R. v. Hiscoe

2017 BCSC 220 R. v. Hiscoe

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hiscoe, 2017 BCSC 220 Date: 20170123 Docket: 27162 Registry: Vancouver Regina v. Casey James Hiscoe Ban on Publication pursuant to s. 486.5 of the Criminal Code, R.S.C. 1985, c. C-46. Before: The Honourable Madam Justice DeWitt-Van Oosten These Oral Reasons for Judgment were edited for the purpose of publication on October 12, 2017 Oral Reasons for Judgment Counsel for the Crown: Sandra A. Cunningham, Q.C. Counsel for Mr. Hiscoe: David Ferguson Place and Dates of Hearing: Vancouver, B.C. January 17, 2017 Place and Date of Judgment: Vancouver, B.C. January 23, 2017 I. INTRODUCTION [1] On March 17, 2016, the applicant, Casey Hiscoe, was charged with unlawful confinement, assault and uttering a threat contrary to ss. 279(2), 266 and 264.1(1) of the Criminal Code, R.S.C. 1985, c. 46 (the "Code"), respectively. He was subsequently arrested and appeared before a Provincial Court Judge for judicial interim release ("JIR"). [2] On April 20, 2016, the applicant was detained in custody on the "secondary" ground. On page 8 of the Ruling on Judicial Interim Release Application (the "Ruling"), the Judge was satisfied that a detention order under s. 515(10)(b) of the Code was "necessary to prevent [the applicant] from committing further offences". He has been in custody since that time. The applicant has elected to be tried on the

charges by a judge of this Court and is awaiting a preliminary inquiry, which is currently scheduled for two days in Richmond Provincial Court on April 12 and 13, 2017. There is a co-accused in this matter by the name of Tian Yi Eddie Zhang. [3] Mr. Hiscoe has brought an application to have the detention order reviewed under s. 520(1) of the Code. He seeks his release on a $10,000 surety bail with cash deposit and stringent terms and conditions. The respondent Crown opposes the application and says there is no basis on which this Court can reasonably intervene with the decision made in the Court below. Alternatively, even if the applicant has "shown cause" within the meaning of s. 520(1), the continued detention of Mr. Hiscoe is justified under both the "secondary" and "tertiary" grounds. II. BACKGROUND A. Circumstances Surrounding the Offences [4] The offences for which the applicant has been detained occurred on September 9, 2015. The complainant is a 24-year-old male, F.G. At the material time, F.G. was working at a money exchange business. He had a relationship with the applicant's co-accused, Mr. Zhang. F.G. assisted Mr. Zhang with various wire transfers to China. One of the transfers was as large as $100,000. A second proposed transfer was in the range of $250,000. [5] Shortly after midnight on September 9, 2015, F.G. received a text message from Mr. Zhang, telling him

that he was outside F.G.'s residence. The complainant went outside and saw a car parked several houses down the street with its headlights on. F.G. called Mr. Zhang and was waved over to the parked car, which was a black BMW X5. Mr. Zhang was in the driver's seat. He told F.G. to get into the car to have a smoke with him. F.G. walked in front of the car to get in the front passenger seat. He noticed a man standing by the rear passenger side door. This man discarded a cigarette and got into the rear passenger seat. F.G. believed he put on a pair of gloves as he did so. [6] F.G. got into the car. He looked behind him to see who the other man was. He saw a Caucasian male, 23-27 years old, possibly with black hair. The man was clean shaven. He looked at F.G. and said "nice to meet you". [7] As Mr. Zhang was handing a cigarette to F.G., the man in the back seat grabbed F.G.'s face and covered his mouth and nose with both hands. F.G. struggled. The man said, "Don't move, we will kill you". Mr. Zhang grabbed F.G. and said "don't move, don't move". The BMW was running at the time. [8] F.G. wrenched free and managed to get out of the car. His left shoe fell off while still inside. He ran to his house and called 911. As he was running away, he heard a door opening and closing and then a loud rumble of the engine. [9] Police responded immediately. They observed several small scratch marks

on F.G.'s face and arms. F.G. provided a statement to police at 11:30 that same morning. He was asked why he thought Mr. Zhang had done this. He said Mr. Zhang probably needed money. [10] Through CCTV coverage in the neighbourhood, police were able to see a black vehicle driving up and down F.G.'s street, along with a white cargo van, about five minutes prior to F.G. leaving his house in response to the text message. This same coverage showed F.G. running back to his house and the same black SUV and white van on the street minutes after F.G. entered his residence. [11] Shortly after police responded to F.G.'s call, they examined the area where F.G. told them the car was parked containing Mr. Zhang and the man in the back seat. They found a wet spot on the asphalt consistent with moisture that might be generated from the air conditioning system of an idling vehicle. About five or six feet behind this wet spot, close to the curb, police located a Belmont cigarette that appeared to have been recently discarded. It was seized and subjected to DNA analysis. [12] Ultimately, DNA taken from the discarded cigarette was linked to the applicant. It took time for the forensic analysis to be completed, which explains the delay between the date of the alleged offences and the arrest of the applicant. He was not identified as a co-perpetrator until the identification was complete. [13] The

applicant was arrested on the charges in April 2016. He was interviewed by police. He confirmed that he smoked Belmont cigarettes. He told police he was not present for the incident alleged by F.G. in September 2015; however, he did not deny that the cigarette was his. He told police that he had heard of Mr. Zhang, but did not want to talk about him. [14] F.G. was not able to identify the applicant from photographs presented by police. And, as noted by the Judge below, the description he provided of the man in the back seat is "rather generic": Ruling, at para.

