“Client granted bail on charge of murder arising from midday shooting in Nanaimo Industrial park.” [COMMENTS BY RICHARD NEARY]








Ban on Publication 517 c.c.c.

Before:The Honorable Mr.Justice MacKenzie .


Oral Ruling Judicial Interim Release


Counsel for the Crown:

F. Dubenskl

Counsel for the Accused: Place and Date of Hearing:

R. Neary
Place and Date of Judgment:


Nanaimo, B.C.

June 25, 2010


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[1]        THE COURT: This is an application for judicial interim release by


Mr. D, who Is before the court on a charge of committing first degree murder of J C Bon May 25th, 2010, in Nanaimo, British Columbia.


[2]        This is a reverse-onus situation, given the nature of this particular offence, which means, of course, that Mr. D must show cause why he should not be detained in custody on this particular charge.


[3]         Both counsel went through much of the evidence that has been gathered so far in this police investigation, which is ongoing as we speak. Mr. Neary, on behalf of Mr. D , submits that given the frailties, if you will, of the Crown's case vis-a-vis what he believes are clearly triable issues, based on the material that Is before the

court, this court should conclude that Mr. D has shown cause why he should not be detained In custody.


[4]         Mr. Dubenski on behalf of the Crown submits that the totality of the circumstances are such that either on the secondary or the tertiary ground,

Mr. D, it should be concluded, has not shown cause why he should not be detained in custody.


[5]        With respect to the totality of the circumstances, It Is clear that Mr. D and Mr. B had a tempestuous relationship which had gone on for some time, and 1 also think It Is fair to say that, having regard to all of the material that is before the court, both of these gentlemen were actively involved in the illicit drug trade. That appears to be the subject  matter of the alleged $5,000 debt that Mr. Borden owed

Mr. D, although I do note that the passenger In the D vehicle when this unfortunate Incident took place, that Is Mr. A, said the attendance at

Mr. Borden's premises was not for a drug debt.



[G]       Be that as It may, what happened In these circumstances was that Mr. D attended to a small strip mall, commercial set of premises, approximately 3:30 in the afternoon on May 25th. This was after there had been


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communication by way of telephone cans between Mr. D and Mr. B, and so it was clear that Mr. B was expecting Mr. D to attend.


[7]     Mr. D attended and was wearing body armor, as it has been described. I take that to be something like a bulletproof vest. He had items in his Ford Explorer that included a baton-like bat, SAP, it Is called, handcuffs, and that

sort of thing. He had been stopped by the police in Victoria a few months earlier with the same type of paraphernalia. The Crown suggested that a reasonable Inference

to be drawn from that, was that he had Intended, if It was necessary, to take


Mr. B hostage In order to collect the debt or for some other reason and that


Mr. A was there for assistance.



[8]         In any event, what took place, according to the materials that are before the court, is Mr. D exits his vehicle, goes up to Mr.B’s office and, after a brief period of time, leaves. At that point in time, there is no untoward conduct or anything unusual taking place. Apparently  aments later, as Mr. D Is descending the stairs, according to Mr. A and independent witnesses,

Mr. B comes out, fires shots at Mr. D, descends the stairs, and further shots are fired.


[9]         The two Independent witnesses, a Mr. RR and a Mr. F, support the defence submission that It was Mr. B who commenced this fatal altercation by firing at Mr. D. Mr. F, who gave a statement to the police, acknowledged or stated that he observed Mr. B walking back and forth around the Explorer, shooting his gun, and that he could not see anybody else when that was taking place. He testified he heard "a guy there'' yelling  11help, help.., and It is almost common knowledge that that was Mr. D.


[1O)      Mr. R, who I have already referred to, gave a statement to the police. He testified that he heard a gunshot, he turned and he "seen a guy coming out of the club, running along the building and shooting at somebody down below'. He then

went on to say, ..shooting down below, so I ducked down, I noticed the guy running, limping down across the street and down the road...  Then he said he saw somebody


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hiding behind the red van and that guy was Still shooting, and that he ducked down; that is Mr. R did. It Is common ground that it was Mr. D that was crouching, hiding behind a red van and that it was Mr. B that was firing at that point in time.


