IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Buddy Douglas Shanoss comes before the Court seeking his release on five Informations from three different communities totalling 18 Counts.

[2]           The Crown seeks Mr. Shanoss’ detention on the secondary ground on the basis that detention is necessary for the safety and protection of the public given his past criminal history and the present allegation before the Court. The Crown points out that Mr. Shanoss is in a “reverse onus” situation when considering release.

[3]           Defence counsel submits that Mr. Shanoss should be released to a house arrest living arrangement with a named surety who is also his intimate partner.

[4]           Although neither counsel mentioned the Covid-19 pandemic but Mr. Shanoss raised the issue and the living circumstances of prisoners in correctional facilities.

[5]           Mr. Shanoss is a 28-year-old indigenous person. He is a member of the Gitxsan Nation and was raised in the village of Kispiox, near Hazelton, B.C.

[6]           Counsel referred to Mr. Shanoss’ father and siblings, who live in the general area and, according to the Crown, are well known to the RCMP and the Court.

[7]           Mr. Shanoss has worked in his local community in the silviculture industry. He is laid off now but expects some work will become available in the near future.

[8]           He is the father of two children aged five and six, who live with their mother. He provides financial assistance for them when he has money available.

[9]           He is in an intimate relationship with Kateri Haskell that started approximately one year ago.

[10]        He has a very serious drug abuse history mostly involving opioids. He went to treatment centres in the past but they were not successful. Defence counsel says Mr. Shanoss wishes to pursue treatment and counselling again.

[11]        Mr. Shanoss was described as having some health concerns including ADHD and seizures but counsel did not specify whether those seizures were organic or related to his severe drug addiction.

[12]        Mr. Shanoss spoke at the bail hearing and told the Court that at the age of 28 he is too old to continue a criminal lifestyle, that he wants to do what he can to get off drugs and that living at the Prince George Regional Correctional Centre (PGRCC) frightens him because of the Covid-19 situation.

[13]        The Crown detailed allegations of Mr. Shanoss’ criminal activity spanning over the last six months. Although they are allegations only the Court must consider them, along with other factors, in determining whether or not Mr. Shanoss has met the onus of satisfying the Court, on the balance of probabilities, that he should be released.

[14]        On December 24, 2018, Mr. Shanoss was sentenced to jail followed by a one year probation order. That probation order required that he report to a probation officer as directed.

[15]        Mr. Shanoss was released from custody on October 23, 2019, and was directed to report to a probation officer on November 7, 2019. He failed to report to the probation officer on that date or on a subsequent date of November 20, 2019. He made no report to the probation officer prior to his arrest on November 29, 2019, on other matters.

[16]        On November 29, 2019, at approximately 0900, the RCMP received a report of an impaired driver in a pickup truck on Highway 16 near Terrace. The pickup was described and was very similar to one the RCMP had engaged in a chase the day before but were unable to stop the vehicle on that occasion.

[17]        On this day the RCMP found the vehicle in a community near Terrace. The first RCMP member on the scene tried to stop the pickup but it smashed into the member’s vehicle and fled. Other RCMP members in their vehicles, set up a roadblock nearby in an attempt to stop the pickup. However, the pickup drove through the blockade nearly striking two members and seriously damaging some RCMP vehicles.

[18]        A very short distance away from that incident, the pickup was involved in a further collision and ended up in the ditch. The driver of the pickup ran from the scene pursued by the RCMP into a nearby park. A Police Service Dog was deployed and Mr. Shanoss was located and arrested. He received some injuries from his interaction with the Police Service Dog.

[19]        When he was arrested, Mr. Shanoss was extremely intoxicated and complained of having taken an excessive amount of heroin shortly before his interaction with the RCMP. He was taken to the local hospital for treatment and then returned to the detachment.

[20]        As a result of those circumstances, Mr. Shanoss faces the following charges:

[21]        Mr. Shanoss remained in custody until March 19, 2020. After a contested bail hearing, he was granted a Release Order with a promise to pay $1000 without deposit or surety. That Release Order was very strict and included the specific requirement that Mr. Shanoss reside at the Vision Quest Recovery Society facility at Savona, B.C. Additional terms required Mr. Shanoss not to occupy the driver seat of any motor vehicle and to not consume any narcotics not approved by Vision Quest.

[22]        On March 20, 2020, Mr. Shanoss was released from the Kamloops Regional Correctional Centre into the care of a staff member of Vision Quest. On March 21, 2020, Mr. Shanoss complained of medical distress and was taken to Royal Inland Hospital in Kamloops, by a representative of Vision Quest.