6. The principal piece of evidence against the applicant is the DNA from the cigarette. B. Outstanding Offences from North Vancouver [15] When he appeared before the Provincial Court for his JIR hearing, the applicant was subject to a bail order arising out of offences that occurred in North Vancouver. These offences post-date the Richmond matters. The applicant was charged with the North Vancouver offences before he was identified as an alleged co-perpetrator on the offences involving F.G. [16] The North Vancouver offences are said to have occurred on September 27, 2015. Mr. Zhang is again a co-accused. The circumstances surrounding these offences were summarized by the Provincial Court Judge who released the applicant from custody in North Vancouver on October 29, 2015: [1] THE COURT: This is an application for judicial release regarding Casey James Hiscoe. Mr. Hiscoe is before the court facing one count of kidnapping of Peng Sun between the 27th of September, 2015, and the 29th day of September, 2015, here in North Vancouver. [2] The circumstances are that the victim Mr. Sun was taken at some point in the evening of September 27th. He was last heard from when he was at a residence on what I understood to be 26th Crescent in North Vancouver. He was last heard from in terms of his whereabouts in North Vancouver around 6:45 when he texted his wife first asking her to come and

get him and then later very shortly thereafter apparently saying, "No, I'm going to stay for a bit." [3] Between that time and around 9:15 in the evening, his whereabouts are unknown; however, at about 9:15 local time a call was made to his parents in China demanding a ransom ... [5] Two point five million dollars. At some point that evening the victim was put on the phone to his father and indicated that the people holding him had a gun to his head. His father from China transferred the equivalent of $200,000 Canadian to another account in China. [6] With respect to Mr. Hiscoe and more particularly with respect to the charge before the court, at approximately three a.m. on September 29th, Mr. Hiscoe was arrested. He was in the company of his co-accused Mr. Zhang who is now charged with the murder of Mr. Peng Sun. There were two others present at the time of the arrest, a Mr. Gorelik and Mr. Green. The four were apprehended by the police after being observed moving the body of the victim from the trunk of his vehicle, which is a Bentley, to the trunk of a rental car which was operated by Mr. Zhang. Mr. Hiscoe drove a black BMW X5 with Mr. Gorelik and Mr. Green to the scene where they were arrested. [7] The police had been surveilling the Bentley since the early morning hours of the 28th, and late on the 28th had determined that Mr. Sun's body was in the trunk, but the clear

inference is that as the vehicle had not been interfered with, his body was in that vehicle as of the early morning of the 28th. The victim was killed by suffocation as a result of a Zap strap being placed around his neck and tightened. His feet and hands were bound and his face was covered in duct tape. At the time the police located his body late on the 28th, based upon the odour, they concluded he was already decomposing and, therefore, was likely killed about 24 hours earlier. [8] Early in the morning of the 28th, the police had obtained judicial authorization to intercept some electronic communications and phone communications between Mr. Zhang and this accused Mr. Hiscoe. Over the late evening of the 28th and into the early morning of the 29th, there were significant communications between Mr. Zhang and Hiscoe which clearly establish Mr. Hiscoe's knowledge that the victim's body was in the Bentley and his intention to assist Mr. Zhang in moving the body. The evidence suggests that Mr. Zhang had knowledge of the location of the Bentley and communicated this to Mr. Hiscoe. [9] The first plan between them was that Mr. Zhang would drive the Bentley away because he was Asian and would match the description of the registered owner and that Mr. Hiscoe would follow. Then, Mr. Zhang rented a car for that purpose. In the meantime, Mr. Hiscoe recruited Mr. Gorelik to assist. Mr.

Gorelik, in turn, recruited Mr. Green. At one point Mr. Zhang contacted Mr. Gorelik to make arrangements to meet at the residence where the victim, Mr. Sun, had been playing poker prior to his disappearance. However, then it was determined that Mr. Hiscoe would go and pick up Mr. Gorelik and Green and drive them to the Bentley. The discussion indicates that Mr. Gorelik and Green were to wear gloves and handle the body for Mr. Zhang and Mr. Hiscoe; that Mr. Zhang would then drive the rental car away with the body in it, and Mr. Hiscoe would follow in his vehicle. [10] Mr. Gorelik and Green were unaware till they were on scene that the "package" Mr. Hiscoe spoke to them about moving was, in fact, a body. At scene Mr. Hiscoe was seen by police to give Mr. Gorelik and Green the key to the trunk of the Bentley. All four were arrested, and Mr. Green and Gorelik provided statements about how they came to be involved in the event. [11] Mr. Zhang's voice was recognized as a result of one of the ransom calls being recorded. The demands for a ransom from Mr. Sun carried on from the evening of the 27th to late on the 28th. [12] Mr. Hiscoe's involvement up to the early morning hours of the 29th immediately prior to his arrest is as follows. On the evening of the 27th when Mr. Sun attended to the poker game at the address in North Vancouver at around that time, a black BMW X5 matching the

