R. v. Frederickson, 2018 BCPC 263

Citation: R. v. Frederickson 2018 BCPC 263 Date: 20181025 File Nos: 46164-5-C & 45154-1 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RICKY ALAN FREDERICKSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MALFAIR Counsel for the Crown: Mohammad Hajivandi (October 12, 2018) Counsel for the Crown: Angela Murray (October 25, 2018) Counsel for the Defendant: Jason LeBlond Place of Hearing: Prince George , B.C. Date of Hearing: October 12, 2018 Date of Judgment: October 25, 2018 A Corrigendum was released by the Court on December 7, 2018. The corrections have been made to the text and the Corrigendum is appended to this document. Introduction

[ 1 ] This is an application by Mr. Frederickson pursuant to s. 523(2) (

a) of the Criminal Code to vacate an order of detention pronounced by the Honourable RAJ Brecknell on January 30, 2018. Mr. Frederickson seeks to show cause for his release pending the conclusion of his trial, which commenced May 8, 2018 and is currently scheduled to finish June 28, 2019. [ 2 ] Mr. Frederickson is mid-trial on Informations 46164-5-C and 45154-1 which allege, collectively, 15 counts of drug trafficking and firearms related offences.

While all charges arise from the same incident, charges under s. 117.01 of the Criminal Code have been laid on a separate Information (45154-1) as they inherently communicate the fact of Mr. Frederickson having been previously convicted of criminal offences. Notwithstanding, Mr. Frederickson has opted to have the two files tried together at the same time as they relate to a single investigation and event. [ 3 ] Mr. Frederickson’s application is grounded on a change of circumstances since the detention order was made. Specifically, Mr.

Frederickson argues there have been significant delays in the trial which have prolonged his period of pre-trial custody and that he has been acquitted of two of the matters which were before RAJ Brecknell at the time of his bail hearing. The Crown opposes Mr. Frederickson’s release on secondary and tertiary grounds. Background [ 4 ] Mr. Frederickson was initially released on the charges before me by the Honourable Judge Keyes on September 18, 2017. At the time he had been arrested on other offences from Prince George and released on a police undertaking (Information 44122).

On October 15, 2017 he was arrested on new charges out of Dawson Creek (Information 28939) and was held in custody pending a judicial interim release hearing and the Crown’s application to revoke bail on his previous charges. [ 5 ] Mr. Frederickson had a bail hearing before the Honourable Regional Administrative Judge Brecknell on January 30, 2018, who revoked Mr. Frederickson’s bail and detained him on all files on both the secondary and tertiary grounds. It is that detention order Mr. Frederickson seeks to vacate pursuant to s. 523(2)(

a) of the Code . [ 6 ] The facts alleged at the bail hearing which were considered by RAJ Brecknell related to four Informations: Information 44122 from Prince George, the two index Informations, and Information 28939 out of Dawson Creek. [ 7 ] With respect to Information 44122, RAJ Brecknell heard that on September 14, 2016, police stopped Mr. Frederickson and detained him on suspicion of breach of parole while conducting an unrelated investigation. Police searched Mr. Frederickson and found large quantities of fentanyl laced heroin and methamphetamine.

He was charged with possessing these drugs for the purpose of trafficking. Trial dates were set for the summer of 2018. [ 8 ] With respect to the current charges, Informations 46164-5-C and 45154-1, RAJ Brecknell heard that on May 26, 2017, police received a tip from a confidential informant that Mr. Frederickson was selling methamphetamines, cocaine and heroin from his residence on Gillette Street. Police knew Mr. Frederickson from his previous arrest for possession for the purpose of trafficking, and that his driver’s license identified his address to be 423B Gillette St. Police conducted surveillance of Mr.

Frederickson on May 31 and June 1, 2017 and saw him entering and leaving that residence. At one point police observed Mr. Frederickson moving personal belongings from Gillette Street to another house at 802 Johnson Street, leading police to believe he was moving between those residences. [ 9 ] During surveillance over two days police observed Mr. Frederickson making numerous brief stops at parking lots, hotels and residences, and either speaking briefly to other persons or briefly entering their residences. Many of the persons Mr.

Frederickson met or whose hotel or residences he attended were known drug users or traffickers. At one point Mr. Frederickson was observed going into the apartment of someone with a known drug history and leaving with a black bag which was seen afterwards in his possession. [ 10 ] On June 1, 2017 police observed Mr. Frederickson enter his residence. While he was inside police saw a white Ford truck pull up, a female briefly enter the residence then leave. Police pulled over the truck and conducted a search. The female passenger had heroin in her purse. At that point police decided to arrest Mr.

Frederickson for possession for the purpose of trafficking. [ 11 ] At the time Mr. Frederickson was at another residence on Maple Street. When he came out police arrested and searched Mr. Frederickson incidental to arrest. Police searched Mr. Frederickson’s person and the vehicle he had been driving during the period of surveillance, in which the black bag police believed to be the one earlier seen in his possession was situated on the driver’s seat. Police found a cell phone and folding knife on Mr. Frederickson. In the car, police found a set of keys and a lease agreement for 802 Johnson Street.

