R. v. McDonald, 2010 ABQB 770

Court of Queen ’ s Bench of Alberta Citation: R. v. McDonald, 2010 ABQB 770 Date: 20101206 Docket: 100575778U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Timothy Joseph McDonald 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By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until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 July 6, 2011. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. McDonald, who has just learned that his previously scheduled October, 2010 trial has now been adjourned to the end of June, 2011, asks for a variation of the conditions on which he was released on bail in June, 2010.

[ 2 ] Mr. McDonald ’ s application is allowed. As a preliminary issue, Mr. McDonald has satisfied the pre-requisite for bail review: the material change of circumstance is the lengthy adjournment of his trial. [ 3 ] On its re-assessment of bail, this court takes into account Mr.

McDonald ’ s young age, as well as - in relation to the first ground - his youth record of convictions relating to the first ground and his performance in relation to the first ground while out on release, and, on the second ground, the two year gap between his last conviction in youth court and the current charges and the ambivalent circumstances of the current charges. 1. Background [ 4 ] Mr. McDonald is 19 years old; the last entry on his youth record was a conviction when Mr. McDonald was 17, on May 29, 2008, for possession of a weapon, for which Mr.

McDonald was sentenced to attend a non-residential program for 35 hours together with a 2 year discretionary prohibition order (firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive device) under s. 51(3) of the Youth Criminal Justice Act . [ 5 ] In February, 2007, Mr. McDonald was convicted of robbery, failing to comply with a recognizance, theft under $5,000, possession of property obtained by crime under $5,000, failing to comply with conditions of undertaking given by officer in charge, and fail to appear.

He was sentenced to 90 days and 45 days under supervision in the community, on each charge, consecutive. [ 6 ] In addition to those convictions, Mr. McDonald has earlier youth court convictions for assault, theft under $5,000, possession of a weapon and aggravated assault. [ 7 ] The incident with which we are dealing occurred on May 13, 2010, at around 10:30 in the morning, when an undercover police officer approached Mr. McDonald and his girlfriend who were arguing. Mr. McDonald told the undercover police officer to mind her own business.

The police officer, who was involved in a drug trafficking operation in the area where Mr. McDonald lived, left the couple and returned to her surveillance position. Approximately 30 minutes later, Mr. McDonald drove by the police vehicle; the undercover police officer believed that Mr. McDonald was attempting to surveil her movements. She repositioned herself in Mr. McDonald ’ s neighbourhood and reported her concerns to the police administration. [ 8 ] Some time later, Mr. McDonald walked past the undercover police officer ’ s vehicle. From her vehicle, the undercover officer stopped Mr.

McDonald and asked him why he was following her. [ 9 ] Mr. McDonald approached the vehicle, grabbed the door handle and told the woman, words to the effect, “ Come out, I ’ ll kick your ass ” . [ 10 ] A male undercover police officer, who was stationed behind the female undercover police officer ’ s vehicle, having observed the interaction between Mr. McDonald and his colleague, got out of his vehicle, challenged Mr. McDonald, and approached Mr. McDonald with the intention of arresting him. [ 11 ] The male police officer ’ s evidence is that Mr.

McDonald then reached into his right front pocket and came out with a black handled folding knife which he then flicked open and brandished at the male police officer. It is not clear at which point during this altercation the male police officer identified himself as a police officer. [ 12 ] Once the male police officer drew his pistol, Mr. McDonald fled the area and was stopped by other members of the police service who were in the area on the same drug trafficking operation.

[ 13 ] Mr. McDonald is facing charges of assault of a police officer and other related charges. [ 14 ] Mr. McDonald, who was unrepresented at the time, was initially denied bail by a justice of the peace. After having spent a little over one month in jail, on bail review, Mr. McDonald was granted bail. [ 15 ] The version of events that Mr. McDonald gave at the bail hearing was that the female undercover police officer had in fact followed him on foot for about two blocks before she asked him why he was following her. [ 16 ] Mr.

