R. v. Lambert

2019 BCSC 1401 R. v. Lambert

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Lambert, 2019 BCSC 1401 Date: 20190802 Docket: 28497-1-W Registry: Vancouver Regina v. Cole Vid Lambert Before: The Honourable Chief Justice Hinkson On review from: Provincial Court of British Columbia (R. v. Lambert, Surrey File No. 233928 & 234133) Oral Reasons for Judgment re Detention Review Hearing Counsel for the Crown appearing via teleconference: N. Reithmeier Counsel for the Defence: B. Movassaghi Place and Date of Trial/Hearing: New Westminster, B.C. July 29, 2019 Place and Date of Judgment: Vancouver, B.C. August 2, 2019 [1] THE COURT: Mr. Lambert, I said I would give reasons this afternoon on the application for a detention review hearing, and these are those reasons. [2] The accused Cole Vid Lambert is before the court for a detention review hearing pursuant to s. 525 of the Criminal Code, R.S.C. c. C-46 [Code]. [3] On April 26, 2019, he was charged, on Information 233928, with possession of a prohibited weapon and breach of a term of his probation. Specifically, he is charged with: (1) carrying or having in his possession a weapon, a stun gun/taser, for a purpose dangerous to the public peace or for the purpose of committing an offence contrary to s. 88(1) of the Code; and (2) possessing a weapon, without lawful excuse, contrary to s. 733.1(1) of the Code and in breach of a probation order made September 15,

2017. The Crown is proceeding summarily on these charges. [4] These charges arise as a result of two police officers encountering a group, including Mr. Lambert, whilst on foot patrol. It is alleged that the officers noted that Mr. Lambert had a long black handle sticking out of his jacket and asked him what it was. They say that Mr. Lambert handed the object to them, saying that it was a flashlight, but their closer scrutiny of the object revealed that it appeared to be a stun gun or taser. [5] On April 27, 2019, Mr. Lambert was granted judicial interim release in the form of a recognizance, with a $1,000 deposit and conditions. A four‑day trial is set for September 19 and 20 and October 5 and 6, 2019 in Provincial Court in Surrey. [6] On May 12, 2019, Mr. Lambert was charged on Information 234133 with uttering a threat to cause death or bodily harm to another individual and his bail was revoked on the following day. The Crown is proceeding summarily on these charges. Mr. Lambert has been in custody since then, for a period in excess of 30 days. [7] Specifically, Mr. Lambert is charged on this information with: (1) committing an assault of a named individual, whilst carrying, using, or threatening to use a weapon or an imitation weapon, contrary to s. 267(a) of the Code; and (2) committing an assault of a second named individual whilst carrying, using, or threatening to use a

weapon or imitation weapon, contrary to s. 267(a) of the Code. [8] These charges arise from a complaint by two individuals that, on May 11, 2019, they were "pepper sprayed" after being approached by two men, one of whom advised that he had a "Glock" and that if one of the individuals stepped any closer to the men he would "put a couple in your head". [9] Unfortunately, Mr. Lambert has what Judicial Justice Beer described as a horrendous record, numbering some nine pages in length, consisting largely of convictions for theft under $5,000 and breach of court orders, but including a prior conviction for uttering threats in June of 2017. [10] On May 12, 2019, Mr. Lambert appeared before Judicial Justice Beer on a bail hearing on Information 234133 and a bail revocation hearing on Information 233928. The judicial justice concluded that Mr. Lambert had failed to meet the onus to justify his release from custody and ordered that he be detained and remain in custody on both informations. [11] By way of an application for a detention review hearing dated June 11, 2019, filed by B.C. Corrections, these two informations, that is 233928 and 234133, are 30‑day review files and, thus, indicative that the Crown is proceeding summarily in respect of these two sets of charges. Accordingly, Mr. Lambert became eligible for a 30‑day detention review hearing on these two files on June 11,

2019. [12] However, at the commencement of the detention review hearing, the Crown raised a preliminary issue of jurisdiction. It is the Crown's position that this Court lacks jurisdiction to conduct a s. 525 detention review hearing because Mr. Lambert is now in custody on another set of charges, and has been so detained for a period of less than 90 days. Crown counsel says that my jurisdiction to conduct a s. 525 hearing will not arise until the expiry of 90 days on Mr. Lambert's detention for this most recent charge. [13] At the hearing on July 29, 2019, I advised counsel that I would accept their written submissions on the jurisdictional issue and provide them with a decision and reasons today. I did receive those submissions and this is my decision and my reasons therefore. Background [14] On July 3, 2019, Mr. Lambert was charged, on Information 234785, with one count of theft under $5,000. Specifically, he was charged that on January 13, 2019, he committed theft of lottery tickets, cigarettes, and candy, the property of 7-Eleven, of a value of not in excess of $5,000, contrary to s. 334(b) of the Code. The Crown is proceeding by indictment on this charge. Accordingly, if detained, Mr. Lambert is not eligible for a s. 525 detention review hearing until 90 days from when his detention has lapsed. [15] The jurisdictional issue before the court is whether Mr. Lambert is "not

