IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           This is a bail hearing for Gary Patrick Richard. He faces 4 charges arising out of events on April 20, 2020, in the Mount Lehman area of Abbotsford, B.C. He is alleged to have attempted to break into a Canada Post outlet, to have in his possession tools suitable for breaking into such a place, stealing mail before it was delivered, and resisting or wilfully obstructing the police prior to and during his arrest. He has a lengthy record, and he was just sentenced on 7 offences last June.

[2]            The Crown seeks Mr. Richard’s detention on the secondary grounds; in essence, his detention is said to be necessary for the safety and protection of the public.

[3]           The defence asserts that Mr. Richard can be released on a tight release plan which includes a $2500 named surety with house arrest conditions. The surety can provide Mr. Richard with employment.

[4]           I am also being asked to consider Mr. Richard’s release in light of the COVID-19 pandemic and the unique risks prisoners face in pretrial centres.

[5]           Mr. Richard is presumed innocent of the current charges, and they are allegations only. Under s.11(e) of the Charter, he has the right to reasonable bail and not to be detained without just cause. In this case, the onus is on the Crown to show cause why Mr. Richard should be detained. Section 493.1 of the Criminal Code reinforces that I am to give primary consideration to release of the accused at the earliest opportunity and on the least onerous conditions that are appropriate.

[6]           The case law makes it crystal clear that pretrial detention is the exception, not the rule. In R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, the Supreme Court of Canada stated that pretrial 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 individually and must be rejected before moving to a more restrictive form of release. It should be noted here that Mr. Richard is offering a release order with a surety, one of the most onerous forms of release.

[7]           In the subsequent case of R. v. Myers, 2019 SCC 18 (CanLII), [2019] SCJ No. 18, the Supreme Court of Canada emphasized again that release of accused persons is the cardinal rule and detention the exception.

[8]           I bear in mind that the Crown’s case consists of allegations only, and Mr. Richard is presumed innocent of all charges. Nevertheless, the allegations are concerning.

[9]           On April 20, 2020 at around 5:30 am, a witness living in the vicinity of Mount Lehman Road in Abbotsford, B.C., saw some suspicious activity. She saw a Jeep Cherokee slowly back into a farmer’s field. This witness later saw a black Mercedes with a temporary operator’s permit drive south slowly along Mt. Lehman Road. The two occupants of the Mercedes appeared to be males with their hoods up. A female driver of the Jeep was then observed to be texting. The witness felt all of this was suspicious, so she phoned the Abbotsford Police non-emergency line.

[10]        At around 6 am, a security guard for a Canada Post outlet on Mount Lehman Road had called the police because the alarm for the postal outlet had gone off at about 5:05 am. The guard later attended the postal outlet and saw that the door was wide open and the inside was ransacked. Tracks could be seen in the grass.

[11]        Using the information received from both the witness and the security guard, the Abbotsford Police began to search for the black Mercedes. At 6:03 am, they in fact located the Mercedes on Mount Lehman Road just north of the post office. Inside the Mercedes were 2 male occupants with their hoods up. The Mercedes had a temporary operator’s permit.

[12]         Officers in 2 police vehicles attempted to pull the Mercedes over, and the Mercedes did appear to slow down but then accelerated. The police were travelling about 100 kilometres per hour and the Mercedes was travelling faster than that speed.

[13]        A spike belt was deployed further down on Mount Lehman Road. The Mercedes swerved around the spike belt, but 3 tires of the Mercedes struck the spike belt. The Mercedes was travelling approximately 150 kilometres per hour in a 50 kilometre zone at this time. It continued southbound.

[14]        A police officer in his vehicle at the intersection of Mount Lehman and Townshipline Road encountered the Mercedes which was then skidding on flat tires and travelling about 160 kilometres per hour. The Mercedes went into the officer’s lane, and the officer had to veer off the road. The Mercedes missed his vehicle only by inches.

[15]        The Mercedes was next seen in the parking lot of McCrae’s Tank Service, and a witness there saw 2 males run into the bush. The police attended and inside the abandoned Mercedes they saw in plain view mail, parcels, a black computer, and tools such as a power grinder, pry bars, and power tools.

