R. v. Moir

2016 BCSC 2685 R. v. Moir IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Moir, 2016 BCSC 2685 Date: 20160531 Docket: 53172‑9 Registry: Chilliwack Regina v. Dustin Blue Robert Moir Ban of Publication made pursuant to s. 486.5(1) and s. 486.5(9) regarding any information identifying police undercover operators. Before: The Honourable Madam Justice S. Griffin Oral Reasons for Judgment at Bail Hearing Counsel for the Crown: John D. Hempstead Michael D.E. Lefebure Counsel for the Accused: Thomas M. Arbogast Place and Date of Hearing: New Westminster, B.C. May 30, 2016 Place and Date of Judgment: New Westminster, B.C. May 31, 2016 [1] THE COURT: This ruling deals with the question of whether or not the accused should be released on his undertaking and recognizance, subject to certain conditions, and what those conditions should be, pending his trial on the charge of the murder of Chelsey Acorn. For ease of reference, I will refer to the undertaking and recognizance as bail and the conditions as bail conditions. [2] Immediately prior to the accused's present detention, he was out of custody on bail pursuant to the order of Mr. Justice Joyce made August 13, 2013, indexed at 2013 BCSC 1696. I will refer to that as the "Joyce Bail Order". [3] The accused was brought back into custody just short of a year later in July 2014 on a charge of uttering a threat to cause death or bodily harm, an offence of which he was convicted with oral reasons for judgment of Judge Pothecary on April 8, 2015. He received a conditional discharge in oral reasons for sentence rendered on April 9, 2015, with probation of one year. Mr. Moir stayed in custody for that one year and has remained in custody since. [4] Mr. Moir's conditions of bail pursuant to the Joyce Bail Order included that his mother and grandmother be his sureties for a surety amount of $200,000, which is noted as "without deposit with one surety". [5] After being in custody and convicted on the threat charge, Mr. Moir learned that his mother was unable to be his surety any longer due to financial reasons. However, Candy and Ernie White, the parents of Mr. Moir's wife, have offered to be sureties in the amount of $125,000 without deposit. Mr. Moir would like to be released on bail pending the trial on the same conditions as the Joyce Bail Order, except substituting the surety and surety amount to reflect this. The Crown opposes any judicial interim release. [6] The status of the accused's present detention in custody is disputed. This in turn raises a dispute regarding the legal framework for determining the question of whether the accused should be released on bail. I therefore begin with a more detailed background. Background Facts [7] It is alleged that Chelsey Acorn was brutally murdered at the age of 14 years old, sometime between the beginning of October and end of December 2005. Her body was buried in a shallow grave in the woods and not discovered until April 2006. [8] Mr. Moir turned 20 years old in November 2005. He is now 30 years old. [9] Over the course of August 2006 to November 2006, Mr. Moir was targeted by undercover police officers in what is known as a Mr. Big investigation. Mr. Moir made statements in the course of that investigation that implicated him and his father, Jesse West, in the murder. [10] Mr. Moir was arrested for the murder of Chelsey Acorn on March 16, 2007. His father was also arrested at the same time. [11] Mr. Moir was granted bail by Mr. Justice Grist on May 4, 2007. [12] When an accused is charged with murder, he has the onus of showing cause why he should not be detained pending trial pursuant to s. 522(2) of the Criminal Code. Mr. Moir met that onus. Mr. Justice Grist found that the primary and secondary grounds for detention were not engaged. He held at paras. 8 and 9 of his oral reasons for judgment: [8] I agree that the tertiary grounds are a concern in this case, but note that this accused does not appear to have been primarily responsible for the planning and execution of the alleged murder. He is a young man and does not have a criminal record. In the circumstances, I do not think that informed reasonable and fair‑minded members of society would believe that a denial of bail is necessarily required in this case. [9] Ball conditions should, however, be onerous. His mother and grandmother will be required to jointly post security in the sum of $200,000. He will be required to reside at his mother and stepfather's home unless given permission to move by a bail supervisor. He will keep his bail supervisor informed of his residence and employment status and report once weekly. This can be by telephone, if authorized by the bail supervisor. [13] In selecting the surety of $200,000, Mr. Justice Grist was accepting what the accused's mother and grandmother had agreed to provide: see para. 6. [14] There was a trial of the murder charge against Mr. Moir which took place from November 23, 2009 until February 16, 2010. Mr. Moir was found guilty by a jury. [15] Thus, Mr. Moir was out of custody, on bail from May 4, 2007, until the end of the trial, February 15, 2010, just short of three years. [16] Mr. Moir was taken into custody on February 16, 2010. [17] There was an appeal from the trial and the Court of Appeal overturned the conviction and ordered a new trial on January 30, 2013. [18] Mr. Moir's father, Jesse West, was found guilty of first degree murder on January 30, 2013. [19] On July 31, 2013, Mr. Moir filed an application for judicial interim release. The new trial was expected to begin in the fall of 2014. This application was heard on August 7, 2013, and as I have already referred, determined by Mr. Justice Joyce on August 13, 2013. [20] Mr. Justice Joyce granted Mr. Moir judicial interim release on August 13, 2013. It was then more than three years after he had been taken into custody. Mr. Moir satisfied the Court that he had met the onus for release. The Court reviewed criticisms of Mr. Moir's behaviour while out of custody pending his first trial and while incarcerated and, despite some criticisms of his behaviour, concluded that release was justified. Mr. Moir was thus released from custody again as of August 13, 2014, and remained out of custody for almost 11 months. [21] On July 9, 2014, Mr. Moir was involved in an incident in which he became enraged at another driver, chased him and confronted him, making serious threats against the other person. This led to his charge for uttering a threat to cause death or bodily harm. Mr. Moir was taken into custody on the threat charge in July 2014. [22] On July 14, 2014, when I am informed Mr. Moir was already in custody, previous Crown counsel appeared before Mr. Justice N. Brown seeking a warrant pursuant to s. 524 of the Criminal Code. The following exchange occurred after the matter was called: MS. STEVENS: . . . The matter's been added to the list this morning, Your Lordship, for the application of the Crown for a 524 warrant. THE COURT: Yes. MS. STEVENS: Mr. Moir is currently released on a charge of first degree murder on a recognizance of $200,000 without deposit. The condition that the Crown's alleging he's breaching is keep the peace and be of good behaviour, which is condition 1. The Crown is in receipt of a Report to Crown Counsel done by Port Coquitlam RCMP where Mr. Moir is presently charged with uttering threats . . . . . . Police have investigated the matter thoroughly in Port Coquitlam and charges have been approved there. And I don't -- I'm not aware at this point if he's in custody on those charges yet, but the Crown here wishes to apply under 524 for a warrant to bring him back before the Supreme Court to revisit his bail. THE COURT: Okay. I am satisfied that order should go pursuant to s. 524 for the warrant. MS. STEVENS: Thank you. I'd also ask Your Lordship to mark the bail that's currently set for possible estreatment. THE COURT: Yes. [23] Thus, a s. 524 warrant was issued on July 14, 2014. Then on July 21, 2014, the accused was brought before the court on the s. 524 warrant before Mr. Justice Williams. After the case was called on July 21, 2014, it