vehicle which was driven by Mr. Hiscoe to the Bentley in the early morning hours of the 29th, and a Range Rover were seen in the vicinity of that residence. It is of note that Mr. Hiscoe was not the registered owner of the black BMW, and there is no evidence that Mr. Hiscoe was operating the black BMW at that time. In the early morning of the 29th in the calls leading up to all of those parties attending to the Bentley to move the body, Mr. Hiscoe and Mr. Zhang referenced an SUV which Mr. Zhang said he had had to return to his mother. His mother is the registered owner of a Range Rover. [13] A later search of the residence where Mr. Sun was believed to be playing poker revealed a garbage bag in which were found Zap straps, duct tape and discarded pistol, all of these items being related to the condition in which Mr. Sun was found and his reference to his father about having had a gun to his head. [14] During the evening of the 27th between 7:30 and 9:30 at the time when the victim was apparently at the residence playing poker and up to after the first ransom call, Mr. Hiscoe and Mr. Zhang were in communication on 12 occasions using something called Voice Over Internet Protocol. The content of those conversations have not yet been determined. Shortly after the first ransom call on the 27th, there is a text at 9:30 from Mr. Hiscoe to Mr. Zhang asking him to call him. Mr. Zhang

replies, "I'm talking to his dad now." Shortly after that Mr. Zhang texted Mr. Hiscoe providing an address on No. 3 Road in Richmond which is, in fact, the victim's address. [15] Between 0005 and 0045 in the early morning of the 28th, Mr. Hiscoe and Mr. Zhang were texting back and forth. Mr. Hiscoe was instructing Mr. Zhang to get all of the garbage out of the house and dump it somewhere; to look through everything; collect any cigarette butts; to clean the sink, the bathrooms, to flush the toilets, to clean up all the bedrooms. Mr. Zhang responded, and I am paraphrasing all these texts, "I'm safe, we are okay," and Mr. Hiscoe again said, "Get all the garbage." [16] Around seven a.m. on the 28th, Mr. Zhang again contacted Mr. Hiscoe indicating the location of the Bentley. Nothing more seems to have happened on the 28th until eight p.m. when there is a phone call intercepted between Mr. Hiscoe and Mr. Zhang in which Mr. Zhang says "J", and I do not know if that is the letter "J" or the name J-a-y, said, "I have to find the next target." Mr. Hiscoe says to Mr. Zhang not to worry, that that can be done in months, that Mr. Zhang was to find someone to take care of the Bentley, that Mr. Hiscoe would follow and do the hard part. The next events are those which occurred very late on the 28th and into the early morning hours of the 29th up to the time of the arrest. [17] The only other

evidence of note is that on the accused's phone from May was a note with a list of items including wire cutters, Zap straps, fake license plates, pepper spray, walkie talkies and untraceable and disposable clothes. [18] According to submissions of the defence, there is surveillance which places Mr. Hiscoe in Richmond on the evening of the 27th. [19] The Crown theory is that Mr. Hiscoe is a party to the offence of kidnapping by aiding and abetting Mr. Zhang in the hiding or the cleaning up of the apparent scene of the crime and the planning for disposal of the body. The evidence in my view will, if all of it is accepted, form the basis for an inference that Mr. Hiscoe had knowledge of what Mr. Zhang was engaged in; in other words, a kidnapping and extortion for money, of Mr. Sun as of the evening of the 27th (Reasons at Judicial Interim Release Hearing, File 52383-2-C, North Vancouver, October 29, 2015, "Reasons"). [17] The applicant was initially charged in the North Vancouver matters with one count of kidnapping (s. 279(1)). In July 2016, a replacement (or "C") Information was sworn and the applicant now stands charged with the additional offences of manslaughter and indignity to a human body, contrary to ss. 236(b) and 182(b) of the Code. [18] When the applicant was granted bail on the North Vancouver matters, the Judge who released him said she did not find the Crown's case

to be a "strong" case based on the evidence before her: Reasons, at paras. 20 and 23. Further evidence has since been made available to the Crown, including cell phone records that I am told reveal Mr. Hiscoe was likely at the house where the victim went to meet Mr. Zhang between September 27, 2015, the alleged date of the kidnapping, and September 29, 2015, the date the applicant was arrested at the location where the body of the victim was found. [19] I understand that when the "C" Information was sworn, the Crown made no application to have the applicant's bail on those matters revisited, even though Mr. Hiscoe was now charged with manslaughter arising out of the same set of circumstances; the Crown had obtained additional cell phone evidence in support of its case against Mr. Hiscoe; and, the applicant had been identified, charged and detained in custody as a co-accused on the Richmond offences. [20] Following a consent committal under s. 549(1) of the Code, the North Vancouver matters are scheduled for trial before a Judge of this Court in February 2017. I am told that the trial is expected to take approximately one month to complete. [21] From his release in October 2015 until his arrest on the Richmond matters, the applicant was residing in the community subject to a recognizance in the amount of $20,000 (with cash deposit), with stringent terms and conditions,