required to be detained in custody in respect of any other matter", as that phrase is used in s. 525 of the Code, insofar as Information 234785 is concerned. [16] Crown counsel advised me that Mr. Lambert consented to remain in custody on this most recent charge on both July 12 and 25, 2019. Therefore, he has not had any judicial determination as to whether he is required to be detained in custody on that charge. However, the fact of the matter remains that he is in custody on Information 234785 and, as of today's date has consented to remain in custody on Information 234785, and therefore detained, since approximately July 12, 2019, a matter of less than 30 days and clearly less than a requisite 90 days for a matter where the Crown is proceeding by indictment. Jurisdiction [17] The statutory provision in issue is s. 525(1) of the Code, which reads: 525(1) Where an accused who has been charged with an offence other than an offence listed in section 469 and who is not required to be detained in custody in respect of any other matter is being detained in custody pending his trial for that offence and the trial has not commenced (a) in the case of an indictable offence, within ninety days from (i) the day on which the accused was taken before a justice under section 503, or (ii) where an order that the accused be detained in custody has been made under section 521 or 524, or a

decision has been made with respect to a review under section 520, the later of the day on which the accused was taken into custody under that order and the day of the decision, or (b) in the case of an offence for which the accused is being prosecuted in proceedings by way of summary conviction, within thirty days from (i) the day on which the accused was taken before a justice under subsection 503(1), or (ii) where an order that the accused be detained in custody has been made under section 521 or 524, or a decision has been made with respect to a review under section 520, the later of the day on which the accused was taken into custody under that order and the day of the decision, the person having the custody of the accused shall, forthwith on the expiration of those ninety or thirty days, as the case may be, apply to a judge having jurisdiction in the place in which the accused is in custody to fix a date for a hearing to determine whether or not the accused should be released from custody. Analysis [18] In the recent decision of the Supreme Court of Canada in R. v. Myers, 2019 SCC 18, respecting s. 525 of the Code, Chief Justice Wagner began his reasons with the observation that: The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release -- at the earliest opportunity and in the least

onerous manner -- is the default presumption in Canadian criminal law. Pre-trial detention is the exception, not the rule. [19] At para. 19 of his reasons, Chief Justice Wagner commented that: The modern approach to statutory interpretation requires the Court to read the words of s. 525, ‛‟in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament"': Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002, SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting [Professor] E. Driedger, Construction of Statutes (2nd ed. 1983), at p.

87. When Parliament adopted s. 525, its purpose was clear and unambiguous. A straightforward reading of the provision, viewed properly in its legislative context, is the one which best supports that purpose. [20] So what meaning is to be ascribed to the words "who is not required to be detained in custody in respect of any other matter" in the context in which they appear in s. 525(1)? [21] Mr. Lambert takes the position that he is eligible for a hearing pursuant to s. 525 of the Code, because his custodial status on the most recent charge did not arise from an intervening charge, but rather from a charge arising from events on January 13, 2019. [22] At para. 62 of his reasons, Wagner C.J.C. explained: I would summarize the correct approach to a detention review under s. 525 as follows. First, the jailer has an obligation to apply for the hearing immediately upon the expiration of 90 days following the day on which the accused was initially taken before a justice under s.

503. Where there is an intervening detention order under s. 520, 521 or 524 following the initial appearance of the accused and before the end of the 90-day period, the 90-day period begins again. Accused persons who have not had a full bail hearing are nonetheless entitled to one under s.

525. Upon receiving the application from the jailer, the judge must fix a date and give notice for the hearing. The hearing must be held at the earliest opportunity. In his or her analysis, the judge may refer to the transcript, exhibits and reasons from any initial judicial interim release hearing and from any subsequent review hearings. Both parties are also entitled to make submissions on the basis of any additional "credible or trustworthy" information which is relevant or material to the judge's analysis, and pre-existing material is subject to the criteria of due diligence and relevance discussed in St-Cloud, at paras. 130-35. (Emphasis added) [23] Counsel for Mr. Lambert raised the prospect that his clients could hypothetically plead guilty to the charge in the indictment on Information 234785 and receive a sentence that would expire before the expiration of 90 days from July 3, 2019. [24] It may be that that would entitle him to resurrect his s. 525 hearing on the two other summary informations forthwith upon completion of that sentence, but that circumstance is not before me and I will refrain from speculating what result such circumstances would dictate. [25] Applying the modern approach to the interpretation of s. 525(1), I conclude that a detention order made before the end of a 30‑day period on another charge or charges cannot do other than restart the 30 or 90‑day

