R. v. K.H.A., 2010 ABQB 243

Court of Queen ’ s Bench of Alberta Citation: R. v. K.H.A., 2010 ABQB 243 Date: 20100429 Docket: 100324896U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - K.H.A. Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] This is an application by Counsel for the Accused for review of the denial of release in this matter in Provincial Court on the primary and secondary grounds. [ 2 ] It is submitted that the Provincial Court Judge put too much emphasis on the Crown’s allegation with respect to certain outstanding warrants. It is further submitted by the Accused that the Court below gave only generic and extremely brief reasons for denying bail on both the primary and secondary grounds based on “in all of the circumstances” only.

These it is submitted are reversible errors. [ 3 ] The Crown responds that the Provincial Court Judge in referring to “all of the circumstances” was adopting the Crown’s lengthy description of various circumstances, so that the denial of bail on the primary and secondary grounds was not really generic, and

certainly did not constitute a reversible error. [ 4 ] At the time of the hearing before the Provincial Court Judge, the Crown alleged amongst other things that the Accused might leave the jurisdiction since he has ties to Ottawa. The Accused had four warrants outstanding for fraud and one warrant for possession of stolen credit card issued in the Ottawa area. [ 5 ] The Accused has a criminal record but nothing related to violence. It appears that this 45 year old male Accused who has a commerce degree, has a history of money problems which likely accounts for the theft and property related offences on his Record. Money problems as well seem to underlie the present charges under

Section 267(

a) assault causing bodily harm, which is the main charge that the Accused faces in relationship to his wife. There is also a breach of recognizance charge under Section 145(3), and a prior January 2010 domestic violence charge with the same Complainant. [ 6 ] In the present matter the Crown makes serious allegations against the Accused submitting that on March 17, 2010 the Complainant was attempting to flee their residence when the Accused chased her down and dragged her back into the residence in front of the couple’s 5 year old child.

There is an independent witness, a neighbour, who states that she observed the male and female yelling at the top of their lungs in a different language, the female trying to escape the apartment, making it down the hallway and partly down the stairs, when the male chased after her and caught up to her. The independent witness says that the female was dragged back into her apartment screaming by the male, who was dragging her by both her arms. The couple’s child was according to the independent witness crying as well, which is when the independent witness says she telephoned the police.

After that the independent witness apparently saw the male dragging the female into the apartment, trying to close the door, when part of her body got smashed in the door, which made her scream louder. Silence then followed before more screaming from the female was heard again, with the child crying throughout this time.

After about an hour of screaming, the witness says that the police showed up. [ 7 ] This is in contrast however to the Complainant’s statement to police in which she acknowledges that the parties were arguing with respect to money since the Accused had lost his job about two months prior, and there was not enough funds to live on for the family. The family was apparently at risk of being evicted from their apartment for non-payment of rent. The Complainant says she wanted to leave the apartment, at which point the Accused followed her out to the hallway and grabbed her by the collar pulling her back inside.

Once back inside the apartment, she told police that the Accused pulled her and pushed her, resulting in her tripping and falling striking her head on the door frame, which caused a five centimetre by half centimetre gash on her head. [ 8 ] Also of note is that the witness statement from the Complainant was written for her by the investigating constable.

The Complainant has never provided a written statement of her own, and it is important to note that there is a possibility that the Complainant will not cooperate at trial. [ 9 ] As changes in circumstance, the Accused submits that he can now post a sizeable cash deposit, and that he has a Treatment Program that he can now attend and reside separate and apart from the Complainant. [ 10 ] I reserved my decision in this matter so that I could receive written confirmation of the Treatment and Residential Program. This confirmation was received on April 27, 2010.

The Crown was provided a copy, and has provided their response. The confirmation reads as follows:– I have spoken with Ms. B.M., who is our contact person with respect to MATHS and Changing Ways. She advises that there is room in MATHS right now and that MATHS is emergency residential living arrangements for men who are in the midst of domestic related criminal charges and have nowhere to live because of no-contact conditions with their spouses on their release. She advises that the program requires a dual approach.

The first requirement is that the accused acknowledge the circumstances, at least in their outline contained in the police reports dealing with the charges against them. Secondly, the accused must be willing to take counselling and treatment in conjunction with a male outreach worker. Ms. M. indicated that their male outreach worker is familiar with Mr. A.’s case, as he had already contacted them from in custody, and that he could arrange to have an intake assessment by telephone should he be released.

