R. v. Fuller, 2019 BCPC 264

Citation: R. v. Fuller 2019 BCPC 264 Date: 20191118 File Nos: 24935-4-B, 24956-5- B, 25524-1, 25592-1- B, 25634-2-BC Registry: Smithers IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Application for Judicial Interim Release REGINA v. DEVIN CHRISTOPHER FULLER RULING ON APPLICATION OF THE HONOURABLE JUDGE J.T. DOULIS Counsel for the Crown: Morrison, N., Articled Student Counsel for the Defendant: McCarthy, J. Place of Hearing: Smithers , B.C. Date of Hearing: November 15, 2019 Date of Judgment: November 18, 2019 Introduction

Introduction [ 1 ] The accused, Devin Christopher Fuller, is before the Court seeking his judicial interim release on the following Informations: Information 24935-4-B , Count 1 charges him on May 5, 2019, at or near Houston, BC, while bound by a probation order made by Judge Bayliff on January 24, 2019, Mr. Fuller did, without reasonable excuse, fail to comply with such order by failing to present himself at the door of his residence when any peace officer attends at his residence to ensure compliance with the 24 hours per day house arrest conditions, contrary to

Section 733.1(1) of the Criminal Code ; Information 24935-5-B , Count 1 charges him on or about July 29, 2019, at or near Smithers, BC, while bound by a probation order made by Judge Bayliff on January 24, 2019, Mr. Fuller did, without reasonable excuse, fail to comply with such order by failing to report as directed, contrary to

Section 733.1(1) of the Criminal Code . Count 2 charges him on or about July 28, 2019, at or near Smithers, BC, while bound by a probation order made by Judge Bayliff on January 24, 2019, Mr. Fuller did, without reasonable excuse, fail to comply with such order by failing to comply with the residence conditions, contrary to

Section 733.1(1) of the Criminal Code ; Information 25592-1-B charges him under Count 1, on or about September 1, 2019, at or near Smithers, BC, while bound by a probation order made by Judge Bayliff on January 24, 2019, Mr. Fuller did, without reasonable excuse, fail to comply with such order by being outside his residence or the lot on which it is situated between the hours of 9:00 p.m. and 6:00 a.m., contrary to

Section 733.1(1) of the Criminal Code . Information 25634 2-BC charges Mr. Fuller with three breaches of Judge Bayliff’s January 24, 2019 probation order. Specifically, Count 1 charges him from September 28, 2019 to October 4, 2019, near Telkwa, BC, Mr. Fuller, without reasonable excuse, did fail to comply with the condition he reside at [omitted for publication] Road, Telkwa, BC, contrary to

Section 733.1(1) of the Criminal Code . Count 2 charges him on or about October 1, 2019, near Telkwa, BC, Mr. Fuller, without reasonable excuse, did fail to comply with his curfew condition set out in condition 9, contrary to

Section 733.1(1) of the Criminal Code ; Count 3 charges him on or about October 4, 2019, near Telkwa, BC, Mr. Fuller, did without reasonable excuse, did fail to comply with his the curfew set out in condition 9, contrary to

Section 733.1(1) of the Criminal Code ; and Information 25524-1, charges Mr. Fuller, by Indictment, with five offences alleged to have occurred on October 24, 2019, at or near Houston BC. Count 1, charges Mr. Fuller with possessing a prohibited weapon, prohibited device or prohibited ammunition, bear spray, knowing he was not the holder of a licence under which he may possess it, contrary to s. 92(2) of the Criminal Code ; Count 2 charges Mr.

Fuller with carrying or possessing a weapon, bear spray, for a purpose dangerous to the public peace or for the purpose of committing any offence, contrary to s. 88(1) of the Criminal Code ; Count 3 charges Mr. Fuller with possessing a weapon, knife, for a purpose dangerous to the public peace or for the purpose of committing any offence, contrary to s. 88(1) of the Criminal Code ; Count 4 charges Mr.

Fuller with possessing a prohibited weapon, bear spray, while he was prohibited from doing so by any order under this Act or any other Act of Parliament, contrary to s. 117.01(1) of the Criminal Code ; and Count 5 charges Mr. Fuller while bound by a probation order made by Judge Bayliff on January 24, 2019, did, without reasonable excuse, fail to comply with such order by possessing a prohibited weapon, contrary to

Section 733.1(1) of the Criminal Code . [ 2 ] The Crown has proceeded summarily on all Informations except Information 25524-01, where the Crown proceeded by indictment. [ 3 ] The Crown elected to proceed on Information 25634-2-BC and directed a stay of proceedings on the originating Information 25634-1-B. [ 4 ] The Crown further seeks to revoke the existing processes on Informations 25592-B-1, 24935-4-B and 24935-5-B which, as set out above, charge Mr. Fuller with a total of four counts of breaching Judge Bayliff’s January 24, 2019 probation order. On Information 24935-4-B Mr.