[16]        The police noticed the Jeep was parked a few hundred metres away from the Mercedes, and they stopped and arrested the female occupant. Her name was Aldea Ducharme, and she is the co-accused on the first 2 counts in the Information. She disclosed that it was Mr. Richard who was driving the Mercedes which was registered to Ms. Ducharme.

[17]        The police used a police dog to track human scent from the abandoned Mercedes in the McCrae’s Tank Service parking lot to some bush to the south. A hoodie could be seen caught on the fence line. The dog track led to some farm outbuildings where a male was seen firing up a farm tractor. The police spoke to the resident farmer who said no one had permission to drive the tractor.

[18]        The police called out to the male in the tractor at gunpoint, but the male was reluctant to exit the tractor. He insisted that he was supposed to be working the tractor. He was ultimately brought to the ground and was arrested. The male identified himself as Gary Richard. The second male was not located.

[19]        The interior of the postal outlet was heavily damaged. An alarm and mailboxes were ripped off the wall, a safe was damaged and a storage area was ransacked. Parcels, mail, and a computer were missing. Specifically, 420 pieces of mail were found in the Mercedes belonging to 268 people.

[20]        Defence counsel submits that there will be issues about the dog track, and issues about linking Mr. Richard to the dangerous driving and the break-in.

[21]        Mr. Richard’s criminal record is deplorable. His adult record begins in 2000 and continues on without any significant breaks until his last 7 convictions in June of 2019 for which he served jail sentences.

[22]        Mr. Richard has 14 convictions for property offences such as possession of stolen property, theft, taking vehicle without consent, and break and enter. He has 22 convictions for fraud, personation and the like. The Crown’s theory is that he was breaking into the post office to make fraudulent use of identity documents.

[23]        Mr. Richard has at least 13 breaches, and he has 9 convictions involving flight, such as flight from peace officer, personation to avoid arrest, and dangerous driving. Those convictions relate to what is now being alleged.

[24]        In June of 2019, under Penticton Information 45610-2-C, he received a 90 day jail sentence for mischief to property over $5000, and 270 days for dangerous operation of a vehicle and flight from a police officer. Under a second Penticton Information 53414-1, Mr. Richard received further jail sentences consecutive to the first information: a 1 year jail sentence less time served for another dangerous operation of a vehicle, 120 days less time served for personation to avoid arrest and a breach, and 60 days for wilfully resisting or obstructing a peace officer.

[25]        I am advised by the Crown that the June 2019 convictions involved Mr. Richards driving through the gate of a RV park and fleeing the police at high rates of speed, narrowly missing a police officer.

[26]        The Crown also indicates that Mr. Richard has an outstanding warrant from Alberta, and he is the subject of 3 outstanding investigations here in B.C. I put less weight on these investigations as no charges have yet been laid. Nevertheless, Mr. Richard’s criminal record is as troubling as the allegations now before me.

[27]        I will say at the outset that the defence has presented a strong release plan. The question remains whether this plan can mitigate the serious secondary ground concerns here.

[28]        Mr. Richard is 38 years of age. He had been working at a paving company but was laid off due to the COVID-19 crisis.

[29]        A sheet metal worker with a fixed address in Surrey is prepared to be a $2500 named surety for Mr. Richard. The surety’s spouse is on disability, so she is home all day to ensure compliance with any house arrest conditions. The named surety has a dated criminal record, but that is not overly concerning.

[30]        One important feature to this release plan is that the surety could secure employment for Mr. Richard, and employment would be an exception to the house arrest condition.

[31]        The secondary grounds as enunciated in s. 515(10)(b) of the Criminal Code allow for a detention order where it is necessary for the protection and safety of the public, having regard to circumstances such as the substantial likelihood that the accused will commit a criminal offence if released.

[32]        Using the framework from cases such as R. v. Abdel-Rahman, [2010] BCJ No. 238, I am satisfied that Mr. Richard will either commit a further offence, or will interfere with the administration of justice, if he is released. This risk amounts to a substantial likelihood and constitutes a danger to public safety in general.

