



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Danjou,









2019 BCCA 16




Date: 20190115

Docket: CA45782

Between:

Regina

Respondent

And

Tejwant Danjou

Applicant



Restriction
on publication:  A publication ban has been mandatorily imposed under s. 517(1)
of the
Criminal Code
restricting the publication, broadcasting or
transmission in any way of the evidence taken, the information given, or the
representations made and the reasons, if any, given or to be given by the
justice presiding over the application for judicial interim release (bail).













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




Counsel for the Applicant:



D. Turko, Q.C.

S.L. Dawson





Counsel for the Respondent:



M. Lefebure

S. McCallum





Written Submissions of the Applicant Filed:



December 13, 2018 and

January 7, 2019





Written Submissions of the Respondent Filed:



January 4, 2019





Place and Date of Judgment:



Vancouver, British
  Columbia

January 15, 2019










Summary:

The applicant is charged
with second degree murder in relation to the death of his common-law partner. He
applied for release pending trial and his application was dismissed. He now
applies for a direction from the Chief Justice that the decision be reviewed by
a division of this Court. Held: Application dismissed. It is not arguable that
the chambers judge committed material errors of fact or law, or that the
decision was clearly unwarranted.

Reasons for Judgment of the Honourable
Chief Justice Bauman:

[1]

Tejwant Danjou seeks an order under s. 680 of the
Criminal Code
,
R.S.C. 1985, c. C-46 to direct the Court of Appeal to review a bail
decision made by Beames J. on 27 September 2018.

[2]

For the following reasons, I find that the bail judge did not arguably
commit any material errors of fact or law. Nor is it arguable that the decision
was clearly unwarranted in the circumstances. As a result I dismiss the
application.

[3]

A publication ban applies to this case under s. 517 of the
Code
.
The s. 517 ban prohibits the publication, broadcast or transmission in any
way of the evidence, information and representations at the bail hearing and
the bail judges reasons. The ban will expire when the trial ends. Until then,
reasons for judgment on this review application and any subsequent review
decision should not be published.

Background

[4]

Mr. Danjou is charged with the second-degree murder of Rama
Gauravarapu, with whom he had been in a common-law relationship since 2015. The
Crown alleges that Mr. Danjou and the victim had been on a winery tour,
got in an argument, then returned separately to the hotel. The Crown alleges Mr. Danjou
beat the victim, then fled. The victim was pronounced dead at the scene and Mr. Danjou
was found shortly thereafter in a dumpster.

[5]

At trial Mr. Danjou expects to raise defences including
intoxication, diminished capacity, provocation, and non-insane automatism.

Judgment on appeal

[6]

The bail judge denied the application for bail pending trial.

[7]

The bail judge summarized the events surrounding the offences as
follows:

[2]        The victim was killed on July 22, 2018, at the
Best Western Hotel in West Kelowna. On autopsy, she was found to have suffered
over 50 injuries, including multiple blows to the head, a cut jugular vein, and
defensive wounds on her hands. There was extensive blood splatter in the room
in which she was killed, on the floor and the walls and small amounts on the
ceiling. Some of the blood splatter was observed to contain human tissue.

[3]        Crown counsel has provided a detailed review of
the circumstances alleged by Crown which I will not set out in full. Suffice it
to say that there is evidence that the accused and the victim had been on a
winery visit earlier in the day, that is on July 22, 2018. They were, according
to Crown's submissions, seen to have an argument or arguments of some sort and
left the winery in separate cabs. On return to the hotel which they had checked
into the previous day, the accused checked into a second room. He then left the
hotel to get cigarettes and apparently to visit the Greyhound bus depot to make
inquiries about taking a bus to the Lower Mainland.

[4]        He returned to the hotel and was seen on
surveillance video to enter the room then occupied by the victim. A short while
later, guests in the room immediately below the victim's room reported hearing
loud noises and a staff member went to the door of the room. She thought she
heard a fight happening inside the room and so, concerned about her safety, she
went to get extra help. When she found her co-worker was busy, she returned to
the room and knocked. A male inside initially refused to open the door,
rejecting any assistance on her part, but when she persisted, the door was
opened and she was able to see a woman, lying on the floor, with swollen eyes,
in what appeared to be a lot of blood. The woman appeared to be having
difficulty breathing and asked the staff person to call the police. The man
inside the room said, "Don't call the police. She doesn't need help".