Fuller was initially released on May 7, 2019, on a Promise to Appear and Undertaking Given to a Peace Officer. On Informations 24935-4-B and 24935-5-B Mr. Fuller entered into an Undertaking to Judge LaPrairie on August 26, 2019, requiring him to (

a) keep the peace and be of good behaviour; (

b) report to the bail supervisor by 3:00 p.m. on August 26, 2019, and thereafter as directed by the bail supervisor; and (

c) not to change his residence or phone number without first notifying the bail supervisor. Subsequently, on Information 25592-B-1, Mr. Fuller was released on an appearance notice issued by the Smithers detachment of the Royal Canadian Mounted Police (“RCMP”) on September 1, 2019. [ 5 ] The Crown seeks to revoke the processes issued on Informations 25592-B-1, 24935-4-B, and 24935-5-B, which includes the Undertaking given to Judge LaPrairie on August 26, 2019.

Pursuant to s. 524(8) of the Criminal Code , the bail judge must either find: a. that the accused has contravened or had been about to contravene a summons, appearance notice, promise to appear, undertaking or recognizance, or b. that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him. [ 6 ] If satisfied, the judge must cancel the form of release.

It is not sufficient for a judge to simply rely on the fact that there is a new charge before the Court.

[7] In this case, Mr. Fuller is charged indictably with five offences on Information 25524-1, four of which are weapons offences,and one a breach of Judge Bayliff’s January 24, 2019 probation order. All the offences on Information 25524-1 occurred on October 24,2019, after Mr. Fuller was issued the September 1, 2019 appearance notice on Information 25592-1-B and had entered into the August26, 2019 Undertaking to Judge LaPrairie on Informations 24935-4-B and 24935-5-B. [8] Pursuant to section 524(8) I am satisfied there are reasonable grounds to believe that Mr.

Fuller committed an indictableoffence after receiving the appearance notice on Information 25592-1-B and entering into the Undertaking on Informations 24935-4-Band 24935-5-B. I am cancelling these previous processes and revoking Mr. Fuller’s bail. Purpose of a Bail Hearing [9] The purpose of a bail hearing is to determine if the accused’s continued detention is justified. [10]

Section 11(

e) of the Canadian Charter of Rights and Freedoms guarantees both the right not to be denied bail without just causeand the right to bail on reasonable terms. Accused persons are constitutionally presumed innocent, and the corollary to the presumptionof innocence is the constitutional right to bail: R. v. Antic, 2017 SCC 27(at para. 67(a)). Judicial interim release or bail is presumed formost offences. The release of accused persons is the cardinal rule and detention, the exception: R. v. St-Cloud, 2015 SCC 27 (para. 70).

Reverse Onus [11] The presumption in favour of pre-trial release does not apply in certain circumstances. In this case the usual onus on the Crownis reversed. The accused has the onus to show cause why his detention in custody is not justified. This reverse onus arises here by virtueof section 524(8) of the Criminal Code, as set out above. [12] Reversing the onus of proof does not mean the accused must prove he did not commit the offence or disprove the Crown’sevidence pointing to his culpability, or any of the other factors upon which the Crown might seek to rely.

Nevertheless, the accused is ina difficult position.

The default position is continued detention; to avoid this he must prove one positive and two negative circumstances: a. that he will attend court as and when required: 515(10)(a); b. that continued detention is not necessary for the protection and safety of the public 515(10)(b); and c. that continued detention is not necessary to maintain confidence in the administration of justice, when all circumstances areconsidered, including the four offence-related factors itemized in subs. 515(10)(c), i. the nature and circumstances of the current offence; ii. the strength of the prosecution’s case; iii. the community perception of the offence; and iv. the potential for a lengthy term of imprisonment. [13] The onus is on the accused to establish, on the balance of probabilities, his detention is not justified under any of theenumerated criteria contained in s. 515(10)(

a) to (

c) of the Criminal Code. [14] Notwithstanding the accused’s reverse onus position, the Supreme Court in Antic (at paras. 1 and 66) has stated the right not tobe denied reasonable bail without just cause is an essential element of an enlightened criminal-justice system. The Court recognizes thatpre-trial custody affects the mental, social, and physical life of the accused, and may also have a substantial impact on the result of thetrial itself: R. v. Myers, 2019 SCC 18 , para. 27.

