R. v. Billington, 2020 NSSC 269

SUPREME COURT OF Nova Scotia Citation: R. v. Billington , 2020 NSSC 269 Date: 20201001 Docket: CRP No. 499410 Registry: Pictou Between: Her Majesty the Queen v. Millan Douglas Billington DECISION Judge: The Honourable Justice N.M.

Scaravelli Heard: September 24, 2020, in Pictou, Nova Scotia Counsel: T.W. (Bill) Gorman, for the Crown Scott Brownell, for the Accused By the Court: [ 1 ] Millan Douglas Billington of 1085 River Road, Churchville, Pictou County, Nova Scotia, is charged that he did on or about the 7 th day of October, A.D., 2019, at or near New Glasgow, Nova Scotia, without reasonable excuse, refused to comply with a demand made to him contrary to s. 320.15(1) of the Criminal Code . [ 2 ] He is further charged by separate Indictment that he did on or about the 16 th day of February, A.D., 2020, at or near New Glasgow, Nova Scotia: COUNT 1 Break and enter a certain place to wit a dwelling house committing therein the indictable offence of mischief, contrary to s. 348(1) (

b) of the Criminal Code ; AND FURTHERMORE ON THE SAME DATE, COUNT 2

Commit mischief by willfully damaging property without legal justification or excuse and without legal justification or excuse and without color of right property of Scott Ross, the value of which did not exceed five thousand dollars, contrary to section 430(3) of the Criminal Code ; AND FURTHERMORE ON THE SAME DATE COUNT 3 Did being at large on a Release Order entered into before a Judge and being bound to comply with a condition of the Release Order directed by the said Judge fail without lawful excuse to comply with that condition to wit: keep the peace and be of good behavior, contrary to section 145(5) (

a) of the Criminal Code . Background [ 3 ] Counsel agreed that the following

summary record of proceedings set out in the Crown Brief is accurate: 3. Millan Douglas Billington appears before Supreme Court on two separate Indictments. The first Indictment alleging a charge of refusal contrary to

Section 320.15(1) has an offence date of October 7, 2019. The accused was arrested and processed by the New Glasgow Regional Police Service and ultimately released on a Promise to Appear dated October 7, 2019. This compelled his attendance in Pictou Provincial Court on the November 25, 2019 at 9:30am. 4. The second indictment before the Court alleges offences from February 16, 2020.

New Glasgow Regional Police Service was the responding Police Agency and in the course of their investigation, arrested the accused and the accused’s release was opposed and the accused was remanded through the JP Centre to appear in Pictou Provincial Court on February 18, 2020. The accused remained on remand by consent through a series of Court appearances and was ultimately released on Crown consent by Release Order dated June 24, 2020 (Order Number 2267731) which is a Release Order with financial obligation as there was a $1,000 deposit by the accused. 5.

The accused was then, while on judicial interim release, subsequently arrested by the New Glasgow Regional Police on July 5, 2020 and charged with a series of offences including assault a peace officer contrary to Section 270(2) of the Criminal Code , uttering threats to Constable Tyler Shipley contrary to

Section 264.1(1) (

a) of the Criminal Code , a breach of his Release Order of June 24, 2020, contrary to Section 145(5) (

a) of the Criminal Code and a possession of cocaine contrary to Section 4(1) of the CDSA . 6. The accused appeared in Pictou Provincial Court, in custody, on July 8, 2020 and at that time, the Crown sought to Show Cause on the new charges from July 5, 2020 and Bail Revocation with respect to the matters that are currently before the Supreme Court (the Release Order of June 24, 2020 (Order 2267731) and the Promise to Appear from October 7, 2019).

The accused remained on remand and following defence election to Supreme Court Judge Alone, a preliminary inquiry was held on the August 18, 2020 pursuant to Section 540(7) of the Criminal Code and the accused was committed to stand trial in Pictou Supreme Court to appear on August 20, 2020 to set dates.

With respect to the charges from July 5, 2020, those matters remained in the jurisdiction of Provincial Court and a Show Cause Hearing in Provincial Court was held on August 25, 2020 and after a contested Show Cause Hearing, the accused was released by Release Order, without financial obligation, and without surety, dated August 25, 2020, Order 2274117 was issued. 7.

Ultimately, trial dates have been set in Supreme Court for January 6, 2021 for the Indictment alleging offences from the October 7, 2019 and on the second Indictment alleging offences from the February 16, 2020, trial dates has been fixed for April 7 and 8, 2021. The matter of the accused’s bail status on the two Indictments before the Supreme Court, is yet to be resolved as the Crown sought bail revocation in Provincial Court initially pursuant to Section 524(2), but that matter was not adjudicated in Provincial Court as the accused continued to consent to remand.

