R. v. Gibbs, 2019 BCPC 335

Citation: R. v. Gibbs 2019 BCPC 335 Date: 20191220 File Nos: 105666-4-B; 108363-1; 108363-2-A; 108960-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. AMBER KENDALL HOPE GIBBS REASONS FOR JUDGMENT AT JUDICIAL INTERIM RELEASE HEARING OF THE HONOURABLE JUDGE R.D. PHILLIPS Oral Reasons for Judgment Counsel for the Crown: B. Macdonald Counsel for the Accused: G. Kay Place of Hearing: Kamloops , B.C.

Date of Hearing: December 20, 2019 Date of Judgment: December 20, 2019 [ 1 ] THE COURT: Ms. Gibbs is before me for judicial interim release. It is a matter that commenced on Wednesday, and is concluded today. [ 2 ] Counsel on behalf of Ms. Gibbs seeks her release. Crown counsel is opposed to her release. [ 3 ] Ms. Gibbs is before the court on Information 105666, which is a breach of probation. There was a no-go to the 7-Eleven at 615 Seymour. She was found outside there, in a difficult state. Information 108363 is a theft at London Drugs, and there was $25 in items allegedly stolen.

In Information 108363-2-A, which is a breach, she was found at the London Drugs -- or allegedly found at the London Drugs there. In 108960-1, it is an allegation of theft at the London Drugs, and Count 2, an allegation of breach, a no-go to the London Drugs. There was a failure to appear subsequent to all of that on November 25, 2019 and a warrant was issued. [ 4 ] The Crown, as I have said, is opposed to the release. The feeling is, and the position is that there is essentially based on her record, that she is guaranteed to reoffend.

At least that is the submission. [ 5 ] It appears apparent from the offences that are in the allegations that are before the court that she seems incapable of complying with the condition of a no-go to 7-Eleven or to the London Drugs. [ 6 ] The record shows that there is a history of non-compliance, and through submissions of counsel that there is quite clearly that Ms. Gibbs is dealing with a very overpowering addiction to drugs. [ 7 ] Mr. Kay, on Ms. Gibbs's behalf, tells the court that Ms. Gibbs is 25 years of age. She is of Cree and Sioux descent. She is from the Lesser Slave Lake, Alberta, area.

She has been in Kamloops for the last 2 to 3 years. She has one daughter that is in the Ministry's care in Duncan, and receives a disability income, and resides for the most part at Crossroads here in Kamloops, British Columbia. [ 8 ] She is also under the supervision and direction of the King Street facility, and specifically Dr. Lessing, a psychiatric nurse or psychiatric doctor -- [ 9 ] MR. KAY: A psychiatrist. [ 10 ] THE COURT: -- psychiatrist in Kamloops, British Columbia. She has also received at least two mental health assessments, one in September 2018 through Dr.

Lessing, and secondly in June, I believe of this year, and there was an NCRMD determination that she was aware, and she is not criminally -- there was a negative determination in that regard. [ 11 ] I am also told, in terms of the diagnosis that -- in terms of the medical diagnosis for Ms. Gibbs -- can I have a copy of an information, please for Ms. Gibbs, if I can. [ 12 ] THE CLERK: Sorry, I thought you had it, Your Honour. [ 13 ] THE COURT: Thank you. [ 14 ] The diagnosis that I am informed of by counsel for Ms. Gibbs is a fetal alcohol syndrome disorder, FASD.

There is clear intellectual impairment on the part of Ms. Gibbs. There is a significant substance abuse disorder. It is drug-related psychosis. In 2010 and 2014, Ms. Gibbs was the victim of an assault, and both of those incidents have caused some form of brain trauma for Ms. Gibbs. S he also suffers from depression and suicidal ideation. [ 15 ] King Street in Kamloops is the main connection for Ms. Gibbs. She is on methadone now. There is a team of people working together to find a place for treatment for Ms.

Gibbs -- Heartwood is an option, Tsow-Tun Le Lum -- however both facilities need 30 clear days of sobriety or a clean slate in terms of the drug use and alcohol use, and that has to be in the community. That is a difficult hurdle for Ms. Gibbs, I understand, in her circumstances. [ 16 ] And she was also assessed at One South several months ago, and a team there were trying to find ways for her to be safe in this community. [ 17 ] Ms. Gibbs has some difficulty communicating, perhaps because of her underlying medical issues, with the professionals at hand.

I am also told that she has lost some immediate family not that long ago, and lives a fairly destructive lifestyle. [ 18 ] In terms of what guides this court in this decision, my decision virtually is to release her and I will be releasing her on a release order with terms that I will go through. The reasons -- I will state my reasons now and the considerations that I have made in releasing Ms.

