IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           THE COURT: For decision today is the application on behalf of Mr. Prevost for judicial interim release.

[2]           I intend to go through the charges that he faces and the offences as alleged by the Crown, and then to go through the background as it relates to his criminal record, his personal background, and a Review Board decision that applies to him, before coming to the issue of his judicial interim release.

[3]           I say at the outset that an overriding factor in my decision today is how to handle the mental illness and other factors which impact Mr. Prevost, and his admission to judicial interim release.

[4]           To begin with, he is charged on Information 177110 with the offence of robbery from April 27, 2019, and he is also charged on Information 177833 with the allegation of sexual assault on April 30, 2019.

[5]           It is the Crown's position that he be detained in custody on the secondary ground, relying on the seriousness of the allegations that underlie the offences I have just referred to and the criminal record of Mr. Prevost.

[6]           It will be clear from the record of this proceeding that it has been adjourned from time to time. It was adjourned certainly as a result of my reasons from July 12 of this year, which indicated the importance of Mr. Prevost's mental illness in terms of his background, his offending, and the prospects for his release into the community.

[7]           I have repeated that concern several times, and have expressed, as has been expressed in submissions, the concern about individuals being incarcerated as a result of their mental illness. It has been submitted on a number of occasions that the criminal justice system, to some extent, was being used as a substitute for the provision of resources and leaving the warehousing of a mentally ill individual as a result.

[8]           The circumstances of the offences are significant. I will return to the fact of his hospitalization about the time of the offences, but it is clear that he had been hospitalized related to his mental illness, and had remained there for a period of months as there was nowhere else in which to place him.

[9]           On April 27, he attended at the gift shop in the hospital and advised that it was a robbery of the two individuals working there, and that he had a gun. I understand there was some disbelief expressed about this threat, but ultimately it was taken seriously and he left with the fruits of his offence. It goes without saying that the victims were traumatized by his behaviour.

[10]        It is also the case that given his status in the hospital as a patient there he was located shortly thereafter. It is clear that there was virtually no prospect that he was going to escape detection, and that his quick arrest was inevitable.

[11]        He was, on April 30, seen by a nurse as he was under medical care. Those are the circumstances which gave rise to the sexual assault allegation in which he touched the nurse inappropriately. This too was immediately reported to the police. So the offences are clearly very serious offences. The moral culpability of Mr. Prevost is yet to be determined, but on any conception of that culpability, the offences are serious.

[12]        I should say, in order that it is clear that I have considered the implications, to Myers from the Supreme Court of Canada causes any concern with regard to the issue of the release. At this present moment, I am of the view that it does not, although obviously there is some conjecture attached to that conclusion. By that I mean simply that he has been in custody for approaching six months. If he were to fix his date for trial, which I understand has not happened, that would be another five months down the road. We would be looking at essentially 17 months of pre-trial custody when given the appropriate credit. That, in my view, in light of the appropriate sentence in this case, means that Myers is unlikely to come into play just yet. Equally, we are short of the time line which would attract the attention of R. v. Jordan.

[13]        I have before me a criminal record which was placed into evidence, and it refers to five offences. I note reference in the Review Board decision that I will come to in a moment that there is a reference to a more extensive criminal record, but that has not been placed before me, and that does not form part of my consideration given what has been placed as an exhibit here.

[14]        With regard to that criminal record it has on it five entries. There is an entry from 1997, which is of virtually no significance, and then from 2002 is an offence date for which he was sentenced in March 2003. At that time he was sentenced to three years and six months. Subsequently, in October 2005, there is a further offence of robbery, and he was sentenced approximately 11 months later to four years and one month in custody. There is then reference to July 2010, a robbery which by a disposition on March 28, 2012 he was found not criminally responsible due to mental disorder. I have to take that for what it is, that is a finding that he was not criminally responsible, and in that way, I can conclude that there were actions taken by him in July 2010, but that criminal responsibility did not attach to them.

