R. v. Brantnall

2016 BCSC 331 R. v. Brantnall IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Brantnall, 2016 BCSC 331 Date: 20160216 Docket: 42548-2-KC; 42548-3-KA Registry: Prince George Regina v. Albert Johnson Brantnall Before: The Honourable Justice R.S. Tindale Oral Reasons for Judgment on Bail Review Counsel for Crown: T. Gamble Counsel for Defence: N. Lidder, Articled Student G. Whidden Place and Date of Hearing: Prince George, B.C. February 10 & 11, 2016 Place and Date of Judgment: Prince George, B.C. February 12, 2016 [1] THE COURT: The applicant, Albert Johnson Brantnall, seeks his judicial interim release on court file numbers 42548-2-KC and 42548-3-KA pursuant to s. 520 of the Criminal Code. [2] The Crown is opposed to the applicant being released. [3] Court file number 42548-2-KC charges the applicant with the following six counts: Count 1: on or about the 12th day of October, 2013, at or near Prince George, in the Province of British Columbia, did without lawful excuse point a firearm, whether loaded or unloaded, at Shannon Brantnall, contrary to Section 87(1) of the Criminal Code. Count 2: from the 29th day of September, 2015 to the 1st day of October, 2015, inclusive, at or near Prince George, in the Province of British Columbia, did without lawful authority and knowing that another person was harassed or was reckless as to whether the other person was harassed, engage in conduct that caused the other person, Shannon Brantnall, to reasonably fear for her safety or the safety of anyone known to her, contrary to Section 264 of the Criminal Code. Count 3: from the 29th day of September, 2015 to the 1st day of October, 2015, inclusive, at or near Prince George, in the Province of British Columbia, did knowingly utter a threat to Shannon Brantnall, to cause death or bodily harm to Bruce Keeler, contrary to Section 264.1(1)(a) of the Criminal Code. Count 4: from the 29th day of September, 2015 to the 1st day of October, 2015, inclusive, at or near Prince George, in the Province of British Columbia, did knowingly utter a threat to Shannon Brantnall, to cause death or bodily harm to Shannon Brantnall, contrary to Section 264.1(1)(a) of the Criminal Code. Count 5: from the 29th day of September, 2015 to the 1st day of October, 2015, inclusive, at or near Prince George, in the Province of British Columbia, did knowingly utter a threat to Shannon Brantnall, to cause death or bodily harm to Kyle Brantnall, contrary to Section 264.1(1)(a) of the Criminal Code. Count 6: from the 29th day of September, 2015 to the 1st day of October, 2015, inclusive, at or near Prince George, in the Province of British Columbia, did knowingly utter a threat to Shannon Brantnall, to cause death or bodily harm to Brianne Brantnall, contrary to Section 264.1(1)(a) of the Criminal Code. [4] Court file number 42548-3-KA charges the applicant with the following two counts: Count 1: from the 3rd day of December, 2015 to the 4th day of December, 2015, inclusive, at or near Prince George, in the Province of British Columbia, being at large on a recognizance entered into before a Justice or a Judge and being bound to comply with a condition of that recognizance as directed by a Justice or a Judge, did fail without lawful excuse to comply with the following condition or direction: You shall report in person to the Bail Supervisor no later than 3:30 p.m. on October 6th, 2015, at the Bail Supervisor's office located at # 101-250 GEORGE STREET, PRINCE GEORGE, B.C., and after that you shall report as and when directed by the Bail Supervisor, but in any event not less than once per week in person and on each of those occasions you shall meet face to face with the Bail Supervisor, contrary to Section 145(3) of the Criminal Code. Count 2: on or about the 4th day of December, 2015, at or near Prince George, in the Province of British Columbia, being at large on a recognizance entered into before a Justice or a Judge and being bound to comply with a condition of that recognizance as directed by a Justice or a Judge, did fail without lawful excuse to comply with the following condition or direction: You shall not possess or consume any alcohol or any controlled substance within the meaning of Section 2 of the Controlled Drugs and Substances Act, except as prescribed for you by a physician, contrary to s. 145(3) of the Criminal Code. BACKGROUND [5] On October 5, 2015, after a judicial interim release hearing before the Honourable Judge Weatherly of the Provincial Court of British Columbia the applicant was released on a recognizance of bail on court file 42548-KC-2. [6] On December 4, 2015, the applicant was arrested on court file number 42548-3-KA. [7] On December 11, 2015, the Honourable Judge Weatherly revoked the recognizance of bail that the applicant was placed on, on October 5, 2015, pursuant to s. 524 of the Criminal Code. The applicant was further detained pursuant to s. 515(10)(b) of the Criminal Code. [8] A trial was set for February 2, 2016 on court file 42548-3-KA. Unfortunately, the matter was adjourned for lack of court time. [9] The trial was next set for February 9, 2016. While both Crown and defence were ready to proceed on that date the Honourable Judge Doulis of the Provincial Court recused herself from the trial and declined to hear the matter as it involved local sheriffs as witnesses. [10] Court file 42548-KC-2 is currently set for the week of July 18, 2016. A new date for trial for court file 42548-3-KA has not yet been reset. One of the issues is