R. v. Compton Date:, 2014 BCPC 333

Citation: R. v. Compton Date: 20141110 2014 BCPC 0333 File Nos: 78817-1, 78957-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CAMERON ALEXANDER COMPTON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: R. Parsons Counsel for the Defendant: B. Movassaghi Place of Hearing: Nanaimo , B.C. Date of Hearing: November 4, 2014 Date of Judgment: November 10, 2014

These reasons were subject to a ban on publication, pursuant to

section 517 of the Criminal Code , which ban on publication expired on February 6, 2015, when Mr. Compton entered a guilty plea to some charges and the remaining charges were stayed. The Allegations Against Mr. Compton [ 1 ] Mr. Compton seeks bail on charges arising from two incidents. The first incident, on June 11, 2014, gives rise to charges of kidnapping, unlawful confinement, aggravated assault, choking to overcome resistance and possession of stolen property.

The second incident, on June 22, 2014, gives rise to charges of possession of a stolen motorcycle, a stolen credit card and instruments of burglary. [ 2 ] The circumstances of the first incident are very serious. The Crown alleges that, on that day: a. A young woman left her boyfriend’s house at about 2:00 a.m. and drove alone down a dark country road. She observed some kittens on the road and stopped to shoo them out of harm’s way. She left the vehicle running while she got out to deal with the kittens. A young male, whose description fits Mr. Compton, stopped a small white sedan near her vehicle.

She thought that the sedan was a Toyota or Honda. It had distinctive striping on the side and a spoiler on the rear. The male approached her and seized her from behind, driving her to her knees on the pavement. He fell on top of her and choked her by wrapping his right arm around her neck. He began to drag her toward his vehicle. She struggled, and lost consciousness three times during the struggle. When she regained consciousness for the third time, she was lying on the pavement beside his vehicle. By that time, she had lost control of her bladder.

As she regained consciousness, the male got into his vehicle and drove away. b. The victim drove back to her boyfriend’s house, and then to the hospital, where she received treatment for minor injuries. c. The police were notified and attended at the scene. Not far from the scene, they found an abandoned Ford Escort (a vehicle similar to a Toyota or Honda), white in colour, with striping and a spoiler similar to those described by the victim. The police later determined that the Ford Escort had been stolen before the assault on the victim. d.

The police conducted a forensic examination of the sweater worn by the victim. They found hairs on the shoulders and collar. DNA analysis revealed that some of the hairs were those of the victim and that others were those of an unknown male. e. With the assistance of the victim, a police artist produced a composite sketch of the assailant. They published the sketch with a request for public assistance in identifying him. Tips which the police received led them to suspect Mr. Compton. They placed Mr. Compton under surveillance and were able to retrieve one of his discarded cigarette butts.

DNA analysis of his saliva on the cigarette butt confirms, to a very high degree of probability, that the unidentified hairs on the victim’s sweater belonged to Mr. Compton or to a close relative of Mr. Compton. f. Mr. Compton was arrested and interviewed by police. During the interview, he said that he remembered stopping to assist some kittens on the road and that the other vehicle which had stopped for the same purpose had its engine running. He denied any other memory of the incident.

Only the victim and the police knew that the victim had left her engine running. [ 3 ] I was provided with no details of the second incident, on June 22, 2014, beyond the bare allegations noted above. Mr. Compton’s Background and Circumstances [ 4 ] Mr. Compton is 20 years of age. His only criminal record arises from events on the night of August 14 - 15, 2014 (after the incidents giving rise to the charges now pending).

On September 2, 2014, he entered guilty pleas to charges of theft and dangerous operation of a motor vehicle on August 14 - 15, for which he received a sentence of 1 day’s jail, with credit for 21 days in pretrial custody. [ 5 ] Mr. Movassaghi explains that Mr. Compton was struggling with problems arising from the abuse of methamphetamine during the summer of 2014, but says that those problems are now behind him. [ 6 ] Mr.

Compton is supported by his grandmother, who offers him a place to live and is willing to stand as surety for him in the amount of $5000, and by his girlfriend, who offers to post $500 cash bail. Legal Principles and Their Application [ 7 ] The Crown seeks Mr. Compton’s detention under sections 515(10) (

b) and 515(10)(

c) of the Criminal Code (commonly referred to as the “secondary” and “tertiary” grounds). They provide:

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: * * * (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence thatinvolves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [8] I observe that the facts asserted in paragraph 2 are unproven allegations, recited by Crown counsel during the bail hearing fromthe police reports, and that Mr.

Compton is entitled to be presumed to be innocent of any wrongdoing until those allegations are proven. However, I understand the principle to be that, on a bail hearing: a. I may receive as evidence the assertions of Crown and defence counsel without requiring that they be verified under oath; and b. the standard of proof is on a balance of probabilities. I refer to R vs Muschke [1997] BCJ #2825; (BC SC), 121 CCC (3d) 51 @ paragraphs 32 – 35; R vs D.L.F. [1995] BCJ#1790 @ paragraphs 10 - 26; and R vs A.B. [2006] OJ #394; (ON SC), 204 CCC (3d) 490 @ paragraph 21. [9] In this case, Mr.