The black bag contained $12,000 in cash, 145 grams of methamphetamine, 57 grams of cocaine; 25 grams of fentanyl laced heroin, a weigh scale and Ziploc bags. [ 12 ] After Mr. Frederickson’s arrest police learned a black truck had pulled up to the 423B Gillette street address and left. Police were concerned someone was inside the residence and evidence may be destroyed. Police made an exigent entry to clear the residence pending obtaining a search warrant.

A search warrant was ultimately issued for both 423B Gillette Street and 802 Johnson Street. [ 13 ] At Gillette police found 12 gauge ammunition and a box of .22 calibre cartridges. At 802 Johnson street, police found a coffee grinder with drug residue, a B.C. Identification Card for Mr. Frederickson, a tenancy notice for 423B Gillette street, a hotel receipt for Mr.

Frederickson, rubber bands, scale weights, an SKS 7.63 mm rifle, a Winchester 12 gauge pistol grip shotgun, a .22 caliber rifle and trigger assembly, air soft pistols, a .22 caliber pistol, which is a restricted firearm, a broken down 12 gauge shotgun, which is prohibited firearm, a Ziploc bag with gun parts, a 7.62mm gun magazine, four 12 gauge shotgun shells, three 7.62 mm rounds, a butterfly knife, money counter, stack of lottery paper, “score sheet” booklets, bear spray and boxes of sandwich bags. [ 14 ] Police also found a locked metal case full of drugs which they were able to open with the keys seized from Mr.

Frederickson’s vehicle at his arrest. In that box was 196 grams of cocaine, 12 grams of a drug commonly referred to as “DPT”, 21 grams of MDMA, and 115 grams of methamphetamine. At the time, Mr. Frederickson was on two separate firearms prohibition orders. [ 15 ] Mr. Frederickson was originally released by a Justice of the Peace on June 27, 2017, then taken back into custody on new charges and re-released with the consent of the Crown by the Honourable Judge Keyes on a strict recognizance of bail on September 18,

2017. [ 16 ] With respect to Information 28939 RAJ Brecknell heard that on October 15, 2017, Mr. Frederickson was arrested and taken into custody on new charges of possession for the purpose of trafficking in Dawson Creek. Police observed a vehicle registered to Mr. Frederickson parked near a house associated with criminal activity. Upon searching their databases they discovered Mr. Frederickson was supposed to be on house arrest 22 hours a day, with exceptions being between the hours of noon and 3:00 p.m. each day. The recognizance also provided Mr.

Frederickson could be out of his residence at any time while in the presence of his surety, a Ms. Tammy Adam. His residence was supposed to be in Prince George, a community 400 km away. Police decided to arrest Mr. Frederickson for breach of his house arrest condition. In the course of that arrest a methamphetamine pipe fell out of a container Mr. Frederickson was attempting to access. Police searched this container incidental to Mr.

Frederickson’s arrest and found $5,000 cash and a Ziploc bag full of drugs, including 76 grams of methamphetamine, 32 grams of heroin, and a large quantity of cocaine. [ 17 ] During his arrest Mr. Frederickson protested that his recognizance permitted him to be outside his residence in the presence of his surety, and that his surety was present. Ms. Adam eventually identified herself to police and confirmed she was his surety and was present. Again, no trial dates had been set at the time of the bail hearing before RAJ Brecknell as Mr.

Frederickson was waiting to have a bail hearing first. [ 18 ] The Crown initially sought Mr. Frederickson’s detention on all three grounds set out in s. 515(10). His record was put before RAJ Brecknell which itemized 52 convictions including multiple convictions or orders arising from his failure to attend court. The Crown argued the Crown’s cases were very strong in all 3 cases because, in two cases, drugs were found right on Mr. Frederickson at the time of his arrest and on the current charges there was lots of evidence linking Mr. Frederickson to the 802 Johnson street address. [ 19 ] At the bail hearing, Mr.

Frederickson argued that there were compelling Charter issues undermining the strength of the Crown’s cases. With respect to Information 44122, it was argued that police had no grounds to detain and search Mr. Frederickson in the first place and he was applying to exclude that evidence. With respect to Information 28939 from Dawson Creek, it was argued that police had no grounds to arrest and search Mr. Frederickson because he was not breaching his bail recognizance as he was allowed to be outside his residence at any time in the presence of his surety. On the current charges before the Court, Mr.

Frederickson pointed out that the vehicle he was seen driving by police was in fact registered to another person who is a known drug dealer, there could have been innocent reasons for all the short stops, and other persons could have put items in the residences. [ 20 ] Mr. Frederickson submitted that the root of his offending was his drug addiction.

He pointed to the many programs he had taken at Prince George Regional Correctional Centre while on remand and proposed a bail plan whereby he would reside at a residential treatment facility known as “Vision Quest” in Savona B.C. on virtual house arrest and on strict bail conditions. [ 21 ] RAJ Brecknell had “little comfort” given that when Mr. Frederickson was arrested with large amounts of cash and drugs on his person in Dawson Creek he was in the immediate presence of his surety. RAJ Brecknell also expressed concern that Mr.

Frederickson interpreted the “presence of surety” exception to his house arrest conditions as entitling him to be in another community as long as his surety was with him. [ 22 ] RAJ Brecknell declined to detain Mr. Frederickson on the primary grounds given the dated nature of his convictions for failing to attend court; however, he did detain Mr. Frederickson on the secondary and tertiary grounds. RAJ Brecknell found Mr. Frederickson has several trades and skills but struggles with drugs. He considered the fact that Mr.

