R. v. Schaeffer, 2020 BCPC 85

Citation: R. v. Schaeffer 2020 BCPC 85 Date: 20200407 File No: 85591-1, 87165-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JOSHUA TYLER SCHAEFFER ORAL REASONS FOR JUDGMENT AT JUDICIAL INTERIM RELEASE HEARING OF THE HONOURABLE JUDGE L. MROZINSKI (by teleconference) Counsel for the Crown: J. Kulla, by phone Counsel for the Accused: A. King, Q.C., by phone Place of Hearing: Victoria , B.C. Dates of Hearing: March 31 and April 7, 2020 Date of Judgment: April 7, 2020

[ 1 ] THE COURT: In this show cause hearing, the Crown seeks your detention, Mr. Schaeffer, under s. 510 (

b) and (

c) of the Criminal Code . Commonly these are referred to as the secondary and tertiary grounds for detention. [ 2 ] Fundamentally, the Crown submits that no measures short of your detention can satisfy what it submits are significant public safety concerns on the secondary ground, and in any event that your detention in the circumstances is necessary to maintain public confidence in the administration of justice. [ 3 ] Mr. Schaeffer, in this hearing you seek your release. Mr.

King, on your behalf, submits that a bail order with a surety in the amount of $10,000, coupled with requirements that you be placed on house arrest, with an exception for work, and that you not operate a motor vehicle, addresses the secondary ground concerns, which are so evident. [ 4 ] As for the tertiary ground, Mr.

King did not address the Crown's submissions to any great extent, except to point to the gap in your criminal record, from 2014 to the offences alleged to have occurred in June of 2018, as well as to the fact that, while awaiting trial on those charges, no further offences are charged until January 8 of 2020, when the two count Information charging you with dangerous driving and mischief causing actual danger to life while driving recklessly was sworn. [ 5 ] In addition, due to the pandemic Crown has addressed the matter of your continued detention, given the very real concerns about the transmission of the virus in custodial institutions. [ 6 ] Mr.

Schaeffer, you were brought into custody last January 8 on the two count information I have just referred to. While I will get to the circumstances of these alleged offences momentarily, it is notable that on January 6, 2020, you were but two days away from your trial on the two counts alleged in Information 85591. [ 7 ] In that Information, Mr. Schaeffer, you are charged that on June 28, 2018, that you drove in a manner dangerous to the public and with leaving the scene of an accident. [ 8 ] Each of these instances of your alleged driving, Mr. Schaeffer, are caught on video or cellphone camera.

Entered into evidence in this bail hearing is a DVD containing footage of what the Crown alleges is your operation of a motor vehicle, first on June 28, 2018, and more latterly on January 26, 2020. [ 9 ] I will speak to the content of that footage shortly, but before I do it also bears noting that, in amongst your many criminal convictions is a conviction for the dangerous operation of a motor vehicle, for which you were sentenced to two years in Alberta in January 2008. [ 10 ] The video footage entered into evidence shows, firstly, an incident the Crown submits supports the charges in Information 85591.

The short clip of that incident shows a vehicle the Crown submits is driven by you hitting a parked vehicle and leaving the scene, but not before two persons are seen trying to stop you. [ 11 ] The question of identity may be in issue, but it bears noting that police found you in the driver's seat of the vehicle shown in that video clip. You are said to have advised police that your foot was caught between the gas and the brake. [ 12 ] As I understand it, Mr. Schaeffer, you were released by police at the scene and no further process was issued. [ 13 ] Mr.

King does note that from June 28, 2018, through to January 6, 2020, you did not breach any terms of your release, though there appear to be no such terms. [ 14 ] Nonetheless, I accept that you were not charged with any further offending behaviour before January 8, 2020, when you were charged with the two offences in what is now Information 87165, those being the alleged offences this January 26, 2020. [ 15 ] Mr. King submits that around this time you had, as he described it, a serious mental breakdown.