that Mr. Lidder, who is acting for the applicant, is set to attend the professional legal training course put on by the Law Society of British Columbia. This course runs for 10 weeks and it is unlikely that the trial on court file 42548-3-KA will be held prior to July 18, 2016. [11] I was set to give my decision with regard to this matter yesterday, at which time Crown indicated they had some further information which they wished to investigate. The matter was adjourned to today's date for that purpose. I am told by Crown counsel that they received a complaint from a Rhonda White, who is an employee of the Prince George court registry. Ms. White indicated that sometime between September 2013 and December 2013, she went to pick up Mr. Brantnall's children. Ms. White is a friend of Ms. Brantnall. Mr. Brantnall was apparently drinking and uttered a threat that he was going to kill his wife. Ms. White said words to the effect to Mr. Brantnall that it would be unfortunate for the children and she alleges that Mr. Brantnall said that he would kill the children. Ms. White also indicated that she thought there was some incident which involved Mr. Brantnall saying words to the effect that he wanted a hitman, to kill his wife. However, I am told by Crown counsel the police have investigated that and Ms. Brantnall said those words may have been uttered by Mr. Brantnall, but that was in relationship to a gentleman that was communicating with his daughter. [12] The timing of the complaint is unfortunate, but in any event it relates to matters that are alleged to have occurred over two years ago, if not two and a half years ago. It is incomprehensible that this complaint would not have been made sooner. POSITION OF THE PARTIES [13] The applicant does not allege that the Honourable Judge Weatherly made an error in law in detaining him but rather, argues that there has been a change in circumstances since his detention order, and that his detention would be unjust. [14] In particular, the applicant argues that the court's inability to provide him with a trial date in February is a change in circumstances. Also, the applicant argues that there is new evidence available on this hearing that was unavailable for consideration by the Honourable Judge Weatherly on December 11, 2015. [15] The applicant, in his affidavit number 2 made on January 18, 2016 deposes to the following at paragraph 13: Confirm I do not consume recreational drugs or controlled substances as alleged by Crown. I am required to be tested for drugs as a requirement of my employment with CN Railway. I have not failed a test for recreational or controlled substances. Attached as Exhibit 'E' are my Non-Dot Drug Test Results from 7/7/2014 to 12/2/2015 as retrieved by my counsel from CN OHS. [16] These drug test results do confirm that for the above mentioned period of time the applicant tested negative for Opiates, Amphetamines, Oxycodone, Cocaine, Marihuana, Phencyclidine and Ethyl Glucuronide. The only exception is that on August 29, 2014, the applicant failed to attend for a scheduled drug test. I will note, however, that there are no drug test results provided for the months of August through October 2015. [17] Exhibit F to the affidavit number 2 of the applicant is a report from J.T. Audrey Jakus dated December 22, 2015. Ms. Jakus is a forensic alcohol specialist and was a forensic toxicologist. She opined at page 9 of her report that cocaine was generally not detectable after 24 to 31 hours in the urine of a person that has used the cocaine. [18] The applicant argues that this evidence, which was not available on December 11, 2015, is significant because it shows that it is unlikely that the applicant is a user of non-prescription drugs, or a chronic user of those drugs. [19] The applicant has also filed an affidavit from Jennifer Mindel made on February 9, 2016. Ms. Mindel is a designated paralegal with Mr. Lidder's law firm. She attaches as Exhibit A to her affidavit, an affidavit filed by the complainant, Shannon Brantnall, with respect to a matrimonial proceeding in the Provincial Court. In that affidavit, Ms. Brantnall is requesting that her file be transferred to Kelowna, British Columbia. The applicant argues that this is clear evidence that she has moved from Prince George. [20] The applicant argues that he simply forgot to attend his bail supervisor's office on December 3, 2015. He was notified by his lawyer at approximately 4:00 p.m. on December 3, 2015 by email in that regard and attended at 8:30 a.m. the next morning, December 4, 2015 to report to his bail supervisor. [21] The applicant has provided an affidavit from Kim Stafford made on January 5, 2016 in which Ms. Stafford deposes that she is prepared to be a surety for the applicant and have him reside at her residence located at XXX Street in Prince George. Ms. Stafford attended in court during this bail hearing and also confirmed that she would be willing to have the applicant in her home if he was placed on house arrest. [22] The applicant further deposes that he will abide by any and all conditions that he is placed on. [23] The Crown acknowledges that the applicant is not likely to abscond and that the trial dates have been delayed on court file number 42548-3-KA. However, that does not alleviate the Crown's concerns about the safety of the public generally and the safety of the complainants. The Crown reminds the court that the applicant is alleged to have pointed a high powered hunting rifle at his ex-wife as well as