Frederickson had taken a lot of institutional and religious programming while on remand and that he proposed to go to Vision Quest, an institution the Judge perceived with high regard. [ 23 ] RAJ Brecknell found that Mr. Frederickson had a “long criminal history” dating back to 1999 with some convictions resulting in long sentences, including 6.5 years for three offences in 2011, and that he was subject to two firearms prohibition orders. He also considered that Mr.

Frederickson had a related criminal history for drug possession, drug trafficking, and firearms possession. [ 24 ] RAJ Brecknell considered the facts of the three matters which were the subject of the bail hearing and the issues raised by the Defence regarding weaknesses in the Crown’s case, particularly the alleged unlawful detention on file 44122 and the alleged unlawful arrest in Dawson Creek given the exceptions provided in his recognizance of bail. RAJ Brecknell did not find Mr.

Frederickson’s arguments relating to weaknesses in the Crown’s case in this proceeding very compelling, and identified those arguments would be issues for trial as the judge does not weigh evidence at a bail hearing. [ 25 ] RAJ Brecknell concluded he could not ignore that there were three separate alleged criminal occurrences in a period of one year in which Mr. Frederickson was found in possession of drugs, cash, drug paraphernalia and weapons. He was in a reverse onus. Applying the four part test in the case of R. v. Abdel-Raham, 2010 BCSC 189 , RAJ Brecknell concluded Mr.

Frederickson had not shown cause on a balance of probabilities favouring his release and detained him on the secondary grounds. [ 26 ] RAJ Brecknell also detained Mr. Frederickson on the tertiary grounds, stating the Crown has “a strong case on at least two of three incidents,” although he did not specify which two.

RAJ Brecknell found that the cases involved grave charges with a possibility for lengthy jail sentences due to his criminal record and typical sentences for those offences notwithstanding the applicable mandatory minimum sentences for some of the charges had been recently struck down. [ 27 ] Referring to the decision of R. v. St. Cloud , 2015 SCC 27 , RAJ Brecknell concluded “one only has to look at Mr. Frederickson’s past history with regards to firearms, drugs and violence to conclude that any right thinking person as described by Mr.

Justice Wagner in the Canadian community would consider his detention appropriate in these circumstances” (emphasis mine). [ 28 ] Mr. Frederickson’s trial on Informations 44122 and 28939 took place over the summer of 2018. In both cases he was successful in Charter applications to exclude evidence and he was acquitted of all charges. The charges which are the subject of this trial are the only remaining allegations against him. Mr. Frederickson has given notice under the Charter challenging his arrest and the searches of the 423B Gillette and 802 Johnson Street residences.

While voir dires have been conducted, no rulings have been made with respect to any of the alleged Charter breaches. The evidence adduced at trial to date substantially aligns with the description of the Crown’s case alleged to RAJ Brecknell at the January 30, 2018 bail hearing.

Proposed Bail Plan [ 29 ] Mr. Frederickson submits that he has been in custody for a year now and, as a result, has been sober. He has been participating in the Narcotics Anonymous program. His friend, a Mr. Chris Bychek is prepared to act as surety, or alternatively, Mr. Frederickson can deposit $2000 cash bail. It is proposed Mr. Frederickson live with Mr. Bychek where there are no firearms, drugs or alcohol. Mr. Frederickson has known Mr. Bychek as a friend for a year and they were involved in AA together. I note Mr. Frederickson has been in custody for the same period of time. [ 30 ] Mr.

Bychek works full time in the sales department of a motorcycle store from 8:00 a.m. to 5:30 pm each day. Mr. Frederickson says he has employment available doing construction work on a new clothing store that will be opening downtown, which would give him close access to his bail supervisor’s office. It is proposed he could be placed on a strict curfew with exceptions allowing him to work, which hours are expected to be between 8:30 a.m. and 5:30 p.m. Mr. Frederickson says this plan, coupled with appropriate bail conditions, could reduce any risks on the secondary grounds.

Process and Principles of Applications under S. 523(2)(

a) Onus and Role of Reviewing Trial Judge [ 31 ] The nature of a hearing under s. 523(2)(

a) is best understood by reference to the general scheme for reviewing an accused’s continued pre-trial detention as set out in ss. 520 - 525 of the Criminal Code :

a) Under s. 520 an accused can review a detention order in Supreme Court on the grounds of a material change in circumstances or errors made by the detaining judge or justice. Such application can only be brought before the trial has commenced;

b) Under s. 523(2), the accused can make a show-cause application to the trial judge to vacate a previous detention order. This application can be made once the trial has commenced, at the conclusion of a preliminary inquiry, or at any time with the consent of the prosecutor;

c) Under s. 525, an accused who has been held in pre-trial custody for 30 days (in the case of

summary offences) or 90 days (in the case of indictable offences) is entitled to a bail review in Supreme Court if the trial has not started. The reviewing justice is to consider whether the Crown is responsible for any unreasonable delay in bringing the matter to trial and the provisions of s. 515(10). [ 32 ] In

summary, once the trial commences, an accused’s ability to review their continued detention is limited to applications to the trial judge under s. 523(2). Sections 523(2) and (3) of the Criminal Code state: Order vacating previous order for release or detention

