R. v. Georg, 2015 BCPC 92 (CanLII)
Citation: R. v. Georg Date: 20150330
2015 BCPC 0092 File No: 33595-7KB, 36005-2-KC,
36005-3-KB
Registry: Port Alberni
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
File No: 33595-7-KB
REGINA
v.
DAVID FRIEDRIC GEORG
File No: 36005-2-KC,
36005-3-KB
REGINA
v.
DAVID FRIEDRIC ARTHUR GEORG
RULING RE ADJOURNMENT APPLICATION
OF
THE HONOURABLE JUDGE J.P. MacCARTHY
Crown Counsel: T.G. Patola
Defense Counsel: C.H. Beckingham
Place of Hearing: Port Alberni, B.C.
Date of Hearing: March 30, 2015
Date of Judgment: March 30, 2015
[1] THE COURT: David Friedric Arthur Georg is before me. Mr. Georg has previously entered a plea of guilty on Information 36005-2-KC. That allegation is that he did commit assault of another person, Jenny Dick, contrary to s. 266 of the Criminal Code.
[2] Mr. Georg is scheduled to appear before the court on May 19, 2015. The purpose of that appearance is to deal with his sentencing on that offence. I understand that in connection with that sentencing, an order has been made for a pre-sentence report and also, as I understand it, for a psychological assessment.
[3] I understand from submissions received from his counsel that there is an issue with respect to Mr. Georg's mental health and that he has previously had a diagnosis of suffering from schizophrenia.
[4] The matter that brings him before this court today is in connection with Information 36005-3-KB. It is a two-count information that alleges that on 29 March 2015, which was yesterday, that he, while being at large on a recognizance and being bound to comply with the conditions of that recognizance as directed, did fail, without lawful excuse, to comply with it, by having contact with Jenny Dick, whom I believe to be the same named complainant in the lead information.
[5] The second count is an allegation at the same time that Mr. Georg, while being bound by the recognizance, breached it by failing to lawfully comply with the condition of not approaching within 25 metres of Jenny Dick.
[6] Mr. Georg appeared before me earlier this morning. At that time, two things occurred. Crown sought to proceed with a hearing under s. 524(8) of the Criminal Code. That would be a hearing to determine whether or not there had been a breach of that undertaking or recognizance, and if it was found that he did then there would be opportunity for Mr. Georg to show cause why he should not be detained.
[7] At the outset of the matter before me, defence counsel sought an adjournment of that particular s. 524(8) hearing. That adjournment was opposed by Crown. The basis of Crown's opposition, as I understand it, is based on two recent authorities. The first being the decision of the Court of Appeal of Yukon, R. v. Chambers, 2014 YKCA 13, and the second decision being the decision of the British Columbia Court of Appeal in R. v. Costain, 2014 BCCA 458.
[8] The decision in Chambers clarifies that under s. 524(8) there is actually a two-part procedure that takes place. Chief Justice Bauman, at paragraph 59 of Chambers, describes it in the following fashion:
[59] The Crown summarizes its submission on this point at para. 40 of its factum and I substantially agree with this submission:
40. Once the prosecution establishes that the statutory preconditions are met, the presiding justice must cancel the existing release and the accused is detained. The effect of a revocation of bail is immediate - no further order of the Court is required for the accused to be detained. This is because the revocation of bail under section 524(8), by itself, also reverses the onus and creates a presumption that the accused remain in custody. Unless and until the accused makes a successful application, he is detained under section 524(8) of the Criminal Code. At any point after the revocation of the prior release, the accused may be given a reasonable opportunity to show cause why his or her detention is not justified. The common practice of "consenting" to remand in these circumstances is only the deferral of the right, which may be exercised at any time, to show cause. Upon cause being shown, the presiding justice may make a further order under section 524(8) of the Criminal Code to detain the accused or release him under suitable conditions. Section 719(3.1) of the Criminal Code excludes from enhanced credit a person "detained" under section 524(8) and not "ordered detained" under the section.
[9] In Chambers, Chief Justice Bauman further noted, at paragraph 51 of the decision, as follows:
[51] Adopting a common-sense approach to s. 524(8) and what happened in this case, it is very difficult to reach any conclusion but that Mr. Chambers was "detained in custody" during this period under s. 524(8). If he was not, by what authority was he detained? With respect, to suggest that by the simple expedient of consenting to remand, an accused can take himself or herself beyond the reach of s. 719(3.1) invites the kind of manipulation by accused persons that the TISA [Truth in Sentencing Act] amendments are generally directed against.
[52] To proceed from "common sense" to a more legalistic approach, it is noted that the impugned provision applies where "the person was detained in custody under ss. 524...(8)". There is no requirement for an express order of detention after a show cause hearing initiated by an accused person.
