R. v. Babyn, 2011 ABQB 154

Court of Queen ’ s Bench of Alberta Citation: R. v. Babyn, 2011 ABQB 154 Date: 20110309 Docket: 100569227U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Barry Edward Babyn Applicant 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By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until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 restriction ended March 9, 2011. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [1] Mr. Babyn asks for review of his denial of bail on the basis of material new circumstances: the setting of a trial date inDecember, 2011, the deliberate destruction by police of the real-time recording of the police surveillance operation against Mr. Babyn,and the breach of a neighbour’s Charter protection against improper entry. [2] The application is allowed: the only one of the three circumstances invoked by Mr. Babyn that justifies a review is thesetting of a trial date. [3] Although it was appropriate to deny Mr.

Babyn bail on the second ground, now that a trial date has been set a considerabletime into the future, the court must also consider Mr. Babyn’s constitutional right to be tried within a reasonable time. It is inappropriateto detain Mr. Babyn in custody for a total of 19 months prior to his trial. On a re-hearing of bail, taking into account the material newcircumstances, the court concludes that, because of the very high risk that Mr. Babyn will commit crimes while awaiting trial, unusuallyrestrictive bail conditions are justified: Mr.

Babyn will, among other conditions, give up his constitutional right to be free ofunreasonable search and seizure. [4] At this stage of the proceedings, the court must assume that testimony about police surveillance will be admissible at trial;it will be for the trial judge to determine if the deliberate destruction of the real time communication record is a breach of Mr. Babyn’sconstitutional rights and, if so, whether that breach has consequences with respect to evidence which the prosecution can lead. Mr.Babyn has no status to rely on an alleged breach of a neighbour’s constitutional right.

Cases and authority cited [5] By the court: CEMA v Richardson (SCC), [1998] 3 S.C.R. 157; R. v C.R.G. (ONCA), [2005] O.J. 3764 (C.A.);; s. 525 Criminal Code Appendix A: Extract from reasons for denying Mr. Babyn bail in October, 2010 1. Background [6] On April 9, 2010, as a result of information received, the police conducted surveillance on Mr. Babyn. A police officerobserved Mr. Babyn remove a cardboard box from the canopy of another person’s truck, which other person came from BritishColumbia. A short time later, Mr.

Babyn was observed carrying a large garbage bag to a Ford Ranger truck, owned by a third person;that third person carried another garbage bag to the same truck. The police have no forensic evidence linking Mr. Babyn to the garbagebags: no fingerprints or DNA of his were found on the bags, although forensic evidence from the third person was found on the bags.The police stopped the Ford Ranger truck and, in it, found a total of 55 half pound bags of cannabis marihuana in the two garbage bags;Mr.

Babyn was immediately arrested on a charge of possession for the purpose of trafficking and $675.00 was found on his person. Thepolice subsequently stopped the person from British Columbia and found approximately $50,000.00 cash on him. The police obtained asearch warrant for Mr. Babyn’s residence and found 5 pounds of psilocybin, or magic mushrooms, 3 pounds of marihuana, a cashcounter, some additional small amounts of psilocybin and marihuana, two digital scales, score sheets, plastic packaging material, acrossbow, a police scanner and $1,845.00 cash. The police also obtained a search warrant for Mr.

Babyn’s business premises and therefound 4 ½ pounds of marihuana, 2.2 grams of cannabis resin or hashish, 164 grams of psilocybin, and plastic packaging material. Thetotal street value of the marihuana seized was $126,000.00, of the psilocybin seized at Mr. Babyn’s residence and at his businesspremises was $16,000.00, and of the cannabis resin seized was $8,800.00. [7] As a result of the circumstances set out above, Mr.

Babyn has been charged with possession of marihuana for the purposeof trafficking, possession of the proceeds of crime, possession of other drugs, and possession of a crossbow in breach of an order not to bein possession of a weapon.

[ 8 ] Mr. Babyn has been in custody since April 19, 2010. It is common ground that Mr. Babyn is being held in remand on conditions that are materially worse than the conditions he would face if he were found guilty of the charges he is facing and sentenced to imprisonment: for example, he is being held on a dangerous ward, he only has ½ hour of exercise a day, and he receives no training or counselling. [ 9 ] The last occasion on which Mr. Babyn was denied bail was October 28, 2010. An extract from the reasons given for denying bail at that time is attached as Appendix A. Mr.

