R. v. Contractor, 2010 ABQB 712

Court of Queen ’ s Bench of Alberta Citation: R. v. Contractor, 2010 ABQB 712 Date: 20101119 Docket: 100925080U1 Registry: Edmonton Between: Her Majesty the Queen - and - Basheer Contractor Accused Restriction on Publication: By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. See the Criminal Code , s. 517.

Editorial Notice: The interim publication ban ended on March 7, 2011. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.B. Veit

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Summary [ 1 ] The accused asks for a further variation from the existing bail condition which restricts his contact with the complainant. He is charged with assault relating to that complainant and with breaches of recognizance by having contact with the complainant and by drinking alcohol.

He grounds his application on the position of the complainant who, being present in person at the bail review hearing where she is independently represented, tells the court that she does not fear the accused and does not want protection from contact with him. [ 2 ] The Crown opposes the application. [ 3 ] The application is allowed. [ 4 ] New information has arisen since the last time this matter was in court: the complainant has now attended the hearing in person and confirmed that she does not require or want the no- contact provision to continue.

The accused is therefore entitled to ask the court for a reconsideration of his release conditions. [ 5 ] In the circumstances here, given that the accused has no record and that the complainant ’ s evidence has already been taken by way of consistent written and KGB police statements, the only possible justification for any restriction on the accused ’ s liberty while awaiting trial is that part of the second ground dealing with the protection and safety of the victim of the alleged crimes: s. 515(10)(

b) C.C.C. [ 6 ] Since the amendment to s. 515(10(

b) of the Code, it is likely that any complainant who wishes a no-contact provision relative to the accused will be entitled to one. [ 7 ] The mere expression of a wish by a complainant to have, or resume, contact with an accused is not determinative of the court ’ s assessment of an accused ’ s dangerousness: Brown . It is, however, a factor to consider in determining whether a restriction on an accused ’ s liberty is “ necessary ” . [ 8 ] The adult complainant, who has received independent legal advice, indicates that she does not have any fear for her safety from the accused.

The alleged assaults against the complainant were at the low end of the range of assaultive behaviour. Since the original alleged assault, the accused and the complainant have attended at least two of the same parties, and each case was a situation where alcohol was consumed, but where there has been no repetition of allegations of assault. [ 9 ] In

summary, the provisions of s. 515(10)(

b) have no application here and the restriction on the accused ’ s liberty based on the terms of that sub-paragraph of the Criminal Code should now be terminated. Cases and authority cited [ 10 ] By the court: R. v Brown 1992 ABCA 132 (CanLII) , [1992] A.J. No. 432 (C.A.) R. v Coates [2010] QCCA 919; Toronto Star Newspapers Ltd. v Canada 2010 SCC 21 (CanLII) , [2010] S.C.J. No. 21 1. Background

a) Factual and procedural [ 11 ] The accused, who has no criminal record, is charged that, on May 8, 2010, he committed an assault on the complainant. Specifically, the police allege that the accused smashed the complainant ’ s head into the side of a car; there is no report of injury to the complainant. The accused was released on the assault charge on a series of conditions including the condition not to have contact with the complainant and not to consume alcohol or non-prescribed drugs.

In making a statement to the police about that incident, the complainant asserted that, on May 7, 2010, she and the accused had been at a party, he had called her a slut, she slapped him, and he hit her back so hard that her head hit the siding of the house. The accused was charged with a second assault relative to the May 7 incident. The complainant was not charged with assault relative to that incident. On August 1, 2010, the accused and the complainant were arguing on the front lawn of a property; the accused told the police who attended the scene that he had had two beers two hours earlier.

As a result, the accused was charged with two breaches of recognizance, one relating to contact, and one relating to consumption of alcohol.

On August 28, 2010, an individual advised the police that the accused and the complainant were both attending the same party; the accused was charged with a further breach of the no-contact provision. [ 12 ] The accused was originally released on bail on May 9, 2010 on conditions which included $1,000.00, no cash deposit, and that he have no contact or communication, direct or indirect with the complainant, except for necessary court attendances or in the presence of legal counsel. The accused was also prevented from being within a one block radius of a certain address in St.

Albert. [ 13 ] On August 1, 2010, as a result of the events of that date, the accused was released on conditions which included a $500.00 cash deposit, together with the same conditions as contained in the recognizance of May 9, 2010, except the condition which prohibited attendance at a certain address in St.

Albert. [ 14 ] On August 30, 2010, as a result of the events of that date, the accused was again released on a cash deposit of $1,000.00 and with the same conditions as in the recognizance of August 1, 2010. [ 15 ] On September 23, 2010, this court varied the recognizances previously authorized by the Provincial Court as follows: - condition 3 You shall have no contact, direct or indirect, with the complainant, except in public places, which excludes residential homes or residential buildings; 4 You shall not attend at an address in St.