So, even when the reverse onus applies, the presumption of innocence remainsand it mandates the denial of bail should be the exception rather than the norm. Accordingly, the justice system must place the utmostemphasis on minimizing the chances of unwarranted denial of liberty. Position of the Crown [15] The Crown opposes Mr. Fuller’s release on secondary grounds (s. 515(1)(b)), on the basis that if released, the accused wouldpose a danger to the public. Also, given his criminogenic history, the Crown submits that if released, there is a substantial likelihood Mr.Fuller will reoffend.

Circumstances of the Offence as read in by the Crown [16] The allegations are described to the Court by way of Crown counsel reading the police report to the Court. Eight of the 12offences before the Court are alleged breaches of Judge Bayliff’s January 24, 2019 probation order. That order was made in relation toMr. Fuller’s conviction on January 24, 2019 on Information 24935-3-C for the following offences: Count 1, on or about January 22, 2018, at or near Houston, BC, Mr.

Fuller committed the offence of forcible entry on real property,contrary to s. 72(1) of the Criminal Code; and Count 2, or about January 22, 2018, at or near Houston, BC, Mr. Fuller committed the offence of possessing a weapon for a dangerouspurpose, contrary to s. 88(1) of the Criminal Code. [17] The probation order was for two years commencing after Mr. Fuller’s release from custody. It included, among other things,following conditions:

Condition 1: Keep the peace and be of good behaviour. . . . Condition 3: Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation. . . . Condition 6 : You must report in person to a probation officer nearest the location of your release within 48 hours after your release from custody, unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere. After that, you must report as directed by the probation officer.

Condition 7: You must reside at [omitted for publication] Road, Telkwa, BC, with your parents Shirley and Doug Fuller. You must provide your probation officer with your phone number, and you must not change your residence or your phone number without written permission from your probation officer. Condition 8: You must obey all of the rules of your residence, so long as they do not conflict with the terms of this order or the directions of your probation officer. If there is a conflict, you must tell your probation officer about the conflict immediately.

Condition 9: For the first six (6) months of this order, you must remain within your residence, or on the lot of your residence, under house arrest 24 hours per day. After the first six (6) months of this order, (for the next 6 months) you must obey a curfew by being inside your residence or the lot on which your residence is located, between the hours of 9:00 a.m. and 6:00 a.m. each day. For the second year of the probation order, there will not be house arrest or a curfew.

You must present yourself immediately at the door to your residence or answer the phone when any peace officer or probation officer attends at your residence or calls to check your compliance with this order. You may be away from your residence during the house arrest or curfew hours with the written permission of your probation officer. Such permission is to be given only for compelling reasons. You must carry the written permission when you are outside your residence during the curfew hours.

You may also be away from your residence during the curfew hours: a. while in the course of your employment, or when travelling directly to, or returning directly from, your place of employment. If requested, you must provide your probation officer with details of your employment, including location and hours of work; b. in the event of a medical emergency and then only while at a health care facility, or when traveling directly to, or returning directly from the facility.

If requested, you must provide your probation officer with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went; c. in the presence of a person approved in writing by your conditional sentence supervisor.

You must carry the written permission with you when you are away from your residence during the house arrest hours; d. for the purpose of attending counselling appointments provided that you must obtain prior approval of the counsellor you will be seeing or the program you will be attending and you must authorize said counsellor or program to speak to your probation officer about your attendance for counselling or programming. . . .

Condition 12: You must not possess, either personally or through another person, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in

section 2 of the Criminal Code , or any related authorizations, licences or registration certificates. [ 18 ] Also on January 24, 2019, on Count 2 of Information 24935-3-C, pursuant to s. 110 of the Criminal Code , Judge Bayliff ordered Mr. Fuller was prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, and explosive substance for 10 years. Circumstances of Information 24935-4-B [ 19 ] On May 5, 2019, Mr. Fuller was residing temporarily at [omitted for publication] Court, Houston, BC, with the permission of his probation officer. Mr.

Fuller was living in a recreational vehicle parked on that property while in Houston for medical treatment. On May 5, 2019, at 2:15 a.m., the Houston RCMP were dispatched to [omitted for publication] Court to investigate a complaint of someone hitting a recreational vehicle with a baseball bat. In the course of their investigation, the officers also conducted a curfew check on Mr. Fuller. Mr. Fuller did not attend at the door of either the house or the recreational vehicle parked at [omitted for publication] Court. When the RCMP returned at 7:30 a.m. on May 5, 2019, they checked the house and Mr.

Fuller was not present. The Report to Crown Counsel did not indicate the RCMP checked the recreational vehicle. Mr. Fuller returned to 2183 Catalina Court on May 6, 2019, at which time the RCMP arrested him in the house for breaching his probation order. The RCMP released Mr. Fuller on May 7, 2019, with a Promise to Appear and an Undertaking to a Peace Officer. [ 20 ] The defence agrees that Mr. Fuller was not present at [omitted for publication] Court on the May 5, 2019, when the RCMP officers arrived at 2:15 a.m. Mr. Fuller says at the time he was residing in the recreational vehicle on that property.