There was, of course, the pressure of the impending trial on January 8, 2020, and the distinct possibility of your being sentenced to a period of incarceration, if you were convicted. In addition, Mr. King submits you had broken up with your girlfriend at the time - the inference being that it had an upsetting effect. Mr.

King notes that that person is still in the picture, so to speak, and that she expresses no fear of you personally. [ 16 ] Bearing this brief background in mind, I will consider the circumstances, as the Crown has outlined it, of the various offences with which you find yourself charged. [ 17 ] Starting with the most recent, on the evening of January 6, 2020, you were, Crown submits, driving your brother to a drugstore at the Country Club Mall in Nanaimo, so that he could pick up some prescribed medication.

You are said to have been driving an orange 2017 Dodge Ram 1500, a not insubstantial vehicle. [ 18 ] It is alleged that you had an argument with your brother, and after he left your vehicle you then operated that vehicle in the manner giving rise to these charges. [ 19 ] The Crown entered three video clips into evidence on this bail hearing.

Two were made by persons present in the mall parking lot on January 6, as you drove the truck at high speed, sometimes in reverse, into vehicles occupied and unoccupied, as well as into store windows and walls, before the vehicle finally came to rest, as you crashed it headfirst into a wall. [ 20 ] Police found you inside the vehicle in the driver's seat. You were released, treated as I understand it for some minor injuries, and subsequently arrested two days later at your home. [ 21 ] The video clips, Mr. Schaeffer, of that vehicle moving around the parking lot that evening, are disturbing.

That may well qualify as an understatement. In the clip your vehicle is seen backing up at considerable speed right into a parked vehicle as its owner stood steps away. You back into the vehicle driven by Mr. Kumar, who was on his way to the Shoppers Drug store. The scene of you

driving your vehicle forward at high speed into the wall is no less disturbing to watch. [22] Fortunately, no one was seriously injured as a result of this driving, Mr. Schaeffer, including yourself. Your fortune in thatregard may well have been a consequence of the vehicle you were driving. At the same time, were you to have hit someone, we would bedealing with much different charges. Of that there is no doubt. [23] I have alluded to your prior conviction for dangerous driving and your significant sentence of two years.

That is neither thebeginning nor the end of your conviction list. [24] It starts in 2001, as a youth record, and continues largely unabated to 2014, before these most recent alleged offences. Yourrecord includes a number of violent offences and a number of breaches in your early years of offending, less so, I accept, as you haveaged. [25] When you were brought into custody this last January 2020, Mr. King, being concerned about your mental state, sought andwas granted a fitness assessment. [26] Mr. Schaeffer, you are clearly fit to stand trial.

Your mental state at the time of either of these offences remains an openquestion, I suspect, particularly given the submissions that the alleged driving in January 2020 followed on the heels of a serious mentalbreakdown, involving relationship troubles and the impending trial. [27] The Crown submits that all of the circumstances I have just related form just cause for your detention in custody until all ofthese charges are finally determined. [28] It is the case, Mr. Schaeffer, that you have the constitutional right not to be denied bail without just cause.

You are, of course,presumed innocent of all of the charges. Still, it is a presumption. [29] As our Court of Appeal notes in R. v. MacDougal (1999), 1999 BCCA 509 , 138 C.C.C. 38, the presumption, while notabolished, is one factor in a bail hearing, where the court must weigh other apparently extant facts and circumstances. These include theapparent weight of the case for the Crown, and the potential for serious harm to public safety, without either a robust release plan orpossibly by release period. [30] The Crown seeks your detention firstly on the secondary ground. In R. v. Alexander, [2020] N.J.