[15]        So, in any event, there are serious offences on his record. When he first came for judicial interim release before me, I raised a question as to what I was to draw from the last offence date being so far in the past. I have discovered, and will go into it in more detail, that he has been hospitalized for a significant period of time since that last offence date.

[16]        The dates are not clear, from all the information that I have, although I do see that in July 2018, he received an absolute discharge from the Review Board, and then was admitted back into an acute psychiatric unit November 30, 2018. It is unclear to me that he has been released since that time, the weight of the evidence seeming to suggest that he has not. Nevertheless, it is important to bear in mind that I do have before me an individual whose last criminal conviction was in 2006. His behaviour in July 2010 obviously has to be concerning, although it is not criminal behaviour.

[17]        The fact that he has been hospitalized since that time is significant, but at the same time it should be remembered that the allegations made at this time are that they occurred while he was hospitalized, and that therefore we have an individual who, for a lengthy period of time, in the structured environment in which he found himself, did not commit any further criminal offences. There is truly, in my view, a gap in the offending behaviour.

[18]        I turn now to Mr. Prevost's background. He was born July 20, 1958, which makes him now 61 years of age. Most of my information comes from the report of Dr. Miller, who assessed him, both for whether he was fit and whether he was not criminally responsible by reason of mental disorder with regard to the robbery allegation.

[19]        Parenthetically I note that Dr. Miller did find Mr. Prevost fit and was unable to recommend that Mr. Prevost be exempted from criminal responsibility with regard to the robbery allegation.

[20]        Dr. Miller did provide some background however, and indicated that Mr. Prevost was from a large family in Alert Bay. He is an indigenous person. He has been diagnosed with fetal alcohol syndrome disorder. He suffered a brain injury at age 22, in approximately 1980, as a result of a fall. In one place it is described as a compound depressed skull fracture. As a result of that, it appears that he has been having subsequent seizures ever since, and I was told by his counsel that he has had seizures in jail while he has been incarcerated awaiting this judicial interim release hearing. Dr. Miller also reported that there was an EEG for Mr. Prevost and it showed abnormal frontal lobe damage.

[21]        Mr. Prevost’s intellectual functioning is at the fourth percentile. There is also a reference to him being minimally functionally literate. I take it that that means in effect that he is illiterate.

[22]        Dr. Miller provided his diagnosis and did so at page 4. He said this:

[23]        I was also assisted by a Review Board report which was entered as Exhibit 3 in these proceedings, and I am going to quote from it at some length. I have already done so in my decision of July 12, 2019, but it is important to do so in the context of the bail considerations that I now have before me. They are as follows in terms of the Review Board decision [as read in]:

[24]        So what I take from that decision is that this is an individual who has complex needs, but that they can be supported in the community. The degree of safety is obviously an issue in light of the criminal record, but in light of the comments made in that Review Board decision, they are ones which are indeed, in my view, manageable. This is a person who requires support and, with the appropriate support, the issues of safety can be dealt with.

[25]        The submissions of Crown, as I have already said, is that the criminal record and the seriousness of the offences should result in his detention. The defence says that the failure of support systems ought not to be consideration in his release. It is a failing that should not fall with its full weight on Mr. Prevost.

[26]        My analysis is as follows. There is a real concern in cases such as this that it is viewed as a question of mental illness creating instability in behaviour, that that instability in behaviour leads to offending, and therefore that individual must be detained in custody. That is the only way to protect public safety.

[27]        There is a flaw in that logic, and my view the flaw in the logic is that it ignores the language of the Criminal Code, particularly as it relates to the secondary ground. It must be a case that detention only occurs where it is “necessary”. The use of the word “necessary” must be given a very particular focus and consideration when dealing with the issue of mental illness.

[28]        If care is not taken in this analysis and the language of the Criminal Code not given its due weight, it would result in the mentally ill being routinely detained in custody. Just as no offence category should result in routine detention, so there ought not to be any group of offenders who face routine detention.

