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R v Oake, 2018 NWTSC 45               S-1-CR-2018-000005

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:

HER MAJESTY THE QUEEN

- v -

DARCY OAKE

_________________________________________________________ Transcript of the Decision on s. 525 Bail Review delivered by The Honourable Justice L. A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 20th day of July, 2018.

_________________________________________________________

APPEARANCES:

Mr. D. Praught:               Counsel for the Crown

Mr. C. Davison:               Counsel for the Accused

(Charges under s. 221 of the Criminal Code and

s. 6(1), 5(1) of the Controlled Drugs and Substances Act)

This decision is subject to a publication ban until the trial into this matter has ended pursuant to s . 525 ( 8 ) and 517 of the Criminal Code

1            THE COURT:             Darcy Oake faces a number of

2                    serious charges:  importation of furanylfentanyl

3                    into Canada, trafficking and possession for the

4                    purpose of trafficking of that same substance,

5                    criminal negligence causing bodily harm for

6                    having provided that substance to Courtney Janes.

7                             The events giving rise to these charges

8                    occurred in October and November 2016.  Mr. Oake

9                    was arrested on those charges in early December

10                   and remained in custody for several months.

11                             In May 2017, after having become eligible

12                   for review of detention, under Section 525 of the

13                   Code, he took the opportunity to apply for bail

14                   for the first time; and, on May 25th, I granted

15                   that application.  I released Mr. Oake on a

16                   recognizance with a number of strict conditions

17                   and with both his parents acting as sureties.

18                             In January 2018, Mr. Oake was arrested on

19                   new charges.  His process was cancelled.  The

20                   issue of his detention once again comes before

21                   this Court by operation of Section 525 of the

22                   Criminal Code.

23                             A transcript of the May 2017 bail hearing

24                   has been filed, as well as a transcript of my

25                   decision on that matter.  R v Oake, 2017

26                   NWTSC 41, also currently subject to a publication

27                   ban.

1                             Those materials outline the 2016 allegations

2                    in some detail, and I am not going to repeat all

3                    those details here today.  I will focus instead

4                    on the events that have occurred since then.

5                             The release plan that was presented in May

6                    was that Mr. Oake would attempt to get into

7                    treatment for his drug addiction, and that did

8                    happen.  He went to the Edgewood facility in

9                    British Columbia.  He was admitted into the

10                   facility on June 5th and completed the program on

11          July 31st.  He then entered an extended care

12                   program on August 1st.  He was discharged from

13                   that program at the end of September for

14                   noncompliance with the rules.  He testified, at

15                   the hearing yesterday, that the nature of the

16                   noncompliance was that he got involved in a

17                   relationship with another person in the program,

18                   and that is not permitted.

19                             He then returned to Yellowknife.  He had

20                   employment for about a month and lived with his

21                   mother at first, as required by the recognizance.

22                   His parents do not live together.  Mr. Oake had

23                   been living with his father at the time of the

24                   events that gave rise to the charges, so the

25                   release plan that had been presented at the May

26                   hearing, and that was ultimately accepted by the

27                   Court, was that he would reside with his mother

1                    when not in treatment.

2                             In October 2017, after his return to

3                    Yellowknife, he applied to the Court to have the

4                    recognizance amended to permit him to live with

5                    either of his parents.  And this was granted.

6                    Yesterday, I heard that the reason the request

7                    was made was that there were some renovations

8                    taking place at his mother's house and that it

9                    was felt that she and Mr. Oake's father could

10                   share the responsibility of having him live with

11                   them.

12                             At some point after that -- this seems

13                   undisputed -- Mr. Oake started not doing well.

14                   In his Affidavit, he deposes that he began

15                   associating with some of his friends and others

16                   who use drugs.  He eventually relapsed and

17                   purchased and used cocaine.  In his testimony at

18                   the hearing, he said that being at his father's

19                   house was not a good environment.  There was no

20                   suggestion of anything wrong happening in the

21                   household, or anything of that nature.  It

22                   appears to have been more a question of Mr. Oake

23                   being in the house, where he had first started

24                   using drugs, and, as he said, him being triggered

25                   by being there and by seeing some of the people

26                   he used to associate with and by being back in

27                   Yellowknife.

1                             His arrest occurred as a result of his

2                    father contacting police on January 5th, 2018.

