R. v. Olenga Eouani Date:, 2012 BCPC 182

Citation: R. v. Olenga Eouani Date: 20120405 2012 BCPC 0182 File Nos.: 220722-2-KC, 220722-3-KA, 224916-1-K Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. REY JUNIOR OLENGA EOUANI also known as EMERIC OLENGA EXCERPTS FROM PROCEEDINGS REASONS AT JUDICIAL INTERIM RELEASE HEARING OF THE HONOURABLE JUDGE W. KITCHEN Counsel for the Crown: J. Lawton Counsel for the Defendant: J. Watt Place of Hearing: Vancouver , B.C. Date of Hearing: April 5, 2012

Date of Judgment: April 5, 2012 [ 1 ] THE COURT: Yes, Mr. Olenga is applying for a judicial interim release on an information that was sworn April 4th of 2012 and is a new information before the court and Mr. Olenga's first appearance. It alleges that on or about October 28th, 2011, in Vancouver he knowingly uttered a threat to Allison Virginia Davis to cause death or bodily harm to Allison Virginia Davis. [ 2 ] Now, to put that in context and keep things in proper chronological order, we have to go back to another information that alleges that on July 30th of 2011, Mr.

Olenga assaulted causing bodily harm to Allison Davis. On that charge he has been before the court making efforts to retain counsel. He has set trial dates and made various appearances. There is information that he has missed court on at least two occasions and bench warrants have issued, most notably one resulting in a new charge that on March 9th, 2012, he failed to appear in court when required to do so. [ 3 ] So these matters began on July 30th. He had been in a relationship apparently with Ms.

Davis, and as a result of the incident on July 30th he was released on bail with various conditions including no contact with Ms. Davis. The Crown has described the alleged incident and put before the court photographs that were taken of Ms. Davis. [ 4 ] And with regard to that case, there is a credible Crown case, and from the pictures that have been taken, the beating that is alleged is a serious one and one of real concern to the court. Mr. Olenga, as I said, was released with conditions to process the matter by getting counsel if he could and setting dates for a hearing. [ 5 ] There have been two trial dates.

Different counsel have been involved. Mr. Olenga has asserted at various times that he wishes to have counsel, and Mr. Watt has described the difficulty he has had in obtaining counsel. The Crown has alleged that we have a situation where Mr. Olenga is really trying to avoid dealing with the matter and using the alleged problem in getting counsel as a means of avoiding actually dealing with the matter. [ 6 ] Now, Judge Galati, I believe it was, has had those submissions made to him. Judge Bagnall today adjourned the trial of the first matter because Mr. Olenga did not have counsel, as I understand it.

If there is a basis for concluding that Mr. Olenga has been playing games, as seems to be alleged, then the court to deal with that issue and to remedy the situation would be Judge Bagnall, and the remedy could be anything from having Mr. Olenga proceed without counsel to taking some other steps in securing counsel more directly or appointing counsel or otherwise. [ 7 ] The point I want to make is at this stage, I am certainly not concluding that Mr. Olenga is avoiding dealing with the situation. There could be all sorts of reasons why he is here without counsel.

And in the bail hearing here, I do not see that the problem he is having getting counsel, whether real, imagined or contrived, plays any

part in the issues I have to deal with on the bail hearing. [ 8 ] I have to be concerned with whether Mr. Olenga will show up in court and be responsible to the court. The Crown has said they are not emphasizing the primary ground; nevertheless, I have to look at the primary ground. Once the Crown shows cause, the court has to go through a process of looking first at the primary ground and then the secondary ground and then the tertiary ground, whatever the strength of the argument on each that the Crown has assessed. [ 9 ] So on this information that is new before the court, I must go through that process.

The Crown has put the other informations before the court and asked that bail be revoked on those charges; and therefore, they are to be included in any order I make whether it be for detention or release. And I have to consider the same issues on those charges also. [ 10 ] On the primary ground, Mr. Olenga has some fairly recent roots in the community, if I can describe them as such. All of his antecedents that I am told about, and from looking at the criminal record, are in Montreal. His last conviction was in Montreal the year before last in 2010, just about two years ago.

He was placed on probation there for a year. Apparently, after all those matters were concluded, he came to British Columbia . So he is only a recent arrival here. He apparently has a job as a first aid attendant. He has just secured his own residence on Humphries Court in Burnaby, but I have to conclude that, as I said, he is just really in the process of establishing himself in British Columbia and has very little in the way of roots here. [ 11 ] So on the primary ground, there are some issues even though the Crown has not emphasized those, and we have seen that he has had some problems in attending court.

Two warrants have issued. Also on his record, there were convictions for offences related to responsibility to the court and responsibility on undertakings. [ 12 ] All things considered, with Mr. Olenga having made court appearances at critical times and looking at the overall picture, I conclude on the primary ground he must be released. There should be conditions to deal with the problems that have occurred with his appearing in court. [ 13 ] On the secondary ground, I have to say the situation is much, much more problematic. The secondary ground is danger to the public, and Mr.

Watt has said he has not had a conviction since 2010. I do not find that a very long time ago I have to say, and certainly up until 2010, the number of convictions for a man who is still young and the seriousness of those convictions is really quite remarkable and a matter of real concern. And I have to mention those at this time to give an indication of the problem we are dealing with here. [ 14 ] Mr. Olenga as a youth had entries for assault, uttering threats, assaulting a police officer, obstructing a police officer, possession of a weapon, and another assaulting a police officer.

