R. v. Winters Date:, 2016 BCPC 93

Citation: R. v. Winters Date: 20160218 2016 BCPC 0093 File Nos: 211818-1 211818-2-A Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRANDON ANTHONY WINTERS RULING OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R.N. HAMILTON Counsel for the Crown: F. Shiu Counsel for the Defendant: G. Garih Place of Hearing: Surrey , B.C. Dates of Hearing: November 20, 2015; February 4, 2016

Date of Judgment: February 18, 2016 Introduction [ 1 ] THE COURT : Brandon Winters is presently in custody and he has been since August 26th, 2015. He has not sought his release from custody at a bail hearing and I am told he has no intention of doing so. There are applications before me by both the Crown and Mr. Winters relating to his status in custody and the scheduling of his trial. The Application by the Crown [ 2 ] The Crown applies pursuant to s. 524(8) of the Criminal Code to revoke Mr.

Winters' recognizance of bail dated July 22nd, 2015, by seeking a finding that he breached the recognizance by failing to reside where directed by his bail supervisor and by failing to report to his bail supervisor. If I make that finding, the Crown submits that by operation of s. 524(8) of the Code , Mr. Winters would then be detained subject to Mr. Winters deciding to have a bail hearing where he would seek his release pending his trial. If I make the finding pursuant to s. 524(8) and order Mr. Winters detained pursuant to that same subsection, the Crown submits that Mr.

Winters' trial should be scheduled on an in-custody basis. The Application by Mr. Winters [ 3 ] He asks that the s. 524(8) hearing not proceed, that he be considered in custody pursuant to s. 524(1) of the Code and then he seeks to have his trial scheduled on an in-custody basis, pursuant to an exception set out in the Trial Scheduling Policy employed by our judicial case managers. [ 4 ] For the reasons that follow, I have concluded that it is not open to Mr. Winters to enjoin or prohibit the Crown from proceeding with its application to revoke his bail pursuant to s. 524(8) of the Code .

It is certainly open to Mr. Winters to oppose the Crown's application but he cannot prevent the Crown from proceeding with the application. [ 5 ] I have also concluded that there are reasonable grounds to believe that Mr. Winters breached his recognizance dated July 22nd, 2015, in the manner asserted by the Crown and I make that finding pursuant to s. 524(8) of the Code . [ 6 ] I further order Mr. Winters detained pursuant to s. 524(8) of the Code , subject to Mr. Winters showing cause why his detention is not necessary. I understand that Mr.

Winters is not showing cause for his release at this time. [ 7 ] I further direct the parties to attend at the judicial case manager's office to

schedule this trial on the basis that Mr. Winters has been detained in custody. [ 8 ] Given my conclusion with respect to the application by the Crown, it is not necessary for me to determine Mr. Winters' application for an exception to our Trial Scheduling Policy. Background [ 9 ] On March 4th, 2015, Mr. Winters was sentenced to one day in jail with eighty-six days' credit for pre-sentence detention and one year of probation on convictions for two counts of theft under $5,000 and for one count of uttering threats. [ 10 ] Condition 5 of the probation order required Mr.

Winters to take counselling for drug abuse and drug addiction as directed by his probation officer. Mr. Winters failed to take the drug counselling as directed, so on June 16th, 2015, he was charged with breaching his probation. At some point, Mr. Winters was arrested on the breach of probation charge and, on July 20th, 2015, he sought and obtained his release on bail on the charge of breaching his probation, as well as charges out of Vancouver for an alleged robbery and possession of stolen property from September, 2014. [ 11 ] One of the conditions of Mr.

Winters' recognizance of bail dated July 20th, 2015 was that he was to reside at a drug recovery house in Surrey called "The Launching Pad." [ 12 ] On the same date that Mr. Winters sought and obtained his release from custody, new charges were laid against him. [ 13 ] On July 20th, 2015, Mr. Winters was charged with breaking and entering, as well he was charged with the unlawful confinement of Bojana Pavkovic, dating back to May 16th, 2015. [ 14 ] Mr.

Winters was released from custody on bail on July 20th, 2015 before the new charges came to the attention of the bail Crown or the court. [ 15 ] The following day, July 21st, 2015, Mr. Winters was arrested on the new break and enter and unlawful confinement charges and he appeared in court on July 22nd, 2015, seeking his release on bail again. [ 16 ] On July 22nd, 2015, Judge Doherty cancelled the recognizance of bail dated July 20th, 2015, and then released Mr.