Movassaghi did not dispute any aspect of Mr. Parsons’

summary of the evidence assembled by the police. [10] I am mindful of the admonition that “… there are many cases where the strength of the Crown’s case appears, at the pre-trialstage, to be overwhelming only to have it unravel as the trial progresses”. However, I also note that section 515(10)(

c) requires me tohave regard to “… the apparent strength of the prosecution’s case …”. I think that I should proceed on the basis that the police havegathered the evidence described by Mr.

Parsons, but that I should bear in mind that that evidence may be successfully challenged orcontradicted at trial. [11] In relation to the secondary ground, the authorities are clear that bail should be refused if and only if: First, that there is a risk that the accused will either commit an offence, or will interfere with the administration of justice, if he isreleased; Second, that this risk is of such magnitude that it amounts to a "substantial likelihood;" Third, that the said risk would constitute a danger to public safety (in general, or to a specific victim or witness) if the accused isreleased; and Fourth, that the detention of the accused is "necessary," because the identified danger to public safety cannot be prevented or reduced toan acceptable level by bail conditions (such as reporting to authorities, curfew, no-contact, mobility restrictions, sureties or cash bail).

R vs Toor 2014 BCSC 585; [2014] BCJ #584 @ paragraph 25 [12] I observe that section 515(10)(

c) directs me to consider the apparent strength of the Crown’s case, but that section 515(10)(b)does not. One might argue for the inference that Parliament intended that factor to be considered on the tertiary ground but not on thesecondary ground. Such an inference would be consistent with the presumption of innocence. On the other hand, the authoritiesmentioned in paragraph 8 make it clear that the unsworn allegations of Crown counsel may be received as evidence at a bail hearing. One might argue the Crown’s

summary of the evidence gathered by the police in this case, without more, is sufficient to satisfy thefour-part test articulated in R vs Toor. I am not aware of any previous decision considering the question. [13] As discussed below, the Crown’s case against Mr. Compton is very strong. If I were to consider that factor on the secondaryground, I would refuse bail because: (

i) Mr. Compton probably committed the assault in question; and (ii) a person who could commitsuch an assault is a public danger. However, I do not think that I should decide the application on that basis because: (

i) I am able todecide the application on the tertiary ground; and (ii) it is not clear to me that I should consider the strength of the Crown’s case whenaddressing the secondary ground. [14] The leading authority in relation to the tertiary ground is R vs Hall 2002 SCC 64 , [2002] 3 SCR 309. The majorityjudgment in that case was rendered by Chief Justice McLachlin and the minority judgment by Justice Iacobucci.

The following keypassages appear in the majority judgment of Chief Justice McLachlin at paragraphs 25, 40 - 41 (underlining in the original, boldingadded): … in some circumstances it may be necessary to the proper functioning of the bail system and, more broadly of the justice system, todeny bail even where there is no risk the accused will not attend trial or may re-offend or interfere with the administration of justice.Bolan J., on strong and cogent evidence, concluded that bail could not be denied on either of these grounds.

But he also found thatdetention was necessary to maintain confidence in the administration of justice. The crime was heinous and unexplained. The evidencetying the accused to the crime was very strong. People in the community were afraid. As Proulx J.A., speaking of a similarlyinexplicable and brutal murder stated in R. v. Rondeau … “[t]he more a crime like the present one is unexplained andunexplainable, the more worrisome bail becomes for society”.

The provision at issue [section 515(10)(c)] serves an important purpose-- to maintain confidence in the administration of justice in circumstances such as these. * * * Section 515(10)(

c) sets out specific factors which delineate a narrow set of circumstances under which bail can be denied on the basis ofmaintaining confidence in the administration of justice. As discussed earlier, situations may arise where, despite the fact the accused isnot likely to abscond or commit further crimes while awaiting trial, his presence in the community will call into question the public's

confidence in the administration of justice. Whether such a situation has arisen is judged by all the circumstances, but in particular the four factors that Parliament has set out in s. 515(10) ( c ) -- the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for lengthy imprisonment.

Where, as here, the crime is horrific, inexplicable, and strongly linked to the accused , a justice system that cannot detain the accused risks losing the public confidence upon which the bail system and the justice system as a whole repose. This, then, is Parliament's purpose: to maintain public confidence in the bail system and the justice system as a whole. … The judge must be satisfied that detention is not only advisable but necessary . The judge must, moreover, be satisfied that detention is necessary not just to any goal, but to maintain confidence in the administration of justice .

Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has specified. The judge cannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he must focus particularly on the factors Parliament has specified. At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice.

In addition, as McEachern C.J.B.C. (in Chambers) noted in R. v. Nguyen … the reasonable person making this assessment must be one properly informed about "the philosophy of the legislative provisions, Charter values and the actual circumstances of the case". [ 15 ] I infer from the passages quoted that the secondary and tertiary grounds are intended to address two different public interests, either of which may justify the pretrial detention of the accused despite the presumption of innocence.