[11]      Mr. A gave a statement after he was wounded in this Incident. He confirmed basically the observations of the Independent witness. He saw

Mr. D coming down the stairs, Mr. Borden shooting at him, pointing the gun at he, Mr. A, and then Mr. A fleeing.


[12]       In addition to that statement, and in my opinion not an insignificant event, was, for whatever reason, which It is not necessary for me to speculate on at this point In time, the police put an undercover officer in the cells with Mr. A sometime after this Incident took place, and according to the evidence and the material before the court, the evidence of Constable-- help me, gentlemen.


[13]      MR. DUBENSKI: Cutler.



[14]      THE COURT: Cutler confirmed that Mr. A basically reiterated the same circumstances and events to that undercover officer.


[15]      The Crown submits that the Inferences it will ask the jury to draw are that

Mr. D went over there with his body armor on, with his gun, planned to kill· Mr. B, irrespective of his collection or lack thereof of the debt. The Crown quite properly submits that Mr. P, another independent witness, says he heard something in the neighborhood of 14 shots and a pause. The weapon that Mr. B apparently had only had five rounds that were capable of firing, whereas Mr. D's weapon had the capacity for 18, given the magazine that was located with it.


[16]      The Crown submits that the statements made by Mr. B to acquaintances and friends prior to the day In question show that he was fearful of Mr. D, expected this sort of incident would take place, and was concerned that he would be shot by Mr. D. All of those statements clearly will be



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evidentiary issues for the trier of fact in due course. The Crown also submits that the fact that there were seven rounds found in Mr. B's body Is evidence of intent to kill, having regard to the nature and number of the wounds.


[17]    In addition. the Crown says there Is no evidence Mr. D retreated, and Mr. Neary counters that by the obvious observation that he was wounded and, In all likelihood, escape was not forthcoming.


[18]    In these circumstances, I agree wholeheartedly with the Crown that it is a very serious offence. This is a public shootout in broad daylight, in a busy commercial/residential area In the Nanaimo area. There Is no question that, In this day and age, all offences involving firearms must be viewed very seriously and given severe scrutiny.


[19)    Mr. D is 31 years of age. He Is a long-time resident of Nanaimo. He has not completed high school because of, according to Mr. Neary, suffering a serious assault at 16. He has lived on and off with his parents here in the City of Nanaimo, who are now retired and have been enjoying international travel over the last few years, but who still have a home here In the Nanaimo area.


[20]    Mr. D's record consists of a possession of narcotic conviction In 2001 and a conviction for possession for the purpose in 2005, for which he received a nine-month CSO. He was also, at the time of this offence, at liberty on a form of judicial interim release, that being an undertaking, for offences in Victoria which include possession of a weapon, possession of marihuana, possession of stolen property. On that particular set of charges, Mr. Neary quite properly has put before the court the Victoria Crown counsel Initial sentencing position, which Is modest fines on possession of stolen property and the narcotic matter, and a period of probation.


(21]    With respect to the grounds that I must consider in determining whether, having regard to the totality of the circumstances, Mr. D has shown cause why he should not be detained in custody, I have to consider, of course, the primary



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ground, the secondary ground, and the tertiary ground. At the outset, I will say that it is well settled that the seriousness of any particular offence is not sufficient, In and of Itself, to warrant detention, although with the recent amendments to the tertiary ground issue and the inclusion in that section specifically as to whether or not a firearm was used In the commission of an offence, It Is now somewhat different than some of the earlier cases that dealt with very serious offences.


[22)     I am of the opinion, however, that notwithstanding the inclusion of that particular amendment, the fact that a firearm is used in the commission of an offence In and of itself does not demand detention of any individual. Rather, as always, all of

the circumstances of the offence, as well as the circumstances of the offender, must

be carefully analyzed. Indeed, especially when a firearm Is used, the court will embark upon a severe analysis as to whether or not an accused person has shown cause why he should not be detained In custody.


[23]      Turning firstly to the primary ground, I am satisfied, having regard to the totality of the circumstances, that Mr. D has shown cause why he should not be detained on the primary ground.