It was following committal to Supreme Court that the accused now seeks bail. Therefore, the Crown bail revocation application comes before this Court. Relevant Statutory Provisions [ 4 ] Section 524(1): When an accused is taken before a Justice in any of the circumstances described in Subsection (2), the Justice shall (

a) If the accused was released from custody under an Order made under subsection 522(3) by a Judge of the superior court of criminal jurisdiction of any province, order that the accused be taken before a judge of that court so that the judge may hear the matter; or (

b) In any other case, hear the matter.

(2) The circumstances referred to in subsection (1) are the following: (

a) the accused has been arrested for the contravention of or having been about to contravene, a summons, appearance notice, undertaking or release order and the prosecutor seeks to have it cancelled under this section; or (

b) The accused has been arrested for having committed an indictable offence while being subject to a summons, appearance notice, undertaking or release order and the prosecutor seeks to have it cancelled under this section.

(3) The judge or justice who hears the matter shall cancel a summons, appearance notice, undertaking or release order in respect to the accused that the judge or justice finds that (

a) the accused has contravened or has been about to contravene the summons, appearance notice, undertaking or release order; or (

b) There are reasonable grounds to believe that the accused has committed an indictable offence while being subject to the summons, appearance notice, undertaking or release order.

(4) If the judge or justice cancels the summons, appearance notice, undertaking or release order, the judge or justice shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why their detention and custody is not justified under Section 515(10).

(5) If the judge or justice does not order that the accused be detained in custody under subsection (4), the judge or justice shall make a release order referred to in

section 515.

(6) If the judge or justice makes a release order under subsection (5), the judge or justice shall include the record a statement of the reasons for making the order, and subjection 515(9) applies with any modifications that the circumstances require.

(7) If the judge or justice does not cancel the summons, appearance notice, undertaking or release order under subsection (3), the judge or justice shall order that the accused be released from custody.

(8) The provisions of

section 516 to 519 apply with any modifications that the circumstances require in respect of any proceedings under this Section, except that subsection 518(2) does not apply in respect of an accused who is charged with an offence mentioned in

section 469.

(9) An order made under subsection (4) or (5) respecting an accused referred to in paragraph (1)(a), is not subject to review except as provided in

Section 680.

(10) An order made under subsection (4) or (5) respecting an accused other than the accused referred to in paragraph (1)(a), is subject to review under sections 520 and 521 as if the order were made under

Section 515. [ 5 ] The Crown seeks bail revocation pursuant to Section 524(2)(

a) and (

b) in relation to the indictable offences alleged to have been committed on July 5, 2020 in contravention of the Release Order issued by Provincial Court Judge Atwood on June 24, 2020. [ 6 ] Under these circumstances, Section 515(6) creates a reverse onus where the accused must show cause why he should not be detained. [ 7 ] Section 515(10) of the Criminal Code sets out grounds for pre-trial detention mainly: (

a) whether the accused is a flight risk; (

b) where detention is required for the protection or safety of the public and whether there is a substantial likelihood that the accused, if released, will commit further criminal offences or interfere with the administration of justice; and (

c) having regard to all of the circumstances including, but not limited to, the enumerated factors in subsection (

c) whether detention is necessary to maintain confidence in the administration of justice. [ 8 ] Pursuant to Section 518(1)(e), the Court may receive evidence that the Court considers credible, reliable and trustworthy. In

this regard, the Crown tendered a current bail report of the accused with his criminal record as well as a

summary of the facts on thevarious charges that are before this Court and the Provincial Court as taken from Police reports in support of the charges. [9] On January 22, 2020, the accused was charged with theft under $5,000, Breach of Probation and Breach of a Release Order. The accused was observed in the Antigonish Mall picking up a number of items and attempting to pay at the checkout using a defectivedebit card. The accused left with the items without paying. The items included a laptop and watches which totaled $3,248.

Store videowas used to identify the accused. [10] At the time of the offence, the accused was subject to a Probation Order dated December 12, 2019, issued by the ProvincialCourt in Woodstock, New Brunswick following a conviction for possession of a stolen vehicle. He was also subject to a Release Orderissued January 7, 2020 by the Pictou Provincial Court. [11] Regarding the February 16, 2020 three count Indictment before this Court, the accused was discovered by Police inside anupstairs apartment in New Glasgow. Entry was gained by way of a shattered window.

Police noted blood smears on the doors and wallsas well as a shattered window frame. Blood was noted on the accused’s person. Significant damage throughout the apartment wasobserved. Insurance adjustment estimated the value of damage at $51,600. [12] As noted, on July 5, 2020, the accused, while on interim release, was arrested and charged with assault on a Police Officer,uttering threats to Police Officer, and breach of Release Order dated June 24, 2020. [13] At approximately 1:30 a.m., the Police observed a van travelling in the Trenton area without its headlights engaged.