No. 69, a case that the Crownrelies on, and a recent and compendious decision regarding bail in light of the COVID-19 pandemic, Judge Gorman writes at paragraphs54 and 55 that: Section 515(10)(

b) of the Criminal Code indicates that an accused person may be denied bail when his or her detention is necessary forthe protection of the safety of the public, having regard to all of the circumstances, including any substantial likelihood that the accusedwill, if released from custody, commit a criminal offence or interfere with the administration of justice. In Summers, Justice Goodridge indicated that the secondary ground detailed under s. 515(10)(

b) seeks to guard against recidivist conducton release. In R. v. Normore, Justice Green considered s. 515(10)(

b) and held that this provision requires the coalescing of three thingsbefore detention can be justified on this ground:

(1) Detention must be for the protection or safety of the public and not for other reasons;

(2) Detention must be necessary to achieve protection or safety of the public; and

(3) To the extent that it is alleged that it is likely that the accused, if released from custody, will commit an offence or interfere with theadministration of justice indicates the need for protection or safety of the public, those risks must be substantial. [31] Ultimately in this case, as in most cases involving secondary ground considerations, the fundamental question is whether thereare any conditions, short of your detention, that can address concerns for public safety. [32] Here, there is no question that your potential release raises serious public safety concerns. As Mr.

King posits, there could be nocircumstances where you could be trusted to operate a motor vehicle.

At the same time, it is not difficult for someone to assume theoperation of a motor vehicle, no matter what bail conditions a court imposes. [33] Here, given your record, the circumstances of the offences you are charged with, and the background circumstances in whichthey are said to have been committed, your release into the community gives rise to a clear and present danger to the public. [34] Now, in addition to the trial matter that you were facing on January 6, 2020, you are charged with two even more seriousoffences.

If you are convicted, you can expect to be sentenced to a considerable period of incarceration. Your girlfriend, with whom youhad broken up, is now said to be back in the picture. Mr. King says you can expect to be employed upon your release. In the currentclimate that promise must be considered somewhat precarious. [35] What would an order of house arrest and the promise of a surety, in the amount of $10,000 posted by your father, do to assurepublic safety, in the event you had yet another mental breakdown, as Mr.

King described it? [36] I have said it would not be difficult for you to gain access to a motor vehicle. The implications for public safety are obvious. [37] In my view, the proposed plan of release does not adequately address the secondary ground concerns that arise in thecircumstances of this case. I am not convinced that any bail plan would do in these circumstances. [38] The Crown has, in my view, proven just cause for your detention on the secondary ground.

[ 39 ] It also seeks to detain you on the tertiary ground. As I am satisfied your detention on the secondary ground is justified, it is not strictly necessary for me to consider the tertiary ground arguments, but for the sake of completeness and as it was argued I will. [ 40 ] I will also in these reasons speak to the impact of the COVID-19 pandemic on bail applications and my reasons, Mr. Schaeffer, for detaining you, in spite of what I consider and agree is a substantial and legitimate concern for those persons incarcerated in this province and elsewhere. [ 41 ] With respect to the tertiary ground, again to quote from the reasons in Alexander, at paragraphs 61 and 63: Sections 515(10) (

c) of the Criminal Code allows bail to be denied to an accused person, if their detention is necessary to maintain confidence in the administration of justice. In Summers , Justice Goodridge indicated that the tertiary ground detailed in s. 515(10) (

c) holds that detention is justified if it is necessary to maintain confidence in the administration of justice. Whether detention is or is not necessary on this ground is to be determined by a consideration of all of the circumstances, but in particular the four factors that Parliament has specified, namely: strength of the prosecution's case, gravity of the offence, circumstances surrounding the commission, and the potential for a lengthy term of imprisonment. The combined effect of these four factors must be considered in the context of a balancing exercise that includes any other relevant circumstance.

In St-Cloud , the Supreme Court of Canada indicated that the four listed circumstances are simply the main factors to be balanced by the justice, together with any other relevant factors in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. That is the provision's purpose.

Although the justice must consider all the circumstances of the case and engage in a balancing exercise, this is the ultimate question the justice must answer and it must, therefore, guide him or her in making a determination. [ 42 ] The argument that detention must automatically be ordered if the review of the four circumstances favours that result is incompatible with the balancing exercise required by s. 515(10)(c), and with the purpose of that exercise. [ 43 ] Here, as I have noted, when I consider the quality of the Crown's evidence at this bail hearing, showing the actual driving of the vehicles that you were then found to be driving, Mr.