The secondary ground is directed to the risk that, if released, the accused will commit further offences dangerous to the public or will attempt to obstruct justice (for example, by witness tampering). The tertiary ground is directed to the maintenance of public confidence in the administration of justice, which includes maintenance of public confidence in the ability of the system to protect the public from dangerous offenders. The secondary ground requires an assessment of the probable future behaviour of the accused.

The tertiary ground requires an assessment of the probable impact of the decision to grant or refuse bail on the public perception of the justice system, and, in particular on the public perception of the ability and resolve of that system to keep the public safe. [ 16 ] In R vs A.B. , Justice Ducharme said @ paragraph 16: Where the Crown seeks to justify the detention of an accused person on the tertiary ground, the Crown and the defence are free to lead evidence.

Thus, in Hall , a police officer testified as to a general sense of fear in the community, and the father of the victim testified as to the understandable fears of the remaining members of the victim’s immediate family.

But such evidence, while helpful, is not strictly necessary - indeed, resort to such a requirement would make resort to the tertiary ground extremely difficult, if not impossible, in a majority of cases. [ 17 ] In R vs A.B. @ paragraphs 10 - 13 , Justice Ducharme quoted at length from the dissenting judgment of Justice Iacobucci in R vs Hall , emphasizing the importance of individual liberty, the potential injustice of imprisonment before trial and the importance of the presumption of innocence. I fully appreciate the importance of those matters, as I am sure, did the majority of the Court in R vs Hall .

However, the majority of the Court concluded that bail may be refused on the tertiary ground, in appropriate circumstances, despite those factors. I am obliged to decide this case by following the directions given by Chief Justice McLachlin in the passages quoted in paragraph 14. [ 18 ] In R vs Abdel-Rahman 2010 BCSC 189 @ paragraph 36, Justice Halfyard said that “… it is … necessary for the alleged offence to be ‘horrific’ before the tertiary ground can be invoked …”.

The Oxford English Dictionary defines “horrific” as “… causing horror; horrifying…”, and “horror” as: … a painful emotion compounded of loathing and fear; a shuddering with terror and repugnance; strong aversion mingled with dread …. Those phrases are perfectly apt to describe the emotions which would be suffered by any woman who was the victim of an attack of the kind in issue in this case.

There can be few experiences more terrifying for a woman than to be attacked from behind on a dark and lonely country road in the middle of the night, driven to her knees, choked to unconsciousness and dragged to her attacker’s vehicle. Nor does the suffering end with the assault. Victims of such assaults live in fear for long after the event. Other women in the community will not feel safe until the attacker is identified and steps are taken to prevent him from re-offending. It is an offence which horrifies both the victim and the community. [ 19 ] Mr.

Movassaghi urged me to conclude that the assault in this case was not horrific because the victim suffered no serious physical injury. I do not agree because, as noted above, the essential character of a horrific attack is its impact on the psyche, rather than the physique, of the victim. [ 20 ] The crime in this case may be explicable. For example, it may have been the consequence of drug abuse or mental illness. However, such explanations do not render it less horrific, nor do they provide any comfort to the victim or the community.

Public confidence in the administration of justice depends critically on public confidence in the ability and resolve of the justice system to determine the cause of the crime and to take effective steps to prevent its repetition. In the context of a bail application, that imperative may require the detention of the accused while the steps necessary for those purposes are completed. [ 21 ] I turn to the four factors which the statute requires me to consider. a. The Crown’s case appears to be very strong. To a very high degree of probability, the hair found on the victim’s sweater was that of Mr.

Compton or a close relative of Mr. Compton. I was given no information capable of supporting an inference that Mr. Compton or any of his relatives met the victim (or her sweater) on any other occasion, nor that any of his relatives was near the site of the incident on the night in question. Mr. Compton’s statement to the police that he stopped on that road on the night in question to assist some kittens, and that the other vehicle at the scene had its engine running, places him at the scene of the assault at the time of the

assault. His assertion that he remembers nothing else about the incident is difficult to accept. b. The offence was a very serious one, properly described as “horrific”. It is one which would reasonably cause women in the community to fear for their safety for so long as the offender remains at large. c. While no weapon was used, the circumstances of the offence are of a kind which, if bail were granted, would cause reasonable members of the public to doubt the ability and resolve of the law-enforcement system to protect public safety.

The enhancement of public confidence in that ability being one of the primary objectives of section 515(10) (c), it follows that the circumstances of the offence support the refusal of bail on the tertiary ground. d. The maximum penalty for the offences with which Mr. Compton is charged is life imprisonment. [ 22 ] It will be apparent that this is a case in which I think that bail must be refused on the tertiary ground.

I do not exclude the possibility that bail might be granted in a case of this kind where the defence is able to present a release plan which would provide assurances of public safety sufficient to satisfy a “… reasonable person … properly informed about ‘the philosophy of the legislative provisions, Charter values and the actual circumstances of the case’ …".

However, I think that, at least in this case, any such release plan ought to include elements of physical constraint (in, for example, a treatment centre or independently-supervised residence), and that a surety and cash bail are insufficient for the stated purpose. Disposition [ 23 ] Bail is refused, and Mr. Compton is remanded in custody. November 10, 2014 __________________________________ T. Gouge, PCJ