[24]      With respect to the secondary ground, for there to be a detention order on this ground., I must be satisfied that, if released, there Is a substantial likelihood

Mr. D will commit a criminal offence or Interfere with the administration of justice. Having regard to the modest record and notwithstanding the fact that he Is on an undertaking out of Victoria, and the mandatory weapons prohibition for the PPT in 2005, I am satisfied Mr. D has shown cause on the secondary ground why he should not be detained in custody.


(25]   Turning to the tertiary ground, that section reads as follows:


There will be a detention order If detention is:


... necessary to maintain confidence In the administration of justice, having regard to all the circumstances, Including

(i)          the apparent strength of the prosecution's case,


(ii)        the gravity of the offence,


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(iii)        the circumstances surrounding the commission of the offence, including whether a firearm was used, and


(iv)      the fact that the accused Is liable, on conviction, for a potentially lengthy term of imprisonment ...



[26]    There is no question whatsoever that this is an extremely grave offence. As Mr. Neary has quite properly pointed out, it Is one of the, If not the, most serious offences. There Is no question that, if convicted, there would obviously be an extremely lengthy period of imprisonment.


[27]    With respect to the apparent strength of the prosecution's case and the circumstances surrounding the commission of the offence, in these particular circumstances that Is more problematic.


[28]    With respect to the tertiary ground, It has been stated on many occasions that the analysis under this section that is required to be undertaken is from the perspective of a reasonable and Informed member of the public, Informed as to the role of ball to the proper administration of justice. That is from our Court of Appeal in

R. v. Brotherston, 2009 BCCA 431 at paragraph 34.



[29]    Again, as outlined by our Court of Appeal in R. v. Bhullar, 2005 BCCA 409 at paragraph 61, under the tertiary ground, one of the most significant aspects of each case is what are the actual circumstances of the case. Some of the cases talk about a constellation of exceptional factors that come together that require detention under the tertiary ground.


[30]    Mr. Neary, on behalf of Mr.D, submits that because of the statements obtained by the Independent witnesses, which In his submission strongly support the defence contention that, notwithstanding the fact that Mr. D attended with his body armour and a firearm, the fact that he left without any untoward conduct, anything out of the ordinary happening until Mr. B exits and starts firing, that in this particular case, there is a constellation of circumstances that favor his release.


[31]    Having regard to the totality of the circumstances, I am satisfied that


Mr. D has shown cause why he should not be detained on the tertiary ground.


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I agree wholeheartedly with the concerns expressed by the Crown with respect to those serious issues that I have already referred to. As a result of that, the only reasonable form of judicial interim release Is a very significant recognizance with extremely strict conditions.


[32]       Mr. D can be released, therefore, on a recognizance In the amount of


$125,000 with one or two sureties. On that point, I accept what Mr. Neary has said with respect to the absence of Mr. D's parents with respect to the 2005

Incident, and that they will be staying here to ensure his good conduct whilst at large awaiting trial.


[33]      The other conditions will be keep the peace and be of good behavior. Report within - and gentlemen, if you want to help me with any of these at the end of my stating them, let me know, okay, primarily because of his status.


[34]    Mr. D will report within 24 hours of his release from custody to a bail supervisor here in Nanaimo and thereafter as and when directed. The address will be given to him and printed out on the recognizance.


[35]    Mr. D will reside with his parents at # Road, British Columbia, and not move from that residence without the written permission of his bail supervisor, I do not anticipate that is going to take place. For what It is worth, based on the conditions that Justice Saunders outlined in Brotherston, I will include Mr. D to obey all the rules and regulations of that residence.


[36]      Mr. D is to remain within the property at # Road, B.C., at all times, except he may leave that residence between the hours of 8:00 a.m. and 6:00 p.m. If (a) he Is in the company of either PD or FD, his father and mother, or whilst in the company of another adult person approved of in writing by the bail supervisor.


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[37]    Mr. D will present himself at the door of his parents' residence when any police officer or bail supervisor attends there for the purpose of determining his compliance with this order.


[381    I am going to include this as well, Mr. Neary, and I do not anticipate a problem: Mr. D will respond personally and forthwith to the phone when any peace officer or ball supervisor makes a phone call to his residence for the purpose of determining his compliance with this order. I prefaced the Inclusion of that condition with that statement because of his physical condition at this point In time, but I do not anticipate a problem.


