R. v. Anderson, 2020 BCPC 70

Citation: R. v. Anderson 2020 BCPC 70 Date: 20200417 File No: 91584 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DAVID SEAN ANDERSON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.J. BROWN Counsel for the Crown: S. Quendack, by phone Counsel for the Defendant: D. Ferguson, by phone Place of Hearing: Abbotsford , B.C. via teleconference Date of Hearing: April 8, 2020 Date of Judgment: April 17, 2020 INTRODUCTION

[ 1 ] On April 8, 2020, a bail hearing was conducted in this matter by telephone pursuant to the COVID-19 protocols for our Provincial Court. The accused, David Sean Anderson, appeared by video from Surrey Pre-trial Services Centre, but the Court, Crown counsel, and defence counsel all appeared by phone. Today, the accused and I are on video, and counsel are appearing by phone. [ 2 ] The Crown is seeking Mr. Anderson’s detention.

Defence counsel submits that although this is a case where ordinarily a detention order could be considered, I ought to look at the risks associated with COVID-19 in prisons and release Mr. Anderson with an innovative release plan. The plan involves a cash deposit and a unique form of house arrest. [ 3 ] Under information 91584, Mr. Anderson is charged with a number of offences said to have occurred on March 27, 2020, in Abbotsford, B.C. In a nutshell, Mr.

Anderson fled from police in a motor vehicle at high rates of speed, and continued to do so notwithstanding attempted police stops and the use of a spike belt. [ 4 ] Mr. Anderson is charged with operating a conveyance - a motor vehicle - in a manner dangerous to the public, operating that vehicle while being prohibited from doing so, and failing to stop while being pursued by a peace officer. He is also said to have occupied the driver’s seat of a motor vehicle in contravention of Judge Gunnell’s probation order of February 14, 2020. [ 5 ] Mr. Anderson has an extensive record.

He was last sentenced on February 14, 2020, for operating a vehicle on 3 separate occasions while disqualified, possession of stolen property over $5000, fraud over $5000, breach of undertaking, two break and enters and theft of a motor vehicle. He received various jail sentences for these offences with pre-sentence time credited, as well as the 18 month probation order. One of the break and enter offences attracted a 20 month jail term before credit granted. [ 6 ] The Crown seeks Mr. Anderson’s detention on the secondary grounds, especially considering his related and recent record.

The secondary grounds as enunciated in s. 515(10) (

b) of the Criminal Code allow for a detention order where it is necessary for the protection and safety of the public, having regard to circumstances such as the substantial likelihood that the accused will commit a criminal offence if released. [ 7 ] The defence submits that I should release Mr. Anderson on a $2000 cash release order with strict terms, including house arrest in a type of gated community. I am asked to consider this innovative release plan in light of the COVID-19 risk within institutions like Surrey Pretrial. [ 8 ] Mr.

Anderson is not in a reverse onus position because the allegation is that he breached a probation order and not a release order. [ 9 ] As always, I bear in mind the governing principles for judicial interim release. Mr. Anderson is presumed innocent of these charges and they are allegations only. Under s.11(1)(

e) of the Charter, he has the right to reasonable bail and not to be detained without just cause. The case law makes it crystal clear that pretrial detention is the exception, not the rule.

Section 493.1 in the Criminal Code codifies that I am to give primary consideration to release of the accused at the earliest opportunity and on the least onerous conditions that are appropriate. THE ALLEGATIONS [ 10 ] The Crown relies on the following allegations. On March 27, 2020, members of the RCMP border integrity security detail noticed a vehicle parked on a dead end street in a remote area of Abbotsford, south of the freeway. The area is frequently used for drug trafficking across the U.S. border. When officers approached the vehicle, it sped away at a high rate of speed.

The RCMP officers did not pursue the vehicle but provided a description of it and a licence plate to the Abbotsford Police Department. [ 11 ] Members of the Abbotsford police observed the suspect vehicle in the area of Vye Road and Highway 11. An unmarked, unactivated police vehicle followed the suspect vehicle which was travelling approximately 150 kilometres per hour in an 80 kilometre per hour zone. The suspect vehicle proceeded north towards the freeway. [ 12 ] The Abbotsford police set up spike belts at No. 3 Road just prior to the freeway entrance.