including: reporting to a bail supervisor; residing with his mother; "house arrest" with a curfew; a weapons and firearms prohibition; and no contact with various named persons, including the applicant's co-accused on the North Vancouver offences. The applicant was also ordered to surrender his passport and directed to present himself at the front door of his residence upon the request of a peace officer or his bail supervisor, so that they could check to see whether he was complying with his curfew. [22] There were no reported breaches of the applicant's bail during this period. The evidence before me is that police checked his residence frequently to determine whether he was complying with his curfew, sometimes more than once per night. C. The Applicant's Antecedents [23] In support of his application under s. 520(1), the applicant put considerable detail before me about his personal background. In its materials, the respondent did the same, including copies of prior assessments and reports that were prepared for previous criminal court proceedings involving the applicant. I will not summarize the whole of this material for the purpose of these Reasons. Instead, I will highlight what I consider to be the more salient points. [24] The applicant is 22 years old. He has a criminal record as both a young person and an adult. As a youth, the applicant was convicted of two counts

of theft under $5,000 and one count of assault. He received conditional discharges for the two theft convictions and a 12-month Intensive Support and Supervision Order for the assault ("ISSO"). [25] As an adult, the applicant was found guilty of failing to comply with the terms of the ISSO and sentenced to six months' probation in May 2014. He was then convicted as an adult of assault with a weapon and possession of a weapon for a dangerous purpose. These offences involved a group attack on a male with machetes, sticks and clubs. Balaclavas were worn. The victim was stabbed and beaten. The applicant used pepper spray against the victim. The injuries were life-threatening and the victim required surgery. The applicant was released on bail for those charges. He was convicted of a breach of the related Undertaking, but received an absolute discharge. [26] A psychological assessment was prepared for the sentencing hearing on the assault and weapons offences (dated August 19, 2014). The report concluded it was "very likely" the applicant met the diagnosis for a Depressive Disorder and Generalized Anxiety Disorder. Moreover, given reported incidents of mood instability, he could have an underlying personality disorder or suffer from Bipolar Disorder: Exhibit 2, Tab 28, p.

15. The applicant was assessed as a "moderate risk for violence": Exhibit 2, Tab 28, p.

16. The report further opined that "occurrences of violent behaviour would most likely be spontaneous, impulsive acts or that they would involve poor judgment and planning": Exhibit 2, Tab 28, p. 22. [27] The applicant was sentenced for the assault and weapons offences to a 12 month conditional sentence and 12 months of probation (August 2014). The Richmond offences for which he is now detained in custody are alleged to have been committed only a short time after the conditional sentence expired and while he was subject to the 12-month probation order. The evidence before me is that during the course of his conditional sentence, the applicant was associating with his co-accused on the Richmond and North Vancouver matters, Mr. Zhang. This included assisting Mr. Zhang with illegal gaming operations. [28] Affidavits have been filed from the applicant and his mother, as well as letters written by the applicant, his mother and his girlfriend. These letters speak to positive changes that the applicant is said to have made while subject to the North Vancouver bail order and since April 2016, while detained in custody. In her letter, the applicant's mother says that while he was on "house arrest" for the North Vancouver offences, the applicant "followed his conditions to the letter". The mother's affidavit states that if her son is released, she will "ensure that Casey [complies] with

all of the conditions that the court imposes on him and if he does not [she] will immediately report his non-compliance to the police". [29] An Electronic Supervision Technical Suitability Report was completed for the purpose of the s. 520(1) review to determine whether the applicant could be monitored electronically if residing at his mother's residence. The Report came back negative because of inadequate electronic reception for use of the equipment. The Probation Officer who completed the Report did note that the applicant's mother and grandmother are "positive supports" in the residence. III. DECISION IN THE COURT BELOW A. Submissions Made by the Parties [30] At the April 2016 hearing, the Provincial Court Judge was told of the North Vancouver offences and the applicant's release on bail for those matters. This included information about text messages exchanged between the applicant and Mr. Zhang after the North Vancouver kidnapping in which there was discussion about finding "the next target": Proceedings at Judicial Interim Release Application at p. 16 (the "Proceedings"). The Crown's theory is that with Mr. Zhang, and possibly others, the applicant targets and then pursues potential victims for kidnapping and ransom demands. [31] Counsel for the Crown advised the Judge at the JIR hearing that the applicant "[was] not able or willing to put up any additional cash or a surety" for the Richmond offences: Proceedings, at p.

11. From the Crown's perspective, a surety may have "been appropriate in the circumstances", but the defence had not produced one: at p. 34. [32] Even though the newly charged offences pre-dated the North Vancouver events, the Crown expressed concerns under the "secondary" ground because the applicant "has a pattern now of violent behaviour": Proceedings, at p.

11. Counsel for the Crown did not make an argument that the applicant should be detained on the "tertiary" ground (s. 515(10)(c)). [33] The applicant sought his release on the same "extremely stringent conditions" that were put in place for the North Vancouver offences: Proceedings, at p.

18. Given the fact that Mr. Hiscoe had been in the community for six months since his release on the North Vancouver charges, and had not committed any further offences, it was the applicant's position that "[a]ny concerns on the secondary ground [had] been shown to not exist any longer": Proceedings, at p.

20. He expressed concern about the fact that it might take a year before the Richmond matter made its way to trial: Proceedings, at p. 24. [34] Counsel for the applicant told the Judge that the $20,000 deposited on the North Vancouver matters was "literally the family's entire money". They "tried desperately to try and come to court with some more cash or a surety", but the applicant "simply [didn't] have it": Proceedings, at p. 19. [35] In the Court below, the applicant filed letters from both the applicant's mother speaking to her observations of the applicant while subject to the North Vancouver bail order, as well as a letter from his girlfriend, which also spoke in positive terms about changes he was making: Proceedings, at p.