Babyn does not suggest that there is any error of principle in those reasons. The longest sentence that Mr. Babyn has served for a related offence is 32 months on a charge of possession of a scheduled substance for the purpose of trafficking. Mr. Babyn is not entitled to the same remission for pre-sentence jail time as for post-sentence jail time. [ 10 ] In support of this application for bail review, Mr.

Babyn invokes three changes in circumstance which he characterizes as material and which arose as a result of his preliminary hearing which was heard on December 20, 2010: - a trial date has now been set for November 4 - December 9, 2011. Mr. Babyn attempted to set an earlier date but was unable to do so because of the situation of his 3 co-accused, who are all on bail; - at preliminary, he learned that the real time recording of police communications during the surveillance operation on April 19, 2010 was deliberately destroyed.

The evidence at preliminary is that such evidence is deliberately destroyed because it might disclose police operating procedures. The police officers involved in the surveillance testify that they make notes from the real time recording and use those notes as the basis for their testimony; - from the evidence at preliminary, Mr. Babyn concluded that the constitutional rights of his neighbours to be free from improper entry had been violated by the police. 2. Two of Mr. Babyn ’ s arguments do not lead to a review of his bail status: Mr.

Babyn does not have the status to raise alleged breaches of the constitutional rights of others, and the effect, if any, of the deliberate destruction of evidence by the police on the admissibility, or weight, of other evidence is a matter for the trial judge , not for this court

a) The constitutional rights of neighbours [ 11 ] In CEMA , the Supreme Court of Canada reminded us that it is only in exceptional circumstances that one person can raise in their own defence the alleged breach of the constitutional right of another person. Mr. Babyn does not come within the exceptions. Therefore, even if the constitutional rights of his neighbours were in fact infringed by the police, Mr. Babyn can ’ t rely on those breaches.

b) The deliberate destruction of real time recording of police communications [ 12 ] Mr. Babyn learned at preliminary that the police deliberately destroyed the real time recording of communications amongst the police surveillance team. Given the absence of forensic evidence tying Mr. Babyn to the bags containing the marihuana, the evidence against him in relation to the 27 ½ pounds of marijuana found in the Ford Ranger truck therefore essentially comes down to the testimony of a police officer. [ 13 ] The disclosure of the real time transcription would have been useful to Mr.

Babyn in cross-examination of the police officer who will identify him as the person who unloaded boxes from one truck and loaded a garbage bag into another. The deliberate destruction of that evidence without obtaining a ruling on privilege is undoubtedly a factor that the trial court will take into account in determining the weight of the police officer ’ s evidence, or, indeed, whether the deliberate destruction of evidence constitutes a breach of Mr. Babyn ’ s constitutional rights, for example his s. 7 rights, and, if so, whether any remedy should be granted for the breach.

However, at this stage of the proceedings, this court must proceed on the basis that the testimony from the police officer is admissible at trial.

[14] In

summary, these two arguments, considered separately and collectively, invoked by Mr. Babyn do not entitle him to areview of bail. 3. Delay in getting to trial [15] The long delay which Mr. Babyn now faces before he will be tried on these charges is a material change of circumstancewhich entitles him to a re-assessment of bail. [16] Long before it adopted the Charter, Parliament expressed serious concern about delay in the justice system.

In s. 525 of theCriminal Code, it stated that any person who was still being held in custody on an indictable offence 90 days after original detentionmust be brought before the court so that the court could decide whether the accused should be released from custody. [17] The policy which undergirds that

section of the Code is also reflected in s. 11(

b) of the Charter which states that every personcharged with an offence has the right to be tried within a reasonable time. In C.R.G., the Ontario Court of Appeal provided a usefulexplanation of the leading cases on delay: The Guidelines for Institutional Delay 15 As indicated above, the trial judge found that the total delay of 19 months in the Ontario Court of Justice was outside the guidelinesset by the Supreme Court.

In making that finding, the trial judge failed to take into account the fact that a sizeable part of that delay wasintake delay and neutral and should not have been counted as part of the institutional delay. The trial judge found that 7 1/4 months fromthe date the respondent was charged until the parties were ready to set a date for the preliminary inquiry was intake delay. This was alengthy period, but as I have said above, there were explanations; in particular, defence counsel was not prepared to set a date for thepreliminary inquiry until he had been properly retained and reviewed the disclosure.