Winters on a new recognizance of bail to cover all of his charges, namely, the breach of probation, the Vancouver robbery and possession of stolen property, and the new break and enter and unlawful confinement of Ms. Pavkovic. The recognizance of bail from July 22nd, 2015, had a similar report-and-reside condition as was contained in his earlier bail from July 20th, 2015. He was to report as directed and he was to reside at The Launching Pad Recovery House. [ 17 ] In this hearing before me, the Crown alleges that on July 27th, 2015, so five days after his release on bail, Mr.

Winters contacted his bail supervisor to advise that he had left The Launching Pad Recovery Home, as it was not working out for him. He said that he had contacted another recovery home, The Last Door Recovery Society, but there was no bed available for him at that home. Mr.

Winters sought the permission of his bail supervisor to reside with a friend in Burnaby while he waited for a bed to become available at The Last Door Recovery Home. Mr. Winters' bail supervisor permitted Mr. Winters to reside with the friend in Burnaby on condition that he contact The Last Door Recovery Society daily to see if a bed was available for him and also on condition that he call and register that day for a drug treatment counselling program called "Phoenix." [ 18 ] On August 6th, 2015, Mr. Winters' bail supervisor received a telephone call from Mr. Winters' mother who reported concerns that Mr.

Winters was using drugs. Mr. Winters' bail supervisor then contacted The Last Door Recovery Society and learned that he had not checked in with that program over the previous ten days. The bail supervisor also called the Phoenix program and learned that Mr. Winters had never called to register with that program. [ 19 ] Mr. Winters was scheduled to report to his bail supervisor on August 6th, 2015, and he failed to report. [ 20 ] On August 17th, 2015, Mr. Winters was charged with breaching his bail by failing to reside as directed and failing to report as directed. A warrant for Mr.

Winters' arrest was issued on these new breach charges and he was arrested on August 26th, 2015. He has not sought his release on bail on these new charges since his arrest. [ 21 ] Mr. Winters' custodial status, as at August 26th, 2015, was that he was out on bail on the charges that were before the court on July 22nd, 2015, and he was in custody on the warrant issued on the new charges for breaching his bail. He has consented to remain in custody pursuant to his arrest on that warrant since August the 26th, 2015. [ 22 ] On October 27th, 2015, counsel for Mr.

Winters advised Crown counsel that he would be seeking a direction from the court that his trial be scheduled on an in-custody basis despite the fact that he had not sought his release on bail pending his trial. [ 23 ] Mr. Winters' position in that regard would be contrary to the Provincial Court Trial Scheduling Policy that the judicial case managers are expected to follow when scheduling trials. That policy provides that trials in criminal matters are to be scheduled with priority given to early trial dates in circumstances where an accused has been detained in custody following a bail hearing.

If an accused has elected to not have a bail hearing and is, therefore, not detained in custody, then the trial, under those circumstances, is not given priority scheduling and the trial is scheduled on the basis that the accused is not in custody. [ 24 ] Mr. Winters' application came before Judge Dohm in Surrey on November 10th, 2015. At the conclusion of submissions, Judge Dohm adjourned the matter to be scheduled before the Regional Administrative Judge out of a concern that Mr.

Winters' application could potentially affect a province-wide trial scheduling policy employed in the Provincial Court of British Columbia. [ 25 ] This matter then came before me in late November or early December 2015 in my capacity as the Regional Administrative Judge for the Provincial Court in the Fraser Region. [ 26 ] The matter was scheduled for hearing before me on January 15th, 2016, but did not proceed on that date after Mr. Winters' counsel learned that the Crown was applying to revoke Mr.

Winters' recognizance of bail issued on July 22nd, 2015. [ 27 ] The matter was set back before me on February 4th, 2016, for a full-day hearing. Counsel for Mr. Winters and the Crown provided me with helpful written submissions, as well as a number of cases which have assisted me in reaching a conclusion as to the Crown application pursuant to s. 524 of the Code to revoke Mr. Winters' July 22nd, 2015 recognizance of bail. [ 28 ] In the argument advanced before me on February 4th, 2016, it is clear that Mr.