was apparent that counsel for the accused was not yet present. The accused appeared by video and identified that he was expecting his counsel to appear. Before his counsel showed up, Crown counsel explained to the court that Mr. Moir was before the court on a s. 524 warrant. Crown counsel said this in the absence of Mr. Moir's counsel: MS. KRAMER: Yes. He's before the court in Supreme Court on a 524 warrant. He is currently on bail for first degree murder with a $200,000 surety. THE COURT: Mm-hmm. MS. KRAMER: I believe that surety has been marked as a result of the 524. We do have trial dates in this matter of February 2nd -- I'm sorry, the voir dire of February 2nd to the 6th of 2015, a jury selection of March 2nd, 2015, trial starts on March 16th for approximately 10 to 12 weeks. With respect to the Supreme Court matter, the defendant has the obligation now to bring a bail hearing, so I would be asking the court today to impose a 515(11) order which is to have the accused detained until dealt with at law because he is charged with first degree murder, and my friend and I will work out a date for a bail hearing which I would anticipate taking an hour and a half to perhaps two hours long. [24] Mr. Moir's counsel then showed up in court. His prior counsel, I might add. This exchange then occurred: MS. HELPS: I am counsel for Dustin Moir -- THE COURT: Yeah. MS. HELPS: -- who is before the court on a 524 warrant and two new breaches. THE COURT: Yeah. MS. KRAMER: Yes, as I was just telling His Lordship that we do have dates that I've given him with respect to Supreme Court, and since this is Supreme Court -- THE COURT: I'm assuming those dates are fixed, are they not? MS. KRAMER: Yeah, they have been. THE COURT: Okay. MS. KRAMER: They've been fixed for quite some time. THE COURT: Yeah. MS. KRAMER: And so just pursuant to s. 515(11), Mr. Moir be detained until dealt with at law until we can arrange a bail hearing. MS. HELPS: Yes, thank you. MS. KRAMER: And then the other matters in Provincial Court will work their way through. MS. HELPS: Indeed, yes. THE COURT: Okay, that's fine. That's what we'll do, then. So there will be a 515(11) warrant and I will leave the matter to you people to schedule something as you see fit. [25] No s. 524 bail hearing was set down. Mr. Moir remained in custody. As mentioned, his trial on the uttering threat charge occurred in April 2015, and he was convicted on April 8th. On April 9, 2015, the sentencing took place and Judge Pothecary granted a conditional discharge, subject to a probationary period of one year. That conditional discharge has now lapsed. [26] The accused says that after his conditional discharge, he learned that his mother was no longer willing or able to be his surety because she was having financial difficulties. [27] On May 4, 2015, Mr. Moir was brought before the Provincial Court in Chilliwack for alleged breach of his curfew conditions while on bail. He was acquitted by Judge Skilnick. [28] In this proceeding, that is the present proceeding on the murder charge, a lengthy voir dire regarding the admissibility of the Mr. Big confession took place in January 2016, with the trial scheduled to begin in May 2016. Mr. Moir's defence counsel then took ill and was unable to continue representing him. Once new counsel was found, it was necessary to adjourn the trial which will now not commence until January 2017, and continue through February 2017. [29] As mentioned, Mr. Moir has only recently learned that his wife's parents, Candy and Ernie White, are willing to be his sureties and provide surety in the amount of $125,000. Mr. White is also willing to employ him in his business building fences and decks. In the meantime then, pending the outcome of trial, Mr. Moir seeks judicial interim release from custody. [30] It is worthwhile to set out the applicable sections of the Criminal Code which are ss. 515, 522, and 524. I will attach these provisions as Appendix "A" to these Reasons. [31] The following issues emerge from submissions: 1) What is Mr. Moir's present status in custody? In this regard, has his previous bail been cancelled pursuant to s. 524(4) or not? 2) If Mr. Moir's previous bail has not been cancelled, can the Crown apply now to have it cancelled pursuant to s. 524(4) and, if so, should the bail be cancelled? 3) If Mr. Moir's previous bail has not been cancelled, should it be varied? In this regard, has he shown a material change in circumstance that would justify judicial interim release on new conditions? 4) If his previous bail has been cancelled, has Mr. Moir shown cause why he should not be detained in custody within the meaning of s. 515(10) and, if so, should this Court grant judicial interim release on terms pursuant to s. 524(5)? [32] I turn to the first issue, the accused's present status in custody. [33] The Crown argues that the accused had his bail cancelled pursuant to s. 524(4) when he was detained by Mr. Justice Williams on July 21, 2014. The Crown's written submissions argue that this occurred "by operation of law". [34] There is nothing in subsection 524(4) that makes cancellation of bail something automatic that happens by operation of law, other than a judge making a finding under s. 524(4)(a) or (b), which here would require a finding that the accused has contravened or had been about to contravene his undertaking or recognizance, or that there are reasonable grounds to believe he had committed an indictable offence. There is no way one can read the transcript of the hearing before Mr. Justice Williams and conclude that the judge made either finding. [35] In oral submissions before me, Crown counsel suggested that because on July 14, 2014, Mr. Justice Brown had approved a warrant pursuant to s. 524, this could be implicitly relied on by Justice Williams as constituting grounds for cancelling the bail on July 21, 2014. Thus, it was argued, when Justice Williams agreed with further detention of the accused, this must have implicitly been a conclusion that he was satisfied there were grounds for cancelling bail pursuant to s. 524(4). [36] I respectfully disagree. The decision of Mr. Justice Brown to issue a warrant was made pursuant to s. 524(1). This is an ex parte hearing and the test is whether the justice has "reasonable grounds to believe". The accused was not before Mr. Justice Brown and had no opportunity to make submissions on whether or not there was a contravention of conditions of recognizance or the other requirements of s. 524(4). [37] Section 524(4) provides for a hearing where the accused is brought before the judge and it is clear that it is only after that hearing in the presence of the accused that the judge may make the findings under subsections (a) or (b). [38] A finding made under s. 524(4) resulting in the cancellation of a recognizance is not without consequence. It puts a burden on the accused to show cause why his detention is not justified. It also could deny the accused the benefit of enhanced credit for detention in custody if he is ultimately convicted and a custodial sentence is ordered pursuant to s. 719(3.1) of the Criminal Code. [39] In R. v. Vinepal, 2015 BCCA 349, the court considered the interplay of s. 524(4) and s. 719(3.1). The court made it clear that the Crown must formally apply to revoke bail under s. 524(4) and that revocation is not automatic upon a person's arrest. As held at para. 18 of Vinepal, s. 524(4) creates an onus on the Crown to satisfy the court that the accused's conduct met the first part of the test in s. 524(4). [40] On July 21, 2014, the accused was before the court, but neither the court nor the accused heard the Crown make any submissions that his bail should be cancelled. The court was asked on July 21, 2014 to detain the accused pursuant to s. 515(11) and that was the order made. In doing so, there was no discussion of the circumstances that had brought the accused back to court. [41] Prior counsel for the accused cannot be said on the record of that proceeding on July 21, 2014 to have consented to bail being cancelled, as that issue is not even mentioned by the Crown. [42] The