I see no reason to disagree with the trial judge'scharacterization of this period as intake delay. Unfortunately, the trial judge failed to deduct this period from the overall period. Rather,he said that the total delay of 19 months in the Ontario Court of Justice "offends in the extreme ... the parameters set out by the SupremeCourt of Canada in both R. v. Askov ... and R. v. Morin .... It is effectively twice the maximum permissible limit." This, in my view, is amisreading of those two cases. 16 In R. v.

Askov, (SCC), [1990] 2 S.C.R. 1199, 59 C.C.C. (3d) 449, the Supreme Court considered delay in theOntario Court (General Division) in the District of Peel (now the Superior Court of Justice, Central West Region). All of the delay wassystemic or institutional delay due to inadequate institutional resources in that court.

After a comparison with other jurisdictions,particularly Montreal, Cory J. held, at p. 490, that "a period of delay in a range of some six to eight months between committal and trialmight be deemed to be the outside limit of what is reasonable." This statement was made in the context of a discussion of systemic orinstitutional delay; it was the six to eight months institutional or systemic delay that was the outside limit. This meaning of Cory J.'sstatement becomes apparent from the reasons in the subsequent case of R. v. Morin, (SCC), [1992] 1 S.C.R. 771, 71C.C.C. (3d) 1 (S.C.C.).

In that case, the court clarified some of the statements made in Askov and dealt explicitly with institutional delayin the provincial court, the principal issue in this case. 17 In Morin at p. 18, Sopinka J. held that institutional delay "starts to run when the parties are ready for trial but the system cannotaccommodate them." He pointed out that, in Askov, the court was dealing with a delay of two years subsequent to committal for trial, allof which was institutional or systemic delay.

Cory J.'s comment in Askov that a delay beyond six to eight months between committal andtrial was unreasonable had to be read in that context. At p. 21 of Morin, Sopinka J. made it clear that this six to eight month guidelinereferred only to institutional or systemic delay: In Askov, Cory J., after reviewing comparative statistics suggested that a period in the range of six to eight months between committaland trial would not be unreasonable. Based on the foregoing, it is appropriate for this court to suggest a period of institutional delay ofbetween eight and 10 months as a guide to Provincial Courts.

With respect to institutional delay after committal for trial, I would notdepart from the range of six to eight months that was suggested in Askov. In such a case this institutional delay would be in addition tothe delay prior to committal. This reflects the fact that after committal the system must cope with a different court with its specialresource problems. It is therefore essential to take into account the inevitability of this additional institutional delay. [Emphasis added.]

18 Earlier at pp. 16-17, Sopinka J. extensively discussed the concept of "inherent time requirements", what I have referred to as the intake period. He pointed out that where a case proceeds through a preliminary inquiry there will be delay due to intake procedures both in the provincial court and the trial court, although the latter period should be shorter because there is no need to duplicate many of the intake procedures. In Morin , a trial in the provincial court, Sopinka J. found, at p. 26, that the inherent time requirements of the case were two months.

He deducted this period from the total period of just over 14 1/2 months to find that the case involved an institutional delay of about twelve months, again stressing, at p. 27, that this "is the time from which the parties were ready for trial until the point at which the courts were able to accommodate this case." 19 To summarize this aspect of the case, the guideline set by the Supreme Court for institutional or systemic delay in the provincial court, now the Ontario Court of Justice, is eight to ten months, a period of time that only begins to run after the intake period.

Thus, the trial judge erred in holding that the Supreme Court has held that the delay from charge to trial or preliminary inquiry in the Ontario Court of Justice should in most cases not exceed eight to ten months and that the 19 1/4 months delay in that court was twice the maximum permissible limit. He failed to take into account that a period of 7 1/4 months comprised the neutral intake period. When that 7 1/4 months is deducted, the institutional delay in the Ontario Court of Justice was twelve months, a time that exceeds the upper end of the Morin guideline by two months. [ 18 ] The case against Mr.