Winters is not seeking an order striking down the Trial Scheduling Policy in place to direct the judicial case managers throughout the Provincial Court of British Columbia; rather, his application is for a direction that his case be granted an exemption from that policy, a form of relief that is provided for within the policy. [ 29 ] I propose to turn first to discuss the Crown application to revoke Mr. Winters' July 22nd, 2015, recognizance of bail pursuant to s. 524 of the Code . Discussion [ 30 ] I will begin my discussion by emphasizing the following. Mr.

Winters was arrested on August 26th, 2015, pursuant to a warrant for his arrest once the charges of breaching his bail were approved. He was not arrested pursuant to a warrant issued under s. 524(1) of the Code . Once he was in custody, Mr. Winters did not seek his release on bail but rather he consented to remain in custody. He did not consent to a detention order. [ 31 ] This matter has come before Judge Dohm once and myself three times since Mr. Winters' arrest on August 26th, 2015. Mr. Winters has remained in custody throughout without a bail hearing.

There is no trial date set and none will be set until I release this decision to determine whether Mr. Winters' trial is to be set on an in-custody or out-of-custody basis. [ 32 ] What appears to be motivating Mr. Winters in this case is the opportunity to preserve his right to argue at any future sentencing hearing that he should receive enhanced credit for his time spent in custody prior to his sentencing.

As I indicated to counsel during their submissions, I do not believe it is appropriate at this early stage of the proceedings to allow a possible consideration at some future sentencing hearing to influence my decision on these applications. Mr. Winters has not yet set a trial date on these charges let alone been convicted of the charges. [ 33 ] I will now set out the relevant provisions of s. 524 of the Code that govern the Crown applications. Section 524(1): Where a justice is satisfied that there are reasonable grounds to believe that an accused (

a) has contravened or is about to contravene... any recognizance

he -- - that is, the justice - -- may issue a warrant for the arrest of the accused. Section 524(3): Where an accused who has been arrested with a warrant issued under subsection (1), or who has been arrested under subsection (2), is taken before a justice, the justice shall (b) ... hear the prosecutor and his witnesses, if any, and the accused and his witnesses, if any. Section 524(8): Where an accused described in subsection (3), other than an accused to whom paragraph (

a) of that subsection applies, is taken before the justice and the justice finds (

a) that the accused has contravened or had been about to contravene his... recognizance (the justice) shall cancel the... recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified... [ 34 ] When counsel began their submissions before me on February 4th, 2016, counsel for Mr. Winters expressed a concern that the Crown could not seek to revoke Mr.

Winters' bail because he had not been arrested on a warrant issued pursuant to s. 524(1) of the Code ; rather, he was in custody pursuant to a warrant issued in the first instance after the charges of breaching his bail were approved. Because a full day had been set aside to hear the arguments on these applications, I was reluctant to delay the process to another date in order to hear the Crown application for a warrant for the arrest of Mr. Winters pursuant to s. 524(1) of the Code so with counsel's consent, I issued a warrant for Mr. Winters' arrest on February 4th, 2016, deemed the warrant executed because Mr.

Winters was already in custody, and then proceeded to hear the Crown's submissions on the application to revoke Mr. Winters' bail. [ 35 ] I have set out above the relevant provisions of s. 524 of the Code that govern the procedure on the Crown application to revoke bail. [ 36 ] First, the Crown seeks a warrant for the accused's arrest based upon an allegation that the accused has breached his bail. That is 524(1). [ 37 ] Once the accused is arrested pursuant to that warrant, he is brought before the court because his liberty interests are at stake.

That is 524(3). [ 38 ] At the hearing contemplated by s. 524(3), the court must hear the prosecutor and his witnesses, if any, and the accused and his witnesses, if any.

That is also s. 524(3). [ 39 ] At the conclusion of the hearing contemplated by s. 524(3) of the Code , if the judge finds that the accused has breached his bail, the judge, and I emphasize, must cancel that bail and order the accused detained in custody unless the accused, after having been given a reasonable opportunity to do so, shows cause why his detention is not justified. [ 40 ] Section 524(8) is often referred to as a "reverse onus provision" because rather than having the benefit of a presumption that the accused should be released on bail, the presumption is that the accused is to be detained in custody unless the accused can demonstrate that his detention is not justified. [ 41 ] At the conclusion of the hearing contemplated by s. 524(3) of the Code , if the judge does not make the finding that the accused has breached his bail then the judge, and I emphasize, must order that the accused be released from custody. [ 42 ] The finding of a breach of bail and the subsequent detention order is provided for in s. 524(8) of the Code .