McDonald states that the knife he had in his pocket was a party favour letter opener type knife for a keychain distributed by fire fighters as a token of appreciation for donations. [ 17 ] Mr. McDonald states that he suffered a black eye and an abrasion around his neck as a result of rough handling by the police when they arrested him. [ 18 ] At the bail review hearing, Mr.

McDonald presented evidence that he had employment available. [ 19 ] The trial was originally scheduled for October 27, 2010; that trial was recently re-scheduled to June 30, 2011. [ 20 ] During the course of the bail review, the judge did not expressly address the issue of whether the Crown had proved that it was necessary to impose restrictions on Mr. McDonald ’ s liberty in order to ensure the safety and the security of the public, or whether the Crown had proved that there was a substantial likelihood that he would commit an offence if released.

The court, did, however, stated that a charge of assaulting a police was one of the most serious offences, and continued: There is a plethora of case law that states that for protection of the public well-crafted conditions on interim release should protect the public. I am therefore granting interim release on strict conditions. . . . I want a curfew. The curfew would be from eleven p.m. . . . to six a.m. I want a provision that he obtain employment and continue with his employment. That .. a total prohibition of alcohol and non- prescription drugs. Naturally, a prohibition on weapons. Now, Crown, . . .

I want to hear from you in regards to any conditions that the Crown may impose because I want to craft this up so that it is tight. So tight that this individual cannot so much as walk across the street the wrong way and he will be back in the Remand Centre. We naturally want the reporting to the probation officer and I would like to make that at least twice a week by phone. The provision that a police officer attends at his residence. He shall present himself within five minutes. (Or the curfew check can be by phone and the accused must maintain a land line.) . . .

And that he not attend any premises where the sale of alcohol is a primary commodity. In other words, bars, lounges, anything along that line. . . That he naturally carry the conditions on interim release with him at all times, that he report (to the Remand Centre, i.e. surrender himself into custody) 24 hours before trial. . . . My concern here is that the message has to be brought home to (the accused) that this Court is going on a little bit of a leap of faith, given the fact that 99.9 percent of his Record is while he was a youth but is now an adult.

And he has to realize any deviation on these conditions, I do not care what it is, he will be brought back here and he will go back to the Remand. . . And he will then be in a pit that he will never get out of, I do not think. Now, counsel, you have got to drive that message home. . . Well I have a got a few more (conditions). I do not want him leaving the boundaries of the city of Edmonton. Secondly, he is not to be involved with anybody with a criminal record in any form or fashion, unless they are a co-worker through this program that he will be employed with. . . .

But all this man is supposed to be doing is getting up in the morning, going to work, coming back, and that is it. He can go to church, he can go to a medical doctor, health reasons, this sort of thing. Aside from that, that is pretty much all I want him to be able to do. [ 21 ] There is no reported breach of any of these conditions over the last 5 months. Mr. McDonald did turn himself into custody 24 hours prior to the date of his original trial in October. 2. Mr. McDonald has met the pre-requisite for bail review [ 22 ] There has been a material change of circumstances which entitles Mr.

McDonald to a review of bail: his trial, originally

scheduled for October, 2010 has been re-scheduled, through no fault of Mr. McDonald ’ s, to June 30, 2011. 3. Reconsideration of bail [ 23 ] Because Mr. McDonald has satisfied the pre-requisite for bail review, the court will then embark on a re-assessment of bail.

a) First ground [ 24 ] Relying on Mr. McDonald ’ s youth record relating to the first ground, the Crown has established sufficient concerns to justify the imposition of some conditions related to that ground on Mr. McDonald ’ s pre-trial release. [ 25 ] Indeed, Mr. McDonald does not oppose the existing requirements for a $500.00 recognizance, no cash deposit, nor that he report twice a week by phone to a probation officer at times to be set by the probation officer. [ 26 ] Mr.