(2) Despite subsections (1) to (1.2), (

a) the court, judge or justice before which or whom an accused is being tried, at any time, (

b) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other than an offence listed in

section 469, or (

c) with the consent of the prosecutor and the accused or, where the accused or the prosecutor applies to vacate an order that would otherwise apply pursuant to subsection (1.1), without such consent, at any time (

i) where the accused is charged with an offence other than an offence listed in

section 469, the justice by whom an order was made under this Part or any other justice, (ii) where the accused is charged with an offence listed in

section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province, or (iii) the court, judge or justice before which or whom an accused is to be tried, may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted. Provisions applicable to proceedings under subsection (2)

(3) The provisions of sections 517, 518 and 519 apply, with such modifications as the circumstances require, in respect of any proceedings under subsection (2), except that subsection 518(2) does not apply in respect of an accused who is charged with an offence listed in

section 469. [ 33 ] A reviewing trial judge under s. 523(2) (

a) of the Criminal Code has jurisdiction to vary a previous order of detention where the accused has shown cause that there has been a material change of circumstances that requires the original order be set aside ( R. v. Tse, 2008 BCSC 1022 at par. 17 ). Section 523(2) (

a) is itself a review provision since it involves consideration of a prior detention or release order ( R. v. Passera , 2017 ONCA 308 at par. 15 ). With regard to the burden of proof, the party bringing the application to vacate a prior order for release or detention must show cause as to why the prior order ought to be vacated ( R. v. Aucoin , 2006 ABQB 895 at par. 33 ). [ 34 ] The power of the court under s. 523(2)(

a) to vary bail during a trial is essentially a discretionary one that is to be exercised having regard to the principles of

Part XVI of the Code and the related jurisprudence. Absent a material change in circumstances it is not appropriate to vary bail ( R. v. Brown [ Application for bail by Grant ], [1999] O.J. No. 4872 (ONSC) at par. 2 ).

[ 35 ] In my view, it would typically be necessary for the party making an application under s. 523(2) (

a) to put the circumstances considered and reasons given by the detaining judge or justice before the trial judge so he or she has a reference point from which to consider if there has truly been a material change in circumstances. In this case, neither Crown nor Defence adduced transcripts of Mr. Frederickson’s bail hearing in this application; however, I have listened to the audio recording of that hearing in its entirety with the consent of the parties. Consideration of Trial Delay in a s. 523(2)(

a) Application [ 36 ] At the commencement of this hearing, an issue arose as to whether or not in an application under s. 523(2)(

a) delay of the trial is a valid consideration in conjunction with considerations under s. 515(10), commonly referred to as the primary, secondary, and tertiary grounds for detention. At first the Crown’s position was that the only considerations for an application for release under s. 523(2)(

a) were the s. 515(10) grounds, however, the Crown reversed its position after a review of the authorities. [ 37 ] With respect to the appropriate considerations on a s. 523(2)(

a) application, some guidance can be found by reference to s. 525 of the Criminal Code which allows a Superior Court Justice to review an accused’s detention where the trial has not commenced within the time periods specified in that section. Like s. 523(2)(a), s. 525 is a review power and is only engaged where the accused has already been detained by a justice or judge who has considered the merits of the issue, and determined that the accused should be held in custody. Ss. 525(3) and (4) provide:

(3) On the hearing described in subsection (1), the judge may, in deciding whether or not the accused should be released from custody, take into consideration whether the prosecutor or the accused has been responsible for any unreasonable delay in the trial of the charge.

(4) If, following the hearing described in subsection (1), the judge is not satisfied that the continued detention of the accused in custody is justified within the meaning of subsection 515(10), the judge shall order that the accused be released from custody pending the trial of the charge on his giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(

a) to (

e) with such conditions described in subsection 515(4) as the judge considers desirable. [ 38 ] In R. v. C.L.J.M., 2017 BCSC 1717 at par. 21 , Justice Riley identified the following principles for reviewing an accused’s bail status in applications under s. 525 : 1. Once the accused has been detained for more than the statutorily prescribed period of time without a trial, a s. 525 hearing is mandated. 2. A s. 525 hearing is not meant to be a fresh bail application or a completely open-ended review of the initial detention order.

The reviewing judge cannot simply substitute his or her view for that of the justice or judge who made the original decision to detain the accused. 3. S. 525 does not connote a de novo consideration of the statutory criteria in s. 515(10), but rather a determination as to whether, in light of the fact that the accused has been in custody beyond the prescribed time without a trial, the initial basis for the accused's detention has somehow faded away or been sufficiently ameliorated by the passage of time to warrant a reconsideration of bail.

The question is whether the effluxion of time with the accused in custody has caused the basis on which the accused was ordered detained to fall away or dissipate to such an extent that further detention is not justified. 4. The reviewing judge's analysis should proceed in two stages:

a) at the first stage, the accused must identify some basis on which the passage of time with the accused in custody has had a material impact on the initial grounds for the accused's detention. The reviewing judge may also consider any "unreasonable delay" caused by either the Crown or the accused. If the accused is able to show either that detention beyond the prescribed time has had a material impact on the initial decision to detain, or unreasonable delay on the part of the Crown, then the analysis will move to the second stage.

b) At the second stage, the reviewing judge must consider whether "further detention of the accused in custody" is justified having regard to the criteria under s. 515(10). [ 39 ] S. 525 and 523(2)(

a) differ to the extent that an accused can bring a s. 523(2)(

a) review application before the trial judge “at any time.” Unlike s. 525 of the Criminal Code , s. 523(2) does not expressly contemplate delay in or of the trial as a pre-condition to making the review application or as one of the factors the reviewing judge must consider.