[33]        I make the above conclusions because the current charges are serious, as they involve not only the break in of a postal outlet but also dangerous efforts to resist arrest or detention. Based on the allegations, Mr. Richard was not thwarted by a spike belt, and he narrowly missed striking a police vehicle with the Mercedes. There are potentially 268 victims of mail theft.

[34]        Moreover, Mr. Richards has an extensive and related record. In June of 2019, he was given significant jail sentences for offences in Penticton such as dangerous driving, flight from a peace officer and resisting a peace officer, and mischief to property. Those sentences do not appear to have slowed Mr. Richard down.

[35]        The only remaining matter to consider under the Abdel-Rahman framework is whether Mr. Richard’s detention is necessary because the danger to the public cannot be prevented or reduced to an acceptable level by the bail conditions proposed. I will address that final issue in my conclusion, after I consider the COVID-19 concerns.

[36]        We are in the middle of a COVID-19 pandemic. Unless you were old enough to experience the effects of the Spanish Flu, these times are unprecedented. Everyone in the country has been affected by the virus whether it be by social isolation, by being infected, or by losing their life to this menacing virus.

[37]        Care homes, hospitals and prisons are especially vulnerable. Inmates are housed in closed quarters where they live together for prolonged periods. The World Health Organization stresses that coordination and collaboration between health and justice sectors is crucial.

[38]        I have a letter dated April 6, 2020 from Ms. Arend, an Assistant Deputy Minister for the Province. She 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, and infection prevention and control.

[39]        The overall count of persons in BC Corrections has decreased from 2,200 to about 1,850 in the past few weeks.

[40]        I am in no way diminishing the health risk here. In the federal Mission Institution,133 inmates and staff have contracted the coronavirus. But BC Corrections currently has less of a problem. As of April 29, 2020 all the BC Correction centres have 22 suspected inmate cases of the virus, zero confirmed cases and 144 cases cleared. For the purposes of my decision, I accept that the COVID-19 situation in BC Corrections could get worse before it gets better.

[41]        The risk posed to inmates by the coronavirus while incarcerated in detention centres is a valid factor for me to consider.In R v. Leppington, 2020 BCSC 546, the  Supreme Court of our province adopted these words from Justice Goodman in Ontario:

[42]        As I and other jurists have said in other bail hearings or reviews, the coronavirus is not a “get out of jail free card”. It is a serious factor to consider and may tip the scales in some cases. In R. v. Syed, 2020 ONSC 2195, the court ruled that “if an accused should be detained for the protection of the public, the risk of contracting the virus in jail does not alter that fact. A person does not become less of a risk because of COVID-19”.

[43]        I believe defence counsel has presented the best release plan possible for Mr. Richard. However, I have concluded that no release plan can overcome the secondary ground concerns for Mr. Richard. While I am fully aware that a release order is not intended to eliminate all risk, Mr. Richard’s danger to the public cannot be reduced to an acceptable level by any bail conditions.

[44]        The allegations here are serious, and the case for the Crown has strength. Mr. Richard is said to be driving a Mercedes filled with stolen mail and break-in tools. He is the man found at the end of a dog track that started with that Mercedes. He resists arrest, and earlier, it is alleged the Mercedes narrowly missed a police vehicle after speeding through a spike belt. He has an extensive record for property offences and fraud, and there is a high likelihood he will reoffend.

[45]        I have no confidence Mr. Richard will abide by a release order. His past demonstrates poor compliance with court orders. He has an extensive record for breaches and flight from authorities. He has an outstanding warrant from Alberta. It appears he will do almost anything to avoid arrest.

[46]        Mr. Richard was just sentenced last June to considerable jail time for offences such as dangerous driving, flight from and resisting a peace officer, personation to avoid arrest, breach and mischief to property. Based on the current allegations, those jail sentences did not deter him.

[47]        The COVID-19 crisis does not alter my decision. I have not been told of Mr. Richard having any unique health susceptibility which would tip the scales here.

[48]        Mr. Richard you are detained on the secondary ground.