Ms. M. indicated that, in addition to acknowledging the circumstances contained in the police report, the MATHS program would have to be made aware of any release conditions. It appears that Mr. A. is releaseable and could be released potentially to the MATHS program upon his acceptance, meaning that any release, should the Courts see fit to grant him, is contingent upon his being accepted into that program.

I suggest that if this Court is considering release, that his release be only to the MATHS program and that should allay the Court’s concerns because counselling would be a necessary component of that acceptance. Should you have any questions or concerns, please do not hesitate to contact me at the office. Yours truly, MOUSTARAH & COMPANY Conclusion [ 11 ] This Accused has been in custody since March 17, 2010, and he is a mature individual in his mid-forties with a commerce degree trying to support himself, the Complainant, and a young child financially.

Not entirely surprising, the Accused apparently has had problems while in custody at the Remand Centre, apparently developing a bleeding ulcer because of the food. [ 12 ] The strength of the Crown’s case may be in question here, although the allegations the Accused are serious. The next trial date in May will simply be for election and plea, however defence counsel expects a

summary resolution of the outstanding charges in the near future. There is an independent witness, even if the Complainant is not cooperative at trial. The independent witness however only witnessed certain aspects of the alleged assault causing bodily harm, and appears not to have seen the actual portion of the events in question where the bodily harm was actually caused. [ 13 ] The outstanding warrants, while of some concern, do not relate to domestic violence situations but rather to dated theft and property related offences tied to the money problems that this family obviously has.

In my opinion the warrants can be addressed by the posting of cash bail. I do not see any other reasons to be concerned that the Accused might leave the jurisdiction. [ 14 ] There is legitimate concern in this case because police officers have apparently been called to the residence 11 times with respect to alleged spousal violence between September 2004 and January 2010.

For whatever reason however no charges or convictions as far as I know have ever resulted from the numerous attendances by police officers at the residence, although there is the additional January 2010 charge related to alleged domestic violence against the same Complainant still presently outstanding against the Accused. [ 15 ] These are concerns on the secondary grounds with respect to this Accused, and this is a reverse onus situation.

As well the Accused is also on release for a theft under charge involving a parrot, which he allegedly was attempting to take for his daughter. [ 16 ] My conclusion is that some of the problems in this case are based on the couple’s lack of money, which is at least at this point is exacerbated by the fact that the Accused is in custody and cannot work to support himself and his family. The Accused does not seek, nor would I grant him, any contact with the Complainant and his child. He merely seeks to be released to a residence in which he can receive counselling for his anger management and marital problems.

No consideration should be given to allowing the Accused to have direct contact with his wife and family until he completes satisfactory counselling and anger management therapy. The temporary residence that the Accused has apparently secured is located a significant distance from the Complainant’s residence.

[ 17 ] In my respectful opinion then given the strength of the Crown’s case, given that the Accused does not seek to have any contact or access to his family, and given that he has arranged for alternate accommodation with accompanying therapy and counselling relatively far from and apart from his wife and child, the Accused has satisfied his reverse onus. [ 18 ] With respect to the first alleged incident of domestic violence that took place in January 2010 (a couple of months before the present March 17, 2010 assault causing bodily harm charge), Defence counsel advises resulted only in a scratch to the Complainant’s neck.

The outstanding warrants relate to matters that did occur while the Accused was living in Ottawa some nine years ago, and they were initial warrants in the first instance that the Accused says he never was aware of. I am satisfied that the Accused is dealing with the warrants, and all the outstanding charges that he is presently facing on an expeditious basis.

I suspect that all these matters will be resolved summarily in the near future. [ 19 ] With respect to the primary grounds, and the present change in circumstances, the Accused did offer up before the Provincial Court a very high no cash deposit, or a small amount of cash deposit with conditions, but he is now apparently able to post a significant $900.00 cash bail in this matter. [ 20 ] I conclude that all of these factors satisfy me that there has been a significant change in circumstance such that I am prepared to release this Accused on his posting of a $900.00 cash bail.

I impose the conditions that the Accused have no contact with his wife and child, that he seek and maintain employment, as well as take marriage counselling and anger management courses as required, and that he live in the residential care and control of those conducting the MATHS Program located in the Northgate area of Edmonton. He will report in person once a week to Adult Probation, and he will not leave the jurisdiction. Heard on the 9 th day of April, 2010. Dated at the City of Edmonton, Alberta this 29 th day of April, 2010. Donald Lee J.C.Q.B.A. Appearances: Ashok S.

Gill Moustarah & Company for the Accused Carrie-Ann Downey for the Crown