As such, I find the accused is not required to prove the trial has been unreasonably delayed in order to show cause why his or her detention order should be vacated. [ 40 ] Although an accused is not required to establish unreasonable delay of the trial, the presence of delay is one of the factors a trial judge may consider in an application to vacate a detention order under s. 523(2) (a).

I find that in giving a trial judge the authority to vacate an order of a judge of potentially concomitant jurisdiction, Parliament recognized the unique position of the trial judge to re- evaluate the initial grounds for detention in light of the evidence adduced at trial and the effects of any delay of the trial. This

section confers upon the trial judge the authority to alter an accused's judicial interim release status as trial proceedings unfold ( R. v. Passera , 2017 ONCA 308 at par. 14 ). [ 41 ] In R. v. Ibrahim , 2009 ONCJ 385 at par. 18 , the trial judge adopted the following principles with respect to applications under s. 523(2) (a): My understanding of the

section is that it doesn't contemplate a de novo hearing. In fact, continuing on with what now Justice Trotter states, on page 245, he stated: The few cases in the area suggest that a different type of hearing is contemplated by section 523(2) (

a) of the Criminal Code . The power under this

section to vacate a previous order is not concerned with error committed by the court that made the order that is sought to be

vacated. Instead, the applicant must demonstrate a change of circumstances in the nature of new evidence arising at the preliminary inquiry orduring the course of the trial. As Mr. Justice Watt stated in R. v. Prete, [1987] O.J. No. 2480 (15 December 1987): In my respectful view, it is incumbent upon an applicant under (the predecessor

section to 523(2)(a)) to demonstrate on a balance ofprobabilities a substantial change in circumstances in a respect material to the basis upon which detention has been ordered, namely theprimary or secondary ground, in order to discharge the onus of showing cause placed upon him or her under the subsection. Thesubsection does not envisage a hearing de novo akin to that held at first instance under what was then

section 457.7 nor an examinationof such a hearing to identify error, which is clearly the function of a review under

section 608. [42] In R. v Bhullar, 2016 BCSC 2506, Mr. Justice Bernard found that s. 523(2) allows the trial judge to “revisit bail or detention”where sentencing has been postponed following a determination of guilt. In an application under s. 523(2)(

a) in R. v. Middleton, 2016BCPC 106 , 2016 BCPC 0106, Harris, J. focused primarily on the primary, secondary and tertiary grounds under s 515(10) andaddressed the length of the accused’s trial delay in the context of the tertiary grounds. In R. v. Davidson, [1999] B.C.J. No. 2406, Low,J. implicitly endorsed the requirement that a judge in a s. 523(2) application must consider the grounds articulated in s. 515(10) and notsolely the issue of delay (at par. 23). [43] In R. v. Tse, 2008 BCSC 1022, the Honourable Justice Davies held that the focus of a s. 523(2)(

a) review is the effect of anymaterial change in circumstances and continued appropriateness of the existing detention order. The accused brought an application forrelease under s. 523(2)(

a) after 26 months of detention, 15 months of which had passed since the bail judge detained the accused incontemplation of his trial starting within 4 months of that detention order. Justice Davies acknowledged the length of time the trial wastaking and was “mindful” of that passage of time and the presumption of innocence, but nonetheless found the accused’s continueddetention was necessary on the secondary and tertiary grounds. [44] In my view, delays in the trial must be assessed in the context of change in circumstances.

An accused is not required toestablish delay, and where delay is present, the mere fact the trial is delayed should not be the dominant consideration favouring thereleased of the accused. I find that in an application under s. 523(2)(a), delays in the trial are to be viewed through the lens described byRiley, J., in C.L.J.M. Specifically, the question is whether the effluxion of time with the accused in custody has caused the basis onwhich the accused was ordered detained to fall away or dissipate to such an extent that further detention is not justified. Assessing the Strength of the Crown’s Case in a S. 523(2)(

a) Application [45] Before any findings of guilt the accused is entitled to the presumption of innocence and it is difficult for the trial judge in a s.523(2)(

a) application to make findings mid-trial as to the apparent strength of the Crown’s case prior to all the evidence being adduced. In his application Mr. Frederickson expressly declined to make submissions on the strength of the Crown’s case given the perceivedimpropriety of asking the trial judge to make predictive statements in that regard. [46] In R. v. Brown [Application for bail by Grant], [1999] O.J.

No. 4872 (ONSC) at par. 3, the trial judge framed the inquiry asrequiring the trial judge to make a determination “whether there is a reasonable prospect of a conviction”, by weighing the evidenceagainst the accused. This is not an attempt by the court to predict the result of the prosecution, nor is it necessary for the court toconclude a conviction is more probable than not to dismiss the application.

In Brown, the trial judge considered the evidence against theaccused in the context of whether or not there had been a change in circumstances justifying the vacancy of the detention order andrelease of the accused. [47] In my view, the “strength of the Crown’s case” analysis must be grounded in the context of a change in circumstances which isthe fundamental consideration of any application under S. 523(2)(a). The role of the reviewing trial judge is to consider the facts of thecase that were put before the detaining judge and assess if those facts have been since been confirmed or refuted in the trial evidence.