Gibbs. [ 19 ] Firstly, with respect to Bill C-75, which codified the requirement that police and judiciary consider the aboriginal circumstances of an accused at the bail stage, and also codified consideration of the circumstances of other accused who belong to vulnerable populations.

Section 493.2 of the Criminal Code states as follows: In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of (

a) Aboriginal accused; and (

b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.

[ 20 ] In making bail decisions, a judge must take into account and recognize the circumstances of vulnerable and disadvantaged accused, including racialized populations, the homeless, the poor, or those suffering from mental illness or addiction. [ 21 ] The accused in these circumstances may not have access to the type of accommodation, resources, networks or supports that commonly exist for other members of the community.

Pretrial detention should not be used as a substitute for shelter, food, mental health or other social measures. [ 22 ] As well, in overreliance on sureties, the imposition of onerous conditions of release and the time spent in pretrial custody can all have a disproportionately adverse affect on aboriginal people, including an impact on over-incarceration rates. [ 23 ] Factors that usually favour detention, such as poor employment records, substance abuse issues, unstable family and community support are all commonplace among indigenous individuals. Particular, with Ms.

Gibbs, I find that this applies in this particular case. To ignore this reality would serve to perpetuate the systemic and the racial discrimination that is faced by the population that Ms. Gibbs occupies. The authority for that is R. v. Magill , 2013 YKTC 8 . [ 24 ] There is a divergence amongst courts in this country about whether or not to apply the principles of Gladue in a bail case -- and in bail circumstances. Gladue is clearly a sentencing case, but I find that there are some parallels with the Gladue principles, primarily with the systemic factors that bring offenders before the court.

I am going to apply the principles of Gladue , not in an attempt to reform the law, but simply to inform the law as it relates to Ms. Gibbs and indigenous offenders of her similar circumstances. [ 25 ] Firstly, I recognize that prior convictions are usually systemically motivated rather than as an intentional disregard for the law. I find that Ms. Gibbs's own personal circumstances, her addictions, and her indigenous background -- I do not see that it is an intentional or a flagrant abuse of the law.

A lot of her offences -- and it has be pointed out by counsel on her behalf -- are largely nuisance-type offences and relate primarily to her own mental health, her own background and her own difficulties and struggles, many of which are systemic in nature. [ 26 ] I also consider the use of sureties and the limit of the use of sureties.

It has not been suggested that a surety be implied or imposed in this particular case, but the necessity of a surety must be scrutinized as securing a suitable surety may be disproportionately difficult for indigenous accused. [ 27 ] Many indigenous people that come before the court, particularly in Ms. Gibbs's circumstances, are unemployed, homeless, have minimal income and are awfully socially isolated, particularly those that have relocated to urban centres. They find themselves isolated even though, in the midst of a city and people all around us, they tend to be isolated. I see those parallels with Ms.

Gibbs. [ 28 ] There is a suggestion that a small amount of money can be paid by Ms. Gibbs. I am not going to ask her to pay any amount of money for her release, and I make this comment simply on the basis that the quantum of bail must be determined to have regard to the disproportionate poverty and where applicable the lack of private land ownership faced by indigenous people. [ 29 ] Ms. Gibbs is homeless.

She has been homeless and essentially on the streets of Kamloops for the last couple of years, and suffers significantly from a drug addiction and from her past. [ 30 ] Those are the considerations that I have made in my decision to release Ms. Gibbs. [ 31 ] Ms. Gibbs, I am going to release you. It will be a release order. The terms of the release are as follows. [ 32 ] 1001, Madam Clerk -- It will be, keep the peace and be of good behaviour. [ 33 ] Firstly, there will be no financial obligation on Ms. Gibbs.

No need to -- no obligation to provide security. [ 34 ] I am also mindful, as I state the terms of the considerations of the court, that I must consider releasing an accused with the least onerous form of release and conditions that are appropriate in the circumstances, including conditions that are reasonably practical for the accused to comply with, while taking into account the primary, secondary and tertiary grounds that justify detention. [ 35 ] Keeping all of that in mind, as I have said, the conditions, as I have started to indicate -- firstly, keep the peace and be of good behaviour. [ 36 ] 1005-2, Madam Clerk -- There will be a no-go to the 7-Eleven and to the London Drugs here in Kamloops.