Babyn is simple; essentially, the police had most of the evidence they sought on April 19, 2010. Mr. Babyn ’ s preliminary hearing took place on December 20, that is, 8 months after he was incarcerated. Mr. Babyn will be tried between November 14 and December 9, that is, 11 months after committal. No statistics have been provided about the delays in getting trial time in Sherwood Park, a community adjacent to Edmonton.

Some of the delay in getting to trial may be, but is not necessarily, attributable to institutional delay; we do know that the problem of coordinating the availability of the court, the prosecutor, and three other defence lawyers inevitably causes delay. In this case, however, what is clear is that none of this delay is Mr. Babyn ’ s fault. [ 19 ] Although it is not Mr. Babyn ’ s fault that the trial will be held so far into the future, Mr.

Babyn suffers prejudice from his lengthy pre-trial detention: his liberty is restricted more severely than if he were a serving prisoner and he is not entitled to the same remission benefits to which he would be entitled were he a serving prisoner. [ 20 ] In those circumstances, Mr. Babyn is entitled to a review of his bail status. 4.

Rehearing of bail [ 21 ] I concur with Ouellette J. ’ s assessment in October, 2010, that the only statutory ground for detention which requires assessment is the second ground; there are no concerns on the first ground, and this is not one of the exceptional cases where the third ground can be invoked in support of detention. [ 22 ] I also agree with Ouellette J. ’ s characterization of the second ground as it applies to Mr. Babyn: specifically, Mr.

Babyn ’ s record and his failure to establish, even though this is a reverse onus situation, that he has a real means of support other than drug trafficking lead to the conclusion that there is a substantial likelihood that Mr. Babyn will, on release, commit other offences. [ 23 ] To his credit, Mr. Babyn recognizes the difficult management problem he presents and has proposed extraordinary conditions; as he puts it, he knows that “ his back is to the wall ” . The conditions are more suited to a conditional sentence order than to a bail order, but, they are appropriate in the unique circumstances here.

Those conditions include that he will reside at a specific residence, the address of which is on the record and will be included in the variation order, and the owner/occupier of that property has agreed to waive her constitutional rights to be free from unreasonable search and seizure with a view to allowing the police to enter upon and search the premises, without a warrant. The owner/occupier of those premises will post a $5,000.00 surety; she is prepared to ensure that the within terms are complied with by Mr. Babyn and, for that purpose, Mr.

Babyn will waive his privacy rights and authorize communication by the supervisor with this individual, including, of course, providing a copy of this order to that individual. Of course, Mr. Babyn will also give up his constitutional right to unreasonable search and seizure and will also allow warrantless searches of his business premises and of his vehicles. In support of that objective, Mr. Babyn will ensure that the only person who has keys to his business premises is himself.

[ 24 ] In addition, in the extreme situation which arises here, Mr.

Babyn will be bound by what have become usual type of house arrest conditions: - he will remain in the residence referred to above except for the following reasons: to attend at his business premises, to attend to any health related appointments, to attend at any assessments, counselling or treatment connected with the issues before the court, to shop for the necessities of life one day per week between the hours of noon and 4:00 p.m., to attend to vote in any municipal, provincial or federal election, to attend one day peer week at any religious service, to attend court, and for any other reason approved in advance, in writing, by the bail supervisor; - he will not use a cellular or cordless telephone.

He shall answer the telephone in his residence and at his business and he shall present himself at the door of his residence and his business so that the bail supervisor or a peace office can easily confirm compliance with this order; - he will deposit $10,000.00 cash. [ 25 ] Finally, of course, Mr.

Babyn will be subject to the standard terms and conditions of bail release: - he will keep the peace and be of good behaviour, and will appear in court as required; - within 24 hours of his release from custody, he will report in person to a bail supervisor and will thereafter report at the times and in the manner directed by the supervisor; - he will remain within Alberta unless written permission to go outside the province is obtained from the court or the supervisor; - he will notify the supervisor in advance, in writing, of any proposed change of name or address, of any change of telephone number, of any change of residence, and of any change of employment and will not effect the proposed change without having received permission in writing to do so; - he will not consume prohibited drugs. [ 26 ] The first group of conditions relating to search and seizure require the deployment of police or similar state resources to monitor Mr.