Albert. 6 You shall maintain a 5 metre radius restriction from the complainant . . . at all times. [ 16 ] Counsel who were present at the hearing on November 15 inform the court that, at the September 23, 2010 bail review hearing they were all of the view that the practice, if not the law, in Alberta was that a no-contact provision would not be struck down even when there is credible evidence that a complainant wishes to have that provision removed, unless the complainant was personally present at the hearing and willing to give sworn evidence about their position.

Counsel assert that their understanding of what this court typically required on such motions affected the nature of the variation application actually made on that date because the complainant was not present in person at the hearing. [ 17 ] At the bail variation hearing on September 23, 2010, the accused ’ s lawyer made the following submission: . . . Would like to have that no-contact (provision) removed.

Now, my understanding through her independent legal (advisor) is that the no-contact (order) should be with some conditions, essentially not to have contact (unless) it ’ s in public places or in the presence of third parties. So it ’ s my understanding she does not wish to have contact with him if they are alone. [ 18 ] The complainant ’ s independent legal advisor made the following submission:

[The accused and the complainant] share many common friends, and they run into each other at parties and things like that. What she did tell me is that although she . . . has no concerns for her safety, she does believe that the accused has an anger problem, and she asked me to tell the Court that and suggest that that might be something the Court wants to take into consideration.

b) Legislative [ 19 ] For ease of reference, and because the second potential ground for detention is the only possibly relevant ground on this application, I quote the pertinent provisions of the Canadian Criminal Code: Judicial Interim Release Justification for detention in custody s. 515 (10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: . . . (

b) where the detention is necessary for the protection or safety of the public including any victim of or any witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice 2. General principles relating to pre-trial detention based on the need for security and protection of a victim where the victim does not want protection

a) Approach to bail [ 20 ] In the context of the potential tension between liberty issues and privacy issues, the Supreme Court of Canada has recently underlined the need to be mindful of the potentially unfair restrictions on liberty which can arise out of the bail system: Toronto Star paras. 51 ff. Simply put, an accused is an innocent person, and restrictions on that person ’ s liberty can only be imposed within Parliament ’ s framework.

b) Wishes of the victim [ 21 ] A few years ago, Parliament expressed its concern about the safety and well-being of victims by explicitly referring to their status in connection with the second ground for justified pre-trial detention; that amendment is reflected in the current version of the Code which is cited above. [ 22 ] The effect of that amendment is presumably to make the imposition of a no-contact clause with the complainant virtually automatic in all circumstances where the complainant does not want to have any contact with the accused: although Parliament retained the important word “ necessary ” in relation to protection and safety, by adding the word “ victim ” to the word “ public ” , Parliament was presumably authorizing a subjective approach relative to the victim or complainant while maintaining an objective standard of necessity for the public in general.

In other words, if a complainant is of the view that their protection and safety require the imposition of a no- contact condition, the court is likely to be satisfied that such a limited condition is indeed necessary. Indeed, this

interpretation of Parliament ’ s intention would be consistent with the general law which will grant a restraining order to an individual who does not want to have contact with another individual.

[ 23 ] The

interpretation of Parliament ’ s intention therefore only causes potential problems in the situation where the victim, or complainant as might be more appropriate at the bail stage of proceedings, does not want the protection of the court, or asks the court to remove a no-contact provision. [ 24 ] An analysis of the meaning of the second ground for detention in circumstances where the presumed beneficiary of the protection extended by the court does not want that protection must start with the principle expressed by our Court of Appeal in as long ago as in Brown : just because a victim of crime asks for mercy for the criminal, the court should not necessarily accede to that request: Men who assault their wives are abusing the power and control which they so often have over the women with whom they live.

The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape. Such women's financial state is frequently one of economic dependence upon the man.

Their emotional or psychological state militates against their leaving the relationship because the abuse they suffer causes them to lose their self-esteem and to develop a sense of powerlessness and inability to control events. [ 25 ] The court then continued with approval of a previous dissenting opinion from Hetherington J.A. as follows: Domestic violence is not in any way different from violence in the street except that frequently the victim, because of his or her emotional involvement with the offender, does not want to see the offender punished.

If courts give effect to the wishes of victims in this regard, persons inclined to assault family members will feel that they can do so with impunity. In my view, in the interest of general and specific deterrence, domestic violence must be treated in the same way as violence outside the family. [ 26 ] The court then continued, in part as follows: It is not possible to draw up an exhaustive list of factual elements which should be taken into account in sentencing in wife-assault cases.

Because the violence has occurred in the context of a spousal relationship without which the man might never have been violent toward the woman, the Court must consider whether the assault for which the man has been convicted is relatively minor in nature, or is an isolated incident, or whether there are other circumstances which make it desirable that the sentence not be such as to be counterproductive to the possibility that the family relationship will be preserved (if there is any such possibility remaining).

The first two of these points will already have been taken into account in deciding what the starting-point should be; that is, what the fit sentence would have been if it had been an assault between strangers.

