R. v. Massipe Date:, 2013 BCPC 280

Citation: R. v. Massipe Date: 20130822 2013 BCPC 0280 File No: 90116-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ABEL BERNARDINO RODRIQUEZ MASSIPE ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE DOSSA Counsel for the Crown: J. Gill Counsel for the Accused: D. Thomas Place of Hearing: Port Coquitlam , B.C. Date of Hearing: August 1, 8, and 22, 2013 Date of Judgment: August 22, 2013

[1] THE COURT: The accused, Abel Rodriguez Massipe, was charged on May 28th, 2013 with four counts on Information90116-1 with aggravated assault of Mohitendra Singh, with aggravated assault of Elvin Singh, and with assault with a weapon, namely, aknife, on Mohitendra Singh and Elvin Singh. [2] The Crown is seeking his detention on the primary grounds and secondary grounds that the accused's detention is necessary toensure the accused's attendance in Court and for the protection and safety of the public, that having regard to all the circumstancesincluding any substantial likelihood that the accused will, if released from custody commit a criminal offence or interfere with theadministration of justice. [3] The circumstances of the offence are that on May 28th, 2013, at around noon, the two complainants, father and son,Mohitendra Singh and Elvin Singh, were visiting the tenants in a basement suite in Port Coquitlam.

The upstairs tenants were there aswell as four males who resided in the basement suite. The accused was residing there with a co-worker. Everybody had been drinkingalcohol. [4] The complainant Elvin Singh was intoxicated and became belligerent. The accused, who was also drinking, is alleged to havebecome annoyed and smashed a beer glass on Elvin Singh's face and then grabbed a steak knife and stabbed him in the face. [5] The complainant Mohitendra Singh intervened and the accused stabbed the complainant in the face such that the blade of thesteak knife broke off and remained in the complainant father's face.

The complainant then went outside to remove the blade from hisface. [6] The accused returned to his bedroom and took his backpack and exited through a bedroom window. [7] When the police attended they found broken glass and a trail of blood and the alleged broken blade. The complainant ElvinSingh had an injury of a six to eight inch laceration under his right eye and a smaller laceration near his right ear. The complainantMohitendra Singh had a large stab wound to his left cheek. Photographs of the injuries were filed in evidence.

One of the complainantswill require plastic surgery. [8] The witnesses were able to identify the accused in a line-up. [9] Both complainants were extremely intoxicated. The witness statements have some conflicts. Crown counsel submits that thiswas an unprovoked assault of a serious nature. [10] The accused had been living with his common law wife and an 11-month old daughter in Vancouver from March of 2013. InMay of 2013 they had a dispute and she asked him to leave and he moved in with a co-worker. On May 28th, 2013, he returned to herresidence.

She asked him to leave and she did not know his whereabouts because she posted a missing persons poster. [11] On June 1st, 2013, the accused purchased a Greyhound bus ticket to the United States but he was denied; he was turned away atthe border. The accused is a permanent resident and did not have a visa. This was confirmed by the U.S. Border authorities. Theaccused's family resides in Cuba including a daughter. He has a brother in Florida in the United States. [12] The accused returned to his common law wife's residence on June 4th or 5th, 2013.

She had retained counsel who facilitated theaccused arriving there at her residence. Police had set up surveillance of the residence. The accused speaks Spanish and requiredinterpretation. [13] Crown counsel submits that there are primary ground concerns. The accused has already attempted to flee to the United States,that most of his family is in Cuba, and if he leaves he will not attend court. The accused has no criminal record in Canada or Cuba.

Crown counsel submits that this was an unprovoked vicious assault of two unarmed complainants, that the Crown has a strong case, thatthere is protection of the public concerns, and secondary ground concerns if he is released. [14] The accused is 42 years old. He was born and resided in Cuba and worked in construction as a concrete finisher. Ms. Mills, hiscommon law spouse, met him in 2010 while a visitor to Cuba and she frequently went back to Cuba. She sponsored his application toCanada and he became a permanent resident in Cuba and came to Canada in December of 2012.