[29]        In my view, “necessary” in this particular context means that there are no resources available to ensure the pre-trial management of the accused. Of course to answer that question, the Court must receive information and evidence in cases involving those suffering from mental illness as to their illness, and its treatment and management, and the resources that are available in the community to do so. By pointing to resources, I do not mean to suggest at any point that my decision, or any decision in this kind of case, should be based on the existence of ideal resources, what those would look like, and how those should be provided. That is simply not the province of the court.

[30]        It is necessary, however, to look at the resources that are actually available and then determine in a realistic and practical way what release order can be fashioned. Without paying attention to the resources actually available, any release order would be unrealistic and would not adequately protect the public.

[31]        As I have said, this judicial interim release hearing has been adjourned from time to time. Through the ongoing efforts of both counsel, Crown and defence, more information has emerged. That is particularly so as it emerges from Kevin Crosbie, who works with the assertive community teams in downtown Victoria. The Court is very grateful for the information that Mr. Crosbie was able to provide as it strikes me that this type of information is needed in all cases that involve a serious mental health issue, as exists here for Mr. Prevost.

[32]        Mr. Crosbie informed the Court of the challenges of finding a level of support that would work with Mr. Prevost. He advises the prospect of Mr. Prevost occupying a hospital bed on the one hand. It was clear to me through what Mr. Crosbie had to say that that would be a completely inappropriate use of a hospital bed, leaving aside the tremendous cost associated with such a bed. On the other hand, and at the other extreme, is consideration of release into the community to the one of the shelters. That is a completely inadequate response to Mr. Prevost’s current situation.

[33]        Mr. Crosbie was able to advise, as a result of what I take it to be his hard work and the hard work of many others, that indeed there is a resource that is available to provide the support necessary for Mr. Prevost. That resource has indicated that they would accept Mr. Prevost. That resource is of such quality that the Crown, with her typical candour and sound judgment, has told the Court that they would agree to Mr. Prevost’s release if that resource were available.

[34]        Apparently to this stage, that has not happened. As best I can determine, the reason is because that resource costs $10,000 per month and the agencies who are engaged with Mr. Prevost have not determined who will be responsible for that payment. Needless to say that is surprising given the prospect that Mr. Prevost may end up in in a hospital bed, costing as much as six times that. That issue, however, is not for this Court.

[35]        This Court is simply to determine whether there is a resource available and if it is one that would provide the adequate level of protection in accordance with the tests set out in the Criminal Code. The result of finding such a resource available, to repeat, is that his detention would not be necessary.

[36]        Can it be said that Mr. Prevost’s detention is necessary when there is that resource available, albeit one that those who are in charge have not been able to figure out the funding for? In my view, his detention cannot be determined to be necessary.

[37]        I am satisfied that the issues that relate to his release can be managed if the resource is provided for him, and I would expect that those seeing the importance of that resource and seen the importance of it to Mr. Prevost functioning in the community, leaving aside entirely the issue of the financial savings involved, would engage in that support for him as soon as practical.

[38]        So in those circumstances, as I say, I am satisfied that a secondary ground is not a basis for his detention and he ought to be released into the community.

[39]        So I will just say this as to conditions.

[40]        We had heard from Mr. Crosbie that there was this difficulty with funding, and I took it from what Mr. Crosbie said that if there were issues about his imminent release and a particular day in which they could work towards, that would be of some assistance to them in finding the issues as it related to funding. But apparently that did not happen.

[41]        And I have had the exchange with current counsel in which they have quite properly put forward the concerns for public safety that might exist if Mr. Prevost were left to just wander out on his own. Those concerns are very real.

[42]        As I said to Crown counsel, those concerns cannot be of the same weight as those who would put in place support, or else they would have gotten that support in place for Mr. Prevost. I am sure they would share the concern with public safety and would make sure that their actions in not getting this resource available as a result simply of funding would be something they would not allow to get in the way if they were of the view that public safety was really an issue. I hope they are right about that.