3                    He had found what he thought was a handgun in the

4                    house.  It turned out to be an air gun that

5                    looked like a handgun.  I heard some things had

6                    been done to it to make it look more like a

7                    handgun, and Mr. Oake himself refers to it as a

8                    "replica" in his Affidavit.  He deposes that one

9                    of his friends had left this air gun at his

10                   place.

11                             The discovery and the police being called

12                   ultimately led to a search of the house, and the

13                   police found 22 grams of powdered cocaine, a

14                   number of syringes, a scale, and drug

15                   paraphernalia.

16                             Mr. Oake was charged as a result of this.

17                   He has since then pleaded guilty to simple

18                   possession of cocaine and received a jail term of

19                   the equivalent of 60 days, which was effectively

20                   considered time served out of the period he had

21                   already spent on remand.

22                             Other things have changed as well.  At the

23                   time of the May 2017 bail hearing, Mr. Oake had

24                   an outstanding drug charge in Alberta.  He and

25                   two others had been charged following the

26                   interception of a vehicle that they were all in.

27                   I heard yesterday that those charges have now

1                    been stayed against Mr. Oake.

2                             At the time of the original bail hearing,

3                    Mr. Oake faced two breach charges in relation to

4                    his process on those Alberta charges:  a charge

5                    for breaching a curfew and a charge for failing

6                    to keep the peace and be of good behaviour, both

7                    arising of him having been found in a car in

8                    Yellowknife at a time the curfew was in effect.

9                    Those matters have now been dealt with.  He has

10                   pleaded guilty to the breach of curfew, and the

11                   other charge was withdrawn.  For the breach of

12                   curfew, he received a fine.

13                             At the time of the original bail hearing, I

14                   had heard that a laptop had been seized during

15                   the search, but it had not yet been examined, so

16                   it was not known if anything useful to the Crown

17                   would be found on it.  I heard yesterday that the

18                   laptop has been examined, and the Crown does

19                   intend to adduce evidence that was found on it.

20                   Without going into the details, if admitted, that

21                   evidence would be strong, corroborative evidence

22                   on the importation charge.

23                             I will not go into all the details of the

24                   evidence the Crown anticipates calling at the

25                   trial.  Suffice it to say that, on the

26                   importation charge, and the defence concedes

27                   this, the Crown has a strong case.

1                             I will turn to the release plan now.

2                    Mr. Oake is very fortunate to continue to have

3                    the support of both his parents.  They both

4                    testified at the hearing.  They are still willing

5                    to be his sureties.  His mother is prepared to

6                    deposit a sum of money in support of his release

7                    and commit an additional amount without deposit.

8                    His father is not able to deposit cash at this

9                    point, but is prepared to commit an amount

10                   without deposit as well.

11                             The plan would have Mr. Oake go back to

12                   British Columbia, reside at a Recovery Home in

13                   Nanaimo and attend aftercare at Edgewood.

14                   Mr. Oake has taken some responsibility and steps

15                   for organizing his release plan.  He has made

16                   contact with the Recovery Home and has received

17                   confirmation that there is a room available for

18                   him if he is released.  He has applied to and

19                   been accepted into a road building and heavy

20                   construction equipment operator program at

21                   Vancouver Island University, and he has secured a

22                   student loan to pursue this.

23                             The Crown opposes Mr. Oake's release on the

24                   secondary and tertiary grounds.  The defence

25                   argues that the breach, although serious, does

26                   not, in all circumstances, engage the same public

27                   safety concerns that would have existed if it had

1                    involved trafficking in drugs or further

2                    involvement with furanylfentanyl.

3                             The defence also argues that Mr. Oake's

4                    further release would not cause informed members

5                    of the public to lose confidence in the

6                    administration of justice because the plan is

7                    geared at addressing the things that are at the

8                    root of the failure of the first plan, namely

9                    Mr. Oake being in Yellowknife, being somewhat

10                   idle and back in the circumstances that he was in

11                   when he was using drugs.

12                             The defence argues that the combination of

13                   him being busy with school and in an environment

14                   supportive of his recovery makes this plan

15                   adequate to address any concerns under the

16                   secondary and tertiary grounds.