[23]        He did not return to the Savona facility. The Crown contends that Mr. Shanoss ran away from the hospital and the matter was reported to the RCMP by Vision Quest. Mr. Shanoss contends that he was told by the Vision Quest representative that he would not be permitted to return to that facility so he left the hospital.

[24]        The Release Order required Mr. Shanoss to immediately call 911 and report himself and follow directions of the RCMP, including attending at the nearest detachment to surrender himself if he was expelled from Vision Quest. There was no suggestion that he took those steps.

[25]        Mr. Shanoss faces charges of failing to reside as directed and failing to attend the Vision Quest Recovery Society program as directed.

[26]        On the morning of March 22, 2020, Kamloops RCMP received a report of a stolen SUV. The owner advised that he was in possession of all of the keys and had not given anyone else permission to drive the vehicle.

[27]        There was video surveillance footage of the location of the theft showing an adult male getting into and then driving off in the SUV. That person’s face was visible in the video. Sometime later that person was identified as Mr. Shanoss by a Hazelton detachment RCMP member who knew him from previous dealings.

[28]        On March 26, 2020, the RCMP in Kispiox observed the stolen SUV. There was an attempt to stop the vehicle but it drove off at high speed and the RCMP member chose not to pursue it. That member did get a partial look at the driver and believed it to be either Mr. Shanoss or one of his adult male siblings.

[29]        On March 27, 2020, the SUV was found off the road near Kispiox. RCMP forensic identity specialists lifted fingerprints from the vehicle that were subsequently matched to Mr. Shanoss.

[30]        As a result of these events, Mr. Shanoss was charged with theft of the pickup truck, breach of bail by being in the driver seat of a vehicle, prohibited driving and driving while his license was suspended.

[31]        Mr. Shanoss was not immediately located by the RCMP and remained at large until approximately six weeks later.

[32]        On May 6, 2020, a member of the Smithers RCMP noted an unoccupied vehicle of interest related to other matters in which it was suspected that Mr. Shanoss had been the driver. After a few moments three people, two males and one female got into the vehicle and the RCMP member blocked it from departing with the RCMP vehicle.

[33]        The male driver was properly identified. The female passenger was identified as Kateri Haskell, Mr. Shanoss’ partner. The other male provided what was quickly determined to be a false name. The RCMP member matched identification photographs from PRIME to Mr. Shanoss.

[34]        Mr. Shanoss was arrested. He almost immediately complained of medical distress and exhibited what appeared to be a seizure. He was taken to the local hospital, was examined, released and then taken to the Smithers RCMP detachment. He has remained in custody since then.

[35]        Mr. Shanoss has an extensive criminal history dating back to 2008 when he was 16 years old. His youth criminal history has 14 convictions including:

[36]        Mr. Shanoss adult criminal history commences in 2010 and has 73 convictions including:

[37]        During the timeframe encompassing the allegations before the Court, Mr. Shanoss was on at least one and in some cases two Probation Orders and since March 2020, on a Release Order. All of these orders required him to conduct himself in a lawful manner and to comply with certain Court directions. He was also disqualified from driving.

[38]        A review of Mr. Shanoss’ criminal history demonstrates an almost continuous stream of offending during any time when Mr. Shanoss was not actually in custody.

[39]        The Crown’s submissions opposing Mr. Shanoss’ release based only on the secondary grounds include:

[40]        Defence counsel’s submissions in support of a Release Order and a “bail plan” include:

[41]        All accused persons are presumed innocent of unproven charges. Section 11(e) of the Canadian Charter of Rights and Freedoms requires that an accused “not to be denied reasonable bail without just cause”. The Court must also give primary consideration to release of an accused at the earliest opportunity and on the least onerous conditions that are appropriate as set out in Section 493.1 of the Criminal Code.

[42]        In R. v. St Cloud 2015 SCC 27, the Supreme Court of Canada noted “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception: These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case.”

[43]        In R. v. Antic, 2017 SCC 27, the Supreme Court of Canada clearly stated that pre-trial custody affects the mental, physical and social life of the accused and his family, and may also have a substantial effect on the result of the trial itself. Each rung of the “bail ladder” must be considered and rejected before moving to a more restrictive form of release. In this case Mr. Shanoss proposes a surety and to be under house arrest; two of the more restrictive forms of release. The “ladder principle” in bail consideration is codified in Section 515(3) of the Criminal Code.