Inthat respect, the trial judge is not providing a mid-trial opinion as to the anticipated outcome of the trial, but is undertaking a comparativeanalysis addressing any significant changes to the facts relied on by the detaining judge relevant to the strength of the Crown’s case. This was the approach taken by Mr. Justice Davies in Tse, who ultimately found that the despite the evidence led in the trial before him,he could not say that the Crown’s case was any weaker than when considered by the detaining judge. Conclusion and

Summary [48] In

summary, I find the following principles arise from the authorities concerning the appropriate process for determining anapplication to the trial judge under s. 523(2)(

a) to vacate a previous order of detention: 1. A s. 523(2)(

a) application is in the nature of a review and is not a hearing de novo. 2. The trial judge’s role is not to substitute his or her own view for that of the judge or justice who detained the accused, rather,the focus is on whether there has been a material change in circumstances since the detention order was made. 3. The onus is on the accused to show there has been a material change of circumstances such that his or her continued detentionis no longer justified. 4. The material change of circumstances can relate to:

a) delay of the trial;

b) the apparent strength of the Crown’s case; or

c) where the accused was detained on the primary, secondary or tertiary grounds, material changes to any circumstances underlying the judge or justice’s reasons for detaining the accused, such that detention on those grounds is no longer warranted. 5. While the trial judge should be mindful of trial delay in considering the application, delay alone is not determinative of release. Delay is relevant to the issue of whether or not the passage of time has changed the circumstances relied on by the detaining judge or justice which were the material basis of his or her decision to detain the accused. 6. When assessing the strength of the Crown’s case, the trial judge in a s. 523(2)(

a) application is not providing a mid-trial opinion as to whether or not the Crown will ultimately succeed in establishing the accused’s guilt beyond a reasonable doubt. Rather, the trial judge is engaging in a comparative analysis, considering whether the Crown’s case is now materially weaker than when first considered by the detaining judge or justice. If so, the trial judge should consider whether there is still a “reasonable prospect of conviction”, which is a standard less than a balance of probabilities. 7.

Even if there has been a material change in circumstances, the trial judge must consider whether further detention of the accused in custody is justified having regard to the criteria under s. 515(10). Application to the case at bar Material Change in Circumstances - Delay [ 49 ] Mr. Frederickson asserts two changes in circumstances since the order for his detention was made by RAJ Brecknell: delay of the trial and his subsequent acquittal on two of the criminal proceedings which were before the Court at the time the detention order was made. [ 50 ] With respect to delay, Mr.

Frederickson’s trial was originally scheduled to complete at the end of October, 2018. However, there have been a number of adjournments due to issues arising with disclosure, Charter Notices, Crown lack of availability and transportation issues for Mr. Frederickson. Due in part to his defence counsel’s calendar, Mr. Frederickson’s trial is now not scheduled to complete until June 28, 2019, 8 months later than originally scheduled. [ 51 ] There can be many situations where the passage of time can have an ameliorative effect on the risk underlying the original decision for detention.

For example, in a domestic violence context, a lengthy period in custody may contribute to the severance of the high risk relationship and reduction of volatile emotions contributing to the violence. An accused whose offending is motivated by addictions may be a lower risk to offend after a lengthy period of sobriety while in custody. An offender may develop close familial relationships and supports while in custody which strongly tie him or her to the jurisdiction.

There are many situations one can envision where the passage of time can make it far less likely an offender will abscond or re-offend if released. [ 52 ] In this case Mr. Frederickson is charged with numerous drug trafficking and firearms offences. He has a history of drug and firearms possession and a prior conviction for trafficking. These are not the types of offences which one would necessarily associate with becoming less likely to be re-committed with the passage of time in pre-trial custody.

Considering he was alleged to have been found with almost $12,000 in cash, there is an economic imperative related to these offences which extends beyond simple drug use. [ 53 ] Mr. Frederickson is an educated individual with lucrative employment training. He has spent lengthy periods of incarceration in the past for drug offences only to resume drug possession upon his release. On July 17, 2008 Mr. Frederickson was sentenced to a total sentence of 9.5 months (after time credited) for drug possession, theft, and breaches of bail and probation.

Within months of his release he was again found in possession of drugs on December 11, 2008, again on June 12, 2010 and November 2, 2010. On January 26, 2011 Mr. Frederickson was sentenced to 4.5 years jail for robbery, break and enter and impersonating a peace officer. On October 12, 2011, he was sentenced to a further 2 year consecutive sentence for robbery. Mr.

Frederickson was therefore sentenced to a 6.5 year sentence in 2011 yet is alleged to have committed the index offences after having presumably been sober and in programming at a federal institution for a period of years. [ 54 ] There is no evidence of any significant changes in Mr. Frederickson’s life or attitudes occurring during his latest period of detention. Mr. Frederickson says he has been attending Narcotics Anonymous while in custody, but that alone is not very compelling. Mr.

Frederickson’s lengthy and serious record suggests he has been struggling with addictions for a while, and would have been compelled to sobriety during periods of incarceration, only to return to substance abuse upon his release. There is nothing unique about his past year in prison which is tantamount to a material change in circumstances such that the Court can be confident he is now free of his addictions. More importantly, given the serious nature of his record, I am not convinced the entirety of Mr.

