



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Cocks,









2012 BCCA 39




Date: 20120126

Docket:
CA039593

Between:

Regina

Respondent

And

Norman Robert
Cocks

Applicant

Direction
of the Chief Justice on an Application for Review
Pursuant to Section 680 of the
Criminal Code




Counsel for the Applicant:



Joseph J. Blazina





Counsel for the Respondent:



Joseph C. Bellows,
  Q.C.





Written Submissions of the Applicant  filed:



December
  28
th
, 2011





Written Submissions of the Respondent filed:



January
  19
th
, 2012





Place and Date of Judgment:



Vancouver, British
  Columbia

January 26
th
,
  2012








Reasons for Judgment of the
Honourable

Chief Justice Finch:

[1]

This is an application under s. 680(1) of the
Criminal Code
for a
direction that a division of this Court review the decision of the Supreme
Court of British Columbia to deny bail to the applicant under s. 515(10) of the
Code
. The learned chambers judge held that the applicant had failed to
show that his continued detention was not necessary under the secondary and
tertiary grounds of s. 515: namely, the protection or safety of the
public, and the maintenance of public confidence in the administration of
justice.

[2]

The applicant is charged with the second degree murder of Dain Phillips
on or about 12 June 2011. The Crowns case is that the applicant was one of
seven men who swarmed the deceased in broad daylight and beat him to death with
various weapons.

[3]

The chambers judge reviewed the evidence adduced by the Crown as to the
circumstances of the offence and the alleged offenders. They are described in
paras. 4 through 15 of his reasons, and it is not necessary here to repeat the
detail. In short, there was a simmering dispute between the deceased and his
family on the one hand, and the applicant and his friends on the other. The
deceased, together with his sons and friends, met by arrangement with the
applicant and his co-accused at a predetermined location.

[4]

The evidence was that the deceased was swarmed in an unprovoked attack
by three assailants, including the applicant, wielding baseball bats, a hammer
and other weapons, knocked to the ground and beaten to death. The applicant
later bragged about his role in the attack in an intercepted telephone call. Police
had been carrying out surveillance on the applicant, and intercepting his phone
calls, in connection with other offences.

[5]

The applicant has no criminal record, and at the bail hearing two
sureties were presented, each willing to provide security in the sum of
$100,000 to supervise the applicants compliance if released on bail.

[6]

The judge held that the applicant had failed to show that his detention
was not necessary on the secondary ground. In his reasons he said in part:

[25]      ... I conclude that the Crown case is strong. There
are eyewitnesses to what occurred, but most telling is the intercepted message
which provides a chilling account of what happened. The motivation for the
attack was to dissuade the Phillips from passing themselves off as members of
the Hells Angels and to send a message that it was an organization not to be
meddled with. That message was delivered with dispatch and efficiency.

[26]      Mr. Cocks has no criminal record. He has been
steadily employed. He has the support of his employer and his family. That
stands in his favour.

[27]      However, Mr. Cocks knew
that he was being watched and that he was the subject of a telephone intercept.
In spite of those constraints, he was part of a group that intended to send a
message to other members of the community. That message was designed to be
delivered through violent means with little, if any, regard for the
consequences.

[7]

And further:

[36]      I have concluded that
there are no release provisions that will reduce to an acceptable level the
risk that Mr. Cocks poses. There is a substantial likelihood, particularly in
light of the open and brazen attack on Mr. Phillips, that Mr. Cocks has little,
if any, regard for the law. It would be a genuine concern that the
administration of justice would be interfered with.

[8]

The judge also held the applicants detention was justified on the
tertiary ground. He found that the prosecution case was strong, the offence was
serious, and the attack was planned, it was deliberate, and it was ruthlessly
efficient.

[9]

It appears to me that all of those conclusions are fully justified on
the evidence. The judge was satisfied that the public would lose confidence in
the justice system if bail were granted.

[10]

The threshold for a direction under s. 680 is low. The test is whether
there is any reasonable prospect of success on a review of the order refusing
bail.

[11]

In my opinion, there is no possibility that a division of this Court
would conclude that the order for the applicants continued detention was made
in error. The judge directed himself correctly on the law, applied the correct
principles, and reached his conclusions on an ample evidentiary base.

[12]

The applicant submits that five of his co-accused have already been
released on bail, suggesting that the circumstances of the offence were less
egregious than alleged. This argument ignores evidence that the applicant
played a substantially more serious role in the attack than did the five
accused who were granted bail. Indeed, the Crown conceded that none of these
five numbered among the principal people that were involved in the murder of
Mr. Phillips.  The applicant, conversely, is alleged to have played a central
role in the incident.

[13]

The applicant also argues that the chambers judge disregarded a number
of decisions where bail was granted, including two which he argued contained
strikingly similar facts to the present case:
R. v. Brotherston
, 2009
BCCA 431, [2009] B.C.J. No. 2294 and
R v. Patko
,

2003 BCCA 262,
[2003] B.C.J. No. 1012.

[14]

Both
Brotherston
and
Patko
are distinguishable from the
present case in important respects. The judge in this case placed considerable
weight on the evidence that the applicant acted in order to send a terrifying
message to the community. He also emphasized evidence as to the significance of
the applicants decision to attack Mr. Phillips, and to boast about the
incident over the telephone, when he was aware that the police had him under
surveillance and were monitoring his phone lines. The reasons in
Brotherston
and
Patko
do not disclose any such aggravating factors; indeed, the
two accused in
Brotherston
actually turned themselves in to the police. There
is nothing to show that the judges decision in the present case was
inconsistent with prior jurisprudence on applications for bail.

[15]

The application for a direction under s. 680 is dismissed.

The Honourable Chief
Justice Finch