Schaeffer, I am driven to the observation on this bail hearing that the case against you is strong, particularly for the most recent charges, at least so far as the actus reus is concerned. [ 44 ] These are serious offences, in which persons going about their day-to-day business were placed in harm's way. The risk of serious personal injury or death was high, certainly with regard to the driving at the mall. [ 45 ] While no firearms were used, the vehicle in both instances but particularly the incident at the mall, was used as a weapon. [ 46 ] If you are convicted of one or more of these offences, Mr.

Schaeffer, you can expect to receive a significant custodial sentence. [ 47 ] Bearing in mind my findings on these four factors, I must ask myself whether your detention is necessary to maintain confidence in the justice system. [ 48 ] I have alluded to this already, but in addition to these factors I must consider the broader background in which these offences are alleged to have occurred. That includes some mental health stressors or problems. It includes an apparent relationship breakdown.

An informed member of the public would know that these conditions, far from having subsided, may well present themselves in greater force. [ 49 ] An informed member of the public would know also of your criminal record and the related prior conviction for dangerous driving. [ 50 ] In my view, an informed member of the public, having notice of all the circumstances of this case, would think little of the administration of justice were they to find you out and about in the community, working or perhaps in the company of a surety, possibly even at that same mall. [ 51 ] At the same time, it must be asked what would an informed member of the public think if they knew, even given all of this, that you would be detained in custody in amongst others in the midst of the COVID-19 pandemic. [ 52 ] The Crown introduced into evidence the most recent correspondence from the Assistant Deputy Minister of Corrections to the Chief Judges of the courts in British Columbia and others in the justice system.

The letter dated April 6, 2020, and entered as Exhibit 3 in this bail hearing, addresses the steps being taken to, among other things, protect those persons like yourself, Mr. Schaeffer, who have been in custody for some time against the spread of the virus. [ 53 ] These steps include isolating new detainees from the general population, reduced interaction with inmates and persons outside the institution, enhanced infection prevention and control.

In short, every effort that can be made to reduce the possibility of the virus breaking out in a custodial facility, such as the one you are in at the moment, is being taken. [ 54 ] This having been said, I acknowledge as many judges called upon to hear bail hearings these past few weeks across the country have, that the virus knows no borders. It is not constrained by bars or locked doors.

If it can find its way into a custodial facility it will, but the question remains what is to be done? [ 55 ] At present, these facts do not justify the wholesale release of persons, including persons dangerous to the public, from custody. At a minimum, courts must do all they can to ensure that they detain only those persons who pose a significant risk to public safety, which risks cannot be mitigated by any conceivable bail conditions. That, however, is the law of bail in any event.

[ 56 ] Where the court is satisfied that just cause exists for detention, as I am in this case on both the secondary and tertiary grounds, it ought, except in the most exceptional circumstances, to detain the individual. [ 57 ] By exceptional, I would include that the institution in which the court is knowingly sending the detainee to is itself infected with the virus, or has taken no steps to protect those inside, or that before the court is a person of an age or health condition such that his or her detention poses an unacceptably high risk.

In most cases, such a person is unlikely, though not entirely unlikely, to pose a significant risk to the public safety in any event. However, in such a case, the case for detention on the tertiary ground might well shift. [ 58 ] In this case, there are no health concerns that I am aware of, Mr. Schaeffer, that puts you in the high-risk category, were you to become infected with the virus. [ 59 ] At present, all steps that can be taken to protect you inside the institution are being taken.

Clearly, if someone in the institution should become infected despite these steps, the matter can and should be revisited. [ 60 ] In the interim, I find the Crown has shown just cause and you are, therefore, detained on both these matters, pending their final disposition or further order of the court. (REASONS FOR JUDGMENT CONCLUDED)