[5]        The employee,
according to the statement she has provided to this point in time, backed out
of the room, returned to the lobby and called 9-1-1. By the time the police
attended, the man had fled. He was found, with the assistance of a police dog,
in a dumpster a relatively short distance from the hotel. The accused was
assisted from the dumpster, arrested and transported to the hospital. By this
time, the paramedics had responded to the victim and had pronounced the victim
to be dead.

[8]

The bail judge acknowledged that because Mr. Danjou was accused of
second degree murder, the burden lay on Mr. Danjou to show why his
detention was not justified:
Code
, s. 522(2).

[9]

The bail judge concluded Mr. Danjou had met his burden in respect
to the primary and secondary grounds for detention. The bail judge concluded Mr. Danjous
ties to the community meant he was not a risk of failing to attend court. The
bail judge also concluded that detention was not required to protect the public
or prevent Mr. Danjou from committing further offences.

[10]

The bail judge thus focused on the tertiary ground: whether further
detention was necessary to maintain confidence in the administration of
justice:
Code
, s. 515(10)(c). The bail judge considered this
provision in light of the Supreme Court of Canadas guidance in
R. v.
St-Cloud
, 2015 SCC 27. The section provides that detention is justified:

(c)        if the detention is necessary to maintain
confidence in the administration of justice, having regard to all the
circumstances, including

(i)         the apparent strength of the prosecutions case,

(ii)        the gravity of the offence,

(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 or, in
the case of an offence that involves, or whose subject-matter is, a firearm, a
minimum punishment of imprisonment for a term of three years or more.

[11]

The bail judge considered the four factors outlined in s. 515(10)(c)
and concluded that the Crowns case was very strong despite the defences Mr. Danjou
purported to raise, that the offence is very grave, that the offence was
violent and that if convicted, Mr. Danjou could face life imprisonment. The
bail judge acknowledged that these four factors are not exhaustive, and at para.
15 of her reasons, the bail judge considered that the ultimate question was
whether

detention is necessary to
maintain confidence in the administration of justice from the perspective of a
reasonable person properly informed who is not a legal expert and not
necessarily able to appreciate the subtleties of the various defences available
to the accused.

[12]

This paragraph echoed
St-Cloud
s guidance that s. 515(10)(c)
requires considering whether a reasonable member of the public would continue
to have confidence in the administration of justice:

[
79
]      Thus, a reasonable member of the
public is familiar with the basics of the rule of law in our country and with
the fundamental values of our criminal law, including those that are protected
by the Charter. Such a person is undoubtedly aware of the importance
of the presumption of innocence and the right to liberty in our society and
knows that these are fundamental rights guaranteed by our Constitution. He or
she also expects that someone charged with a crime will be tried within a
reasonable period of time, and is aware of the adage that justice delayed is
justice denied:
R. v. Trout
, 2006 MBCA 96, 205 Man. R.
(2d) 277, at para. 15. Finally, a reasonable member of the public knows
that a criminal offence requires proof of culpable intent (
mens rea
) and
that the purpose of certain defences is to show the absence of such intent. A
well-known example of this type of defence is the mental disorder defence. The
person contemplated by s. 515(10)(c)
Cr. C
. therefore
understands that such a defence, once established, will enable an accused to
avoid criminal responsibility. However, it would be going too far to expect the
person in question to master all the subtleties of complex defences, especially
where there is overwhelming evidence of the crime, the circumstances of the
crime are heinous and the accused admits committing it.

[
80
]      In
short, the person in question in s. 515(10)(c)
Cr. C.
is
a thoughtful person, not one who is prone to emotional reactions, whose
knowledge of the circumstances of a case is inaccurate or who disagrees with
our societys fundamental values. But he or she is not a legal expert familiar
with all the basic principles of the criminal justice system, the elements of
criminal offences or the subtleties of criminal intent and of the defences that
are available to accused persons.

