R. v. M.J.M. Date:, 2014 BCPC 215

Citation: R. v. M.J.M. Date: 20140924 2014 BCPC 0215 File No: 78818 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. M.J.M. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: B. Breault Counsel for the Defendant: P. Hertzberg Place of Hearing: Nanaimo , B.C. Date of Hearing: September 24, 2014 Date of Judgment: September 24, 2014

The Circumstances [ 1 ] M.J.M., Mr. P. and Mr. S. were charged with robbery of a business (the “Jysk Store”) in Nanaimo, British Columbia on November 27, 2013. Mr. P. and Mr. S. have each entered a guilty plea to the lesser included offence of breaking and entering. M.J.M. continues to assert his innocence. Mr. P. was an employee of the Jysk Store, and is alleged to have provided safe combinations and other “inside information”. The Crown alleges that the prime movers in the scheme were Mr. S. and Mr. P. [ 2 ] On February 28, 2104, M.J.M. was released on $1000 cash bail.

His bail terms included: a. not to be found in Nanaimo except for the purpose of meeting with his counsel or attending court; b. to have no contact, directly or indirectly, with Mr. P. or Mr. S. [ 3 ] M.J.M.’s preliminary inquiry began at the Nanaimo courthouse on September 11, 2014. M.J.M. and Mr. P. attended. Mr. P. entered his guilty plea to the lesser included offence, and was to give evidence for the Crown. [ 4 ] The Crown called Ms. S., an employee of the Jysk Store who witnessed the robbery. She was asked if she could identify the perpetrator.

Although M.J.M. was seated only a few feet from her, in plain view, she failed to identify him, and was not sure whether the perpetrator was in the courtroom. [ 5 ] If M.J.M. was one of the participants in the robbery, Mr. P. (who has already admitted his participation) would be able to identify him without difficulty. [ 6 ] During an adjournment of the proceedings, Mr. P., who had not yet given evidence, approached a police officer on the sidewalk outside the courthouse, and complained that M.J.M. had approached him, and shouted at him: “5 out of 10, and say you’re not sure”. Mr.

P. said that he construed this remark as a request from M.J.M. to falsify his evidence by deliberately failing to identify M.J.M. as the perpetrator. The police officer described Mr. P. as visibly shaken by the encounter. [ 7 ] During the same adjournment, the police officer also observed M.J.M. speaking with Ms. S2, Mr. S.’s wife. He asked her if M.J.M. had attempted to intimidate her. She replied in the negative, and said that she walked away as soon as M.J.M. approached her.

However, the police officer says that he observed the two of them speaking together for 10 minutes or so before the officer spoke with Ms. S2. [ 8 ] M.J.M. is now charged with one count of attempting to obstruct justice by influencing the evidence of a witness, contrary to section 139(2) of the Criminal Code , and one count of breach of his bail conditions by contacting Mr. P., contrary to section 145(3) of the Criminal Code. He seeks bail on those charges.

The Crown opposes bail, and seeks to revoke his existing bail on the robbery charge. [ 9 ] M.J.M. carries the onus of showing cause for his release, pursuant to section 515(6) (a)(

i) of the Criminal Code . [ 10 ] M.J.M. proposes that he be released on a recognizance in the amount of $5000, with a cash deposit of $2000, with one surety, his intimate partner, Ms. C., who is now pregnant with his child. Detention on the Secondary Ground [ 11 ] An accused may be detained under the authority of section 515(10) (

b) of the Criminal Code if and only if: a. his detention is necessary for the protection or safety of the public; and b. the risk to public safety cannot be adequately managed by appropriate bail conditions. [ 12 ] M.J.M.’s criminal record begins in April, 2000, when he was convicted of possessing and uttering counterfeit money. He has no convictions between 2000 and 2010. Since August, 2010, he has three convictions for driving while prohibited, one for operating a motor vehicle while disqualified, two for theft of property valued at less than $5000, one for break & enter, and one for possession of break-in instruments. He was also made the subject of a peace bond under

section 810 of the Criminal Code in August, 2012. For the present purpose, the convictions for driving while prohibited are of greatest concern. Driving prohibitions are ordered because, in the opinion of a judge or the Superintendent of Motor Vehicles, the prohibited individual is an unsafe driver. A prohibited driver is an uninsured driver. A person who repeatedly drives while prohibited places the public in physical danger, because he ought not to be driving, and exposes them to uninsured risks of liability if he is involved in a motor vehicle accident.

