R. v. Wallis, 2010 ABQB 750

Court of Queen’s Bench of Alberta Citation: R. v. Wallis, 2010 ABQB 750 Between: Her Majesty the Queen - and - Sharon Wallis Date: 20101216 Docket: 100350925U1 Registry: Edmonton Crown Accused Restriction on Publication: By Court Order, the evidence taken, the information given, the representations made and these reasons fordecision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or,if the accused is committed to stand trial, until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 restriction on publication ended on October 23, 2020 ________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.B. Veit

Summary _____________________________________________________ [1] Ms. Wallis has been charged with embezzling approximately $25,000.00 from her former employer. On this motion, she asks for avariation of her current bail conditions to allow her to return to her home to Australia.

She asserts that she will return to Alberta for thepreliminary inquiry set for January; she argues that the court can rely on her assertion that she will return because she has demonstratedher strong desire to live in Canada and she realizes that, unless she Page: 2 does return as required by the justice system, she will be unable to fulfill her desire to live here. She states that it is difficult forher to continue to live in Canada because, under her immigration status, she is not currently entitled to be employed. [2] The Crown opposes Ms. Wallis’ application.

It states that, realistically, it is highly unlikely that Ms. Wallis would return if she wereallowed to leave. Moreover, the Crown observes that if she were allowed to leave Canada, Ms. Wallis’ immigration status is such thatshe might not be allowed by the immigration authorities to return. [3] Ms. Wallis’ application is denied: the Crown has met the burden of proving that it is necessary to keep Ms. Wallis in the country inorder to ensure her attendance in court. [4] For the purposes of this application, the court takes the position that the Crown bears the burden of proving that Ms.

Wallis’application should not be allowed. [5] As a result of changes made by Parliament to the Criminal Code, attendance in court is no longer the primary focus of bail.Nevertheless, attendance in court remains one of the three factors which may justify the imposition of conditions on an accused’s pre-trial liberty. [6] Here, the Crown has established that Ms. Wallis has no obvious strong links with Alberta or even with Canada: there is an absence offamily, friends, employment, or any other kind of link. In those circumstances, it is unrealistic to assume that Ms. Wallis will return toCanada to face prosecution.

Moreover, it is not even clear that, once she left, Ms. Wallis would be able to return to Canada even if shewished to do so. Cases and authority cited [7] By the court: R. v O.M. 2010 ONCJ 176 , [2010] O.J. No. 2002, R. v Ellahib [2005] No. 1213; R.c J.B. [2009] J.Q. No. 19365; R. v Ikram [2007] O.J. No. 3952. 1. Background

a) Factual [8] Ms. Wallis has an Australian passport. Currently, Ms. Wallis is on a visitor’s visa pursuant to which she isunable to be employed. Some years ago, Ms. Wallis spent approximately 2 years in British Columbia on a visitor’s visa. [9] Although Ms. Wallis has done her best to fully explore her immigration status at this time, she is unable to establish more than this:her visitor’s visa will not guarantee re-entry to Canada if she left the country prior to her preliminary inquiry or trial. Page: 3 [10] It is alleged that Ms.

Wallis embezzled a total of approximately $25,000.00 from her then employer by failing to deposit dailybusiness receipts. The Crown’s case against Ms. Wallis is circumstantial and depends on the fact that, for the period set out in thecharges, she was allegedly responsible for making the daily bank deposits because the manager of the business had become wheelchairbound. Her preliminary inquiry is set for mid-January, 2011. [11] Ms.

Wallis is entitled to bring this application because of a change of circumstance: when she was denied permission to leaveCanada, her immigration status was not the same as it is on this application.

[12] The Crown opposes Ms. Wallis’ application on the first ground: they say that if Ms. Wallis is allowed to leave the country it is unlikely that she would return.

b) Legislative [13] In s. 515(10) of the Criminal Code, Parliament established three justifications for pre​ trial detention, the first of which is: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; 2. Onus on an application to vary a previous bail order [14] For the purposes of this application, I have concluded that the onus is on the Crown to prove that Ms. Wallis’ application should not be allowed. [15] The issue of the burden or onus on this application was not discussed during the hearing. Given the delays required to obtain the most current information possible about Ms.