It carries with it a significant consequence to the accused when it comes time to impose a sentence following the accused's conviction. [ 43 ]

Section 719 of the Code sets out the credit an accused is entitled to receive for any pre-sentence detention. The relevant subsections of s. 719, for the purposes of my analysis in this case, are s. 719(3) and (3.1), which state:

(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [ 44 ] Despite what appears to be a presumption that the credit an accused is entitled to receive for time spent in custody prior to the imposition of sentence is one day credit for each day spent in custody, the Supreme Court of Canada in its decision in R. v.

Summers determined that the presumption is that an accused is entitled to one-and-a-half days' credit for each day spent in custody prior to the imposition of sentence. The exceptions to that presumption are set out in s. 719(3.1) and include circumstances where an accused has been detained, pursuant to a detention order made under s. 524(8) of the Code , as a result of a finding that the accused has breached his bail.

[ 45 ] To summarize, if an accused is out on bail and the Crown seeks a warrant for the arrest of that accused based on an allegation that the accused has breached his bail, and if a judge issues that warrant and the accused is arrested and brought before a judge, and if that judge finds that the accused has breached his bail and cancels that accused's bail, then the time that the accused spends in custody, pursuant to that detention order, will only be credited against any subsequent sentence imposed on the basis of one day credit for each day in custody. [ 46 ] Because there is such a significant consequence to an accused as a result of a finding of a breach of bail and a detention order pursuant to s. 524(8) of the Code , our courts have been careful to scrutinize the basis of an accused's detention when considering the amount of credit that accused is entitled to receive for his pre-sentence detention. [ 47 ] Of the cases I was referred to during counsels' submissions on these applications, the three I found most useful are R. v.

Chambers 2014 YKCA 13 , R. v. Costain 2014 BCCA 458 , and R. v. Ibrahim 2015 MBCA 62 . [ 48 ] In R. v. Chambers , the Yukon Territorial Court of Appeal overturned the sentencing judge's decision to give enhanced credit to Mr. Chambers for his time spent in custody prior to his sentencing. The sentencing judge determined that Mr. Chambers had not been detained pursuant to s. 524(8) of the Code and granted him credit of one-and-a-half days for each day he spent in custody prior to his sentencing. The sentencing judge reached that conclusion because Mr.

Chambers had not sought his release on bail and had consented to remain in custody pending his sentencing. At paragraph 51 of the decision on appeal, Chief Justice Bauman said: Adopting a common-sense approach to s. 524(8) and what happened in this case, it is very difficult to reach any conclusion but that Mr. Chambers was "detained in custody" during this period under s. 524(8). If he was not, by what authority was he detained?

With respect, to suggest that by the simple expedient of consenting to remand, an accused can take himself or herself beyond the reach of s. 719(3.1) invites the kind of manipulation by accused persons that the TISA amendments are generally directed against. [ 49 ] In R. v.

Costain , a decision handed down only a month after the decision in Chambers , Madam Justice Bennett agreed with the defence submission that where the Crown applies to revoke an accused's bail but does not follow through with that application because the accused does not seek his release on bail, then the accused is entitled to enhanced credit for his time spent in custody prior to sentencing. Madam Justice Bennett distinguished Mr. Costain's case from Mr. Chambers' case on the basis that in Chambers , the Crown had obtained an order revoking Mr.

Chambers' bail and so he was detained pursuant to s. 524(8) of the Code whereas Mr. Costain's bail had never been revoked so while he remained in custody he was not formally detained under s. 524(8) of the Code . [ 50 ] What is clear from a comparison of the decisions in Chambers and Costain is that unless an accused's bail is formally revoked or cancelled pursuant to s. 524(8) of the Code , it remains open to an accused to seek enhanced credit for pre-sentence detention on any subsequent sentencing hearing. [ 51 ] Lastly, in R. v.

Ibrahim , the Manitoba Court of Appeal confirmed that an accused's bail can be revoked pursuant to s. 524(8) of the Code and it is not then necessary to proceed immediately to the accused's bail hearing. The bail hearing, pursuant to s. 524(8), is at the instance of the accused and if he chooses not to seek his release on bail, that is a choice available to the accused. However, once the accused's bail has been revoked pursuant to s. 524(8), his credit for pre-sentence detention will be calculated on a one-for-one basis. [ 52 ] Mr. Winters relies upon a decision of the Manitoba Provincial Court, R. v.