McDonald does, however, object to the obligation that he return to custody 24 hours prior to the time of his re-scheduled trial. [ 27 ] Given both the relative staleness of his record relating to the first ground - convictions going back to the period when he was a youth -and his compliance with all of the bail conditions imposed in June 2010, including the requirement that he turn himself into custody 24 hours prior to his scheduled October trial, I have concluded that it is no longer necessary that Mr. McDonald turn himself into custody 24 hours prior to his re-scheduled trial. [ 28 ] Mr.

McDonald also opposes the condition which prevents him from leaving the boundaries of the City of Edmonton. For the same reasons as set out above relative to his turning himself in to custody prior to his re-scheduled trial, I have concluded that it is not necessary to restrict Mr. McDonald to the Edmonton city limits.

b) Second ground [ 29 ] Relying on his youth record for small property offences and the fact that he was unemployed, the Crown has discharged the burden of proving that some conditions on release, based on the second ground, are justified. If he does not do his best to gain and keep employment, Mr. McDonald will be in a precarious financial position and may be tempted to commit property offences. [ 30 ] The only other second ground concern is that the charges facing Mr. McDonald, particularly those relating to the assault of a police officer, are serious.

The seriousness of the offence charged is, of course, no bar to bail. [ 31 ] The Crown ’ s concern on the second ground was expressed at the original bail review in this way: He acted irrationally violent that day, including brandishing a weapon at unknown individuals and essentially threatening a woman that he had no idea who she was or why she was there, and appeared to be stalking her in a small fashion for having interrupted the incident with his girlfriend . . . [ 32 ] With respect, given the equivocal nature of the police officers ’ behaviour on the date in question, it will only be at trial that a true picture of Mr.

McDonald ’ s actions will develop. Because this application for bail review had to be adjourned in order to allow Mr. McDonald to obtain a copy of the transcript of the June 14 th hearing, it would have been helpful for the Crown to have produced the knife, or a photograph of the knife, which is referred to in the background facts with a view to providing the bail court with a better idea

of the level of perceived dangerousness of Mr. McDonald ’ s actions. [ 33 ] Given the 2 year gap in Mr.

McDonald ’ s criminal record prior to the laying of the current charges and given the circumstances in which the confrontation with the police occurred, I am of the view that there are only minimal concerns on the second ground. [ 34 ] In particular, given the fact that the alleged offences occurred in the morning and that neither alcohol nor drugs were a feature of the alleged offences, I have concluded that it is neither necessary, within the meaning of s. 515(10)(a), nor reasonable within the meaning of s. 515(4)(f), to continue the curfew and alcohol prohibition conditions; since the curfew condition is vacated, so also will be the conditions relating to telephone land lines and curfew checks; since the alcohol condition is vacated, so also will be the condition relating to attendance at bars, lounges or any other premises where the sale of alcohol is a primary commodity. [ 35 ] Similarly, given the fact that the alleged offences did not involve cooperation with or even consorting with individuals who have criminal records, I have concluded that it is neither necessary nor reasonable to impose on Mr.

McDonald a condition that he abstain from being involved with anyone who has a criminal record. [ 36 ] It is not clear whether the condition relating to the obligation to carry his bail order with him at all times is related to the first ground or to the second ground. Perhaps this type of condition is reasonable when imposed on a person who has been convicted of an offence and is serving a sentence in the community. However, in the circumstances here, I have concluded that it is neither reasonable nor necessary on either the first or the second ground.

c) Third ground [ 37 ] The Crown did not allege any concerns on the third ground.

d) Conclusion [ 38 ] For the reasons set out above, Mr. McDonald ’ s application for bail review is granted, and, on review, the relaxation of bail conditions is granted. Heard on the 30 th day of November, 2010. Dated at the City of Edmonton, Alberta this 3 rd day of December, 2010. J.B. Veit J.C.Q.B.A. Appearances:

Naeem Rauf For the Accused Ian MacKenzie, Crown Prosecutors ’ Office For the Crown