[10] The reason that Crown wishes to proceed expeditiously with the first part of the hearing is in order to bring s. 719 into play, and thereby to reduce the possibility of there being enhanced credit granted to the accused, if Crown can demonstrate that the first part of the requirement of section 524(8)(a) has been satisfied; namely, that the accused has contravened the recognizance or there are reasonable grounds for believing the accused has committed an offence as contemplated by subsection (b).
[11] In this case, Crown wishes to proceed forthwith. On the other hand, defence seeks to have the matter adjourned to the later date of May 19, 2015.
[12] The argument made by defence, as I have noted above, is that there needs to be an opportunity to have information before the court that may arise out of the two reports that are being prepared or will be able to be prepared. At the same time, it does create a period of time approaching close to some seven weeks before this matter will be back before the court.
[13] Although not stated, there is a potential benefit to Mr. Georg to have the time that he is serving now be treated on the basis of 1:1.5 credit which, of course, as contemplated both by the Chambers decision and also by our own Court of Appeal in Costain, would have the effect of circumventing the intention of the Truth in Sentencing Act amendments.
[14] In this case, an adjournment to May 19, 2015, may be unreasonable. However, an adjournment has been sought, and I must give consideration as to whether or not it meets the ends of justice to require Mr. Georg to proceed with a hearing under s. 524(8) forthwith, simply to permit Crown to achieve whatever benefits may be available to reduce Mr. Georg's ability to claim enhanced credit during the period he is incarcerated up to when this matter may be dealt with on May 19, 2015.
[15] Having reviewed both the decision in Chambers and in Costain, I fully understand the necessity for the two-part hearing. However, neither of these cases suggests that the matter should proceed immediately if there is a request for an adjournment by the defence. The general authority to provide for an adjournment is found under s. 669.1(2), and I do have the authority to adjourn the matter over. The question is, what would be a reasonable period of time in order to permit the matter to be adjourned and for defence to consider whether or not it intends to vigorously oppose the first step, namely a determination of whether or not it can be established, on the lower threshold, that a breach has occurred as contemplated by s. 524(8). If it is simply the intention of defence to use the time delay to achieve enhanced credit, then I agree that Crown should be in a position to bring that matter forward at an earlier opportunity. However, I am not satisfied that that matter should proceed immediately simply because Crown wishes to have that matter dealt with, having an eye to reducing the possibility of enhanced credit.
[16] Therefore, I will grant an adjournment, but that adjournment will be for a reasonable period of time. What I will ask for at this point is to receive further submissions as to what a reasonable period of time in these circumstances would be. If it is the intention of defence to consider their position as to whether or not they wish to oppose a finding of a reasonable possibility of a breach in this case, then I am open to that. If it is simply to adjourn the matter off to some later point for other reasons, then I would be also hearing submissions from the Crown, I take it, to oppose such a suggestion. So I will accept further submissions from defence counsel.
[17] Mr. Beckingham, having determined that I am prepared to grant an adjournment but for a reasonable period of time, what is your suggestion?
(SUBMISSIONS)
[18] THE COURT: I am going to grant the adjournment over to April 22, 2015, for the particular purpose of defence considering it position. I am also going to say that I am making that adjournment order pursuant to the defence application without prejudice to either party to argue whether or not the period of time from now to April 22 should be either not subject to enhanced credit or should be subject to enhanced credit. I think that it would be more appropriate for consideration of that issue by the judge who is dealing directly with the issue of available credit and presumably based on the circumstances that I have outlined today. So over directly to April 22, 2015. That will be for ‑‑ I am going to take it, at that time, to continue with the hearing under s. 524(8) and possibly with a show cause after that.
[19] MR. PATOLA: Thank you, Your Honour. Is that ‑‑
[20] MR. BECKINGHAM: Thank you.
[21] MR. PATOLA: ‑‑ in person or by video?
[22] MR. BECKINGHAM: By video, please.
[23] THE COURT: Video appearance. Anything further?
[24] MR. PATOLA: I wonder if Your Honour would consider an order under s. 516 for non-communication by the accused and the victim while in custody?
[25] THE COURT: Yes. I will just wait till Mr. Beckingham is ‑‑
[26] MR. PATOLA: I think he's bound by that because of existing bail on the two ‑‑
[27] THE COURT: I will make a ‑‑
[28] MR. PATOLA: ‑‑ two other ‑‑
[29] THE COURT: I am going to make a ‑‑
[30] MR. PATOLA: ‑‑ counts.
[31] THE COURT: I am going to make a separate 516 order with respect to no communication.
[32] MR. BECKINGHAM: Thank you.
[33] MR. PATOLA: Thank you, Your Honour.
(RULING CONCLUDED)