Wallis’ immigration status, rather than calling the parties back for argument on the issue of the onus, I have taken the position relative to the onus which is most favourable to Ms. Wallis, which is to place the burden on the Crown. [16] In coming to the conclusion on onus, I note, as well, that Ms. Wallis was not in a reverse onus position when she originally made her application for bail. Since then, she has become entitled to seek a variation of the original bail order because of the change in her immigration status.

That change entitles her to a fresh look at the conditions placed on her in response to the first ground justifying detention. 3. The first ground for detention: attendance in court [17] The only ground which the Crown invokes for contesting Ms. Wallis’ application is the first ground. Page: 4 [18] As a result of changes made by parliament to the Criminal Code, attendance in court is no longer the primary focus of bail. Nevertheless, attendance in court remains one of the three factors which may justify the imposition of conditions on an accused’s pre- trial liberty. [19] The Crown states that Ms.

Wallis has no links, of the kind which are relevant to the first ground, to Alberta or even to Canada. There is no additional information before the court concerning any possible such links. An evidentiary burden differs from an ultimate burden; once the Crown has asserted a state of affairs, an accused in Ms.

Wallis’ position can either accept that position or refute it. [20] The kind of links which are relevant to the first ground are described, generically, as “strong ties to Alberta” (Elliahib) or, somewhat more specifically, as family, friends, links ​ perhaps assets or even opportunities - or employment, (para . 90 in J.B.). [21] It is clear from the information before the court on this application that Ms. Wallis is interested in coming to Canada, as is apparent from the fact that, within the last few years, she has come to Canada on extended visits on two occasions. That interest argues in favour of Ms.

Wallis’ return to Canada to face the legal process because she knows that if she were not to return, she would presumably never be allowed back into Canada. [22] I am also aware that the possibility of a criminal record which might impair future international travel (Ikram) is a sword which cuts both ways: an accused person might well think that it is in their best interests to return to Canada for their trial in order to have a better chance of establishing their innocence thereby avoiding a criminal record and any resultant restriction on travel rather than to remain in their home country, risking the possibility that a trial will be held in their absence, and that a conviction in such a circumstance is more likely. [23] I remind myself that any pre-trial restriction on Ms.

Wallis’ liberty based on Parliament’s first ground for detention must be “necessary”. [24] As the cases demonstrate, a relatively common restriction imposed in relation to the first ground is the deposit of cash, on the theory that a person will show up for trial in order to get their cash back. The amount of cash which is effective to achieve the objective will, of course, vary according to the situation. The difficulty here is that Ms. Wallis specifically pleads impecuniosity as a result of the restriction on employment which binds her.

Therefore, a restriction based on the deposit of cash is not possible here. [25] Reporting restrictions which are sometimes used in a first ground situation would not be effective here to guarantee Ms. Wallis attendance in court since those restrictions would not operate to ensure that Ms. Wallis remains within reach of the court. [26] Finally, Ms. Wallis herself has candidly acknowledged that there is no guarantee that she would be allowed to re-enter Canada, even for the purpose of facing a preliminary inquiry and trial.

Page: 5 [27] In all those circumstances, the Crown has proved that, in order to ensure her attendance in court for her preliminary inquiry, it is necessary to require Ms. Wallis to abide by the restriction originally imposed, i.e. that she remain within Alberta until her preliminary inquiry. Heard on the 15 th , 19 th , and 26 th days of November, 2010. Dated at the City of Edmonton, Alberta this 15 th day of December, 2010. J.B. Veit J.C.Q.B.A.

Appearances: Dan Nagase, Knisely Shipanoff LLP for Ms. Wallis/Applicant James A. Rowan for the Crown