26. B. The Ruling [36] After summarizing the circumstances surrounding the Richmond offences, the Judge who detained the applicant took note of the fact that the applicant had been released on the North Vancouver matters and that "six months passed" before his arrest on the Richmond matters: Ruling, at para.

10. During this period, "police have checked on [the applicant] some 60 times, apparently, always found him at home and never in breach, and more important, no crimes of any kind have been committed since his release": Ruling, at para.

10. The fact of "no breaches" was acknowledged by the Crown: Ruling, at para. 11. [37] The Judge then reviewed the applicant's criminal record, including previous breaches of court order. He turned his mind to the "seriousness of the two indictments" that the applicant is now facing and said they cannot be "underestimated": Ruling, at para.

14. He acknowledged that even persons who are charged with serious offences have a constitutional right to bail unless their detention is shown to be justified: Ruling, at para.

14. He then said this at para. 16: What I have to decide here is this, and the Crown really put forward two propositions; one, if Mr. Hiscoe was to be released, there is a substantial likelihood he will commit further crimes, and second, the Crown says if released, there is also a substantial likelihood that he will interfere with either the victim or any potential witnesses in this particular case. [38] Based on the fact that the applicant had been in the community for six months prior to the JIR hearing, he "knew the charges would likely be coming", and there was no indication that he contacted, or "in any way [tried] to interfere with the victim in [the Richmond] case", the Judge was not satisfied there was an objective basis for the Crown's concern that the applicant would interfere with the administration of justice if released: Ruling, at para. 18. [39] However, he went on to find that the Crown had shown a substantial likelihood that the applicant would commit further offences if released. In support of this determination, the Judge took the following factors into account: (1) the applicant is alleged to have re-offended shortly after completing his conditional sentence in August 2015; (2) this includes the North Vancouver offences, which the Judge described as "similar" to the Richmond offences and involved "a degree of planning in selecting targets in both cases"; (3)

the strength of the DNA evidence linking the applicant to the discarded cigarette; (4) the evidence that after the North Vancouver offences, the applicant and Mr. Zhang communicated about "choosing their next victim"; and (5) the applicant's criminal record, including "violent crimes": Ruling, at paras. 19-22. IV. LEGAL PRINCIPLES [40] The legal principles governing s. 520(1) of the Code were considered in R. v. St-Cloud, 2015 SCC 27 (St-Cloud). [41] It is open to a reviewing judge to intervene with a bail order made in first instance "if the justice has erred in law": St-Cloud, at para. 121. [42] Intervention will also be appropriate "if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another". The reviewing judge does not have the "power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently": St-Cloud, at para. 121. [43] Finally, "where new evidence is submitted by the accused the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case": St-Cloud, at para. 121. [44] On this third basis for intervention, the four criteria for the admission of fresh evidence as established in Palmer v. The Queen, [1979] 1 S.C.R. 759, are to be

applied. However, they must be applied flexibly and a "generous and liberal" interpretation of the meaning of "new evidence" should be adopted by the reviewing judge: St-Cloud, at paras. 129-131. [45] A judge "may consider evidence that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for some reason that is legitimate or reasonable": St-Cloud, at para. 132. [46] The new evidence is "not limited to evidence that was unavailable to the accused before the initial hearing". In each case, "the reviewing judge will have to determine whether the reason why the accused did not tender such pre-existing evidence earlier was legitimate and reasonable": St-Cloud, at para.133. [47] It is to be noted, however, that any new evidence must be "significant". It must be such that it is "reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the justice" at first instance: St-Cloud, at para. 137. [48] If the new evidence is admitted under s. 520(7)(c) of the Code, the reviewing judge is authorized to repeat the interim release analysis as if he or she was the initial decision-maker: St-Cloud, at para.

138. V. ANALYSIS A. Establishing a Basis for Intervention [49] The applicant bears the onus of "showing cause" under s. 520(1) on a balance of probabilities. He says the detention order should be set aside on two bases: (1) there has been a material and relevant change in circumstances since the order was first made. The applicant's mother can now stand as a surety for him and the applicant has "gained insight" while incarcerated; and (2) the applicant says that the Provincial Court Judge "erred in failing to consider whether strict bail conditions could bring the protection or safety of the public down to an acceptable level". [50] The applicant also submits that if he spends further time in pre-trial custody on the Richmond matters, there is a risk that he will "over-serve" any sentence he might receive should he be found guilty of one or more of these offences and the 1:1.5 pre-trial credit ratio under s. 719(3.1) of the Code is given effect. Mr. Hiscoe argues that this also constitutes a material change in his circumstances that should be considered by the Court. [51] In making this submission, the applicant relies upon R. v. Pelletier, 2016 ONSC 1487, at para. 38, where it is noted that the "length of pretrial custody can constitute a material change in circumstances". Mr. Hiscoe has now been in custody on the Richmond matters for 10 months. [52] The respondent Crown says