Madam Clerk, I think we were provided with the addresses. I do not have them in front of me, but the 7-Eleven is on Seymour Street -- the corner of Seymour and -- [ 37 ] MR. KAY: 6th. [ 38 ] THE COURT: -- 6th -- and the London Drugs on Lansdowne Street. [ 39 ] There will be one exception, and that is 1005-G, while in a moving motor vehicle on your way to some other place -- so while in a moving motor vehicle on your way to some other place or simply walking by. [ 40 ] Now Ms.

Gibbs, it is very important that you understand that you cannot go to the 7-Eleven or the London Drugs. [ 41 ] THE ACCUSED: I know. [ 42 ] THE COURT: All right? Thank you. [ 43 ] 1104, you must report in person to a bail supervisor here in Kamloops -- I am going to say 4:00 p.m. today. Mr. Kay, is that fine, or shall we do it for Monday?

[ 44 ] MR. KAY: I would probably ask Mr. Sheriff. [ 45 ] THE SHERIFF: To be on the safe side, Your Honour, I would say Monday. [ 46 ] THE COURT: Monday? All right. That will be December 23. So by 12:00 noon -- 12:00 p.m., Monday, December 23, report to the bail supervisor -- after your release from custody, unless you have obtained before your release written permission from your bail supervisor to report elsewhere or within a different time frame.

After that, you must report as directed by the bail supervisor. [ 47 ] 1201, when first reporting to the bail supervisor, you must provide them with the address where you live and your phone number. I do not expect you have a phone number but, if you do, provide it to them. You must not change your address or phone number without the prior written permission from your bail supervisor. [ 48 ] 1501, having consented in court, you must attend, participate in and complete any intake, assessment, counselling or education program as directed by your bail supervisor.

This may include counselling or programming for alcohol or drug addiction and mental health. [ 49 ] Mr. Kay, I have to confirm through you that she has consented to this condition. [ 50 ] MR. KAY: Yes. [ 51 ] THE COURT: All right. Thank you. [ 52 ] 1502, having consented in court, you must attend, participate and complete any intake, assessment, program, treatment or full- time live-in treatment program, as directed by your bail supervisor. This may include programming or treatment for alcohol or drug addiction, psychiatric, or psychological health. [ 53 ] Again Mr.

Kay, is your client consenting to this condition? [ 54 ] MR. KAY: Yes, she is, Your Honour. [ 55 ] THE COURT: Thank you. [ 56 ] 1506, if you are expelled or remove yourself from the recovery home, treatment centre or program, you must tell your bail supervisor immediately.

If the office is closed, you must contact your bail supervisor immediately when the office opens the next business day. [ 57 ] 1507, the Rogers order, having consented in court, you must do the following: (1) report to Forensic Psychiatric Services or elsewhere for any intake, assessment, counselling or treatment as directed by your bail supervisor; (2) attend all scheduled appointments with the professional in charge of your mental health care; (3) take all medications and medical treatment prescribed to you by those professionals; (4) provide your bail supervisor with the names, addresses and phone numbers of those professionals; (5) give those professionals a copy of this order; and lastly, if you decide not to follow these directions, you must immediately report that fact to your bail supervisor. [ 58 ] Mr.

Kay, I turn to you again -- has your client consented to these terms? [ 59 ] MR. KAY: Yes, she has. [ 60 ] THE COURT: Thank you. [ 61 ] Lastly, 1508, release of information. Having consented in court, you must sign any document that is necessary for your bail supervisor, counsellors or treatment providers to check your attendance and completion of any intake assessment, counselling or treatment program. [ 62 ] (B), having consented in this court, if asked by your bail supervisor, you must provide proof of your attendance and completion of any assessment, counselling or treatment program. [ 63 ] Again, Mr.

Kay, has your client consented? [ 64 ] MR. KAY: Yes. [ 65 ] THE COURT: Thank you. [ 66 ] Those are the terms of your release, Ms. Gibbs. There are a lot of them. It is probably going to take you a little while for you to absorb all of that. I trust that Mr. Kay will go through those with you in detail, and hopefully to the point that you understand them. [ 67 ] All right, do you understand all those terms? [ 68 ] THE ACCUSED: Mm-hmm. [ 69 ] THE COURT: I know there are a lot of them. It is probably difficult for you to understand, but I urge you to seek the assistance of Mr.

Kay to ensure that you understand all the terms. Feel free to ask your bail supervisor to go through the terms again, to make sure you do understand. All right? [ 70 ] THE ACCUSED: All right.

[ 71 ] THE COURT: Okay. All the best to you, Ms. Gibbs. You take care of yourself. ________________________ R.D. Phillips Provincial Court Judge