93 ] THE COURT: And H.S.

[ 94 ] MR. JOHNSTON: Thank you. [ 95 ] THE COURT: I think this bail order can apply to all the outstanding offences. We can cancel the prior bail and have the $10,000 from those bails apply to the $15,000 towards this bail. [ 96 ] THE CLERK: So it should be $5,000? [ 97 ] THE COURT: It would be a new $5,000. (RULING AT JUDICIAL INTERIM RELEASE CONCLUDED)