only fair reading of what occurred on July 21, 2014 is that the Crown and defence counsel agreed to adjourn the s. 524 hearing. [43] It is not unusual for counsel to agree on an adjournment of a hearing having to do with bail. The Criminal Code provides for this in the context of an initial bail hearing and a bail review hearing pursuant to ss. 516(1) and 520(4). [44] The practice of adjourning bail hearings rather than putting the accused in the position of having to consent to a detention order when the accused is not ready to proceed on the bail hearing was encouraged by Justice Trotter in R. v. Hudson, [2011] O.J. No. 4195, as has been noted in Gold's Practitioner's Criminal Code, 2016, at 848. [45] Analogous to the reasoning invoked in Hudson, it makes no sense to require an accused to consent to cancellation of his bail terms brought before the court on a warrant under s. 524(4), if he is not ready to deal with the issues and he is otherwise lawfully in custody. [46] There does not appear to be a requirement in s. 524 for a hearing within a specific period of time, and I find that the court had inherent jurisdiction to adjourn the matter on the agreement of both counsel. [47] The record, therefore, reveals nothing to indicate that the judge on July 21, 2014 directed his mind to the question of whether Mr. Moir's bail should be cancelled or did anything more than accede to an adjournment of any s. 524 bail hearing issues. [48] The court on July 21, 2014 simply accepted the Crown's submissions that the accused could be detained on the original murder charge pursuant to s. 515(11) pending a s. 524 bail hearing. [49] I conclude that the current status of Mr. Moir is of an accused in custody charged with murder who was granted bail, was arrested under a warrant pursuant to s. 524(1), but who has not had a hearing to determine if his bail should be cancelled pursuant to s. 524(4). [50] I turn to the second issue. The Crown argued in the alternative that if the bail had not been cancelled at the July 21, 2014 hearing before Mr. Justice Williams, that it could now seek to cancel the bail pursuant to s. 524 and that this order should remain. [51] The Crown notes that the s. 524(1) warrant was obtained on July 14, 2014 based on a submission from Crown counsel that Mr. Moir had breached Condition 1 of his recognizance, namely that he keep the peace and be of good behaviour. [52] The Crown says that the facts of Mr. Moir's uttering a threat proved that he breached this condition of bail. It matters not that he received a conditional discharge. The underlying facts remain proven and those facts establish a breach of recognizance. If the Court so finds under s. 524, then cancellation of Mr. Moir's bail will automatically follow. [53] The defence argues, in effect, that the Crown's opportunity to apply to cancel bail under s. 524 has expired or is now spent, at paras. 17 to 18 of the defence written submissions as follows: 17. This line of reasoning raises the question, can the Crown still bring an application to cancel the bail order? Mr. Moir submits that the Crown is now precluded from bringing any such application because of the procedural requirements under s. 524. Mr. Moir was originally brought before the court on alleged charges relating to breaches of conditions and uttering threats. Those charges have now been "dealt with according to law" (to use the specific language of s. 515(11).) Mr. Moir was acquitted of all charges relating to alleged breaches of conditions, and, as previously noted, was given a conditional discharge with respect to the uttering threats matter. 18. Thus, there is no underlying or predicate reason that could support a s. 524 application by the Crown. [54] The defence provided no authority to support the above submission. I disagree that the Crown's opportunity to apply to cancel bail has expired or been spent. Further, the reference to being "dealt with according to law" in s. 515(11) was a reference to the underlying murder charge, not a new charge. [55] The s. 524 warrant commenced a different process than the proceeding on the threat charge. The s. 524 process is concerned with the court's supervision of an accused while on bail. The bail in question deals with a charge that remains outstanding. The Crown has not, until now, applied to cancel the bail and the court's supervision of that bail has not expired or been spent. [56] The few authorities that have been presented to me dealing with s. 524 applications establish that it is not unusual for the Crown to wait to deal with an application to cancel bail until after the new charges are dealt with. This strikes me as a fair approach, given the serious consequences to an accused of cancelling bail and the effect this could have on denying the accused enhanced credit for the time served while awaiting trial. [57] In Vinepal, the Crown applied to cancel bail more than a year after the s. 524 arrest and at the time of the accused's conviction and sentencing of bail breaches. In Vinepal, the court noted at para. 16 that in R. v. Costain, 2014 BCCA 458, the Crown withdrew its application to cancel bail upon the accused's acquittal of the offences underlying the breach of bail. [58] It may be that in most cases, the ultimate conviction or dismissal of the new charges that brought the accused back into custody may persuade the Crown to either apply under s. 524 to cancel bail granted in respect of the earlier charges or to abandon its application, but there is nothing in the authorities brought to my attention requiring the Crown to abandon the s. 524 hearing depending on the outcome of the new charges. [59] In Costain, the court at para. 7 characterized the accused's bail status between the date of the s. 524 warrant and the date of the hearing to determine if bail should be cancelled as being "suspended". I find this a useful description of Mr. Moir's bail status; that is, that his status pursuant to the Joyce Bail Order has been suspended. [60] It has not been submitted that Mr. Moir gave notice to the Crown asking it to bring forward the s. 524 application and that the Crown refused or that the Crown has taken too long to apply to cancel the Joyce Bail Order terms and that Mr. Moir is thereby prejudiced. Indeed, the accused anticipated in his submissions that the Crown might seek to proceed with the application to cancel bail pursuant to s. 524. [61] It appeared that since Mr. Moir's mother was unwilling to continue to be a surety, Mr. Moir could not meet the Joyce Bail Order terms and only recently learned that his in‑laws would be willing to be sureties. Both the Crown and defence took different positions on the accused's status and how to proceed, ultimately leading to this hearing. [62] I conclude that there is no prejudice to the accused and the Crown is entitled to proceed with an application pursuant to s. 524 for an order cancelling the accused's undertaking and recognizance, and for an order that the accused continue to be detained. [63] The next question then is whether the accused contravened a condition of bail. [64] The conduct that the Crown relies on for cancellation of bail is the uttering a threat conduct that was the subject of the conviction and conditional discharge by Judge Pothecary on April 8 and 9, 2015. [65] That brings me to the question, what is the effect of the conditional discharge on the s. 524 hearing? [66] Section 730(3) of the Criminal Code states that where the court directs that an offender be discharged of an offence, he will be deemed not to have been convicted of that offence. There are some exceptions listed, but no mention of what effect this may have on a s. 524(4) application to cancel bail. [67] However, there is nothing in the wording of s. 524(4) to suggest that if there is a conviction on the new charges, but a conditional discharge, the facts underlying the conviction cannot be considered under s. 524(4) in deciding whether "the accused has contravened" a bail condition. [68] I consider that it would be artificial and contrary to the intent of the Criminal Code provisions dealing with bail to