McDougall 2014 MBPC 35 , issued on July 23rd, 2014. The court in McDougall relies heavily on and adopts the reasoning of the sentencing judge in Chambers . The difficulty I have with the decision in McDougall is that the sentencing judge's decision in Chambers was overturned on appeal and is no longer good law. The decision in McDougall predates the Yukon Territorial Court of Appeal's decision in Chambers by three months.

It is my view that if I were to apply the reasoning set out in McDougall , I would be committing reversible error based on the very clear reasoning of the Yukon Territorial Court of Appeal's decision in Chambers and I decline to do that. [ 53 ] Mr. Winters argues that I should decline to proceed to the s. 524(8) hearing and rather consider Mr. Winters in custody pursuant to the warrant I deemed executed on February 4th, 2016, and that I should instead consider his application for an exception to the Trial Scheduling Policy and direct that his trial be scheduled on an in-custody basis even though Mr.

Winters has elected not to have a bail hearing. I am not inclined to proceed in the fashion proposed by Mr. Winters. The Crown has applied to revoke Mr. Winters' bail under s. 524 of the Code . [ 54 ] Mr. Winters seeks to avoid this court making the finding that he breached his recognizance dated July 22, 2015, leading to his detention under s. 524(8) of the Code . The result of the Crown application would be that in the event that Mr.

Winters is convicted of one or more of the charges he is facing, he would not be entitled to enhanced credit for the period of his detention following the s. 524(8) finding. [ 55 ] My view is that to proceed as Mr. Winters suggests would be a tacit, if not explicit, endorsement of the: ...kind of manipulation by accused persons that the Truth in Sentencing Act amendments are generally directed against. That is a quote from paragraph 51 in Chambers . Decision on the Crown Application to Revoke Mr. Winters' Bail [ 56 ] In his submissions on the Crown application, Mr.

Winters did not challenge the Crown's assertion that there are reasonable grounds to conclude that Mr. Winters breached his bail by failing to reside at The Launching Pad and his failure to report to the bail supervisor on August 6th, 2015. With respect to the failure to reside at The Launching Pad, while it is true that Mr. Winters' bail supervisor permitted him to reside at a friend's home in Burnaby and not at The Launching Pad, that permission was granted on condition that Mr.

Winters enrol in the drug counselling program operated by Phoenix and on condition that he contact The Last Door Recovery Society daily to check to see if they had a bed available for Mr. Winters. He failed to fulfil either of those conditions imposed by his bail supervisor.

[ 57 ] As well, Mr. Winters does not contest the allegation that he failed to report to his bail supervisor on August 6th, 2015, as directed. [ 58 ] Accordingly, I find the Crown has met its burden to establish, on a balance of probabilities, that Mr. Winters breached those two conditions of his recognizance dated July 22nd, 2015. [ 59 ] Having made that finding, I order that Mr. Winters is detained pursuant to s. 524(8) of the Code until such time that Mr. Winters applies to seek his release on bail, pursuant to s. 524(8). Mr.

Winters' Application for an Exception to the Trial Scheduling Policy [ 60 ] In light of my finding and my detention order set out above, there is no need for me to consider this application brought by Mr. Winters. He is now detained in custody and, accordingly, his trial should be scheduled on an in-custody basis. [ 61 ] I decline to discuss the relative merits of Mr. Winters' application for an exception to the Trial Scheduling Policy as it is not necessary for me to do so at this stage of the proceedings. Conclusion [ 62 ] To conclude, I make the following orders:

(1) I find Mr. Winters breached his recognizance dated July 22nd, 2015, by failing to reside at The Launching Pad Recovery House, as directed by his bail supervisor, and by failing to report to his bail supervisor on August 6th, 2015, as directed;

(2) I order that Mr. Winters is detained pursuant to s. 524(8) of the Code ;

(3) Should Mr. Winters choose to do so, he may apply to seek his release on bail pursuant to s. 524(8) of the Code ; and,

(4) I direct that Mr. Winters' trial be scheduled on an in-custody basis by the judicial case managers. (RULING CONCLUDED)