Frederickson’s offending can be attributed solely to drug addiction, such that NA participation would significantly reduce his risk to reoffend to an acceptable level. [ 55 ] I am not satisfied that the passage of time has reduced Mr. Frederickson’s risk to re-offend such that this detention would no longer be warranted on the secondary grounds. I do not find the effluxion of time alone has changed the level of risk contemplated by RAJ Brecknell when he decided to detain Mr.

Frederickson on the secondary grounds. [ 56 ] I also am not satisfied that the passage of time alone has changed the circumstances relied on by RAJ Brecknell in deciding to detain Mr. Frederickson on the tertiary grounds. [ 57 ] In my view, given the applicable potential term of imprisonment if Mr.

Frederickson is ultimately convicted, in conjunction with his serious criminal record, I do not believe a reasonable member of the public’s confidence in the administration of justice would be influenced one way or another by the fact of an 8 month delay in bringing the trial to a conclusion. [ 58 ] In short, I find the delay of the trial does not constitute a material change in circumstances with respect to the secondary and tertiary grounds upon which he was detained. Strength of the Crown’s case

[ 59 ] The facts alleged to RAJ Brecknell at the bail hearing are substantially the same as the facts being alleged by the Crown now at trial. While there are outstanding voir dires to exclude evidence, none of those voir dires are concluded and there have been no rulings on admissibility. I find there has been no change to the apparent strength of the Crown’s case as it was originally considered by RAJ Brecknell and there has been no material change in circumstances in that regard. Material Change in Circumstances – Secondary Grounds and Tertiary Grounds [ 60 ] Mr.

Frederickson argues that his acquittal on two of the three criminal proceedings relied on by RAJ Brecknell in detaining him on the secondary and tertiary grounds constitute a material change in circumstances. [ 61 ] Mr. Frederickson says that on September 18, 2017 only these charges were before the Honourable Judge Keyes, and she saw fit to release him on a strict bail recognizance with surety. Mr. Frederickson suggests he was later detained primarily because of the added negative effect of having the two other trafficking files (44122 and 28939) before the Court.

It is suggested that those two other files having resulted in acquittals, it is appropriate to once again release Mr. Frederickson on the conditions previously enjoyed when only the current charges files were before the bail judge. [ 62 ] The Court record shows Mr. Frederickson was released on September 18, 2017 with the consent of the Crown without a hearing on the merits. Mr. Frederickson’s release was therefore a reflection of the Crown’s exercise of its discretion rather than a judicial determination of whether or not Mr. Frederickson’s detention was necessary on the secondary or tertiary grounds.

Accordingly, that earlier release has no bearing on the issues I must decide here. [ 63 ] The Crown argues that because Mr. Frederickson was acquitted on Informations 44122 and 28939 due to successful s. 8 Charter challenges to exclude evidence, I should still consider the facts of those allegations in this 523(2)(

a) application when assessing the secondary and tertiary grounds. I take the Crown to mean that because there was no finding on the substantive allegations, namely, whether these were drugs and whether Mr. Frederickson had possession of them for the purpose of trafficking, I should still consider the allegations because the facts are relevant and admissible under s. 518 of the Code which allows me to consider any evidence that is credible and trustworthy in a bail hearing. [ 64 ] Crown offered no authorities in support of its argument on this point.

Without deciding whether or not S. 518 allows a judge at a bail hearing to consider evidence of past criminal conduct which resulted in acquittals where there has been no determination of guilt on the merits, for the purposes of this application I have not considered the facts underlying Informations 44122 and 28939 except in the context of his proposed bail plan as set out below. [ 65 ] I agree that Mr. Frederickson’s acquittals do constitute a change in circumstances given RAJ Brecknell repeatedly referred to the fact of Mr.

Frederickson having three similar files before the Court arising from incidents allegedly having occurred in close temporal proximity. However, the issue is whether that change is material , specifically, does that development materially change RAJ Brecknell’s initial grounds for detention such that his continued detention on the grounds set out in s. 515(10) is no longer justified. [ 66 ] In making his decision, RAJ Brecknell placed great weight on Mr. Frederickson’s criminal record. Despite being faced with a strong bail plan which involved sequestering Mr.

Frederickson to a highly regarded residential treatment facility, RAJ Brecknell felt that no conditions could be imposed to reduce Mr. Frederickson’ risk of re-offending to an acceptable level. The question is, having removed the allegations charged in Informations 44122 and 28939 from consideration, is Mr. Frederickson’s continued detention on the secondary grounds still warranted? [ 67 ] Mr. Frederickson has offended relatively continuously since 2001, with a total of 50 convictions. Of those convictions, 16 are for breaching court orders, of which 11 were for breaching bail orders or orders to attend court.

Mr. Frederickson’s most recent conviction was on September 18, 2017 for breaching his bail order on this very file. One month later he was taken into custody and has remained there since. At the time of these alleged offences, Mr. Frederickson was also subject to numerous firearms prohibition orders. [ 68 ] Mr. Frederickson has a prior conviction for drug trafficking, assault with a weapon, uttering threats, three convictions for the unauthorized possession of firearms and numerous convictions for theft and break and enter.