[391    I do not think It is necessary to put a not leave Vancouver Island or B.C., he has got to stay at that house and not leave without-- well, no, just so he does not go


off with anybody, we will put it in. Mr. D  is not to leave Vancouver Island, British Columbia, except with the permission of the court or the written permission of his bail supervisor. If he has the written permission of his bail supervisor, he is to carry It on his person at all times.


[40]    He Is not to possess or consume any alcoholic beverages or any controlled substance, as defined in s. 2 of the Controlled Drugs and Substances Act, except as prescribed for him by a physician.


(41]    He is not to enter any liquor store, beer and wine store, bar, pub, lounge, or other business premise where the primary commodity sold is liquor.


[42)    He is not to have In his possession any weapons as defined in s. 2 of the


Criminal Code.



[43]    Mr. Dubenski, given the prohibition from 2005, I do not feel it is necessary to reiterate that on the bail document, but I am in your hands.


[44]    MR. DUBENSKI: I think the weapons condition covers all those items, in any event.


[45]    THE COURT: Covers, okay. Knives, do you want knives in there?


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[46]       MR.DUBENSKI: The concern is firearms, My Lord.



[47)      THE COURT: Okay. No contact. What 1 am going to do, Mr. Neary, is include all the people In this affidavit from Corporal Cutler, and if there is an issue with respect to any of them, you and Mr. Dubenski can return and just speak to that in front of anybody.


[48]      Now-


[49]      MR. NEARY:  There's only one [inaudible].



[50]       THE COURT:  I thought it was --- or if you can agree to anybody now, that Is fine. I thought it was at Exhibit M of Constable Cutler’s -·


[51]    MR. NEARY:  That's where I have it.



[52]     THE COURT:  Oh, I have got it, yes, all right. So Mr. D is not to have any contact or communication, directly or Indirectly, with the people named in Exhibit M to Constable Cutler's affidavit and those names will be included as an appendix to the recognizance, If that Is agreeable with counsel?


[55]      MR. DUBENSKI:  Yes.



[54]     THE COURT: He is also not to attend at or be within 50 metres of any place which he knows to be the residence, school or workplace of any of those persons, except while on a highway in a moving motor vehicle, and in the company of either one of his parents or a person approved of In writing by the bail supervisor.


[55]    Again, I do not think there is any urgency with respect to analyzing that list, Mr. Neary.


[56]       MR. NEARY: No, My Lord.



[57]      THE COURT:  Mr. Dubenski, Icannot think of any further conditions that might be helpful, but If there Is anything you would like to see there, let me know.



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(58]    MR. DUBENSKI: I can't think of anything at the moment, My Lord. [59]             THE COURT: Okay. Mr. Neary?

(60)   MR. NEARY: If I might, My Lord, just two things. I wonder If Your Lordship would be prepared to name the parents as sureties to expedite the process?


[61]      THE COURT: No.



[62]    MR. NEARY: No?  All right.



[69]      THE COURT: I think It Is important, given the amount Involved and the totality--


[64]      MR. NEARY: Yes.



(65]     THE COURT: -- of the circumstances, that they be approved of -- [66]              MR. NEARY: Very- well.

[67]      THE COURT: - by the JP.



[68]       MR. NEARY: Very well, My Lord. [69]             THE COURT: Okay.

[70]      MR. NEARY: And then the only other point, hopefully there's a JP in the building. Yes, wonderful. Then the only other point, I wonder If Your Lordship would consider giving him 72 hours to report, since it's Friday at 4:15, then he could report on Monday?


[71]      THE COURT: I do not think that is -- [72)            MR. DUBENSKI: No, that's fine.

[73]      THE COURT: -- untoward, 72 hours instead of 24 hours.



[74]      MR. NEARY: Please, My Lord. That just allows him to report Monday.


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[75]      THE COURT: No problem.



[76]      MR. NEARY: I don't think he can get in tomorrow.



[77]     THE COURT: No.



[78]       MR. NEARY: I don't even know if they -- I don't think they're open tomorrow. [79]             THE COURT: No, no, that Is fine, and if that is all, gentlemen, thanks very much.


Mr. Justice B. MacKenzie.

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