The suspect vehicle struck the spike belt but continued on despite having flat tires. Just prior to striking the spike belt, the suspect vehicle was said to be travelling 200 kilometres per hour. [ 13 ] The suspect vehicle continued to travel with flat tires. Once the vehicle was on its rims only, it stopped. The driver of the suspect vehicle fled on foot but was arrested shortly thereafter. The person arrested was Mr. Anderson. [ 14 ] Mr.

Anderson was prohibited from driving a motor vehicle under the Criminal Code , and as stated above, he was on probation with a term prohibiting him from occupying the driver’s seat of a motor vehicle. [ 15 ] The Crown asserts there is little issue about identity, as this incident happened in a remote area and there was a lone occupant in the suspect vehicle. However, the defence submits that there is no continuity in the observations of the suspect vehicle, the identity evidence is questionable, and the notes of 2 police officers differ regarding the length of the foot chase. The accused, Mr.

Anderson, says the officers wanted to know the whereabouts of the “other person”, and this is not reflected in the notes. MR. ANDERSON’S CRIMINAL RECORD [ 16 ] Many adjectives could be used to describe Mr. Anderson’s criminal record: extensive and unenviable are apt. The Justin Conviction List is a little misleading, as it contains a number of entries for applications to vary probation conditions and repetitive entries related to a breach of a conditional sentence order. [ 17 ] Nevertheless, if I disregard his youth record, Mr.

Anderson has 5 convictions for dangerous operation of a motor vehicle, contrary to s. 249(1) (

c) of the Criminal Code . The last conviction for that offence was 10 years ago, but he now faces a similar charge.

[ 18 ] He has 8 convictions for operating a motor vehicle while disqualified or driving without the owner’s consent. As discussed above, when he was sentenced on February 14th of this year, 3 of the offences were driving while disqualified. The other recent offences included 2 break and enters and theft of a motor vehicle. [ 19 ] Mr. Anderson’s adult record began in 2002 and ended with the last large set of convictions in February of this year.

He has convictions for many property offences and a number of breaches (2003, 2009, 2019 plus the CSO breach). [ 20 ] Defence counsel points out that there are no convictions for violence. MR. ANDERSON’S CIRCUMSTANCES [ 21 ] Mr. Anderson is now 36 years of age. He is a landscaper and arborist. Although he only has a grade 10 education, he has level 3 first aid certification, framing and horticultural training. [ 22 ] Mr. Anderson’s parents separated when he was young, and he then lived with his father.

Unfortunately, he was not properly cared for due to his father’s substance abuse and violence in the community. [ 23 ] Mr. Anderson has been coping with drug and alcohol issues since he was 12 years old. He is currently on the methadone programme and he takes Lyrica because of a fall he had. [ 24 ] Mr. Anderson has had periods of success: from April to November, 2018, when he was on electronic monitoring, and from June to September, 2019, when he was working. THE RELEASE PLAN [ 25 ] Defence counsel has proposed a release plan that is innovative and well thought out. Mr.

Anderson is willing to post $2000 cash, a substantial sum for him. More importantly, he is proposing full house arrest at his girlfriend’s home in Langley. It is a type of gated complex with closed circuit television and FOB access. Mr. Anderson consents to the police accessing the CCTV footage or FOB entry data to ensure his compliance with 24-hour house arrest. At this time, court ordered electronic monitoring is not possible due to COVID-19 concerns. I question the utility of Mr.

Anderson’s consent to accessing the CCTV footage and other entry data, given that he is not an owner, but I will not dwell on this concern. THE SECONDARY GROUND CONCERNS [ 26 ] As outlined above, Mr. Anderson is entitled to reasonable bail and not to be detained without just cause. In the pretrial context, release - at the earliest opportunity and in the least onerous manner - is the default presumption in Canadian criminal law ( R. v. Myers, 2019 SCC 18 ). [ 27 ] That being said, the secondary concerns here are obvious. Mr.