[44]        In R. v. Myers, 2019 SCC 18, the Supreme Court of Canada re-emphasized the following:

[45]        When considering bail conditions it must be remembered that bail is not imposed to change an accused person’s behaviour or to punish an accused person but rather to safely control them in the community pending trial.

[46]        Covid-19 has gripped the public’s attention around the globe. This pandemic affects everyone, even if not infected. The number of infections and resulting deaths in certain parts of the world are staggering.

[47]        Some countries, and even some provinces, have faced an unprecedented health crisis. Many places have suffered catastrophic financial and economic disruption. Everyone is being asked to take extreme measures to protect themselves, their loved ones and all members of the community.

[48]        Some communities such as prisons, care homes and hospitals are particularly vulnerable to viral outbreaks. Prison inmates live in close quarters for prolonged periods. Many arrive at a correctional centre not having the benefit of social distancing or self-isolation due to homelessness, mental illness or drug addiction. The World Health Organization has stressed that coordination and collaboration between health and justice sectors are crucial.

[49]        In a letter dated April 6, 2020, from the Assistant Deputy Minister for BC Corrections indicates that BC Corrections has been working closely with the Provincial Health Services Authority and other agencies to implement the Provincial Health Officer’s recommendations. Many precautions have been taken to protect all inmates, including limiting movements of individuals in and out of custody for court, limiting transfers between correctional centres, reducing contracted services, suspending visits unless urgent, infection prevention and control and where possible, reducing inmate populations. The overall count of persons in BC Corrections custody has decreased from 2,200 to about 1,850 in the past few months.

[50]        There is a troubling outbreak at the Correctional Service of Canada institution in Mission where over 100 inmates and staff have tested positive for Covid-19. There have been no confirmed positive cases at the Prince George Regional Correctional Center where Mr, Shanoss is housed. But, I accept for the purposes of this decision, that the COVID-19 situation in BC Corrections facilities may get worse before it gets better.

[51]        The risk posed to inmates by the coronavirus while incarcerated in detention centres is an important factor for the Court’s consideration. In R. v. Leppington, 2020 BCSC 546, the BC Supreme Court adopted these words from Justice Goodman in Ontario:

[52]        It is that type of “balancing” that the Court must include in addition to all the other factors normally considered in a bail hearing.

[53]        However, it should also be noted that there was no suggestion that any of Mr. Shanoss’ health issues as described by counsel place him into the vulnerable health status referred to in other cases when it comes to Covid -19.

[54]        Mr. Shanoss’ personal circumstances, as well as the larger historic and systemic discrimination of Indigenous persons in Canada, as described in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13 (CanLII), [2012] 1 S.C.R. 433, must be considered in an application for a release order. (See R. v. Louie, 2019 BCCA 25)

[55]        The obligation on an accused in a “reverse onus” situation does not change the standard of proof. The onus is on the accused to establish, on a balance of probabilities, that detention is not justified under any of the enumerated criteria contained in s. 515(10) (a) to (c) of the Criminal Code, often referred to as the primary, secondary and tertiary grounds. This does not mean the accused must disprove the commission of the offence or their involvement. Even when the reverse onus applies, the presumption of innocence remains such that the denial of bail should be the exception rather than the norm.

[56]        The Crown only advanced the secondary grounds as reason to detain Mr. Shanoss. In determining whether the secondary grounds for detention have been met, the decision of Mr. Justice Halfyard in R. v Abdel-Rahman, 2010 BCSC 189, describes four factors to consider:

[57]        In applying these factors to the Informations before the Court and Mr. Shanoss’ situation, the following results:

[58]        A release order cannot eliminate all risk. Nevertheless, based on what is before the Court, Mr. Shanoss’ compliance with community supervision, a reasonable reduction of the likelihood of his further offending and his possible endangerment of the public and RCMP members cannot be reduced to an acceptable level by any bail conditions that might be crafted.

[59]        Given that decision I must also consider any Covid-19 considerations. There is no evidence Mr. Shanoss has any related health vulnerabilities. The factors suggesting his detention are manifold and the balancing of them with the Covid-19 situation still requires his detention on these matters.

[60]        Based on all the information placed before the Court including Mr. Shanoss’ personal history, his criminal record including convictions for similar offences, the allegations now before the Court, the seriousness of many of the allegations, and an unsatisfactory bail plan I am not satisfied, on a balance of probabilities, that his release is appropriate at this time.

[61]        All previous Release Orders are revoked and Mr. Shanoss is detained on all of the outstanding Informations before the Court.