M.J.M.’s latest conviction for driving while disqualified was entered on July 26, 2013. At that time, a 2-year driving prohibition was imposed, and is now in effect. [ 13 ] It appears from M.J.M.’s record that he is likely to commit further offences of driving while prohibited or disqualified if he is granted bail. Given his record, such offences would pose a danger to public safety.

Because of the nature of the offence, there are no bail conditions which would adequately manage the risk - there is nothing a surety could do, short of 24-hour supervision, to stop M.J.M. from getting behind the wheel and driving, as he has done so frequently in the recent past. [ 14 ] I conclude that M.J.M.’s detention is justified on the secondary ground. Detention on the Tertiary Ground [ 15 ] Section 515(1) (

c) of the Criminal Code authorizes M.J.M.’s detention if it is “… necessary to maintain confidence in the

administration of justice, having regard to all of the circumstances …”. [ 16 ] I am mindful that M.J.M. is entitled to be presumed to be innocent of each of the three charges which he now faces. For that reason, I have given no regard to the merits of the Crown’s case in addressing the secondary ground. [ 17 ] However, I am directed by section 515(10) (

c) of the Criminal Code to have regard to the “… apparent strength of the Crown’s case …” (underlining added). In considering that question, I may take into account the description by Crown counsel of the evidence which the Crown expects its witnesses to give: R vs Atwal [1986] BCJ #728. It appears to me that the Crown’s case against M.J.M. is unusually strong. If the police officer`s account of what Mr. P. told him is in fact what happened, M.J.M. committed the two offences with which he has most recently been charged. So, M.J.M. should be convicted unless: (

i) the police officer has inaccurately reported what Mr. P. told him; (ii) Mr. P. lied to the police officer. The former seems unlikely - the police officer spoke with Crown counsel immediately after Mr. P. spoke to him. The latter also seems unlikely. It might be, of course, that Mr. P. harbours some animus of long standing against M.J.M., which led him, first to falsely accuse M.J.M. of participation in the robbery, and then to falsely accuse him of witness-tampering. However, no basis for such an animus was suggested at the hearing before me.

It is also worthy of note that it is a dangerous thing to inform on an experienced criminal. Police informers generally are at risk of violent retribution. A person in the position of Mr. P. would incur a personal risk by making an unfounded allegation. That tends to support the credibility of his allegation. Mr. Hertzberg points out that M.J.M. would have been very foolish to attempt witness tampering within earshot of a number of police officers (who were standing on the sidewalk near Mr. P.), and urges me to conclude that his client would not have committed so foolish

an act. I am not persuaded by the point. Most criminal acts which are discussed in my courtroom can only be characterized, in hindsight, as exceptionally foolish, and are often acknowledged to have been so by the offender when sentence is pronounced. If people acted rationally, there would be very little crime. Overall, I assess the Crown’s case on the two most recent allegations to be very strong. [ 18 ] Section 515(10)(

c) also directs me to consider the gravity of the alleged offence. Witness tampering is a very serious matter. The public must be assured that witnesses can attend court and give truthful evidence without fear of reprisal. Public confidence in the integrity of our justice system depends on the strength of the public confidence in that assurance. Witness tampering places that confidence in jeopardy.

In R vs Pearson 2009 ABQB 205 ; [2009] AJ #1518, Bielby, J said @ paragraph 33 that an allegation of witness tampering is “… a strong consideration militating against the granting of judicial interim release under both the secondary and tertiary grounds …”. Given that the primary imperative of section 515(10) (

c) is the maintenance of public confidence in the administration of justice, the offence of witness tampering must be recognized as an example of the very mischief which the tertiary ground was enacted to address. [ 19 ] Section 515(10)(

c) also requires me to consider the circumstances of the offence, including whether a firearm was used. There has been no mention of firearms in this case. However, the circumstance that the witness tampering is alleged to have occurred within a few metres of the courtroom, immediately before the witness was to give his evidence, is a significant aggravating factor. [ 20 ] Section 515(10)(

c) also requires me to consider whether the offence charged carries the risk of a lengthy prison term. The maximum penalty for witness tampering is 10 years’ imprisonment. [ 21 ] I conclude that M.J.M.’s continued detention is justified on the tertiary ground. Disposition [ 22 ] M.J.M.’s existing bail is revoked, and bail is refused on the two most recent charges. September 24, 2014 ___________________________ T. Gouge, PCJ