Anderson has many convictions for dangerous operation of a vehicle and operating a vehicle while disqualified. His record directly relates to the latest charges of driving in a manner dangerous to the public and driving while prohibited on March 27, 2020. Notwithstanding police intervention and a spike belt, he allegedly failed to stop for the police. [ 28 ] There is an obvious concern for the protection and safety of the public under the secondary ground. Based on the charges, Mr. Anderson was driving at ridiculous speeds to evade the police, and his actions could have endangered the motoring public.

What makes matters worse, he was just sentenced in February for similar offences and he was prohibited from driving or occupying a driver’s seat. [ 29 ] Having been satisfied there are secondary ground concerns, the remaining issue is whether Mr. Anderson’s release plan can properly manage those concerns. I also must look at the release plan in light of the COVID-19 crisis. COVID-19 [ 30 ] We are in the middle of a COVID-19 pandemic. We are in unprecedented times.

Everyone in the country has been affected by the virus, whether it be by social distancing, by social isolation or even by loss of employment. [ 31 ] Even worse, many have been infected by the virus. Care homes and prisons are especially vulnerable. As of writing this decision, the federal Mission Institution has 54 infected inmates, and 8 staff have been infected as well. One of those inmates has died. Despite measures taken by BC Corrections, I am aware of a prisoner at Surrey Pretrial who had tested positive for COVID-19 and had been in isolation but was not symptomatic.

North Fraser Pretrial has issues due to an infected staff member. [ 32 ] Inmates are housed in closed quarters, making them a vulnerable, state-mandated group of people. But the vulnerability of prisoners must be placed in context. Many other segments of society are seriously vulnerable at this time. The elderly in care homes and healthcare workers in hospitals are especially vulnerable to the virus. The elderly and health care workers may not be state mandated groups of people, but their choices are limited.

Many elderly who are confined in residential care have no other options. [ 33 ] I agree that the risk posed to inmates by the coronavirus while incarcerated in detention centres is a valid factor when considering the secondary ground for detention. Mr. Justice Goodman said as much in R. v. T. K ., ONSC 1935 at paragraph 60 and the related footnote. In R v.

Leppington , 2020 BCSC 546 , the Supreme Court of our province adopted these words from Justice Goodman: …even in these very challenging times, the court must fully recognize the potential harmful health impact on detained persons in various institutions, while at the same time exercising the balance required to sustain its fundamental role in the administration of justice and protection of the public. [ 34 ] I would also note that trial dates for in-custody cases will be set weeks or months into the future.

[ 35 ] To be clear, the coronavirus is not a “get out of jail free card”. It is a serious factor to consider and may tip the scales in some cases. But if an accused’s risk is truly unmanageable, it remains unmanageable notwithstanding the greater risks posed by the coronavirus inside an institution. CONCLUSION [ 36 ] There are serious secondary ground concerns here: excessive speed, dangerous driving, and a failure to stop notwithstanding police intervention and a spike belt. Mr. Anderson is on probation and subject to a driving prohibition when this is all said to have occurred.

He was recently released from jail, having served fairly lengthy sentences for similar offences and break and enters. [ 37 ] The defence has proposed an innovative release plan that includes cash and 24-hour house arrest. I must consider that plan in these challenging times of COVID-19. [ 38 ] I have concluded that Mr. Anderson’s release plan cannot properly mitigate the risk to the public here. The current charges are allegations only, but it appears to be a strong case. If the jail sentences and probation order from this February cannot deter Mr. Anderson, I do not think a release order will do so now.

If a spike belt cannot immediately slow Mr. Anderson down, I do not think a release order will do so now. [ 39 ] I appreciate the COVID-19 concerns, but I have not been given any indication that Mr. Anderson has some unique health concern. All the prison population is at heightened risk of contracting COVID-19, but that does not tip the scales here. [ 40 ] Mr. Anderson, you are detained in custody on the secondary grounds. ________________________​​​​​​​​​____ The Honourable Judge G.J. Brown The Provincial Court of British Columbia