On July 17, 2008 he was convicted of dangerous driving and failing to stop at the scene of an accident. On January 26, 2011 Mr. Frederickson was sentenced to 3.5 years for robbery and break and enter and 1 year consecutive for personating a peace officer. On October 12, 2011 he was sentenced to a further term of 2 years jail for robbery consecutive to his other robbery sentence. Mr. Frederickson has been in and out of prison for the last 12 years. [ 69 ] Mr. Frederickson has a history of offending while under Court ordered supervision.

He was on probation for break and enter on March 31, 2007 when he committed a further break and enter. He was on probation for theft when he committed drug possession, firearms and further theft offences in December 2008 and February, 2009. He was on probation for those theft and firearms offences when he committed drug possession, firearms possession, break and enter, robbery and personation offences in June and August of 2010, following which he was sentenced to a lengthy federal sentence. Mr.

Frederickson’s Justin Conviction List discloses he was also on bail for a theft under $5000 on Surrey file 182044-12 at the time he committed the personation, attempted robbery and break and enter offences on June 16, 2010. [ 70 ] In deciding whether Mr. Frederickson’s continued detention is warranted on the secondary grounds, I must apply the four criteria set out in Abdel-Rahman , 2010 BCSC 189 . Based on his criminal record and his continuous pattern of offending over the last 12 years, I find there is a likelihood Mr. Frederickson will reoffend if released and that this likelihood is substantial.

Given the nature of the current charges and his criminal history for firearms, serious and violent offences I find that that the offences he is at risk to commit pose a risk to public safety. [ 71 ] The real question is whether Mr. Frederickson’s continued detention is necessary because the risk he poses cannot be reduced to an acceptable level through the imposition of appropriate conditions. I am not satisfied the risk can be reduced by the imposition of appropriate conditions. Mr. Frederickson’s record is consistent with a person who is entrenched in a criminal lifestyle.

He has a robust record for not complying with court orders and especially bail orders. He has a history of committing offences while under Court

ordered supervision. Prior to coming to Prince George Mr. Frederickson offended in Alberta, Nanaimo, Victoria and Surrey. Despite being educated with two years of a Bachelor of Arts degree and certification as a personal trainer which would provide him a legitimate means of economic support, Mr. Frederickson has historically engaged in property crimes, drug trafficking and robberies. [ 72 ] Mr. Frederickson proposes he be released under the supervision of a surety to address any likelihood of re-offending. In my view, that proposal is not sufficient to ameliorate the level of risk. The relationship between Mr.

Frederickson and the proposed surety is murky, given they have only been friends for a year and Mr. Frederickson has been incarcerated that entire time. There is credible evidence that large quantities of drugs were found in Mr. Frederickson’s possession while in the immediate presence of his last surety who apparently did not detect Mr. Frederickson’s activities despite having travelled a long distance with him. [ 73 ] While I have not considered the facts of Information 28939 for the purposes of assessing Mr.

Frederickson’s likelihood to reoffend on the secondary grounds, I can consider those facts for the purposes of assessing the strength of his proposed bail plan. At the time in Dawson Creek Mr. Frederickson’s recognizance of bail prohibited him from possessing drugs. Evidence of the police search yielding his possession of drugs would have been admissible in an application under s 524(8) to revoke bail on the basis there were reasonable grounds to believe Mr.

Frederickson was breaching his bail, even if the fruits of that police search were ultimately subject to exclusion under s. 24(2) of the Charter in any subsequent prosecution for criminal offences. Given that Mr. Frederickson has demonstrated he is capable of possessing large quantities of drugs and cash literally right under the nose of his surety, his current plan in which his surety would be away most hours of the day does not provide the requisite level of control and supervision needed to reduce Mr. Frederickson’s risk to re-offend to an acceptable level. [ 74 ] In short, I do not find that Mr.

Frederickson’s acquittals constitute a material change in circumstances to the extent his detention is no longer warranted on the secondary grounds. [ 75 ] I also do not find the acquittals to materially change the basis of RAJ Brecknell’s reasons for detaining Mr. Frederickson on the tertiary grounds. Of the four Informations before RAJ Brecknell, the two currently before the Court were the most extensive and serious given the alleged large quantities and breadth of drugs and presence of multiple firearms. [ 76 ] In detaining Mr.

Frederickson on these grounds, RAJ Brecknell referred to the strength of the Crown’s case, Mr. Frederickson’s past history, the gravity of the offences and the potential for a lengthy period of imprisonment. None of those factors are materially changed by the acquittals. The strength of the Crown’s case remains unchanged. Mr. Frederickson is still charged with serious offences relating to the trafficking of large quantities of drugs and possession of multiple firearms in circumstances where he was on two separate firearms prohibition orders.

The circumstances are aggravated by the fact that the drugs and guns were kept together in the same location, there were multiple rounds of ammunition, and there were drugs of multiple types which included dangerous fentanyl. Given Mr. Frederickson’s criminal record, if he is convicted of these charges he faces a lengthy period of incarceration. None of those circumstances have changed since RAJ Brecknell detained Mr. Frederickson on the tertiary grounds. Conclusion [ 77 ] I find Mr. Frederickson has failed to show cause that the detention order of RAJ Brecknell should be vacated.

His application is dismissed. ____________________________ “The Honourable Judge C. Malfair” CORRIGENDUM - Released December 7, 2018 In the Reasons for Judgment dated October 25, 2018 , the following changes have been made: [ 78 ] Added counsel for the Crown: Mohammad Hajivandi. “The Honourable Judge C. Malfair”