When someone began smashing the recreational vehicle with a baseball bat, Mr. Fuller, fearing for his safety, fled. Mr. Fuller maintains he was present in the recreation vehicle at [omitted for publication] Court at 7:30 a.m. on May 5, 2019, and in the house on that property on May 6, 2019,

when he was arrested. Circumstances Information 24935-5-B [ 21 ] On July 25, 2019, Mr. Fuller sought permission from his probation officer to live somewhere other than with his parents at [omitted for publication] Road, Telkwa, BC. They had asked him to leave. Probation Officer Wilma De Vries gave Mr. Fuller permission to reside at Goodacre Place in Smithers, BC until July 28, 2019. On July 26, 2019, Mr. Fuller learned Goodacre Place could not house him. PO De Vries directed Mr. Fuller to report in the afternoon of July 26, 2019, to confirm he had housing for the evening. Mr.

Fuller did not report on July 26, 2019. PO De Vries advised the Crown that Mr. Fuller was directed to report in person on July 29, 2019, but failed to do so. [ 22 ] The Defence points out that Mr. Fuller is only charged under Count 1 of Information 24935-5-B for failing to report on July 29, 2019. The Crown’s narrative does not point to any evidence that Community Corrections made Mr. Fuller aware he was to report to his probation officer in person on July 29, 2019. The defence acknowledges Mr.

Fuller did leave a voice mail message for PO De Vries on July 29, 2019, but the Crown has not indicated the reason for that message. Circumstances Information 25592-1-B [ 23 ] On September 1, 2019, at 2:05 a.m., the RCMP observed Mr. Fuller driving a vehicle on Highway 16 in Smithers, BC. They stopped the vehicle as Mr. Fuller was supposed to be in his residence at that time by the terms of his probation order. Mr. Fuller explained he was sleeping when he received a telephone call from friends saying they were stranded and too intoxicated to drive. Mr.

Fuller agreed to be their designated driver and ferry them home. The defence concedes Mr. Fuller’s explanation does not rise to the level of a “reasonable excuse,” but that it is mitigating. Circumstances Information 25634-BC-2 [ 24 ] On September 28, October 1, and October 4, 2019, the RCMP conducted curfew checks on Mr. Fuller at his parents’ residence at [omitted for publication] Road, Telkwa, BC. Mr. Fuller was not present and his mother and father (Shirley and Doug Fuller) confirmed he had not been living there consistently. The defence admits that by this date, Mr.

Fuller had been evicted from his parents’ home, but was experiencing significant difficulty securing alternate housing. Circumstances Information 25524-1 [ 25 ] On the evening of October 24, 2019, the RCMP stopped a vehicle belonging to Mr. Helder Rodrigues, who was arrestable on two unendorsed warrants. Mr. Fuller was in the front passenger seat. It appeared to the officers that Mr. Fuller was frantically attempting to conceal something. They arrested Mr. Fuller, who was also wanted on outstanding warrants. When conducting a search incidental to Mr.

Fuller’s arrest, the RCMP officer discovered a steak knife in his jacket pocket, a canister of bear spray in the lining of his jacket, a large knife tucked under the front passenger seat, scales, a suspected controlled substances, and $725 in cash. The Crown submit these items are indicia of Mr. Fuller’s participation in the drug trade. [ 26 ] The defence emphasizes that Mr. Fuller was not charged with any drug-related offences. The vehicle in which the RCMP found the large knife belonged to Mr. Rodrigues, not Mr. Fuller. At the time of these offences Mr. Fuller was “living rough” - meaning he was homeless.

Because of his instability Mr. Fuller cashed his disability cheque so he could engage in cash transactions. Mr. Fuller had the steak knife in order to consume food and bear spray for protection from bears while sleeping outside. The defence argues that possessing a knife to eat dinner and bear spray for the purpose of repelling bears is not prohibited by the terms of the probation order. Circumstances of the accused [ 27 ] The right not to be denied reasonable bail without just cause protects accused persons from conditions and forms of release that are unreasonable: Antic , para. 41 .

This constitutional right requires the Court to take into consideration the accused’s person circumstances. For example, bail conditions that are authorized statutorily may, if imposed unreasonably, operate unfairly and elevate the risk of an accused person being incarcerated, such as imposing a cash-deposit requirement upon the financially distressed: Antic paras. 58-59 . [ 28 ] Mr. Fuller, now 33 years old, is the son of Shirley and Doug Fuller. He has lived in the Bulkley Valley / Houston area for his entire life. Shirley Fuller is a member of the Tsimshian First Nations.