that the applicant has not met his onus under s. 520(1). The decision of the Provincial Court Judge was not "clearly wrong" and there is no material change that warrants intervention with the detention order. The fact that the applicant's mother is now able to stand as surety would not have made a difference in the Court below. In any event, even if jurisdiction to intervene with the detention order has been established, a fresh analysis under s. 515(10) of the Code would lead to the same result. The applicant's continued detention is justified for a number of reasons, including: (i) the serious nature of the charges pending against the applicant; (ii) the fact that the Richmond and North Vancouver offences occurred close in time; (iii) the second kidnapping resulted in the murder of the victim; (iv) the Crown has a strong case on both matters; (v) the applicant's record for violent offending; (vi) his convictions for breach of court order; and, (vii) the fact that the Richmond offence is alleged to have been committed while on probation. [53] I am satisfied that the applicant has put evidence before the Court that shows a "material and relevant change in the circumstances of the case" within the meaning of St-Cloud. In making this finding, I am specifically referring to the affidavit and letter from the applicant's mother indicating that she is now in a position to stand as

surety with a $10,000 deposit on the Richmond matters. [54] A surety was not available at the JIR hearing in April 2016. The applicant's mother has filed an affidavit saying she is now able to act as surety and will take the terms and conditions of release seriously, including reporting incidents of non-compliance on the part of the applicant. There is nothing before me that seriously challenges or undermines the credibility or reliability of this assertion. On the contrary, the mother's affidavit states that had electronic supervision been available, she was prepared to have this level of supervision at her home. I note that the Provincial Court Judge who released Mr. Hiscoe on the North Vancouver matters accepted the applicant's mother as a suitable surety: His mother is able to act as his jailer in the community. He can reside with her. I have heard nothing to indicate that she is not a person who could be responsible for him in the community (Reasons, para. 24). [55] Consistent with the approach taken in R. v. Gadsby, 2016 BCSC 242, it is reasonable to think that had a surety been available in April, it "could have affected the balancing exercise engaged in by the justice" at first instance: St-Cloud, at para.

137. Counsel for the Crown acknowledged as much in the Court below: Proceedings, at pp. 11 and 34. [56] On review in this Court, the respondent suggests that the test for a material change in circumstances has not been met because the Provincial Court Judge did not explicitly state that had a surety been available on the Richmond matters, he would have released the applicant. This was not a "decisive or potentially decisive" issue for the Judge in his subjective determination on release. In my view, this proposition exacts too high of a standard for intervention under s. 520(1). The ability to show cause to vacate a detention order based on a material and relevant change is not dependent on the applicant showing that the change goes to a "decisive or potentially decisive" issue that was explicitly considered by the Judge below. Instead, as noted at para. 135 of St-Cloud, it "will suffice if the [new] evidence is relevant for the purposes of s. 515(10)" of the Code. [57] Sureties with a cash deposit reduce the risk that an accused will fail to comply with the terms and conditions of a release order, or commit new offences, because of the inherent monitoring component and the potential loss of monies in the face of a breach: Code, ss. 770 and 771; R. v. Cheung, 2016 BCCA 221, at para. 83. [58] In this case, it would be the applicant's mother who would lose the funds. The

applicant's family has already deposited $20,000 in support of the North Vancouver recognizance. There is no evidence that while subject to the related bail order, Mr. Hiscoe breached any terms of the order or committed further offences. [59] The respondent correctly points out that previous reports and assessments show that the applicant has had a troubled history with his mother; however, the engagement of the applicant's mother as part of Mr. Hiscoe's release plan since the North Vancouver offences appears to have been effective. Adding a further $10,000 from his family, thereby increasing the amount of monies they have at risk, constitutes an additional incentive for compliance that was not before the Provincial Court Judge. The proposal is that the applicant would live with both his mother and his grandmother, each of whom can contribute to monitoring his conduct. In my view, this is relevant to the balancing of interests that a determination on judicial interim release necessarily entails. [60] Accordingly, I am prepared to admit the evidence of the $10,000 surety under s. 520(7)(c) of the Code. As a result, I now have jurisdiction to repeat the interim release analysis as if I was the initial decision-maker on bail under s. 515(10): St-Cloud, at para. 138. [61] In light of this reality, it is not necessary for me to address the other stand-alone bases for intervention

that have been asserted by the applicant, except to the extent that they may be relevant to the s. 515(10) analysis. These include: (1) the evidence of new insights gained while in custody; (2) the risk of "over-serving" through delay in the proceedings; and (3) whether the public safety risk posed by the applicant can be effectively addressed through strict terms and conditions on his release: R. v. Abdel-Rahman, 2010 BCSC 189, at para.