utter threats to his children and others. [24] The Crown submits that if the applicant was not using drugs then his violent and aggressive behaviour has not been explained. The Crown argues that while the applicant may not have been found in possession of alcohol, or any controlled substance, that factor was dealt with by the Honourable Judge Weatherly on December 11, 2015 in his reasons for judgment. [25] Those read at paragraph 29 as follows: Mr. Lidder says that the charge is very weak with respect to Count Number 2, as there was no evidence of anything found inside the pipe. That count says he is not to possess or consume any alcohol or any controlled substance. I do not necessarily think a person has to be found in possession of a controlled substance for the court to come to the conclusion at a trial that the person was in possession earlier or under the influence of some sort of controlled substance. However, that is not for me to decide, that is for a trial court. [26] The Crown agrees with that statement. The Crown emphasizes that their concern is for the public safety. The Crown argues that even if both trials are heard in July of 2016 that is not a significant delay. DECISION [27] I have had the opportunity to review the transcripts relating to both the October and December judicial interim release hearings as well as the reasons for judgment of the hearings of October 5 and December 11, 2015. [28] In considering the role of the reviewing judge on a s. 520 application, Mr. Justice Romilly, in R. v. Adiwal 2003 BCSC 740 said the following, at paragraphs 27 and 29: [27] There seems to be a difference of opinion as to whether a review hearing in the Superior Court from an Order made by a Provincial Court Judge is a de novo hearing or an appeal. The conventional wisdom would seem to suggest that it is a blend of the two. [29] The onus is on the Applicant to show that the Justice or Provincial Court Judge who fixed the original bail made an error in law or in principle, that the circumstances have changed or that it would be unjust not to Order the release. [29] On this hearing the applicant, does not allege that the Provincial Court Judge made an error in law or in principle. In that regard, I agree. The issues on this hearing are whether or not the circumstances have changed since the original detention order was made, or would it be unjust not to order the applicant's release. [30] The applicant is in a reverse onus situation with regard to the charges on court file number 42548-3-KA. It is the applicant's onus to show that his detention is not required. [31] The Honourable Judge Weatherly ultimately detained the applicant pursuant to s. 515(10)(b) of the Criminal Code, which is commonly referred to as a secondary ground. That section reads as follows: (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. [32] In R. v. Abdel-Rahman, 2010 BCSC 189, Mr. Justice Halfyard said the following with regard to the secondary ground at paragraph 23: In my opinion, the decisions that a judge must necessarily make in order to reach the conclusion that detention is justified on the secondary ground, are the following: a) First, that there is a risk that the accused will either commit an offence, or will interfere with the administration of justice, if he is released; b) Second, that this risk is of such magnitude that it amounts to a "substantial likelihood;" c) Third, that the said risk would constitute a danger to public safety (in general, or to a specific victim or witness) if the accused is released; and d) Fourth, that the detention of the accused is "necessary," because the identified danger to public safety cannot be prevented or reduced to an acceptable level by bail conditions (such as reporting to authorities, curfew, no-contact, mobility restrictions, sureties or cash bail). [33] The Honourable Judge Weatherly in detaining the applicant on December 11, 2015 said the following at paragraph 35: So he is on the conditions not to consume street drugs. He is apparently not able or unwilling to comply with that condition. That, quite frankly, is my biggest concern, along with those other comments that he has made, the observations I accept of the sheriffs and of Mr. Bamber. My biggest concern is that, as the Crown suggests, he is dangerous. He is in the community using drugs, and the fact that he is getting aggressive and talking the way he is to the bail supervisor, and the observations made on December 4th by the sheriffs, and the observation made on October 15th by Mr. Bamber lead me to conclude that there are reasonable grounds to believe that he is, so I cannot trust him. [34] Since the decision on December 11, 2015, there have been two failed attempts to conduct the trial on court file number 42548-3-KA. The reason that the trial did not go ahead cannot be in any way attributed to the conduct of the applicant or the Crown. The applicant is now in a situation where this matter is not likely to be resolved by trial until the summer. [35] The applicant has provided some evidence which was not available on December 11, 2015 that he had been the subject of monthly drug tests at his place of employment, which have been negative for drugs. As I have already noted the record is incomplete. However, there was a drug test in late November, 2015 which was also negative. I agree with the learned Provincial Court Judge that the issue of whether or not the applicant was intoxicated on December 4, 2015 is properly left to the trial judge. However, the