conclude that a conditional discharge means that the underlying conduct related to the discharge conviction could not be considered as a basis for cancelling bail conditions that have been granted in relation to an earlier outstanding offence pursuant to s. 524. [69] There is a low threshold for cancelling bail conditions under s. 524(4) and (8). Bail can be cancelled not only if the judge finds a contravention of bail, but also if the judge finds that the accused is "about to" contravene his undertaking or recognizance, or if the judge simply finds "reasonable grounds to believe" that the accused has committed an indictable offence. [70] A new conviction is not necessary for the operation of s. 524 and the cancellation of bail in relation to an outstanding charge. This only makes sense. When bail was originally granted, the court was required to assess such things as public safety and the likelihood that the offender would offend if released from detention pending trial, and the offender's ability to abide by conditions of bail. It is highly relevant to these considerations if the accused engages in misconduct and offends while out on bail. This is why s. 524 is worded as it is. A conviction is not required, simply a contravention of bail conditions to trigger the application of s. 524. [71] I note parenthetically that an opposite conclusion, namely that a conviction followed by a conditional discharge cannot be considered on a s. 524 application to cancel bail, could result in unintended consequences contrary to the interests of accused persons. Such a result could make it more difficult for offenders who are out on bail to obtain a conditional discharge for a minor offence and could encourage prosecutors to not agree to lengthy adjournments, but to move quickly to apply to cancel bail under s. 524, before a conviction or immediately after a conviction and before sentencing. [72] I do not accept that the provisions governing the revocation of bail of an accused with respect to an outstanding offence are meant to invoke technical timing games. The provisions dealing with the revocation of bail can have significant consequences, as already mentioned. The Crown should be encouraged to not move too quickly to apply to revoke bail where there are questions as to whether or not the accused has engaged in misconduct while on bail, and so long as the accused is not seeking to have his bail status determined. [73] I return to the question, did the accused contravene a condition of his bail? [74] The parties do not appear to contest that, like other provisions in the Code dealing with bail, the standard of proof on a s. 524 hearing is on a balance of probabilities, as was noted by the lower court decision cited in R. v. Chambers, 2014 YKCA 13. [75] The question here is whether the accused contravened Condition 1, to keep the peace and be of good behaviour. I find that Mr. Moir did contravene that condition based on the threatening conduct which led to his conviction by Judge Pothecary. [76] Under s. 524(4), once a finding of a contravention of an undertaking or recognizance has been made, it is then mandatory that the court cancel the accused's undertaking or recognizance and order the accused detained, unless the accused is able to show cause why his detention is not justified within the meaning of s. 515(10). [77] While I have considered the conduct that led to Mr. Moir's conviction on the uttering threat charge to amount to a contravention of his recognizance, nonetheless it is important to keep in mind that a conditional discharge was granted. This is an indication of the court's view of a proportional response to the offence and will be relevant to the question of whether the accused can show cause why his detention is not justified. [78] I now turn to that question. [79] I have found, pursuant to s. 524(4), that the accused contravened his bail conditions. A fresh assessment is now required on the question of whether the accused can show cause why his detention is not justified. The accused cannot simply apply to vary his bail conditions granted by Mr. Justice Joyce. [80] If Mr. Moir can show cause why his detention is not justified, the Court may order him released on new or additional conditions of bail pursuant to s. 524(5). Section 515(10) sets out three grounds, any one of which may justify a court detaining an accused in custody pending trial. These are known as the primary, secondary, and tertiary grounds, and I will deal with each in turn. [81] The accused's position essentially is that he has been punished for his mistake made in relation to the conduct of uttering a threat and that for the same reasons as he was granted bail in the past, as quite thoroughly analyzed by Mr. Justice Joyce, he should be granted bail again. He also relies on two additional reasons for interim release which were not apparent at the time Mr. Justice Joyce granted bail, having to do with his wife and child. Mr. Moir has fathered a child while on bail, who was born in April 2014, just before he re‑entered custody in July 2014. That child is now just over two years old and he has only been able to communicate with her by video while he has been held in custody in a pretrial detention centre. [82] In addition, Mr. Moir's wife, Brea Moir, has become increasingly seriously disabled with a progressive disease, to the point where she is unable to work and is impaired in her ability to care for the child. She has a great need for Mr. Moir's assistance with caring for the child and needs Mr. Moir to earn income to support herself and the child. [83] Mr. Moir is prepared to abide by the same bail conditions as ordered in the Joyce Bail Order, with the exception that he requires a change in the sureties and surety amount as already explained. [84] Turning to the primary ground, that ground for detention is where it is necessary to ensure the accused's attendance in court in order to be dealt with according to law. It is not argued by the Crown that the accused is a flight risk. It is, however, worth noting that the accused has roots in the community, a wife, child, and a supportive family; his mother as one branch and his in‑laws' family as another branch. He says he has been offered a job by his father‑in‑law and this appears confirmed in a letter signed by his in‑laws. [85] Mr. Moir's mother has provided a letter that she will help Mr. Moir make it to any of his court appointments or parole appointments, by which I take it to mean his appointments with his bail supervisor. He has shown up for past appearances when on bail. [86] It is clear that detention of the accused on the primary ground is not justified. [87] The secondary ground for detention is where it is necessary for the protection or safety of the public, 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. [88] Past bail hearings regarding this accused have not considered there to be secondary grounds for detention. [89] The concern here is with the accused's conduct in the uttering a threat incident. It was serious conduct, as described in the reasons of Judge Pothecary at paras. 6 to 7, 13 to 14, and 27 to 30. The accused was out of control with rage, pursuing and threatening the victim face to face, and driving and having an accident while enraged, despite having his very young baby in the car, his child who was only approximately four months old. [90] However, this conduct was examined by Judge Pothecary very carefully when it came to sentencing and the judge, in essence, found that Mr. Moir had been punished by being in custody since close to the time of the incident to the date of sentencing, some approximately nine or 10 months: see reasons for sentence on April 9, 2015, at paras. 