23. B. Judicial Interim Release [62] Under s. 515(1) of the Code, the Crown bears the onus of justifying a detention order. In the absence of doing so, the accused must be released: Code, s. 515(2). [63] The respondent does not seek the applicant's detention on the "primary" ground. [64] Under the "secondary" ground, I am not satisfied that the respondent has shown there is a substantial likelihood that if the applicant is released on the Richmond matters, he will interfere with the administration of justice or commit further offences. [65] The Provincial Court Judge found no "objective basis" to believe that the applicant would interfere with the administration of justice and the respondent Crown does not suggest that the Judge erred in this regard. The applicant was in the community for six months prior to his arrest on the Richmond offences and subject to strict terms. According to the evidence, he complied with the conditions of his release and there is no evidence that he made any attempt to contact F.G. or other potential witnesses. [66] Nor is there any evidence that he has committed further offences. With his mother now acting as surety and an additional $10,000 of his family's money at stake, there is added incentive for the applicant to remain compliant while awaiting trial. He has spent the last 10 months in custody on the Richmond matters. The likely consequences of

non-compliance with any related bail order, or further offending, should be obvious to him. [67] The applicant does have previous incidents of non-compliance with court orders, including arrests that were made pursuant to s. 524 of the Code. However, many of these occurred while he was a youth; he has only two substantiated convictions for a breach as an adult; and he received an absolute discharge for one of them. [68] In R. v. Bhullar, 2005 BCCA 409, it was held at para. 58 that a "limited risk of further offences can be addressed through strict provisions, including curfew and mobility conditions". The Provincial Court Judge who released the applicant on the North Vancouver matters concluded that the Crown's "secondary ground" concerns could be met by the imposition of conditions, even taking into account the applicant's prior convictions for violence and the fact that he stands charged with new offences that are said to have been committed while subject to a probation order. I am of a similar view on the Richmond matters. [69] I appreciate that the Provincial Court Judge on the North Vancouver matters was not aware of the applicant's involvement in the Richmond offences at the time she reached her conclusion. However, counterbalancing the addition of the Richmond charges is the fact that between October 29, 2015 and the applicant's arrest in April 2016, he demonstrated that

he was able to remain in the community on bail without putting the public at risk and any "pattern" of offending has effectively been interrupted. [70] In my view, whether the applicant should continue to be detained in custody while awaiting his preliminary inquiry and trial on the Richmond offences appropriately falls to be determined on the "tertiary" ground. [71] I agree with the respondent that consideration of the "tertiary" ground is available to me on the plain language of s. 520(7)(e). Once an applicant establishes jurisdiction for vacating a detention order, the reviewing judge is statutorily authorized to "make any other order provided for in section 515 that he [or she] considers warranted". Logically, this would include an order for detention based on the "tertiary ground" (s. 515(10)(c)). [72] In St-Cloud, the Supreme Court set out the "essential principles" that guide the application of s. 515(10)(c) at para. 87 of the decision. I have familiarized myself with these principles, including: (1) detention on the "tertiary" ground is not to be "applied sparingly" or limited to "exceptional circumstances"; (2) the entirety of the circumstances are to be considered in the analysis, with particular attention to the strength of the prosecution's case; the gravity of the offence; the circumstances surrounding the offence; and the potential for lengthy imprisonment; and,

(3) the ultimate question to be asked is whether detention is necessary to maintain confidence in the administration of justice. 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": St-Cloud, at para. 88. [73] I agree with the Judge in the Court below that with the availability of the DNA evidence linking the applicant to the Richmond offences, the Crown can reasonably be said to have a "strong" circumstantial case against the applicant on the confinement, assault and threatening of F.G: Ruling, at para.

22. I also agree that these offences are appropriately described as "very serious": Ruling, at para. 19. [74] The offence of unlawful confinement under s. 279(2) of the Code carries a maximum sentence of 10 years' imprisonment. Moreover, the tragic outcome of the North Vancouver offences speaks volumes about the inherent danger associated with the type of conduct alleged to have occurred in Richmond and the risk to public safety that it carries. [75] On their face, the circumstances surrounding the confinement of F.G. include planning, intentional steps to lure F.G. from his home and threats against his life. Based on the material before me, it is the applicant who is said to have uttered these threats. These are aggravated features. [76] However, the confinement was short-lived, F.G. managed to remove himself from the vehicle and the physical injuries he sustained consisted of marks and scratches to his face and arms. There is no suggestion that these offences were gang-related; there is no evidence of particular vulnerabilities on the part of the complainant; and there were no weapons involved. These factors were considered in St-Cloud, at para. 61. [77] At the hearing before me, the respondent spent considerable time taking the Court through the circumstances surrounding the North Vancouver offences, which are clearly more aggravated and involve a death. However, those

offences and the related bail order are not before me. [78] If found guilty of the Richmond offences, it is likely that the applicant is facing a sentence of substantial imprisonment. However, any sentence would necessarily take into account the amount of time that Mr. Hiscoe spends in pre-trial custody. As noted, he has already been detained for 10 months on these matters. Assuming the 1:1.5 credit ratio under s. 719(3.1) would be available to Mr. Hiscoe, if he was sentenced today on the Richmond matters, he would receive at least 15 months' credit for his pre-trial custody. Mr. Hiscoe has not yet had a preliminary inquiry. It will likely be some time before that matter is heard at trial. This is a relevant factor for consideration: St-Cloud, at para. 71. [79] After considering the "combined effect" of the above-noted factors, consistent with the approach in St-Cloud, at para. 55, it is my view that the continued detention of Mr. Hiscoe on the Richmond offences is not necessary to maintain confidence in the administration of justice once a surety with a $10,000 cash deposit and strict bail conditions, including the equivalent of "house arrest", are put in place. [80] When conducting the "tertiary" ground analysis, the Court must remain mindful of the fact that the accused "is still presumed innocent regardless of the gravity of the offence, the strength of the prosecution's case or the possibility of a lengthy term of imprisonment": St-Cloud, at para.