Those entries were in 1999 and 2000. The adult criminal record that has been placed before the court begins in 2005.

So from 2005 on until 2010, we have the adult criminal record, and it has these convictions: uttering a forged document; forgery; theft under; assault; impaired driving; refusing to provide a breath sample; obstructing a police officer; assault; forcible confinement; theft under; assault with a weapon; assault; breaking and entering with intent; uttering threats; mischief under; resisting a police officer; assault of a peace officer; obstructing a peace officer; breach of probation; breach of undertaking; breach of undertaking; breach of probation; attempt at obstruction of justice; uttering threats; criminal harassment; impaired driving; failure to stop at the scene of an accident; criminal negligence causing bodily harm; obstruction of justice; breach of an

undertaking; and sexual assault finally in 2010, which I should note although on the face of it can be a very serious matter, there was a suspended sentence given for it, and we should gauge the seriousness of that offence from that. [ 15 ] But there are several offences in there of violence, the assault charges. There are several offences of obstructing police officers, and there is the obstruction of justice, breaches of undertaking, breach of probation.

Those offences bear on the nature of what is alleged here, and the number of those offences shows a real pattern of committing criminal offences consistently with very little pause between the commission of the offences, serving the sentence, and being before the courts once again. Mr. Watt said it is some time since the last conviction. I suppose that compared to some of the previous gaps, it is a little longer. I did comment I did not think it was very long, but I understand what Mr.

Watt is saying is relative. [ 16 ] However, I will say again there is a consistent pattern of continuing to commit serious criminal offences, many of which bear on what is alleged here. What is the most concern is what is alleged here, and that is that he threatened bodily harm or death to the complainant who was to be the witness against him on the first charge. So it is a threatening charge that has overtones of obstruction of justice.

It is in a manner of a domestic dispute assault, if I might characterize it as such, where there is often a unique dynamic between the parties where the complainant is often hesitant in complaining for one reason or another. [ 17 ] I do have to think about the fact that there has been a delay in this complaint being brought forward. The complainant was being interviewed by the prosecutor to give evidence on the first charge when it was revealed that in the interim she alleged she had been threatened on the Internet on a Facebook page by Mr. Olenga.

That is a serious allegation and will have to be proved beyond a reasonable doubt. At this point, I should make some assessment of the Crown's case. And I do have to conclude that there is a lot within the material filed by the Crown to connect Mr. Olenga with the person Mr. Alex Santana who is the person who is apparently writing these things. [ 18 ] For my purposes here, I conclude that there is a credible and a compelling Crown case that Mr. Olenga is Mr. Alex Santana and posted these on Ms. Davis's Facebook page, and this is what they say.

On September 17th, and what was said then is not what is alleged in the charge here but gives the connection to Mr. Olenga and puts everything in context. He says "Don't block me on this one". Apparently referring to the fact that Ms. Davis had previously blocked him from posting things on her Facebook page. Asks her "What's up?", mentions other people, says again "Don't block me". [ 19 ] Says [as read in]: You change your number or you put me in jail. You my new girlfriend talk about Gino. I don't care. I don't give a fuck. But I want you, want you, I know you still want play with me, not you the boss.

If you want fuck with me no problem. I'm going to find you and fuck you up and really badly. You not hard to find or we move on something else. It's up to you Allison Virginia Angel Davis Jackson. Don't fuck with me. You don't want me for a enemy. Be smart. You disappear, okay, but don't forget, my brother is a bouger. I can find you so easy. Think about it. [ 20 ] There are other postings that same day. And then, continuing on to October 28th, the date of the alleged offence. It is alleged this is what Mr. Olenga sent to Ms. Davis. [As read in]: I will find you soon beatch. I just got out beatch.

You better call me. I put a contract on you $10,000. My guy are on Calgary now. You better call me beatch. You better. I don't play with you now. I will find you soon beatch. [ 21 ] That is certainly a direct threat to cause death or bodily harm when you put all of that together, and the risk of that occurring cannot be tolerated. There is no allegation that there has actually been contact in the interim. The threat from Mr.

Olenga is that if this comes to trial and if she testifies against him, she will be either killed or there is a threat of bodily harm. [ 22 ] That was what was about to happen around October 28th when the matter was apparently adjourned because Mr. Olenga was having problems getting counsel. The matter was coming to a head again when Mr. Olenga succeeded in getting the matter adjourned. But I have to say the court cannot take a chance on the matter actually coming to trial and finding out whether Mr. Olenga is going to follow through on his threat. He has shown in the past that is what he does.

He has given a solid indication here that is what he will do in this case if Ms. Davis gives evidence against him. On the secondary ground, this is a risk which simply cannot be tolerated. [ 23 ] So Mr. Olenga, I now have to detain you and hold you in jail until these matters are cleared up. So I have to revoke bail on the outstanding charges and detain you on your new charge. [ 24 ] MS. LAWTON: Your Honour, the Crown is applying pursuant to s. 515(12) for a no contact order in relation to the complainant. [ 25 ] THE COURT: Yes. I will make that order. [ 26 ] MS.

LAWTON: Thank you. (REASONS AT JUDICIAL INTERIM RELEASE CONCLUDED)