She was raised in what is now Lax-Kw’alaams, formerly Port Simpson. [ 29 ] Mr. Fuller had a troubled upbringing. His mother abused alcohol. Mr. Fuller suffered physical and emotional abuse in his home and at one point was apprehended by the Ministry of Child and Family Services and placed in foster care. While still a child, Mr. Fuller was sexually abused by a family friend. He left school early but has since completed his Grade 12 and received his Dogwood diploma. [ 30 ] In addition to completing his Grade 12 education, Mr. Fuller earned a number of vocational tickets, but has a sporadic work history.

Strength of the Crown’s case [ 31 ] At a bail hearing, the accused’s interest in receiving a fair trial is not at stake, so consequently, the strict rules of evidence are relaxed. Pursuant to s. 518(1) (

e) of the Criminal Code , as the bail judge, I am entitled to receive and base a decision on any evidence I consider credible or trustworthy. In this case, the Crown relies on hearsay evidence and the defence has had an opportunity to contradict or correct that evidence. [ 32 ] Despite the relaxed rules regarding admissibility of evidence in a bail hearing, I still must premise my decision on evidence. I am obliged to consider the strengths and weakness of the information proffered. One of the factors I must consider in analyzing the

apparent strength of the prosecution’s case is the accused’s defences. [ 33 ] It is clear that Mr. Fuller challenges Crown’s assertion of wrongful conduct in some of the charges before the Court, and in others, the criminal intent. The extent to which his explanations constitute a defence or reasonable excuse or are mitigating will be a matter for the trial judge to determine. In St Cloud , the Supreme Court held that credibility and reliability of witnesses are issues to be determined at trial and not a bail hearing.

Criminal Record of the Accused [ 34 ] A criminal record is credible and trustworthy evidence upon which the bail judge can rely. Because I am not determining his guilt or innocence, Mr. Fuller’s criminal record carries significant weight in assessing his future behaviour for the purposes of assessing his risk to the community if released. Mr. Fuller concedes he has a “bad” criminal record. The Crown submits Mr. Fuller’s lengthy criminal record demonstrates he has no regard for the law and is likely to commit further crimes if released. Mr.

Fuller has had an unbroken pattern of offending since 1999 when he was just 13 years old. [ 35 ] Mr. Fuller’s record includes 31 convictions for breaches of court orders including 11 breaches of bail, 18 convictions for break and entry, one for forcible entry, three for theft, one for unlawful entry, and seven for mischief. He has two convictions for robbery, four for assault, one of which was assault with a weapon. He has a conviction for extortion and another for possessing a weapon for a dangerous purpose. T he criminal record will be Exhibit 1 in this bail hearing. [ 36 ] It is obvious Mr.

Fuller’s criminal record has been fuelled by his drug addiction. He has had a long-standing addiction to heroin, although he has been clean for the past month. Release Plan [ 37 ] In Antic , the Supreme Court of Canada recognized s. 515(3) of the Criminal Code establishes a “ladder principle” approach to bail: a justice or a judge must impose the least onerous form of release on an accused unless the Crown shows why that should not be the case.

The steps of the “ladder” are set out in s. 515(2) of the Criminal Cod e , and range from a simple undertaking to recognizances without and with sureties, and on, up the “ladder,” to recognizance with sureties and deposit of money or other valuable security. [ 38 ] The accused proposes the following judicial interim release plan which he says justifies his pre-trial release: a. Mr. Fuller will be bound by a Recognizance of Bail with Savannah Campbell as his surety. Ms. Campbell is Mr. Fuller’s common law partner and the mother of their four year old daughter. Ms.

Campbell has two other children (ages 13 and 10), from a prior relationship. Ms. Campbell will supervise Mr. Fuller to ensure: (

a) his attendance in court; (

b) his compliance with the conditions of the recognizance; and (

c) his good behaviour while on bail; b. Mr. Fuller will be released from custody to Ms. Campbell who is prepared to drive to Prince George to retrieve him from the Prince George Regional Correction Centre; c. Mr. Fuller will reside with Ms. Campbell and her three children at her residence at [omitted for publication] Way, Houston BC. Ms. Campbell anticipates they will relocate to a more spacious townhouse in December 2019, once it has been renovated; d. Mr.

Fuller will be subject to a curfew 24 hours per day, 7 days per week, with exceptions only for employment which must be pre-approved by the bail supervisor and for medical emergencies; e. In addition to reporting to a Community Corrections bail supervisor, Mr. Fuller will report to the RCMP in person no less than once per week; f. Mr. Fuller will abstain completely from non-prescription drugs and alcohol; g. Mr. Fuller will attend counselling as directed, including residential treatment; and h. Fuller will not possess any weapons or knives. [ 39 ] Ms. Campbell was Mr.