[13]

The bail judge concluded that Mr. Danjou had not met his burden and
so declined to order his release.

Positions of the parties

[14]

Mr. Danjou submits that the bail judge erred in principle by
improperly considering what the perspective of a reasonable person properly
informed per
St-Cloud
must be. Mr. Danjou submits that the public
would be sympathetic to individuals who may have had a break with reality or
have diminished capacity. Mr. Danjou further submits that the bail judge
erred by finding the expected defences were too complicated for the public to
understand. Mr. Danjou also submits that the tertiary ground is reserved
for cases that shock the community and that the four factors in s. 515(10)(c)
do not reach their highest levels in his case.

[15]

The Crown submits the bail judge made no errors, and that the impugned
language from the bail judge reflects
St-Cloud
. The Crown also submits,
as it submitted at the bail hearing, that there is no evidence to support the
defences raised by Mr. Danjou. Finally, the Crown submits that Mr. Danjou
mistakes the scope of the tertiary ground and that
St-Cloud
necessitates
a far more liberal reading.

Analysis

[16]

Section 680(1) of the
Code
reads:

680 (1) A decision made by a
judge under section 522 or subsection 524(4) or (5) or a decision made by a
judge of the court of appeal under section 261 or 679 may, on the direction of
the chief justice or acting chief justice of the court of appeal, be reviewed
by that court and that court may, if it does not confirm the decision,

(a)        vary
the decision; or

(b)        substitute
such other decision as, in its opinion, should have been made.

[17]

The Supreme Court of Canada interpreted s. 680 in the context of
bail pending appeal in
R. v. Oland
, 2017 SCC 17.
Oland
describes
that the threshold for directing a review is whether it is arguable that the bail
judge committed material errors of fact or law, or whether the impugned
decision was clearly unwarranted in the circumstances. The parties have not
argued that
Oland
applies differently in the context of bail pending
trial, as is the case here, so I will proceed with the analysis on the basis
that
Oland
applies in the same manner to bail pending trial as bail
pending appeal.

[18]

I do not find it arguable that the bail judge committed material errors
of fact or law and do not see the bail judges decision as clearly unwarranted.
The bail judge correctly identified the offence as grave and correctly assessed
the potentially lengthy incarceration facing Mr. Danjou. Mr. Danjou has
not shown that the bail judge misconstrued his likelihood of success at trial,
nor has Mr. Danjou pointed to any error in the bail judges assessment of
the evidence.

[19]

I do not view the bail judge as resting her decision on whether a
reasonable member of the public could not understand the subtleties of the
defence; rather, the bail judge was simply reiterating the
St-Cloud
test.
The bail judge assessed the expected defences as overly weak, not as overly
subtle. Mr. Danjou does not assert that the bail judge fundamentally
misunderstood or underestimated the strength of the defences he sought to
raise, and I have been given no reason to question the bail judges assessment
of the probability of conviction.

[20]

As for the submission that the tertiary ground is limited to cases that
would shock the community, it is simply incorrect. As
St-Cloud
explains
at para. 87:

·

Section 515(10)(c)
Cr. C.
does not create a
residual ground for detention that applies only where the first two grounds for
detention ((a) and (b)) are not satisfied. It is a distinct ground that itself
provides a basis for ordering the pre-trial detention of an accused.

·

Section 515(10)(c)
Cr. C.
must
not be interpreted narrowly (or applied sparingly) and should not be applied
only in rare cases or exceptional circumstances or only to certain types of crimes.

[21]

The bail judge made no arguable error of fact or law in her
consideration s. 515(10)(c).

[22]

I take Mr. Danjous submission that the four factors of s. 515(10)(c)
do not reach the highest levels to argue that even if the bail judge had
properly considered the law, Mr. Danjous detention was clearly
unwarranted under
Oland
. Under
Oland
, for the bail judges
decision to be clearly unwarranted, it must be a decision that no reasonable
bail judge could have made:
R. v. Poony
, 2017 BCCA 447 at para. 29.
I do not see the bail judges overall exercise of discretion to reach this high
standard.

Disposition

[23]

For these reasons, I dismiss Mr. Danjous application to direct a
review.

The Honourable Chief Justice Bauman