As I said, he has been residing with hersince March of 2013. [15] He has been working as a concrete finisher in construction. His employer provided a letter stating that he has a job with himeither full-time or part-time if he is released. [16] The accused has been taking English classes with MOSAIC. It provided a letter stating that he is enrolled for the Septemberclass. [17] The accused states that he was going to the United States to his brother because he could not live with his common law spouse. Since then he has surrendered to the police.

He has reconciled with his common law spouse who is in court today and said that he canlive with her. He cannot post cash or a surety for his bail. He is prepared to abide by any conditions that the Court may impose. [18] I have listened to the submissions of counsel and reviewed the case law provided by defence counsel. [19] The case law: R. v. Nguyen, (BC CA), 97 B.C.A.C. 86; R. v. Parsons, 2007 BCSC 48; R. v. Struve, 2006BCSC 107; R. v. Bhullar, 2005 BCCA 409; and R. v.

Brotherston, 2009 BCCA 431. [20] In Nguyen, supra, Chief Justice McEachern stated that there is no case in which denial of bail is automatic, even for thosecharged and convicted of murder.

[ 21 ] In R. v. Parsons , supra , the accused was charged with importing drugs. On appeal, the Court found that the trial judge had erred in law by detaining the accused on primary grounds. The accused's attempt to flee raised serious concerns but the Court should have given more consideration to the surety, the strong family ties in Alberta, the accused's lack of a criminal record, and his steady work history. [ 22 ] In R. v. Brotherston , supra , the accused was charged with second degree murder.

On appeal, the Court found that although the accused had not returned to custody after he was released and was detained on the primary grounds, the accused had turned himself into the police and could be released on terms. [ 23 ] Similarly in R. v. Struve , supra , the accused was charged with second degree murder. The Supreme Court released the accused although he had few ties to his community and he had tried to flee to Ontario. The Court said that he had support of relatives and friends who were prepared to post some surety.

It stated that regarding the secondary ground concerns the mere danger or even the likelihood that the accused will commit a criminal offence does not in and of itself provide just cause for detention. [ 24 ] As set out in R. v.

Bhullar , supra , the Crown has to show that there is a substantial likelihood of further offending which cannot be addressed with strict terms including a curfew and mobility conditions. [ 25 ] Crown counsel submits that many of those cases can be distinguished where the accused posted a surety and in some cases substantial surety in support of his release. [ 26 ] In this case the strength of the Crown's case is one factor I must take into account.

The accused is charged with serious offences and the complainants suffered serious injuries, but the accused and the complainants were intoxicated. [ 27 ] The accused has no criminal record in Canada or Cuba but there is the potential that he will face a jail sentence if he is convicted. If convicted, he could also be ineligible and could face deportation from Canada. Ms. Mills, his common law spouse, is in court and is prepared to have him stay with her. She is employed as a nurse at Lions Gate Hospital, is a Canadian citizen, and is due to return to work shortly after her maternity leave expires.

The accused has a daughter in Cuba. He separated from her mother prior to coming to Canada. [ 28 ] The accused is entitled to the presumption of innocence and the right not to be denied reasonable bail without just cause. He has no criminal record and he is not in a reverse onus. He has a common law spouse with whom he can reside and a job with his employer.

After attempting to leave the jurisdiction, he did turn himself into the police. [ 29 ] The case of the Crown is strong and the charges are of a serious nature. [ 30 ] So taking into account all the circumstances of this case, I am satisfied that the primary and secondary grounds concerns can be addressed with strict conditions of reporting and curfew and surrender of his passport. [ 31 ] The accused will be released on his own recognizance in the sum of $5,000, no deposit, no surety on the following conditions and if there are other conditions counsel can address me: 1.