6 to 10. [91] Mr. Moir submits that while the conduct was serious, it was not indicative of a pattern of problematic behaviour. [92] Crown counsel argues that Mr. Moir's wife, Brea Moir, has proven herself not capable of being relied upon as someone who will ensure that Mr. Moir does not engage in criminal conduct. Crown counsel points to evidence which it says suggests Ms. Moir enables Mr. Moir's criminal conduct and covers up for him. [93] I agree that Ms. Moir has shown loyalty to her husband that raises questions about her own conduct or credibility, but not to the extent that suggests she will enable Mr. Moir to be a danger to the public or to commit offences if he is released on bail. [94] The accused has been out on bail for extended periods, living with Ms. Moir without serious incident until the threatening incident which occurred when he had a very young baby and perhaps was sleep‑deprived, had an argument with his wife, and was under stress, as noted at para. 27 of Judge Pothecary's reasons for sentence. [95] The circumstances surrounding the charge of murder involved Mr. Moir acting together with his father, who is now incarcerated. [96] The Crown case suggests that Mr. West was the mastermind or instigator of the murder. There is no suggestion that Mr. Moir is under the continuing influence of Mr. West. [97] The Crown also argues that given the accused's serious misconduct in the threat incident, the surety amount for any bail should, if anything, be increased not decreased. [98] The evidence before me is that Mr. Moir's mother, who earlier had offered the $200,000 surety, is no longer financially able to do so. This surety amount appeared to initiate with the accused's family and was not set in stone as a minimum threshold for release. [99] The accused's parents‑in‑law are willing to be sureties in the amount of $125,000. This is still a very significant surety amount. Mr. Moir was incarcerated in relation to the subject offence as a young man and has been in limbo ever since. It would be unlikely for him to have much financial means. The amount of surety should not be fixed so high as to be equivalent to a detention order, as held by our Court of Appeal in United States v. Robertson, 2013 BCCA 284 at para. 22. [100] I am satisfied that the $125,000 offered by the accused's parents‑in‑law is sufficient surety. [101] Mr. Moir has satisfied me that his detention is not justified on the secondary ground. [102] The third ground for detention is where it is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution's case, the gravity of the offence, the circumstances surrounding its commission, and the potential for a lengthy term of imprisonment. [103] The Crown argues that the jurisprudence related to the tertiary ground has changed since the Joyce Bail Order decided on August 13, 2013. In that decision, Mr. Justice Joyce stated at para. 34 that the tertiary ground "is to be confined to narrow circumstances". [104] Mr. Justice Joyce found at para. 37 that there did not exist in this case that constellation of exceptional factors that necessitates detention under the tertiary ground. [105] The case law cited by Mr. Justice Joyce included R. v. Hall, 2002 SCC 64, where the Court gave an example of circumstances meeting the tertiary ground. The circumstances in that case were the crime was horrific, inexplicable, and strongly linked to the accused. [106] The Crown relies on the case of R. v. St‑Cloud, 2015 SCC 27, where the Court held that the circumstances mentioned in Hall are not the only circumstances in which the tertiary ground applies: see para. 5. The Court in St‑Cloud held at paras. 87 to 88: [87] I would summarize the essential principles that must guide justices in applying s. 515(10)(c) Cr. C. as follows: - Section 515(10)(c) Cr. C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused. - Section 515(10)(c) Cr. C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes. - The four circumstances listed in s. 515(10)(c) Cr. C. are not exhaustive. - A court must not order detention automatically even where the four listed circumstances support such a result. - The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances. - The question whether a crime is "unexplainable" or "unexplained" is not a criterion that should guide the analysis. - No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified. - This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c). - To answer this question, the court must adopt the perspective of the "public", that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused. - This reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified. [88] In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered. [107] It is notable, however, that the Court in St‑Cloud agreed at para. 50 that detention under the tertiary ground may indeed be justified only in rare cases, because of the application of s. 515(10)(c), but not as a precondition to its application or an additional criterion. [108] Associate Chief Justice Cullen recently commented on the tertiary ground in R. v. Shevalev, 2015 BCSC 2117. In that case, the 19‑year‑old accused was charged with the second degree murder of his 80‑year‑old father. Associate Chief Justice Cullen held: [74] As to the tertiary ground, I accept generally that the absence of sufficient facts to justify detention on the secondary ground is a factor that weighs in the applicant's favour. In other words, the presence of such facts would weigh against release on the tertiary ground if the other conditions for detention in 515(10)(c) were also present. [109] The Court in Shevalev considered the Crown to have a very strong case, but there was some uncertainty as to the degree of the accused's culpability: see para. 75. Applying St‑Cloud, the Court held at para. 77 that, on balance, release should be favoured rather than the exception of detention. [110] In the present case, the crime was the most serious, taking the life of a 14‑year‑old girl, a very vulnerable victim. No words can do justice to the gravity of harm she suffered and the incredible loss to her family. It is important that justice be done, but of course that is the function of the ultimate trial. [111] The evidence against the accused in this case is of medium strength. The Crown's case is based primarily on evidence which was obtained in an undercover investigation known as a Mr. Big investigation, which evidence is presumptively inadmissible. In that evidence, Mr. Moir confesses to the crime and provides details that the Crown argues could only be known by someone who participated in the crime. [112] There has been no ruling as of yet admitting the evidence. Even if the evidence is admitted, the accused may offer a contrary version of evidence at trial and credibility may have to be considered. [113] Further, as mentioned, that evidence suggests that Mr. Moir's involvement in the crime was at the instigation of his father who has been convicted. Mr. Moir was either 19 or just turned 20 years old at the time. For the last 10 years, Mr. Moir's life has been caught up in an investigation and then in the prosecution of this murder. It cannot be said that he has been a free man callously enjoying unrestricted liberty without a care in the world. His life has been very negatively affected by what happened. [114] Mr. Moir has provided evidence that he has been serving very hard time while on remand awaiting the resolution of this case. It appears that the state has been unable to provide him with a safe environment and he is under constant threat due to circumstances beyond his control. He has already spent significant time in custody, on my rough estimate, close to five years. [115] The courts have to keep in mind the presumption of innocence when we consider the community's view of the administration of justice. If this presumption of innocence prevails and there is ultimately no conviction after the trial, and Mr. Moir is not released on bail in the meantime, he would have spent a further approximately nine months in custody before being released. [116] The evidence before me suggests that due to his wife's disability, this is the time when Mr. Moir's wife and daughter are in dire need of his assistance. On the other hand, if Mr. Moir is ultimately convicted, he will have to serve a very long sentence, in which case justice will remain served. [117] I am satisfied that Mr. Moir has shown that continued detention is not necessary to maintain confidence in the administration