17                             In my last decision, I referred to the legal

18                   principles that apply when considering these two

19                   grounds for detention.  I adopt what I said back

20                   in May 2017.  I will not repeat it here.

21                             I do accept that, in many respects, this

22                   plan would place Mr. Oake in a less at risk

23                   position than him being at large in Yellowknife.

24                   If he succeeds, it would make the time between

25                   now and his trial, which is scheduled to proceed

26                   in January 2019, far more productive than sitting

27                   in remand.  He would be in a recovery supportive

1                    environment and engaged in his schooling.  He

2                    would live in a sober house with rules and attend

3                    regular group counselling at Edgewood.

4                             On the other hand, his sureties would not be

5                    in a position to exercise any meaningful

6                    supervision because they would not be in the same

7                    city.  The difference between being bound by

8                    program rules or house rules and being under the

9                    supervision of a surety are exemplified by

10                   comparing what happened at the end of September

11                   2017 and what happened last January.

12                             Last September 2017, Mr. Oake broke a rule

13                   of the program.  The consequence was that he was

14                   kicked out and returned to Yellowknife.  Last

15                   January, Mr. Oake's surety had a concern about

16                   what he found in the house, and he called the

17                   police.  The consequence was that Mr. Oake

18                   quickly found himself back in custody.  That is

19                   the difference between having a surety that

20                   monitors what you are doing, and simply being

21                   bound by program rules or house rules.

22                             Of course, aside from sureties, there may

23                   exist other forms of monitoring.  The May release

24                   terms gave the authorities an ability to do

25                   things like curfew checks or random checks to

26                   make sure he was not using drugs, and similar

27                   conditions are being proposed here.

1                             But I cannot ignore that the evidence at the

2                    hearing yesterday was that the authorities never

3                    did any such checks between Mr. Oake's release

4                    and the time he was taken back into custody.

5                    That is, of course, not his fault, but what it

6                    does signal or remind us all about is that, in a

7                    world where police only have a finite amount of

8                    resources, these types of monitoring conditions

9                    can only go so far.  It is certainly not the same

10                   thing as having a surety close by who can be, as

11                   we often say, the eyes and the ears of the Court.

12                             Going back to the issues I must address

13                   under the two grounds of detention at issue here,

14                   I cannot agree that the January 2018 events do

15                   not give rise to serious public safety concerns.

16                   This was a very serious and related breach.  The

17                   quantity of drugs found was not insignificant; 22

18                   grams of powder cocaine is a lot of cocaine, and

19                   it is worth a lot of money.

20                             The discovery of the replica handgun is also

21                   of concern.  Even if it belonged to a friend, it

22                   says a lot about who Mr. Oake chose to associate

23                   with.  And what was it doing at the residence

24                   Mr. Oake was living at?

25                             It is apparent Mr. Oake had started using

26                   drugs sometime before his father found the

27                   air gun.  His parents did not realize this was

1                    going on.  I do accept that people in the

2                    recovery home in Nanaimo may have excellent

3                    antennas for spotting this kind of thing, but so

4                    would parents who have known about their son's

5                    addiction for some time; and what that shows is

6                    that sometimes things can go on and people can do

7                    things without being detected.

8                             There is no doubt that Mr. Oake is an

9                    addict; but, if he were to start using again, it

10                   is only a matter of time before he would need

11                   significant funds to sustain his addiction, and

12                   that does engage serious public safety concerns

13                   especially in light of the allegations from

14          November 2016.

15                             It must be remembered that, on those

16                   allegations, he imported into this country and

17                   trafficked a substance he knew to be very

18                   dangerous.  It had very serious consequences for

19                   the person he sold it to and nearly fatal

20                   consequences for himself.

21                             In fact, one thing that had really struck me

22                   last May was something that Mr. Oake's mother had

23                   said in response to a question about what made

24                   her think back then that her son would be able to

25                   remain sober despite his addiction.  And she had

26                   answered, "his death."  She believed that because

27                   he had nearly died, things would change for him;

1                    he would realize how serious a problem this was.