The third point must be applied with care, because the plea of the wife that her husband be returned to her and that she not be further victimized by being deprived of his income should not readily be permitted to prevail over the general sentencing policy that envisages imprisonment of the man as not only an instrument of the deterrence of other men, but also as an instrument of breaking the cycle of violence in that man's family even at the risk of the relationship coming to an end during the enforced separation. (Emphasis added) [ 27 ] Although Brown was dealing specifically with principles of sentencing, the underlying premiss of the decision - that a court must be alert to the fact that, in a close personal situation, a victim of crime may have complicated reasons for not wanting an accused to be punished - applies, with necessary modifications, at the bail stage of the proceedings.

The apparent victim of an alleged crime may have complicated reasons for stating to the court that they do not want or need to be protected from the accused. The victim ’ s wishes in such a situation is one factor, but not the decisive factor, in the court ’ s decision about whether contact with the alleged victim should be denied.

c) Degree of perceived dangerousness [ 28 ] In determining whether it should, in the pre-trial process, prevent contact between an accused and an alleged victim, it is

appropriate to consider general issues of dangerousness. On that score, it is interesting to note the comments of the Quebec Court of Appeal when dealing with an application for bail brought by 4 members, or former members, of the Hell ’ s Angels criminal organization who had been charged jointly with some 150 other persons for a variety of crimes involving drug trafficking and other offences up to, and including, murder. The Court noted that, with the exception of one of the 4 accused, the Crown had conceded that the protection and the security of the public were not an issue: see para. 36, Coates .

With respect to Coates himself, the original bail judge had, after a careful analysis of the position of the Crown, and despite the fact that Coates was in a reverse onus situation - which is not the situation of the accused here- concluded that there was no justifiable detention on that ground: [43] For these reasons, the Court finds that the Petitioner has met his burden on the second criteria.

The Court of Appeal held that the original bail judge had not committed any error of principle in his analysis: see para. 38. [ 29 ] The Coates decision reminds us that, even in a reverse onus situation, the threshold established by Parliament for pre-trial detention is relatively high: detention must be necessary to protect the security of the public. 3.

Application of the general principles to the facts in this case [ 30 ] As a procedural matter, the accused is entitled to bring an application for further variation of his bail conditions: there has been a change of circumstance since the last court dealt with the no-contact issue. The victim now appears in person, independently represented, and tells the court that she does not want or need an order which prevents contact with her.

On the previous bail hearing, she was not present in person; the lawyer who represented her on that occasion indicated to the court that the complainant wanted to maintain a restriction on the accused ’ s contact with her except when third parties were present.

As can be seen in the outline of the facts, above, the variation granted on that occasion relaxed the no-contact provision without allowing contact of any kind in social circumstances.. [ 31 ] There is, in the circumstances here, no concern about the accused ’ s interference with the administration of justice because the police already have the victim ’ s consistent written and KGB statements. [ 32 ] In considering the current application, we start with the principle that the court should limit the accused ’ s freedom only as much as the Crown proves is necessary to achieve the objective set out in the second ground for pre-trial detention. [ 33 ] Next, we note that the adult victim does not want to be protected from contact with the accused.

On the contrary, she states that because she does not fear the victim. [ 34 ] I am not aware of any court decision or any practice note which requires the personal attendance of a complainant when an accused asks for the removal or relaxation of a no-contact provision; nevertheless, it is obvious that, in this very case, the complainant ’ s personal attendance was extremely useful since it allowed her to clarify that she had no concern for her own safety and that she did not, in fact, wish to have any restriction on the accused ’ s contact with her.

The situation here is, it appears to me, reflective of the law in this area.

There is no rule of law or practice which requires the personal attendance of a complainant to support an accused ’ s application for variation of a no-contact provision; although a bail court might require the personal attendance of a complainant on an application of this sort, in some circumstances a court might be satisfied with an alternative way of making the complainant ’ s real wishes known to the court. [ 35 ] However the complainant ’ s wishes are made known to the court, those wishes are not determinative of the issue. [ 36 ] In the circumstances here, the complainant ’ s wishes appear to be reasonable.

In particular, the information before the court on this application is that, since May 7, 2010, although there have been at least two occasions on which the complainant and the accused have been together in a partying situation, where inhibitions are presumably relaxed, there has been no assault by either one of them.

[ 37 ] In addition, in assessing the dangerousness of the accused, the court notes that the allegations are of assault simpliciter and that the accused has no criminal record [ 38 ] In all the circumstances, therefore, the court grants the accused ’ s application and removes conditions 3 and 6 of the recognizances last imposed in this court. Heard on the 15 th day of November, 2010. Dated at the City of Edmonton, Alberta this 18 th day of November, 2010. J.B. Veit J.C.Q.B.A. Appearances: Chady F. Moustarah, Moustarah & Company for the accused Dane F. Bullerwell, Pringle MacDonald & Bottos for the complainant Shaun Emes, Crown Prosecutor, Edmonton Rural and Regional Office for the Crown