of justice and is not justified on the tertiary ground. [118] I therefore will order Mr. Moir released on his own recognizance, with Candy White and Ernie White as sureties in the amount of $125,000 without deposit. [119] The further conditions on which Mr. Moir may be released pending the trial of the murder charge will match the conditions he was subject to under the Joyce Bail Order, as varied to deal with the change in address. These conditions are, and I will read them out for the record. You probably have a copy of the order? [120] CROWN COUNSEL: We do, yes. [121] THE COURT: I am looking at Exhibit 3, what I think is the most recent version. [122] CROWN COUNSEL: Tab 4 of our book. [123] THE COURT: All right. All right, I do have it. So Condition 1, keep the peace and be of good behaviour. [124] Condition 2, you shall report in person to a bail supervisor forthwith at the probation office, and do people have an address for the probation office? [125] CROWN COUNSEL: It should be closest to where he's going to, so either in Port Coquitlam or to Maple Ridge. [126] CROWN COUNSEL: I have this one in -- [127] CROWN COUNSEL: That one's in Chilliwack, it's upon his release, if there's one he should report to out of this building firstly for reporting purposes, to be able to sign into where he's going to be residing. [128] MR. ARBOGAST: Mr. Moir indicates that Maple Ridge would be sufficient, there is an office there. [129] CROWN COUNSEL: We should put a time limit on that. He should be -- because it's four o'clock now. [130] THE COURT: Yes. He should report tomorrow. Can we -- I do not know what time the probation offices -- is there anyone there now? Probably not? [131] MR. ARBOGAST: Twenty‑four hours after his release. [132] CROWN COUNSEL: Within 24 hours after his release to the Port Coquitlam or Maple Ridge office, that's fair, My Lady. [133] THE COURT: Okay, we need to have the -- [134] CROWN COUNSEL: Specific address. [135] THE COURT: -- specific address, but hopefully the justice can insert that, all right. So you shall report within 24 hours in person to a bail supervisor at the probation office located in Maple Ridge, B.C., or Port Coquitlam, B.C., and you shall thereafter report as and when directed by your bail supervisor and in the manner directed by your bail supervisor, and you are to report in person no less than once per week. [136] Condition 3, you are to reside with your wife, Brea White Moir, at [address redacted], Maple Ridge, B.C., and not change this residence without the approval of the bail supervisor. [137] Condition 4, you shall obey a curfew by being inside of your residence between the hours of 9:00 p.m. and 6:00 a.m. each day. [138] Condition 5, you are to have no contact with any witnesses, including Josh Gordon, Steven Dudley. [139] Condition 6, you are to maintain or seek to maintain employment. [140] Condition 7, you shall present yourself at the door to your residence to any peace officer or bail supervisor for the purpose of determining your compliance with the curfew condition of this order. [141] Condition 8, you shall respond personally and immediately to the telephone when a peace officer or bail supervisor makes a telephone call to your residence for the purpose of determining your compliance with the curfew condition of this order. [142] That completes the conditions. [143] CROWN COUNSEL: If we could address any additional conditions, My Lady, at this time? You had asked that with my friend but you had not raised it with me, with the Crown. Firstly, the conditions that you had mentioned with respect to reporting, that should be within 24 hours of his release. We don't know when that is going to be. [144] THE COURT: Within 24 hours of his release, all right. [145] CROWN COUNSEL: And with respect to additional conditions, my friend had suggested that there be the counselling term that Judge Pothecary had. [146] THE COURT: I am not sure of the authority to order that without knowing what the resources are. I would encourage Mr. Moir to seek anger management counselling. There are probably other counselling issues you need to address. But without evidence on the availability of that, I am reluctant to make it a condition. [147] CROWN COUNSEL: The additional conditions, that under s. 515(4.1) are going to be the newer ones, where it indicates where making an order under subsection (2), in the case of an accused who is charged with -- and I think this would fall within (a), an offence in the commission of which violence was used against a person, threatened or attempted, the justice shall add to the order a condition prohibiting the accused with respect to firearms, et cetera. There's a whole sort of list of things, and that should include not to possess any weapons, firearms, and then it is the other matters that are dealt with afterwards. [148] THE COURT: All right, I will add as the next condition that Mr. Moir be prohibited from possessing a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance, or all those things, until you are dealt with according to law. [149] CROWN COUNSEL: And then a condition with respect to non‑prescribed substances. [150] THE COURT: What is the wording? What are you seeking? A condition that he -- [151] CROWN COUNSEL: We heard some submissions about that in prior -- prior proceedings, but not to purchase, possess, or consume any substance as prescribed or as listed in the schedules of the Controlled Drugs and Substances Act, not unless he has a prescription for same. [152] THE COURT: That seems appropriate -- any submissions, Mr. Arbogast? [153] MR. ARBOGAST: That doesn't seem unreasonable to me, My Lady. [154] THE COURT: All right. As the next condition, you are prohibited from possessing any illicit drugs, and according to the proper description as was just read out by Crown counsel, and the justice will read that to you. [155] THE CLERK: Was that alcohol and drugs? [156] THE COURT: No, just drugs. All right, that concludes the conditions. [157] I just have two other comments to make on -- did you -- [158] CROWN COUNSEL: One is a return date. For the recognizance, Madam Clerk, that return date will be June 27th at Chilliwack Law Courts, 10:00 a.m., please. [159] THE COURT: Yes. [160] CROWN COUNSEL: And I believe we'll have to canvass the address for the Maple Ridge location of the probation office, but that's where he should be reporting tomorrow. [161] THE CLERK: And what is the appearance for? [162] THE COURT: That is for voir dire continuation. [163] THE CLERK: Thank you. My Lady, is the surety Candy or Ernie White? [164] THE COURT: And, they are both sureties. [165] THE CLERK: Together. [166] MR. ARBOGAST: Is it jointly and severally? [167] THE COURT: Jointly and severally. [168] MR. ARBOGAST: Thank you. [169] THE COURT: I do not know that we have their address, it may -- I do not know if that goes on the form. [170] THE CLERK: It was -- [171] CROWN COUNSEL: It's in the affidavit, My Lady. [172] THE COURT: It is in the affidavit, okay. [173] As a last comment, counsel drew to my attention the fact that in the court file, someone made a notation on the existing bail order identifying it as "cancelled" and there is a date of "July 21, 2014". Counsel was informed by the registry that this notation was made on May 25, 2016 while the current matter was pending in which the very issue of whether or not the bail was cancelled was due to be determined. This notation was not made with any judicial authority, as far as I am aware, and should not have been made. It should be disregarded. [174] However, as of my judgment, the earlier bail order is cancelled and a new bail order is substituted. [175] CROWN COUNSEL: Understood, thank you. [176] THE COURT: Lastly, I want to thank counsel for providing very helpful outline submissions in advance of the hearing, thank you. "The Honourable Madam Justice S. Griffin" APPENDIX "A" Judicial Interim Release Order of release 515 (1) Subject to this section, where an accused who is charged with an offence other than an offence listed in section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice. Release on