Babyn ’ s behaviour. This scheme is far from self-regulating, as Mr. Babyn suggests. On the contrary, because of the anticipated use of state resources, it would not ordinarily be appropriate to establish such a regime as an alternative to pre-trial incarceration. However, in the circumstances here, the potential cost to the treasury is required to establish a more equitable balance between Mr. Babyn ’ s right to a trial within a reasonable time and the protection of society from the substantial likelihood that Mr. Babyn will commit additional crimes while on release.

The system is, however, self regulating in the sense that, should Mr. Babyn breach any of the above conditions, his potential re-incarceration until trial will be the result of his own behaviour. Heard on the 2 nd day of March, 2011. Dated at the City of Edmonton, Alberta this 8 th day of March, 2011.

J.B. Veit J.C.Q.B.A. Appearances: Peter Shipanoff, Knisely Shipanoff LLP for the Applicant Monique B. Dion, Public Prosecution Service of Canada, Prairie Region for the Crown

Appendix A Mr. Babyn is 51 years old as of – I think his birthday is June, if I recall my notes, what I made earlier - - June 12th, 1959. His criminal record starts at 18 - - it would be 18, now that I have done my math - - and is continuous, except for an entry in 1981, ‘ 83, ‘ 86, ‘ 89, ‘ 92, ‘ 96, ‘ 97, ‘ 99, 2001, 2003 and 4, and 2006, and there is no entries for 2008 and 9 and 10. However, it is pretty clear why some of the years do not have any entries, because in 1978 he got a 5 year sentence. He then had and escape lawful custody in ‘ 79.

His sentence was varied on appeal in 1979 to 3 years, which could account why there is no entries until 1982. He gets another year in gaol in 1982. Next time he gets gaol is 1988. He gets more gaol in 1991. More gaol in 1991. 1993 - - well, 1991 possession of narcotics for trafficking, 5 months. In 1993, possession of narcotics for trafficking, and trafficking, 9 months consecutive on each one of those, so 18 months.

Continuing with other unrelated matters; uttering threats, possession of - - simple possession of restricted drugs, fine, assaults. 1998, possession of narcotics for purpose of trafficking, he gets a year in gaol.

More gaol for unrelated to drug matters. 2002, more gaol, unrelated drug matters, but related drug matters; possession for the purpose of trafficking, 32 months, so 2 and a half years. 2005 - - and the reason I ask for the offence date, it is clear with the December 4th, 2002, getting 2 and half years, he reoffends before the 2 and a half years, but, knowing the system and taking a little judicial notice, he was probably released before 2 and a half years. His offence date is August 13th, ‘ 04 again.

Irrespective of how much - - it was not very long he would have been out, reoffends, possession for the purpose of trafficking, gets 16 months. That is February 4th, 2005. And then he gets out sometime, but by June 20th, 2007, either a guilty plea or a trial in Golden, B.C., do not know the offence date, but, presumably, prior to June 20th, 2007, gets another 2 years less a day. And now April 27th, 2010, is facing all of these charges. Again, I reiterate, I do believe in the presumption of innocence, and I also am aware of

section 11(

d) of the – pardon me, ‘ E ’ , of the Charter , which says we should not deny release unless there is a good reason to do so, and reasonable bail should be granted. Even in a reverse onus situation I think that principle applies. But, in this particular case, I just do not have the confidence that if he is released, even under the form and stringent conditions you have talked about, Mr. Shipanoff, that he is not going to reoffend. I am satisfied, based on his records, that this is beyond his will.

It is one thing in 1998 to have made a mistake, and he spent substantial time in gaol, that was 12 months, but that did not help, because 2002 he gets 2 and a half years, that does not help, he then gets again released, does the same thing, and then it is a year - - well, not quite a year and a half, 16 months in gaol, does not learn, and, again, 2 years in gaol. He has shown, in my view, unfortunately, a pattern that he will likely reoffend if released, and, therefore, I have to deny him release. Having said this, Ms.

Dion, subject to your comments, I think one does have to still look at where the Crown ’ s case will take them. Might I suggest that, although it would be close to 3 months by the time this would come about, because we are 2 months away from December 20 th , that the matter could be reviewed before the next 90 day period, subject to your approval though, in the event that the Crown ’ s case weakens, for example, at the preliminary inquiry. And the Crown will have a better idea by then also, I would probably

take it.