2006 BCCA 361 R. v. Habib

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	*R. v. Habib,*
	2006 BCCA 361

Date: 20060802

Docket: CA034119

Between:

Regina

Respondent

And

Dale John Habib

Applicant

Before:	The Honourable Madam Justice Rowles
	The Honourable Madam Justice Ryan
	The Honourable Mr. Justice Low

N.C. O’Brien, Q.C.	Counsel for the Applicant
W.J. Hilderman	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
July 20, 2006
Place and Date of Judgment:	Vancouver, British Columbia
August 2, 2006

Written Reasons by:

The Honourable Madam Justice Ryan

Concurred in by:

The Honourable Madam Justice Rowles

The Honourable Mr. Justice Low

Reasons for Judgment of the Honourable Madam Justice Ryan:

[1] The applicant, Dale John Habib was charged on January 9, 2006 with first degree murder. The information alleged:

Dale John Habib, on or about the 27^th of February 2003, at or near Lake Country, in the Province of British Columbia, did commit the first degree murder of Douglas Terry Kuntz, contrary to section 235 of the Criminal Code.

[2] Mr. Kuntz was found shot to death on the floor of his garage in Winfield. The Crown says that the victim was a businessman in Winfield to whom a person named Derek Scherk owed over $300,000. The theory of the Crown is that Mr. Habib, a friend of Mr. Scherk, arranged for the murder of Kuntz to relieve his friend from the burden of the debt.

[3] The theory of the defence is that Mr. Kuntz was a money-launderer who was killed after a dispute with three people involved in the drug trade - Joshua Fell, Paul Roop and David Poirier. Mr. Habib had nothing to do with it.

[4] For purposes of this application both the Crown and defence agree that, as the result of an undercover operation, there is evidence that Poirier, Roop and Fell were involved in the murder. The issue is whether Mr. Habib was a part of the plot.

[5] On April 4, 2006 Mr. Justice Rogers refused Mr. Habib’s application for bail pending his trial pursuant to s. 522 of the Criminal Code. Mr. Justice Rogers concluded that the applicant had not demonstrated that his detention was not necessary to ensure his attendance in court (“the primary ground”), that his detention was not necessary for the protection or safety of the public (“the secondary ground”), and that his detention was not necessary in order to maintain confidence in the administration of justice (“the tertiary ground”).

[6] On May 29, 2006, pursuant to s. 680(1) of the Criminal Code, the applicant applied to the Chief Justice of this court for a review of the order of Mr. Justice Rogers.

[7] The application was based on an allegation that the Crown’s case against the applicant had been demonstrably weakened by events that occurred shortly after the bail hearing before Mr. Justice Rogers. The applicant also submitted that the judge in the lower court was wrong in his assessment of the primary and secondary grounds.

[8] On June 9, 2006 Chief Justice Finch ordered that a division of this court review the order of Mr. Justice Rogers.

[9] Dale John Habib is 38 years of age. He is married with two children who are eight and six respectively. The applicant was born in Calgary. He maintains two homes, one in Kelowna, the other in Calgary. He has businesses in both cities. He has been employed since he was a young adult. He has no criminal record of note. His only conviction was 20 years ago. Mr. Habib was found guilty of trafficking in “magic mushrooms”. His sentence was a small fine.

[10] The applicant has a large extended family in and around Kelowna.

[11] Section 680(1) provides:

680.(1) A decision made by a judge under section 522 … 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.

[12] The jurisprudence relating to s. 680(1) is not uniform across Canada. In this province it has been said in a number of cases that a hearing under this section is in the nature of an appeal on the record. It is not a hearing de novo. R. v. Wu (B.Q.) (1998) 117 B.C.A.C. 305, [1998] B.C.J. No. 2854 (Q.L.) held at para. 6:

[6] A review under s. 680(1) of the Criminal Code is in the nature of an appeal on the record and not a hearing de novo. While the reviewing court exercises an independent discretion and may substitute its own opinion for that of the single judge under review, it must base its review on the facts found by the single judge’s evaluation of the evidence. It is not necessary that the reviewing court, before intervening, come to a conclusion that the decision of the single judge under review was unreasonable or that an error in principle was committed.

[Emphasis added]

[13] This statement was approved in two other decisions of this Court - R. v. J.W.R. (1999), 129 B.C.A.C. 232, 1999 BCCA 574 (para. 29) and R. v. Mapara (2001), 158 C.C.C. (3d) 312, (2001), 45 C.R. (5^th) 230, 2001 BCCA 508.

[14] The Wu case, like those that have followed it, was decided in circumstances where the facts upon which the bail hearing judge based his or her decision had not changed at the time that the review was conducted. Fresh evidence is, however, admissible on a s. 680 review (See R. v. Dempsey (2001) 153 C.C.C. (3d) 311 (BCCA) at para. 17).