The vanfailed to obey a Police stop and fled the area. The van then eventually stopped behind a premises in the New Glasgow area. Theaccused was observed exiting the passenger side of the vehicle and fleeing. He was pursued by the Police Officer on foot. The accusedtold the Police Officer that he had a gun and for the Police Officer to shoot him or he would shoot the Police Officer. The officerapproached with gun drawn and observed that the accused did not have a weapon.

The accused resisted arrest and the officer put him onthe ground and while attempting to subdue the accused, noticed the accused putting something in his mouth. The accused bit theofficer’s left hand thumb puncturing the skin. The officer applied a taser to the accused. A search of the accused’s person incident toarrest found $500 in cash and a one-gram bag believed to contain cocaine. [14] The accused is 26 years old and has accumulated 52 prior criminal convictions both as a young offender and an adult.

Of the 52prior convictions, 25 are for breach of probation orders, 11 for breach of bail conditions and 3 failures to appear. [15] Mr. Billington put forward a plan for release. He testified that he could reside alone in a trailer owned by his brother’s motherat 54 Fraser’s Lane. His brother lives nearby as does other family members. He also stated that he could possibly reside in Halifax. Mr.Billington is on medication for Crohn’s Disease and Opioid dependency. He stated that he is not getting monthly injections for hisCrohn’s Disease while incarcerated. [16] Mr.

Billington is willing to accept any condition of release imposed by the Court including house arrest. As security for release,he offers “non-deposit” of his “antique” watch. The value of the watch is unknown but he guesses that it is worth between $5,000-$10,000. Mr. Billington is unemployed but knows an electrician in the neighbourhood who could give him work. [17] In R. v. Reddick, 2016 N.S.J. 331, I stated: [29]

Section 524 CC allows a judge to have an accused arrested where there are reasonable grounds to believe the accused hascontravened a recognizance. If the judge then concludes that the accused has contravened a condition of the recognizance, “he shallcancel the undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given areasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection515(10) CC.” Whether the judge was applying

section 524 CC matter or section 515(6) v, a reverse onus would apply. However, section524 CC requires the court to cancel the recognizance on concluding that he “has contravened or had been about to contravene” its terms.By contrast, section 515(6)(

c) CC only requires a specific charge to be laid. The judge was not required to be convinced of the accused’sguilt. [18] Further, at paragraph 40: [40] The fact that an accused is already on bail is a strong consideration under section 515(10)(b), CC. In R v Morales, (SCC), [1992] 3 SCR 711, [1992] SCJ No 98, Lamer CJC said, for the majority: 40 I am also satisfied that the public safety component of s. 515(10)(

b) is necessary to promote the proper functioning of the bailsystem and is not undertaken for any purpose extraneous to the bail system. In my view, the bail system does not function properly if anaccused interferes with the administration of justice while on bail. The entire criminal justice system is subverted if an accused interfereswith the administration of justice. If an accused is released on bail, it must be on condition that he or she will refrain from tampering withthe administration of justice.

If there is a substantial likelihood that the accused will not give this cooperation, it furthers the objectives ofthe bail system to deny bail. 41 In my view, the bail system also does not function properly if individuals commit crimes while on bail. One objective of the entiresystem of criminal justice is to stop criminal behaviour. The bail system releases individuals who have been accused but not convicted ofcriminal conduct, but in order to achieve the objective of stopping criminal behaviour, such release must be on condition that the accusedwill not engage in criminal activity pending trial.

In Pearson, the reality that persons engaged in drug trafficking tend to continue theircriminal behaviour even after an arrest was one basis for concluding that there is just cause to require persons charged with certainnarcotics offences to justify bail. Similarly, if there is a substantial likelihood that the accused will engage in criminal activity pending

trial, it furthers the objectives of the bail system to deny bail. [ 19 ] In this case, there is ample credible evidence of the accused’s interference with the administration of justice while on bail. There is reasonable grounds to believe the accused committed serious criminal offences while on judicial interim release. Moreover, I conclude that pursuant to

Section 10(b), there is a substantial likelihood that he would either commit a criminal offence or interfere with the administration of justice, if released. [ 20 ] The accused’s release plan lacks structure, is unreasonable and does nothing to address public safety. I am not satisfied that the accused discharged the onus of establishing that if released, he would abide by the law and the conditions of bail. [ 21 ] As a result, the Release Order dated June 24, 2020 is revoked and the accused is ordered detained in custody until he is dealt with according to law. Scaravelli, J.