R. v. Mar, 2017 BCPC 444

Citation: R. v. Mar 2017 BCPC 444 Date: 20170123 File Nos: 219595-3A, 220609-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. WALEENE LEAH MAR BAN ON PUBLICATION s. 486.5(1) CCC RULING RE JUDICIAL INTERIM RELEASE APPLICATION OF THE HONOURABLE JUDGE A.M. WOLF Counsel for the Crown: J. Spivey Counsel for the Defendant: D. Ferguson Place of Hearing: Surrey , B.C. Date of Hearing: January 23, 2017 Date of Judgment: January 23, 2017

[ 1 ] THE COURT : Ms. Mar is before the court on a set of circumstances. The oldest in time arises from perhaps the most significant or serious allegations that are made. The allegations arise from an incident that occurred on November 29th, 2016. The first count is alleging that a Mr. Andrews, a Mr. Holloway and Ms. Mar did sexually assault the complainant, Ms. K. The second charge has to do with break and entering into a dwelling located on 32nd Avenue with the intent to commit an indictable offence therein. That offence is alleged contrary to s. 348(1) (

a) of the Criminal Code . The last count has to do with the unlawful confinement of Ms. K. [ 2 ] The allegations of the Crown are that on November 29th, 2016 there was a bit of a dispute that took place and the Crown alleges that the dispute was over a small quantity of crystal meth in the amount of approximately $70. It was submitted that either Ms. Mar or Mr. Holloway or Mr. Andrews somehow believed that Ms. K. had possession of some of these drugs and she was not supposed to have it. The evening was at first basically cordial. They were having a few drinks and cigarettes and passing the time.

Later on these three individuals allegedly came back, kicked the door open of the residence of Ms. K. and confined her. Mr. Andrews assaulted her by dragging her into the front room of the residence. At that point the Crown submits that Mr. Holloway is on one side and Ms. Mar is on the other side of Ms. K., and Mr. Andrews is in front of her. This is where the stories seem to be somewhat divergent. By a statement given by Mr. Andrews, he indicates at this point Ms. Mar says that she must have the drugs and to check her vagina.

Those are not the words that he expresses in his statement, but for our purposes today that is sufficient. It is Mr. Andrews' statement that gives the Crown the foundation to believe that Ms. Mar has somehow been directing the assault in this situation. [ 3 ] Eventually after the confinement and after sexually violating Ms. K., Mr. Andrews, Mr. Holloway and Ms. Mar come to the conclusion for their own reasons that they believe that Ms. K. does not ultimately have the drugs that they thought she did have. After reaching that conclusion, Mr. Holloway and Ms. Mar leave the residence and Mr. Andrews stays there.

Eventually, as time goes on, it appears Ms. K. is able to somehow gain access to a telephone, call her boyfriend, who, upon hearing of what has happened, calls the police. The police arrive and these three individuals are arrested. [ 4 ] It seems since the time of the allegation, Mr. Holloway is deceased and Mr. Andrews is in custody. I am told that he was detained on the tertiary grounds. I mention this only by way of helping us understand contextually this case because I know nothing of Mr. Andrews' background or descriptors. I do not know whether he has a criminal record.

I do not know what his means were with respect to the ability to perfect an adequate bail plan. [ 5 ] Ms. Mar is before the court in her own particular circumstances. She comes before the court indicating that release can be accomplished by a plan. That plan Mr. Ferguson has laid out for me incorporates the concept of a residence at her sister's place where I understand Ms. Mar's daughter lives as well. A thousand or $1,500 is submitted to be adequate to dislodge any secondary or tertiary ground concerns. [ 6 ] The law is quite clear.

Section 515 really requires that an accused be released on a basic undertaking without conditions unless the prosecutor, given reasonable opportunity, shows cause why detention is justified or why a different order must be made. [ 7 ] This situation is a little bit different. A multiple-day bail hearing or judicial interim release hearing under s. 515 of the Criminal Code was accomplished on a prior occasion and the facts and circumstances were heard by The Honourable Judge Sudeyko. After hearing those circumstances, Judge Sudeyko believed Ms.

Mar could be released on a no cash deposit bail under certain conditions. One of those conditions was that she was to have no contact directly or indirectly with E.K., the complainant. That is Condition Number 4 found in her Recognizance. [ 8 ] She is back before the court on allegations that arise from Information 220609 and the Crown is proceeding by way of Indictment. When you look at Count 1 and Count 2, the charges are very serious. I consider the charges to be some of the most serious in our justice system.

Specifically, it is alleged on December 1st, 2016, between that date and January 18th, 2017, inclusive, in Surrey, that Ms. Mar engaged in conduct with an intention to provoke a state of fear in a justice system participant, and that participant is named as E.K. I am told by the Crown that it is alleged that Ms. Mar had contact with Ms. K. and tried to threaten her not to appear in court and act as a witness. [ 9 ] Also between these dates is a further allegation contrary to s. 139(2) that Ms.

Mar attempted to wilfully attempt to obstruct, pervert or defeat the course of justice by dissuading or attempting to dissuade a person by threats, bribes or other corrupt means from giving evidence. Both these charges are really related to the same allegation. It is alleged that on more than one occasion Ms. Mar contacted the landlord of where she was residing and asked messages to be passed onto Ms. K. Ms. Mar denies this and indicates that she had some other reasons to speak to the landlord and it was not her intention to ultimately pass threats on directly or indirectly to Ms. K.