[15] In this court the applicant based much of his argument on what he said were the changed circumstances of the case. However, that was not the sole ground of his application. He submitted that Mr. Justice Rogers erred in detaining the applicant on the basis of the material placed before him, and that the change in circumstances merely aggravated his error.

[16] In R. v. Hadani (1999), 125 B.C.A.C. 155, 1999 BCCA 334, this court accepted that the Crown’s case had weakened as a result of information uncovered after the hearing before the superior court judge. That fact along with the opinion that any concerns under the primary and secondary grounds could be dealt with by strict bail conditions led this Court to the conclusion that the order for detention should not stand.

[17] For the reasons that follow, I would substitute an order for release with strict conditions for the detention order made by the judge at first instance.

[18] At the hearing before Mr. Justice Rogers the Crown’s case turned for the most part on the evidence of Mr. Roop, Mr. Poirier, and Mr. Fell, themselves involved in the killing, who all said that the applicant was actively involved in the planning of the murder and had recruited them to kill the victim. These statements were made by the witnesses to the police during the undercover operation and in sworn statements after it ended. The applicant notes that Mr. Habib’s involvement in the murder was revealed after the police operatives who were conducting the operation told the three men that they wanted to “stick the murder on the Habibs”.

[19] The only other evidence against Mr. Habib is found in the statement of David Scherk who said that Habib had “ordered” him to drive Mr. Roop and Mr. Poirier around on the day of the killing. David Scherk said that Mr. Habib admitted that he had ordered the killing of the victim. He told Mr. Scherk that he did it because Mr. Scherk’s brother owed money to the victim and that he, Mr. Habib, wanted to relieve him of that burden. When the body of Mr. Kuntz was discovered, a search of his clothes turned up two un-negotiated cheques amounting to a sum of just over $300,000 written on the account of Mr. Scherk’s brother. The defence notes that Derek Scherk was an obvious suspect in the murder of Mr. Kuntz. While David Scherk had earlier blamed Dale Habib for the murder of Mr. Kuntz, it is noteworthy that David Scherk made a second statement to the police implicating Dale Habib on the evening of Derek Scherk’s arrest for the murder of Mr. Kuntz. Derek Scherk was released without charge not long afterwards.

[20] Amanda Dolynchuk was Mr. Fell’s girlfriend at the time of the murder. She owned the vehicle that Mr. Fell loaned Mr. Poirier and Mr. Roop to take to the Kuntz residence to commit the murder. Ms. Dolynchuk initially told the police that the vehicle, which had been spotted by neighbours near the Kuntz residence on the day of the murder, was a “community vehicle” that could have been driven by any of a number of people. Ms. Dolynchuk later recanted the story, said the vehicle was Mr. Fell’s, that she had been given the story of the “community vehicle” by Mr. Habib and was paid to say nothing.

[21] At the time that the hearing for bail in the case at bar took place, Mr. Roop, Mr. Poirier and Mr. Fell were charged together with murder, Mr. Habib was charged on a separate information.

[22] Shortly after Mr. Habib was denied bail the Crown joined the four accused on the same information. The preliminary hearing is set to start in November and to continue in December.

[23] The applicant argues that if the case goes ahead against all four accused on the same indictment the evidence of Mr. Fell, Mr. Roop and Mr. Poirier, as it relates to him, would be unavailable to the Crown.

[24] No doubt this is so, but this fact does nothing to weaken the view that this court should take of the evidence against Mr. Habib at this stage of the proceedings. It is still open to the Crown to separately indict Mr. Habib once the preliminary hearing is concluded. The fact of the new, joint information, simply demonstrates the difficulty the Crown will have with the case against Mr. Habib, insofar as it depends on the evidence of those implicated in the crime.

[25] The other points raised by the applicant relate to the primary and secondary grounds. In relation to the primary ground, the Crown put before the superior court judge wiretap evidence of Mr. Habib’s wife speaking to her mother. In one of the conversations Mrs. Habib tells her mother that the Habib family will get her husband out of Canada and into Lebanon where there is no extradition treaty. There is nothing much more in the conversation than this. Mr. Justice Rogers commented on it in this way:

[3] In this case, the Crown relies on wiretap evidence to show that there is a risk that Mr. Habib will depart the country if he is released. That wiretap interception was apparently made several days after Mr. Habib’s arrest on this charge, and it consisted of Mr. Habib’s wife of ten years saying words to the effect that “they will get him out of the country to Lebanon where there is no extradition treaty”.

[4] Mr. Habib’s counsel submitted that Mr. Habib is a Canadian citizen and that all of his ties are here in this country, and so there is no concern that he would flee to Lebanon. Counsel did not, however, offer an explanation for why [Mrs]. Habib would say such a thing on the telephone. I find that the fact that Mrs. Habib would have such a conversation raises a considerable concern that if Mr. Habib were released, he would find his way to some foreign jurisdiction.