Fuller’s surety in 2018 with respect to the offences underpinning Judge Bayliff’s January 24, 2019 probation order. On February 6, 2018, I released Mr. Fuller on a recognizance of bail with Ms. Campbell as his only surety. He was to reside with Ms. Campbell at [omitted for publication] Road in Houston BC, under house arrest. On March 13, 2018, this recognizance was replaced with one naming Mr. Fuller’s parents as sureties in addition to Ms. Campbell. This variation was effected to provide Mr. Fuller with more escorts in the community. Mr. Fuller and Ms.

Campbell continued to reside at [omitted for publication] Road in Houston BC. On June 21, 2018, Ms. Campbell arranged to be removed as Mr. Fuller’s surety. By June 22, 2018, only Doug Fuller, Mr. Fuller’s father, continued as his surety. The following day Doug Fuller rendered his son into court. Mr. Fuller was charged with breaching his recognizance on June 23, 2018, under Information 24356-3-A. On August 7, 2018, I released Mr. Fuller on a recognizance requiring him to reside at Palm Twenty3 Society, a residential treatment facility in Clinton, BC. On August 15, 2018, Mr.

Fuller walked away from that facility without permission from his bail supervisor. Mr. Fuller was again charged with breaching is recognizance under Information 106530-1-A. On January 24, 2019, Judge Bayliff convicted and sentenced Mr. Fuller to 30 days jail for his breaches of recognizance charged under Informations 24356-3-A and 106530-1-A. [ 40 ] The defence submits that during the period Ms. Campbell was a surety there is no indication Mr. Fuller breached his recognizance. Ms. Campbell was present in court on November 15, 2019, for Mr. Fuller’s entire bail hearing.

She is present again today (November 18, 2019). She is aware of the charges against Mr. Fuller and his criminal record. Ms. Campbell spoke to Mr. Fuller’s probation officer who consents to Mr. Fuller residing with her rather than with Doug and Shirley Fuller in Telkwa, BC. Ms. Campbell is cognizant of her responsibilities as a surety and assures the Court she will render Mr. Fuller to court should he fail to comply with the terms of his release.

[41] On Friday, November 15, 2019, given the lateness of the hour, I adjourned my decision on Mr. Fuller’s application for judicialinterim release until today, November 18, 2019. I wanted, among other things, to give Ms. Campbell the weekend to carefully considerwhether she wished to take on the responsibility of being Mr. Fuller’s surety. Ms. Campbell is present again in court today andconfirmed her willingness to act as Mr. Fuller’s surety should he be released.

She says he is a good man and a good father. [42] The accused submits surety bail on stringent conditions mitigates the risk that if released he will commit further offences orpresent a danger to the public. The Crown is justifiably sceptical of the accused’s release plan, given his failures in the past to makegood on his promises to the Court. The Crown does not take issue with the suitability of Mr.

Fuller’s proposed surety, nevertheless,continues to oppose the accused’s judicial interim release on secondary grounds. [43] When considering conditions of release, the Court is guided by s. 515 which provides that it is a judge, not a Crown prosecutor,who can release an accused on conditions the judge considers reasonably necessary. Reasonable means the conditions must beunambiguous, enforceable, constitutionally sound, and necessary to achieve the underlying purpose of bail.

For the condition to bereasonable it must connect to the purpose that would justify the detention of the accused, but for the imposition of the condition. Assessing Mr. Fuller’s risk if released [44] Section 515(10)(

a) of the Criminal Code holds an accused’s detention in custody may be justified to ensure his attendance incourt in order to be dealt with according to law. Although he has failed to appear in court on at least one occasion in the past, Mr. Fullerhas lived in the area his entire life. His parents live in Telkwa; his spouse and child live in Houston. I cannot find he poses a flight risk asdescribed in the primary ground. The RCMP do not appear to have any difficulty in locating Mr. Fuller to execute outstanding warrants.In this respect, considerations relating to s. 515(10)(

a) militate in favour of releasing Mr. Fuller with restrictions on his liberty. [45] In assessing Mr. Fuller’s risk under the secondary ground (515(10)(b)), namely, the protection or safety of the public, I willconsider the factors set out in the oft-cited case of R. v. Abdel-Rahman, 2010 BCSC 189 , in which Justice Halfyard articulatedthe following criteria: a. First, is 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, is this risk is of such magnitude that it amounts to a substantial likelihood? c.

Third, does the risk constitute a danger to public safety (in general, or to a specific victim or witness) if the accused is released? d. Fourth, is the detention necessary because the identified danger to public safety cannot be prevented or reduced to anacceptable level by bail conditions? [46] In particular, the relevant factors I have considered are: a. Mr. Fuller has a lengthy, recent and relevant criminal record; b. Most of Mr. Fuller’s current offences are breaches of the residency and curfew conditions of his probation order.