evidence of the drug test does establish that the applicant is capable of abstaining from intoxicants. [36] There is also more persuasive evidence available today that the complainant, Shannon Brantnall, no longer resides in the Prince George, or Willow River area. [37] Section 11(d) and (e) of the Charter provides every person who is charged with an office the following rights, and that section reads as follows: Any person charged with an offence has the right: (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; and (e) not to be denied reasonable bail without just cause. [38] For the above-noted reasons, I am satisfied that there has been a change in circumstances which would justify a review of the applicant's detention. I also have concerns that there is a risk that the applicant will commit an offence if he is released. I am not however, given the new information regarding the drug tests and the residence change of Shannon Brantnall, satisfied that there is a substantial likelihood that the applicant would constitute a danger to the public if he is released. [39] In my view, there are bail conditions that the applicant can be placed on which would prevent or reduce any possible danger to the public. The applicant has discharged the onus on him and established that his continued detention is not necessary. In my view, it would also be unjust not to order the applicant's released given the delays in bringing the breach charges to trial and considering the evidence of the drug tests. I will vacate the orders of Judge Weatherly made December 11, 2015. [40] Mr. Brantnall, if you could stand up, please. I am going to release you, sir, on a recognizance in the amount of $5,000, no deposit, with one named surety, that being Kim Stafford, on the following conditions. (1) you shall keep the peace and be of good behaviour. (2) you shall report in person to the bail supervisor no later than 9:00 a.m. on February 15, 2016, at the bail supervisor's office, located at number 101, 250 George Street, Prince George, BC and after that, you shall report as and when directed by the bail supervisor but, in any event, no less than one time per week in person and on each of those occasions you shall meet face to face with the bail supervisor. (3) you shall reside at XXX Street, Prince George, BC and you shall not change your residence at any time without prior approval of the court. (4) you shall not be outside of your residence or on the lot on which your residence is located at any time. [41] So I am placing you on house arrest, sir, except as follows: (1) attending at and travelling directly to and returning directly from any scheduled meetings with your bail supervisor. (2) attending at and travelling directly to and returning directly from any court hearing that you are required to attend in relationship to these matters. (3) with the written consent of the bail supervisor obtained in advance, such consent is to be given only for compelling personal family or employment reasons. (4) in the event of a medical emergency and then only when travelling directly to or returning directly from a hospital emergency ward. [42] Sir, you shall also present yourself at the door to the residence when any peace officer, bail supervisor attends there for the purpose of determining compliance with the house arrest conditions of this order. You shall respond personally and immediately to the telephone when a peace officer, or a bail supervisor makes a telephone call to your residence for the purpose of determining compliance with the curfew conditions of this order. [43] You shall have no contact or communication directly or indirectly with Shannon Brantnall, Brianne Brantnall, Kyle Brantnall, Bruce Keeler, or Rhonda White. [44] You shall not attend at, or be within 15 kilometers of Willow River, BC. You shall not attend at, or be within 50 kilometers of Kelowna, BC. You shall not attend, or be within 100 metres of any place which you know to be the residence, school or workplace of Shannon Brantnall, Brianne Brantnall, Kyle Brantnall or Bruce Keeler. [45] You shall not possess or consume any alcohol, any controlled substance within the meaning of s. 2 of the Controlled Drugs and Substances Act, except as prescribed to you by a physician. You shall not enter any liquor store, beer and wine store, bar, pub, lounge, or other business premise from which minors are excluded by the terms of their liquor licence. [46] You shall not possess any weapon as defined in s. 2 of the Criminal Code and you shall not possess any knife outside of your residence except for the immediate preparation, or eating of food, or for purposes directly and immediately related to your employment. [47] Do you understand those conditions, sir? [48] THE ACCUSED: Yeah, I didn't quite hear the house arrest, sir. [49] THE COURT: All right. You are on house arrest, other than you can travel to and from the bail supervisor. You can travel to and from court. You can leave your house if you are given written permission in advance for personal, medical, family and work related reasons, or if you are going to a hospital emergency ward. So if you have a job that you can back to, you just need to get approval from your bail supervisor in that regard. [50] THE ACCUSED: To go back to work? [51] THE COURT: If you're going back to work. [52] THE ACCUSED: Yeah. [53] THE COURT: Right, so you need to tell him about that and get written approval for that, all right. Otherwise you are in the house. "R.S. Tindale, J."