…

[20] I find that Mr. Habib has not satisfied me on the primary ground, and in coming to that conclusion, I rely mainly on the intercepted communication from his wife regarding flight to Lebanon where he might not be extradited. I find that she would not have mentioned extradition in that conversation if the trip out of the country was for innocent purposes, as a tourist, for example. Other than saying that Mr. Habib is connected to Canada, and he does not know what his wife was talking about, his counsel did not offer a satisfactory explanation for Mrs. Habib having had that conversation.

[21] I am not satisfied that simply handing over his passport to the authorities would prevent Mr. Habib from absconding if he were released from custody. I am prepared to take judicial notice of the fact that there are many ways to get into and out of this country that do not involve presenting a passport to a smiling border agent.

[26] The applicant makes the point that the conversation between Mrs. Habib and her mother reveals no actual plan to remove Mr. Habib from the jurisdiction. I agree that the most the conversation demonstrates is Mrs. Habib’s belief in the willingness and ability of the Habib family to achieve that end. It is something to be concerned about, but the possibility could be dealt with by strict bail terms.

[27] On the secondary ground the Supreme Court judge took into account the allegation that Mr. Habib had concocted a false story for Ms. Dolynchuk and for Mr. Fell. Mr. Justice Rogers also took into account allegations made by Mr. Fell to the police that Mr. Habib was willing to silence a witness in another murder with which Mr. Fell was charged that took place in Calgary on January 5, 2005. The judge said this:

[6] The second piece of information on which the Crown relies is that Mr. Fell told the police that with respect to a different incident in Calgary, Mr. Habib expressed a willingness to find and silence a witness who might have implicated Mr. Habib in a serious crime. This suggests that Mr. Habib is a person who is prepared to interfere with the administration of justice by removing witnesses from it.

[7] The defence argues that neither of these two informants is at all reliable. The defence says that both have changed their stories about Mr. Habib’s involvement in the Kuntz murder in the past and that this casts serious doubts upon their veracity now.

…

[9] I am not, of course, in a position to judge the credibility of the informants whose information bears upon the secondary ground. Neither can I say for certain whether Mr. Habib’s character witnesses are correct in their assessment of him, or whether he has duped them by living a double life, that is to say, reliable man next door and career criminal by night.

[10] I think I am, however, obliged to give serious consideration to persons who have provided information to the authorities and which implicate Mr. Habib in criminal activity which bears upon the secondary ground.

[28] The evidence in relation to interfering with witnesses was murky at best. In a statement to police regarding another murder, Mr. Fell said that Mr. Habib had told him to make sure that a potential witness against Mr. Habib would not testify. Later, Mr. Fell said that Mr. Habib told him not to worry about it. Mr. Habib has not been charged with anything in connection with the other murder. Again, this allegation is disturbing yet founded on equivocal evidence.

[29] Turning next to the tertiary ground, the charge is serious yet the Crown’s case is dependant on unreliable witnesses, all of whom have made inconsistent statements about the involvement of the applicant in the murder. The alleged motive for the murder, as it has developed so far, is not immediately plausible. The weakness of the case, weighed against the principle of the presumption of innocence, militates against Mr. Habib’s detention on the basis of the public interest.

[30] As I noted earlier in these reasons, Mr. Habib, at 38 years of age, has significant connections to the community of Kelowna. He has a minor criminal record. Concerns raised by the Crown on the primary and secondary grounds are based on tenuous allegations, and on the tertiary ground its case is not strong.

[31] I would set aside the order of Mr. Justice Rogers and order the release of Mr. Habib on a recognizance in the amount of $400,000 with two sureties. The order should include the following conditions:

· That the applicant report to a bail supervisor in Kelowna within 24 hours of his release on this order and thereafter as directed by the bail supervisor.

· That the applicant reside in his home in Kelowna. He is not to change his address without making application for a change of address, on two days notice, to the Supreme Court in Kelowna.

· That the applicant be subject to a curfew between the hours of 6 p.m. and 7 a.m. each day.

· That the applicant surrender any passport, Canadian or Lebanese that he may hold, to the Registrar of the Supreme Court in Kelowna.

· That the applicant have no contact with any witness on a list to be supplied by the Crown.

· That the applicant report on a daily basis to a bail supervisor in Kelowna.

[32] The order should contain any other reasonable grounds agreed to by counsel and subject to the approval of this division. If counsel cannot agree, one member of the division, to be designated by the Chief Justice, will hear counsel and make a recommendation on terms to the other two judges.

“The Honourable Madam Justice Ryan”

I Agree:

“The Honourable Madam Justice Rowles”

I Agree:

“The Honourable Mr. Justice Low”