His mostrecent charges for possessing bear spray and knives are the most serious. Mr. Fuller has proffered a defence to some of these charges; c. Mr. Fuller has repeatedly got into trouble while under community supervision orders; and d. Mr. Fuller’s prior convictions are predominately for property and administration of justice offences, although he also has someviolent offences, such as forcible entry and robbery. The forcible entry offence is relatively recent, the robbery is from 2010. Mr.

Fullerdoes not appear to have violent offences against domestic partners. [47] Based on his past behaviour, I find that if released, there is a substantial likelihood the Mr. Fuller will commit an offence andthat he poses a danger to public safety. Nevertheless, a bail plan does not have to create an iron-clad guarantee that there will be nochance of re-offending, but simply a plan that most minimizes the substantial risk of the accused being permitted to reoffend. [48] Finally, the Court must consider whether Mr.

Fuller’s detention is necessary to maintain confidence in the administration ofjustice as set out in s. 515(10)(

c) of the Criminal Code. The tertiary grounds sets out four factors for consideration: (

i) the apparentstrength 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 ofimprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonmentfor a term of three years or more. [49] As the Crown has not argued for Mr. Fuller’s continued detention on the tertiary grounds, I will address them briefly, keepingin mind the Supreme Court of Canada’s directive in St. Cloud that s. 515(10)(

c) must not be interpreted narrowly or applied sparinglyand only in rare cases or exceptional circumstances or only to certain types of crimes. [50] Firstly, from the Crown’s summation of its evidence, I gather the prosecution’s case is varying in its strength depending on theoffence. Secondly, the breaches of the probation fall at the lower end of the spectrum of seriousness. The weapons offences chargedunder Information 25524-1 are the more serious of the offences. Thirdly, none of the offences involved a firearm.

Fourthly, although Mr.Fuller is liable on conviction for a term of imprisonment, I would not characterize it sufficiently lengthy as to justify his detention on allthe matters before the Court until they have been tried. There is a possibility that if remanded in custody on these charges, the potentialsentence facing Mr. Fuller might not exceed the time he spends in custody awaiting trial. [51] The crimes for which Mr. Fuller are charged are not violent and do not involve vulnerable complainants. The Crown’s evidenceagainst Mr. Fuller is not overwhelming in all cases after factoring in his defences.

In my view, a reasonable person’s confidence in the

administration of justice would not be undermined if the Court declines to order detention having regard to the circumstances of the case. Gladue Factors [52] Mr. Fuller is a member of the Tsimshian First Nations. The Court acknowledges Canada’s pressing and ongoing concern withthe over-representation of Indigenous persons in custody. Parliament has addressed this concern in the sentencing provisions set out in s.718.2 of the Criminal Code. The Supreme Court of Canada has interpreted those provisions in R. v. Gladue, (SCC),[1999] 1 S.C.R. 688, and again in R. v. Ipeelee, 2012 SCC 13. Recently, in R. v.

Louis 2019 BCCA 257, the BC Court of Appeal held theprinciples espoused in Gladue and Ipeelee also apply on bail. In Louie, the BCCA stated: [35] I agree that Gladue factors are relevant to bail applications. While [R. v. Hope, 2016 ONCA 648 ] addressed bail at firstinstance, I agree that the same principles can apply to bail pending appeal. In Hope, at para. 9, the court referred to R. v.

Robinson, 2009ONCA 205 (in Chambers), where Winkler C.J.O. described how Gladue factors can be applied in the bail context: [13] The exercise would involve consideration of the types of release plans, enforcement or control procedures and sanctions that would,because of his or her particular aboriginal heritage or connections, be appropriate in the circumstances of the offender and would satisfythe primary, secondary and tertiary grounds for release. [53] I glean from Louie, as the bail judge, I must give prominence to Mr.

Fuller’s Indigenous heritage and consider the uniquesystemic and background factors which may have played a

part in him coming before the Court. Mr. Fuller is not required to establish acausal link between his background factors and the commission of the offences comprising his criminal record and the offences subjectof this bail hearing. Judges are obliged to take judicial notice of the broad systemic and background factors affecting Indigenous peoplegenerally and case-specific information from the accused. [54] I am satisfied on the submissions of his counsel that Mr.

Fuller, like many Indigenous offenders who come before this Court,has been disproportionately affected by the history of colonialism and the subsequent intergenerational trauma experienced byIndigenous persons. Mr. Fuller has suffered the kind of societal disadvantage specifically identified in Gladue: poverty, unemployment,interrupted education, emotional, physical, and sexual abuse, intergenerational addictions, and a criminal record. I am satisfied thosehistorical factors, both systemic within society and specific to Mr. Fuller, may have played a role in his criminogenic history.