On Information 219595-A3, between the dates of December 1st, 2016 and January 13th, 2017, having been released pursuant to s. 515 , there is an allegation that she did have direct contact with Ms. K. [ 10 ] Counsel are correct when we are talking about secondary and tertiary ground considerations. As I mentioned, the usual starting point for a judge is to consider release and a basic undertaking without conditions unless a prosecutor is given the opportunity to show cause why detention is necessary. She was previously released.

She is back before the court on allegations of breaching her terms of a recognizance, and not just breaching the terms by having contact with an individual that she is not supposed to have contact but more serious. The allegations have to do with really trying to defeat the course of justice by uttering threats to Ms. K., basically suggesting that she better not show up to court otherwise Ms. Mar will hurt Ms. K.'s ex-husband. [ 11 ] This is a reverse onus. The onus falls on Ms.

Mar to establish why she should be released and whether any conditions could exist that might mitigate any concerns that arise from the primary, secondary or tertiary grounds. The primary ground is not being alleged by the Crown but the secondary and tertiary is. Secondary grounds ultimately demand that a court consider whether detention is necessary for the protection or safety of the public. We often lose track of this point, but when we are talking about members of the public, it is not just strangers or individuals that have nothing to do with the case but also witnesses, in this case Ms.

K. [ 12 ] As well, I have to take into consideration all the circumstances, including any substantial likelihood the accused will, if released from custody, commit a criminal offence. When we look at her history we see no criminal record, so there is very little that I can look to

in her history to determine whether or not there is a substantial likelihood she will commit an offence. But there is another part to that

section that has to do with the interference with the administration of justice and when we are talking about that she is before the court with the serious allegation of attempting to persuade a witness not to testify in a matter. [ 13 ] The tertiary grounds are somewhat different and I am mindful and I wrote a fairly lengthy decision on the tertiary grounds in the last couple of months which covers the law on the tertiary grounds and the secondary grounds. I am familiar with the tertiary ground principles and I am mindful of some of the considerations as we find in the St-Cloud case.

I am very mindful that the tertiary ground detention considerations or orders should infrequently be invoked and only in a narrow set of circumstances. R. v. B.A. is a 2006 case that requires a trial judge at a bail hearing stage to use it as almost a last alternative. I may consider what a reasonable member of the community who is properly informed about the philosophy of the legislative provisions might think. [ 14 ] The considerations Mr. Ferguson raises are all quite appropriate. The gravity of the offence, it is serious.

I think St-Cloud also asks me to consider whether firearms were used, and a firearm was not used in this particular case. The strength of the Crown's case is one consideration but not the only one, and I should not overly emphasize it one way or the other. That is to say that if the Crown said they had a strong case that should not be enough to justify a detention. Equally, it is my view that if Mr. Ferguson is correct, then it really is a case that has a bunch of weaknesses. [ 15 ] I am familiar with the secondary ground considerations.

It is very unusual to consider a person in jail with no record when they want to have a trial. Mr. Ferguson is correct; an accused is entitled to be presumed innocent until they have a trial. You will have a trial. Bail is there to make sure a person gets to court. There is no problem with that. You have a family that, I am sure, would be able to provide you a residence and make sure that you get to court. It is the secondary ground considerations that really cause me some concern. I appreciate that only some 13 days before the allegations of the threats you lost somebody that was important in your life, Mr.

Holloway, and I appreciate that ultimately your emotional state might not have been very healthy at that time for the type of stress that you were under in that situation. [ 16 ] The offences that are being alleged are such serious offences that I do not consider the grounds to be satisfied by the proposed plan. I believe that if you were released from jail that there is a substantial likelihood that further offences would be committed, but not the ones that we normally see before the court. I am not suggesting that you would go out and not reside or not report to a probation officer.

I am not suggesting you would be out there with any firearms. You were told not to have any contact directly or indirectly with Ms. K. and not once but on more than one occasion it is alleged that you did. It was not innocent contact. Any contact would have been a breach of a court order. But the most serious type of allegations are being made that you basically threatened a person not to come to court. In my opinion, any member of our community that looks at your allegations would have some serious doubts about our administration of justice system if you were released on the proposed bail plan.

If a person that already had a multiple-day bail hearing was released on conditions at a very low level, in my opinion, of $1,500 no cash deposit recognizance, and then within a short time period after those allegations, I think it was December 8th or 18th, in less than a month later you are back before the court having been released and have these allegations of threatening witnesses in the criminal justice system. You do have the right to be presumed innocent and you have a right to have a trial, and the public, and specifically in this case Ms.

K., has the right to know that she need not look over her shoulder between now and the trial date when she is going to probably have to come to court and provide testimony. [ 17 ] I am satisfied that there are secondary and tertiary ground concerns and I am not satisfied that such a low cash bail, even with the support of your family, mitigates the risk to the public and specifically Ms. K. to an acceptable level and, as a result, I detain you on the secondary and tertiary grounds. [ 18 ] MR. SPIVEY: Your Honour, the Crown seeks a 515(12) no contact order with Ms. K. [ 19 ] THE COURT: Yes.

That will be put in place now that she is detained. [ 20 ] MR. SPIVEY: And Your Honour, you're revoking bail on the substantive matter as well and detaining on all files? [ 21 ] THE COURT: Yes. (RULING RE JUDICIAL INTERIM RELEASE CONCLUDED)