2                    And I thought that was a very compelling answer.

3                    It was one of the reasons why, despite the very

4                    serious nature of the November charges and the

5                    concerns arising from Mr. Oake's noncompliance

6                    with one of the terms of his process on the

7                    Alberta charges, I was persuaded back then to

8                    take a calculated risk and grant him release so

9                    he could attend treatment.

10                             Unfortunately, the release plan succeeded

11                   for a time, but ultimately failed.  So, having

12                   had this near-death experience, having been in

13                   custody for some months, having been in

14                   treatment, having been in that supportive

15                   environment, facing the risk of re-incarceration

16                   if he breached, and having both his parents at

17                   risk of losing the money they put up to secure

18                   his release, none of that, under the right, or I

19                   should say the wrong conditions, was enough for

20                   him to resist associating with the wrong people

21                   and ultimately making the wrong choice.

22                             Much has been said about the factors that

23                   might have caused him to relapse:  the time of

24                   year, not having work, being triggered by old

25                   friends and old surroundings; and I have to say

26                   that all makes sense, and the plan does seek to

27                   address that.

1                             But the reality is there will always be

2                    triggers.  Mr. Oake would be starting a new

3                    educational program, and even if that is a

4                    positive thing, it can also be overwhelming and

5                    stressful.  But perhaps more importantly, as time

6                    goes by and his trial dates get closer and

7                    closer, that will be very stressful, too.  And,

8                    as has been said, there is a chance he would be

9                    back here in Yellowknife during the Christmas

10                   school break right at the time where the anxiety

11                   level about the upcoming trial probably will be

12                   at its highest.

13                             On the whole, I do not disagree with what

14                   has been said about addictions being a disease,

15                   about how hard it is to battle.  Relapses are

16                   common.  I am aware of that as well.  But, given

17                   the seriousness of the allegations, the strength

18                   of the Crown's case, and the pattern of

19                   noncompliance that emerges from the evidence

20                   before me, I am not satisfied that the plan does

21                   address the public safety concerns that I have.

22                             I will add briefly that, even if I thought

23                   the plan did address public safety concerns, I

24                   would conclude that detention is necessary under

25                   the tertiary ground as well.  I will not repeat

26                   what I said in May 2017 about that ground.

27                             I will simply say that I think that

1                    reasonable and informed members of the public

2                    would lose confidence in the administration of

3                    justice if a person charged with very, very

4                    serious drug charges, with a strong Crown case

5                    and facing a potentially very lengthy sentence,

6                    having been released on strict conditions and

7                    having committed a further related offence was to

8                    be released on similar terms.

9                             For those reasons, I dismiss the application

10                   for release.  Detention will continue.

11                             Now, Mr. Praught, is there a need to endorse

12                   the warrant of committal with any no-contact

13                   orders?

14            MR. PRAUGHT:           Yes, Your Honour.  If we could

15                   endorse it with the same names that had

16                   previously appeared on the recognizance, please.

17            THE COURT:             All right.

18                             Mr. Clerk, I will ask you to check the

19                   recognizance and endorse those names.

20            THE COURT CLERK:       Yes, Your Honour.

21            THE COURT:             I will also issue a Form 19

22                   remand warrant for the date and time scheduled

23                   for the start of the trial.

24                             Is there anything further that is needed

25                   from the Crown?

26            MR. PRAUGHT:           No, Your Honour.  Thank you.

27            THE COURT:             Anything further from defence?

1            MR. DAVISON:           No.  Thank you.

2            THE COURT:             I want to say to Mr. Oake and

3                    his parents that I appreciate their candor.  I

4                    appreciated their testimony.  I simply feel I

5                    have no choice on this matter.

6                             We will close court.

7            THE COURT CLERK:       All rise.

8      -----------------------------------------------------

9

10                  CERTIFICATE OF TRANSCRIPT

11

12                   I, the undersigned, hereby certify that the

13                   foregoing pages are a complete and accurate

14                   transcript of the proceedings produced and

15                   transcribed from audio recording to

16                   the best of my skill and ability.

17                   Dated at the City of Edmonton, Province of

18                   Alberta, this 14th day of August, 2018.

19

20                             Certified Pursuant to Rule 723

21                             of the Rules of Court

22

23

24

25                             __________________________

26                                                          Janet Belma, CSR(A), B.Ed.

27                                                          Court Reporter