In my viewthe Gladue factors attributable to Mr. Fuller ought to be taken into account in considering his application for judicial interim release.Specifically, I accept that persons with Mr. Fuller’s social and economic disadvantage are not in a position to provide cash deposits,which is the top rung of the “forms of release ladder.” I also recognize the urgency of Mr. Fuller developing the skills and strength toovercome his addictions so he can have a meaningful life and spare his own children from the carnage of inter-generational addictions. Conclusion [55] I am satisfied that if Mr. Fuller resides with Ms.

Campbell under stringent conditions, his risk of reoffending can be reduced toan acceptable level. Ms. Campbell assures the Court she will not turn a blind eye to Mr. Fuller breaching his conditions of bail. AlthoughI query the wisdom of welcoming someone with Mr. Fuller’s criminal history and addictions into her home, I accept she will not tolerateMr. Fuller behaving in a manner which may adversely impact her children’s safety and well-being. [56] Mr. Fuller has been in custody since his arrest on October 24, 2019. In granting his application for judicial interim release, I amguided by s. 11(

e) of the Charter and the Supreme Court of Canada’s directive that the default presumption in Canadian criminal law isthat pre-trial, an accused is entitled to release at the earliest opportunity and in the least onerous manner: Myers, para. 1. As Chief JudgeWagner stated in Myers (at para. 67, “Pre-trial detention is a measure of last resort.” [57] I am releasing Mr. Fuller on a Recognizance to a Judge in the amount of $1,000, without deposit, with a named surety,Savannah Campbell, in the amount of $1,000, without deposit.

I have set out below those conditions which I consider appropriate andinvite further input from counsel: DARS CONDITION1001 You must keep the peace and be of good behaviour.1104 You must report by telephone to a bail supervisor at Smithers Community Corrections by 3:00 p.m. within one businessday of your release from custody. If the office is closed, you must try again the next business day and continue callinguntil you have spoken to a bail supervisor and received further direction to report.

After that, you must report as directedby the bail supervisor.1204 You must reside with your surety, Savannah Campbell at [omitted for publication] Way, Houston, BC and you must notchange your residence or your phone number without written permission from your bail supervisor.1205 You must obey all of the rules of your residence, so long as they do not conflict with the terms of this order or thedirections of your bail supervisor. If there is a conflict, you must tell your bail supervisor about the conflict immediately.

1209 You must obey a curfew by being inside your residence or on the lot of your residence, under house arrest 24 hours per day, 7 days per week. You must present yourself immediately at the door to your residence or answer the phone when any peace officer or bail supervisor attends at your residence or calls to check your compliance with this order. You may be away from your residence during the house arrest or curfew hours with the written permission of your bail supervisor. Such permission is to be given only for compelling reasons.

You must carry the written permission when you are outside your residence during the curfew hours. You may also be away from your residence during the curfew hours: a. while in the course of your employment, or when travelling directly to, or returning directly from, your place of employment, provided your employment is approved of in advance by your bail supervisor.

You must provide your probation officer with details of your employment, including location and hours of work; b. in the event of a medical emergency and then only while at a health care facility, or when traveling directly to, or returning directly from the facility. You must provide your bail supervisor with written confirmation that you went to the facility, signed by a representative of the health care facility to which you went; c. in the presence of a person approved in writing by your bail supervisor.

You must carry the written permission with you when you are away from your residence during the curfew hours; and d. in the immediate presence of your surety. 1210 When you first report to your bail supervisor, you must tell your supervisor the names of all permanent and temporary occupants of your residence and immediately tell him or her of any change. 1214 You must carry a copy of this order and any written permission from your bail supervisor with you at all times when you are outside your residence.

If a peace officer stops you for any reason, you must immediately provide the peace officer with a copy of this order and any written permission without being requested to do so. 1308 You must not associate or have a relationship with anyone named by your bail supervisor if your bail supervisor has reasonably determined the relationship or association to be a risk to you or others, or a risk to the protection of society. 1401 You must not possess or consume alcohol, drugs or any other intoxicating substance, except in accordance with a medical prescription. 1502 Having consented, you must attend, participate and su c cessfully complete any intake, assessment, counselling, program, treatment, or residential treatment program as directed by your bail supervisor. 1610 You must not possess, either personally or through another person, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance, anything that resembles a weapon or firearm, any weapon as defined in

section 2 of the Criminal Code , or any related authorizations, licences or registration certificates. You must not possess bear spray. 1616 You must not possess any knife, except for the immediate preparation of eating of food, or for purposes directly and immediately related to your employment. DARS CONDITION ___________________________ The Honourable Judge J.T. Doulis Provincial Court of British Columbia