period, even if it arises from events that occurred before the 90‑day period has begun. It is the time that the charge is laid and the accused is placed in custody on that charge that triggers the timing provisions of s. 525 of the Code, not when the offence occurred. [26] As I have indicated above, however, there has been no judicially determined detention order on Information 234785, and unless and until there has been, I am unable to say that Mr. Lambert is required to be formally detained in custody with respect to that matter. [27] But I find that Mr. Lambert should not be permitted to avoid such a judicial determination by consenting to remain in custody on that information and then argue that his detention related to that information is not an instance that he is required to be detained in custody in respect of that matter. In other words, one cannot argue that, by consenting to remain in custody on subsequent charges, one is not detained in respect of that matter for the purposes of a s. 525 detention review hearing on earlier charges, where their s. 525 hearing has elapsed and one is eligible for a review on the earlier detained matters. The consent to remain in custody on the new charges is an intervening event that restarts the s. 525 countdown clock. [28] I find that the decision is Myers supports this conclusion, as individuals who have consented to remain in

custody, and therefore are detained without having had a s. 515 bail hearing are now eligible for a s. 525 detention review hearing from the ground up: Myers at paras. 56 and 62. Obviously, such a conclusion means that consenting to remain in custody constitutes detention for the purposes of a s. 525 hearing. Prior to the decision in Myers, individuals consenting to remain in custody in British Columbia and other jurisdictions were not eligible for a s. 525 detention review hearing. Myers has changed that, and, by doing so, clearly envisions that consent to remain in custody without having had a s. 515 bail hearing constitutes detention for the purposes of s. 525 of the Code. Conclusion [29] Accordingly, I find this Court does not have jurisdiction to conduct a detention review hearing, as Mr. Lambert's consenting to remain in custody on the new charges, on Information 234785, constitutes an intervening event that resets the s. 525 detention review hearing clock as of his first appearance on the charges when he consented to remain in custody. [30] Those are my reasons. [31] MR. REITHMEIER: My Lord, if I may just say something to clarify the record? [32] THE COURT: Yes. [33] MR. REITHMEIER: Since we appeared in front of Your Lordship, he did have a bail hearing on that charge in Provincial Court and was detained. [34] MR. MOVASSAGHI: I believe, My Lord, it was yesterday. Wait.

Yes, it was yesterday or the day before. I did not think he would be detained on a theft under, but he was. I really did not think he would be detained on a theft under from January, given the plan that he had and given Your Lordship's comments on Monday, but he was. [35] THE COURT: Well, I will not comment on the detention hearing result, other than to say it does not change my view of the entitlement to a s. 525 hearing. [36] MR. REITHMEIER: Thank you, My Lord. I do not have obviously an order of form that I can give to Your Lordship from New Westminster here. I would simply seek your leave to file it as a desk order in due course. I will speak with Mr. Movassaghi as to whether he wishes to approve that order as to form. [37] THE COURT: All right. Well, do you want to approve it as to form, Mr. Movassaghi? [38] MR. MOVASSAGHI: That is no issue, My Lord. [39] THE COURT: All right. He does not, Mr. Reithmeier, so I will order that his approval be dispensed with, but you will have to send the order to me for signature in due course. [40] MR. REITHMEIER: Thank you. The ultimate order that I would seek at the conclusion of the hearing is that -- well, in any case, it is a lack of jurisdiction, so the order will reflect that pronouncement. [41] THE COURT: Yes. [42] MR. REITHMEIER: Rather than a determination, ultimately, on the hearing on the merits. [43] THE COURT: Yes. I have not

expressed any view on the merits. [44] MR. REITHMEIER: Thank you, My Lord. Can I disconnect now, please? [45] MR. MOVASSAGHI: If I can ask one clarification question. If, in the instance Mr. Lambert does resolve that matter, could we come back before Your Lordship for a decision on the 525 on the merits? [46] THE COURT: Well, I do not think you need to come back before me. I am not going to be readily available, is the problem. I have said in my reasons that if the matter were dispensed with and his sentence were completed on that matter, that he could come back. I have said it in obiter -- [47] MR. MOVASSAGHI: Yes. [48] THE COURT: -- but I have said that. So that is as far as I can go at this juncture. "The Honourable Chief Justice Hinkson"