56. In "Canadian law, the release of accused persons is the cardinal rule and detention, the exception": St-Cloud, at para. 70, citing R. v. Morales, [1992] 3 S.C.R. 711, at p. 728. [81] In reaching this determination, I recognize that the applicant also stands charged with the offences out of North Vancouver and they allege his participation in a set of circumstances that involved kidnapping, demands for ransom and a death. I have not overlooked this fact. However, he has a bail order in place for those offences and when a "C" Information was laid charging the applicant with manslaughter, the Crown did not see fit to have the bail order revisited. It is the Crown's independent prerogative to make that choice. However, in light of this reality, I must be careful to not allow the circumstances surrounding the North Vancouver matters to overwhelm the s. 515(10)(c) analysis on the previous-in-time Richmond charges, such that the application made by Mr. Hiscoe under s. 520(1) for a review of the Richmond detention order functionally becomes a review of the North Vancouver order. [82] In assessing "public confidence" under s. 515(10)(c) of the Code, I am to have in mind a "thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society's fundamental values": St-Cloud, at para.

80. In my view, releasing the applicant on the Richmond matters with stringent terms and conditions, and his mother functioning as a surety, would not undermine confidence in the administration of justice, particularly in light of the fact that while at large on the North Vancouver matters, the applicant complied with all terms and conditions of his bail and did not re-offend. [83] Although the Richmond offences are serious, they did not involve significant violence; the evidence is not "overwhelming" as contemplated by St-Cloud, and F.G. is not someone with particular vulnerability: St-Cloud, at para.

88. V. CONCLUSION [84] For the reasons provided, I allow the application for a review of the detention order made on April 20, 2016 in the Provincial Court of British Columbia, vacate the order detaining him in custody on the Richmond matters, and order that Casey James Hiscoe be released from custody under s. 515(2) of the Code on a $10,000 recognizance, with deposit in the same amount and one surety, with the following terms and conditions: 1. You must keep the peace and be of good behaviour.

2. You are to report within 24 hours of your release from custody in person to a bail supervisor at 275 East Cordova Street, Vancouver, British Columbia, and thereafter as, when and where directed by the bail supervisor, but not less than once per week in person and twice per week by telephone.

3. You are to reside at the residence of your mother, Valerie Hiscoe, located at 509-7373 Westminster Highway, Richmond, British Columbia, and you are not to change that address without the prior written permission of your bail supervisor.

4. You are subject to a 24-hour daily curfew. You are only allowed to be outside of your residence for the purpose of attending medical emergencies for yourself or any member of your immediate family who resides in your residence; for attending court; for reporting to your bail supervisor as and when required by the bail supervisor; or for a purpose approved of in advance and in writing by your bail supervisor. When so approved, you must comply with any terms and conditions set by your bail supervisor.

5. When you are outside of your residence in accordance with the terms of this recognizance, you are to travel directly to and from the location at which you are authorized to be and you are not to attend at any other premises without the prior written approval of your bail supervisor.

6. You are to abstain absolutely from the possession and consumption of alcohol or any drugs or substances as defined under the federal Controlled Drugs and Substance Act, save and except for any drugs or substances prescribed by a physician and then only in accordance with the dosage prescribed.

7. You are not to possess any knives except for the immediate preparation or consumption of food.

8. You are not to possess any weapons or imitation weapons as defined by the Criminal Code of Canada.

9. Pursuant to s. 515(4.1) of the Criminal Code, you are not to be in the possession of any firearm, cross-bow, prohibited weapon, restricted weapon, imitation weapon, prohibited device, ammunition, prohibited ammunition, explosive substance, or all such things and any related authorizations, licenses, and Registration Certificates until you are dealt with according to law on the offences to which this recognizance relates.

10. You are to have no contact, directly or indirectly, with Tian Yi Eddie Zhang, except through legal counsel or incidental contact while in attendance at court appearances.

11. You are to have no participation in any form of gaming activity as defined in s. 197(1) of the Criminal Code, whether on line or in person, and when outside your residence in accordance with the terms of this recognizance, you are not to attend at any premises, including any private residence, that is known by you to house gaming activity, or be frequented by persons who participate in gaming activity.

12. You are to surrender any passport in your possession, whether current or expired, within 24 hours of your release from custody to the Vancouver Police Department.

13. You are to present yourself to the front door of your residence upon the request of a peace officer or your bail supervisor to ensure compliance with the curfew condition of this recognizance.

14. You are to have no contact, directly or indirectly, with the complainant in this matter, F.G., or with any member of F.G's immediate family.

15. You are not to attend within 1000 metres of any residence, educational institution or place of employment known to you to be occupied or regularly frequented by F.G.

16. You are to carry a copy of this recognizance with you at all times that you are outside of your residence and you must present the copy of the recognizance upon the request of a peace officer or your bail supervisor. [85] MR. FERGUSON: My Lady, one issue that my friend and I just noted. On Condition 12, I think it would be more appropriate to be the Richmond Police Department. [86] MS. CUNNINGHAM: It would be the Richmond RCMP. [87] MR. FERGUSON: RCMP, yes. [88] THE COURT: All right, thank you, I will make that change to Condition 12, which will now read: You are to surrender any passport in your possession, whether current or expired, within 24 hours of your release from custody to the Richmond RCMP. "DeWitt-Van Oosten J."