undertaking with conditions, etc. (2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released (a) on his giving an undertaking with such conditions as the justice directs; (b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security; (c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security; (d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or (e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs. Power of justice to name sureties in order (2.1) Where, pursuant to subsection (2) or any other provision of this Act, a justice, judge or court orders that an accused be released on his entering into a recognizance with sureties, the justice, judge or court may, in the order, name particular persons as sureties. Alternative to physical presence (2.2) Where, by this Act, the appearance of an accused is required for the purposes of judicial interim release, the appearance shall be by actual physical attendance of the accused but the justice may, subject to subsection (2.3), allow the accused to appear by means of any suitable telecommunication device, including telephone, that is satisfactory to the justice. Where consent required (2.3) The consent of the prosecutor and the accused is required for the purposes of an appearance if the evidence of a witness is to be taken at the appearance and the accused cannot appear by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication. Idem (3) The justice shall not make an order under any of paragraphs (2)(b) to (e) unless the prosecution shows cause why an order under the immediately preceding paragraph should not be made. Conditions authorized (4) The justice may direct as conditions under subsection (2) that the accused shall do any one or more of the following things as specified in the order: (a) report at times to be stated in the order to a peace officer or other person designated in the order; (b) remain within a territorial jurisdiction specified in the order; (c) notify the peace officer or other person designated under paragraph (a) of any change in his address or his employment or occupation; (d) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the justice considers necessary; (e) where the accused is the holder of a passport, deposit his passport as specified in the order; (e.1) comply with any other condition specified in the order that the justice considers necessary to ensure the safety and security of any victim of or witness to the offence; and (f) comply with such other reasonable conditions specified in the order as the justice considers desirable. Condition prohibiting possession of firearms, etc. (4.1) When making an order under subsection (2), in the case of an accused who is charged with (a) an offence in the commission of which violence against a person was used, threatened or attempted, (a.1) a terrorism offence, (b) an offence under section 264 (criminal harassment), (b.1) an offence under section 423.1 (intimidation of a justice system participant), (c) an offence relating to the contravention of any of sections 5 to 7 of the Controlled Drugs and Substances Act, (d) an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance, or (e) an offence under subsection 20(1) of the Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to an offence under subsection 20(1) of that Act, the justice shall add to the order a condition prohibiting the accused from possessing a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all those things, until the accused is dealt with according to law unless the justice considers that such a condition is not required in the interests of the safety of the accused or the safety and security of a victim of the offence or of any other person. Surrender, etc. (4.11) Where the justice adds a condition described in subsection (4.1) to an order made under subsection (2), the justice shall specify in the order the manner and method by which (a) the things referred to in subsection (4.1) that are in the possession of the accused shall be surrendered, disposed of, detained, stored or dealt with; and (b) the authorizations, licences and registration certificates held by the person shall be surrendered. Reasons (4.12) Where the justice does not add a condition described in subsection (4.1) to an order made under subsection (2), the justice shall include in the record a statement of the reasons for not adding the condition. Additional conditions (4.2) Before making an order under subsection (2), in the case of an accused who is charged with an offence referred to in subsection (4.3), the justice shall consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim of or witness to the offence or a justice system participant, to include as a condition of the order (a) that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order; or (b) that the accused comply with any other condition specified in the order that the justice considers necessary to ensure the safety and security of those persons. Offences (4.3) The offences for the purposes of subsection (4.2) are (a) a terrorism offence; (b) an offence described in section 264 or 423.1; (c) an offence in the commission of which violence against a person was used, threatened or attempted; and (d) an offence under subsection 20(1) of the Security of Information Act, or an offence under subsection 21(1) or 22(1) or section 23 of that Act that is committed in relation to an offence under subsection 20(1) of that Act. Detention in custody (5) Where the prosecutor shows cause why the detention of the accused in custody is justified, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall include in the record a statement of his reasons for making the order. Order of detention (6) Unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused's detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged (a) with an indictable offence, other than an offence listed in section 469, (i) that is alleged to have been committed while at large after being released in respect of another indictable offence pursuant to the provisions of this Part or section 679 or 680, (ii) that is an offence under section 467.11, 467.111, 467.12 or 467.13, or a serious offence alleged to have been committed for the benefit of, at the direction of, or in association with, a criminal organization, (iii) that is an offence under any of sections 83.02 to 83.04 and 83.18 to 83.23 or otherwise is alleged to be a terrorism offence, (iv) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act, (v) an offence under subsection 21(1) or 22(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in subparagraph (iv), (vi) that is an offence under section 99, 100 or 103, (vii) that is an offence under section 244 or 244.2, or an offence under section 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 that is alleged to have been committed with a firearm, or (viii) that is alleged to involve, or whose subject-matter is alleged to be, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition or prohibited ammunition or an explosive substance, and that is alleged to have been committed while the accused was under a prohibition order within the meaning of subsection 84(1); (b) with an indictable offence, other than an offence listed in section 469 and is not ordinarily resident in Canada, (c) with an offence under any of subsections 145(2) to (5) that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of this Part or section 679, 680 or 816, or (d) with having committed an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence. Reasons (6.1) If the justice orders that an accused to whom subsection (6) applies be released, the justice shall include in the record a statement of the justice's reasons for making the order. Order of release (7) Where an accused to whom paragraph 6(a), (c) or (d) applies shows cause why the accused's detention in custody is not justified, the justice shall order that the accused be released on giving an undertaking or entering into a recognizance described in any of paragraphs (2)(a) to (e) with the conditions described in subsections (4) to (4.2) or, where the accused was at large on an