Keep the peace and be of good behaviour. 2. You must report to a Bail Supervisor at 2610 Mary Hill Road, Port Coquitlam, B.C. on or before 4:00 p.m. tomorrow and thereafter as directed by the Bail Supervisor but not less than once per week in person. 3. You must report to the Court when required to do so by the Court. 4. You must reside with Allison Mills at 4055 Miller Street, Vancouver and not change that address without the prior written permission of your Bail Supervisor. 5.

You are not to be outside of your residence between the hours of 7:00 p.m. and 6:00 a.m. daily except for medical emergencies or with the prior permission of your Bail Supervisor. 6. You are to remain within the Province of British Columbia. 7. You must present yourself at the door of your residence upon the demand of a Peace Officer or your Bail Supervisor to ensure compliance with the curfew condition. 8. You must abstain from the consumption and possession of alcohol and non-prescription drugs. 9. You are not to attend any establishment whose primary purpose is the sale of alcohol. 10.

You are not to be in possession of any weapons or knives except for the immediate purpose of consumption and preparation of food or in the course of lawful employment. 11. You must have no contact, with Elvin Singh, Mohitendra Singh, Jose Alberto Almanzo, Leslie Coombe, Suzanne Golinski, Laura Hamel, John Chipman Robinson. 12. You must not go to any place of residence, or employment or school of Elvin Singh, Mohitendra Singh, Jose Alberto Almanzo, Leslie Coombe, Suzanne Golinski, Laura Hamel, John Chipman Robinson. 13. You must not go to 2887 Atkins Avenue, Port Coquitlam, B.C. 14.

You are to surrender your passport and any visa or travel documents to the Registrar of the Provincial Court within 48 hours of

your release, and you are not to apply for a passport, visa or other travel documents. 15. You must carry a copy of this Recognizance on your person at all times. 16. You must not have in your possession any firearms as defined by the Criminal Code . [ 32 ] Are there any other conditions? [ 33 ] MS. GILL: Yes, Your Honour, the address in Port Coquitlam would be 2887 Atkins Avenue – [ 34 ] THE COURT: Okay. There is a no go to 2887 Atkins Avenue in Port Coquitlam. [ 35 ] MS.

GILL: -- and so no contact conditions with the individuals that were – and I have written them out – [ 36 ] THE COURT: These are the other Crown witnesses? [ 37 ] MS . GILL: Yes. [ 38 ] THE COURT: Okay. [ 39 ] MS.

GILL: Jose Alberto Almanzo, Leslie Coombe, Suzanne Golinski, Laura Hamel, John Chipman Robinson and Elvin Singh and Mohitendra Singh. [ 40 ] THE CLERK: Thank you, Your Honour (indiscernible – sounds of fussing child, tearing paper, and general noise) provided at this time and I'm sorry Your Honour (indiscernible) [ 41 ] THE COURT: I need her address from Vancouver and I notice that some of the cases had him report to the RCMP or the police in those regions, so he is going to reside in Vancouver –- [ 42 ] MR.

THOMAS: Yes, he is, thank you, Your Honour, and the address is 4055 Miller Street in Vancouver. [ 43 ] THE CLERK: Your Honour, if I could please clarify if the no contact condition is to include all of the parties listed by Ms. Gill? [ 44 ] THE COURT: Yes, and as well the two complainants. [ 45 ] THE CLERK: Yes. [ 46 ] THE COURT: And then the no go to that address in Port Coquitlam and also no go to any of the residences or employment or places of education –- [ 47 ] THE CLERK: For all parties? [ 48 ] THE COURT: For both complainants. I do not know if he is seeking that with respect to the other witnesses.

I do not know if he knows. [ 49 ] MS. GILL: I don't know but perhaps out of an abundance of caution we should put a no go to any place that is their residence or employment or place of education. [ 50 ] THE COURT: All right, as known to him. [ 51 ] THE CLERK: I'm sorry, Your Honour -– [ 52 ] THE COURT: All right, so we'll include them all. [ 53 ] Sir, I hope you understand that you need to abide by these conditions. If you are alleged to have breached them you are likely going to find yourself detained. (ORAL REASONS FOR JUDGMENT CONCLUDED)