[43]        For my part, all I can do is put conditions on his release. He is released on his own undertaking, to keep the peace and be of good behaviour. He is to be released from custody from 850 Burdett Avenue by noon on October 22, 2019, and thereafter report immediately to the bail supervisor’s office at 836 Courtenay Street, Victoria, BC, and afterwards as directed by the bail supervisor and the ACT team member, but not less than once per business day in person.

[44]        He thereafter is to report to the Victoria Integrated Court at the direction of the court bail supervisor/ACT team member.

[45]        Condition 4 should be, he is to report to Victoria Integrated Court on October 29, 2019 at 850 Burdett Street, Victoria, BC, at 9 a.m.

[46]        Condition 5, he is to reside where directed by his bail supervisor/ACT team member, and obey the rules of that residence. Without limiting the generality of the rules of that residence he is to obey, he must comply with all supervision of any residence and remaining inside that residence at the direction of any representative of that residence.

[47]        I will just say that here I am anticipating that he will move quickly into a place that will have rules about when he can go and when he cannot, and that this condition will assist in apportionment of that.

[48]        Condition 8, he is to stay inside his residence between the hours of 10 p.m. and 6 a.m. unless he has the written permission of his bail supervisor or ACT team member, or CLVC worker to be outside his residence, and then carry the written permission on his person.

[49]        As agreed in Victoria Integrated Court, he is to report for random drug screening under the direction of the bail supervisor or ACT team member and if he no longer consents to random drug screening, immediately report to Victoria Integrated Court.

[50]        The Rogers condition from Integrated Court is to apply. It is as follows: as you agreed in Victoria Integrated Court, take reasonable steps to maintain your physical and mental health so that it will not likely cause you to be dangerous to yourself or anybody else, or to commit any new offences.

[51]        When directed by your bail supervisor or ACT team member, you are to see a medical or mental health professional for medical counselling and treatment. You do not have to take any treatment or medication, but if you refuse, tell your bail supervisor and ACT team member and report to Victoria Integrated Court as directed. Give your doctor a copy of this order and tell your doctor that if you do not take your medication or keep your appointments, they are to advise your bail supervisor or ACT team member immediately.

[52]        Condition 14, as you agreed in Victoria Integrated Court, follow the directions of your ACT team member, including participation in the money management program.

[53]        Condition 15, do not possess any weapons as defined in s. 2 of the Criminal Code. Condition 16, do not possess a knife when outside your residence except for immediately preparing or eating food.

[54]        Condition 17, do not communicate directly or indirectly with [omitted from publication] or [omitted from publication]. Those names are spelled on the document that I will pass down to you, Madam Clerk.

[55]        1005, you must not go to the Royal Jubilee Hospital Auxiliary Gift Shop located at 1952 Bay Street, Victoria, BC.

[56]        Do not possess or consume any alcohol or non-prescription drugs as defined in the Controlled Drugs and Substances Act. Condition 19, do not enter a liquor store, beer and wine store or bar or pub, or any other business that mainly sells liquor.

[57]        1501, having consented, you must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by your bail supervisor. Without limiting the general nature of this condition, the intake, assessment, counselling or program may relate to alcohol or drug abuse or mental health.

[58]        1502, having consented, you must attend, participate and successfully complete any intake, assessment, counselling, program, treatment or residential treatment program as directed by your bail supervisor.

[59]        5003, having consented, you must attend at the direction of the bail supervisor for a psychiatric intake, assessment, counselling or treatment program through Forensic Psychiatric Services.

[60]        As I say, his next appearance in court is to be tomorrow morning, 9 a.m., in 101.

[61]        MS. BAKKEN: Thank you, Your Honour.

[62]        MR. BELDING: Thank you, Your Honour.

[63]        THE COURT: Thank you.