undertaking or recognizance with conditions, the additional conditions described in subsections (4) to (4.2), that the justice considers desirable, unless the accused, having been given a reasonable opportunity to do so, shows cause why the conditions or additional conditions should not be imposed. Idem (8) Where an accused to whom paragraph (6)(b) applies shows cause why the accused's detention in custody is not justified, the justice shall order that the accused be released on giving an undertaking or entering into a recognizance described in any of paragraphs (2)(a) to (e) with the conditions, described in subsections (4) to (4.2), that the justice considers desirable. Sufficiency of record (9) For the purposes of subsections (5) and (6), it is sufficient if a record is made of the reasons in accordance with the provisions of Part XVIII relating to the taking of evidence at preliminary inquiries. Written reasons (9.1) Despite subsection (9), if the justice orders that the accused be detained in custody primarily because of a previous conviction of the accused, the justice shall state that reason, in writing, in the record. Justification for detention in custody (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: (a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (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; and (c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (i) the apparent strength of the prosecution's case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. Detention in custody for offence listed in section 469 (11) Where an accused who is charged with an offence mentioned in section 469 is taken before a justice, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall issue a warrant in Form 8 for the committal of the accused. Order re no communication (12) A justice who orders that an accused be detained in custody under this section may include in the order a direction that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with such conditions specified in the order as the justice considers necessary. Consideration of victim's safety and security (13) A justice who makes an order under this section shall include in the record of the proceedings a statement that he or she considered the safety and security of every victim of the offence when making the order. Copy to victim (14) If an order is made under this section, the justice shall, on request by a victim of the offence, cause a copy of the order to be given to the victim. . . . Interim release by judge only 522 (1) Where an accused is charged with an offence listed in section 469, no court, judge or justice, other than a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is so charged, may release the accused before or after the accused has been ordered to stand trial. Idem (2) Where an accused is charged with an offence listed in section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is charged shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10). Order re no communication (2.1) A judge referred to in subsection (2) who orders that an accused be detained in custody under this section may include in the order a direction that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order except in accordance with such conditions specified in the order as the judge considers necessary. Release of accused (3) If the judge does not order that the accused be detained in custody under subsection (2), the judge may order that the accused be released on giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions described in subsections 515(4), (4.1) and (4.2) as the judge considers desirable. Order not reviewable except under section 680 (4) An order made under this section is not subject to review, except as provided in section 680. Application of sections 517, 518 and 519 (5) The provisions of sections 517, 518 except subsection (2) thereof, and 519 apply with such modifications as the circumstances require in respect of an application for an order under subsection (2). Other offences (6) Where an accused is charged with an offence mentioned in section 469 and with any other offence, a judge acting under this section may apply the provisions of this Part respecting judicial interim release to that other offence. . . . Arrest of Accused on Interim Release Issue of warrant for arrest of accused 524 (1) Where a justice is satisfied that there are reasonable grounds to believe that an accused (a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or (b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he may issue a warrant for the arrest of the accused. Arrest of accused without warrant (2) Notwithstanding anything in this Act, a peace officer who believes on reasonable grounds that an accused (a) has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking or recognizance that was issued or given to him or entered into by him, or (b) has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, may arrest the accused without warrant. Hearing (3) Where an accused who has been arrested with a warrant issued under subsection (1), or who has been arrested under subsection (2), is taken before a justice, the justice shall (a) where the accused was released from custody pursuant to 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; or (b) in any other case, hear the prosecutor and his witnesses, if any, and the accused and his witnesses, if any. Retention of accused (4) Where an accused described in paragraph (3)(a) is taken before a judge and the judge finds (a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or (b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10). Release of accused (5) Where the judge does not order that the accused be detained in custody pursuant to subsection (4), he may order that the accused be released on his giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions described in subsection 515(4) or, where the accused was at large on an undertaking or a recognizance with conditions, such additional conditions, described in subsection 515(4), as the judge considers desirable. Order not reviewable (6) Any order made under subsection (4) or (5) is not subject to review, except as provided in section 680. Release of accused (7) Where the judge does not make a finding under paragraph (4)(a) or (b), he shall order that the accused be released from custody. Powers of justice after hearing (8) Where an accused described in subsection (3), other than an accused to whom paragraph (a) of that subsection applies, is taken before the justice and the justice finds (a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or (b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10). Release of accused (9) Where an accused shows cause why his detention in custody is not justified within the meaning of subsection 515(10), the justice shall order that the accused be released on his giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(a) to (e) with such conditions, described in subsection 515(4), as the justice considers desirable. Reasons (10) Where the justice makes an order under subsection (9), he shall include in the record a statement of his reasons for making the order, and subsection 515(9) is applicable with such modifications as the circumstances require in respect thereof. Where justice to order that accused be released (11) Where the justice does not make a finding under paragraph (8)(a) or (b), he shall order that the accused be released from custody. Provisions applicable to proceedings under this section (12) The provisions of sections 517, 518 and 519 apply with such modifications as 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 522. Certain provisions applicable to order under this section (13) Section 520 applies in respect of any order made under subsection (8) or (9) as though the order were an order made by a justice or a judge of the Nunavut Court of Justice under subsection 515(2) or (5), and section 521 applies in respect of any order made under subsection (9) as though the order were an order made by a justice or a judge of the Nunavut Court of Justice under subsection 515(2).