R v JS, 2011 ABQB 461

Court of Queen ’ s Bench of Alberta Citation: R v JS, 2011 ABQB 461 Date: 20110713 Docket: 110347150U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - J.S. Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is a detention review with respect to the Accused who has been in custody since March 28, 2011 charged with two counts of assault with a weapon causing bodily harm pursuant to

Section 267(

a) and two counts of uttering threats under

Section 264.1(1) (

a) of the Criminal Code . [ 2 ] The most serious allegations in this matter involve assaults against the Complainant with both a baseball bat and a knife, following the consumption of alcohol. The Accused was arrested shortly after the alleged incident and was high on cocaine. [ 3 ] The Accused is scheduled to appear for trial on September 1, 2011. The Crown opposes the Accused’s release on the

primary and secondary grounds. This Accused has a criminal record from October 2006 of possession of property obtained by crime under $5,000; failure to appear (two charges); obstructing peace officer; and a failure to attend court. He was sentenced to five days and twelve months probation globally. [ 4 ] In October 2007 he was convicted of robbery; failure to attend court; and failure to comply with the 2006 probation order for which he was sentenced to two years imprisonment and a mandatory prohibition order under

Section 109 of the Criminal Code . [ 5 ] The Accused is presently 33 years of age, and is a refugee from Sierra Leone. He is also facing some problems with respect to addictions. The Accused was given the opportunity by me to confirm that he has employment upon his release. This confirmation of employment has now been supplied to me by Defence Counsel. It does not however confirm the full-time employment offer that I had been advised was available to him immediately upon his release.

It does however confirm that the Accused would have part-time employment as a general labourer upon his release at an hourly wage of $18.50. The specific number of hours is not listed as part of the letter of employment. [ 6 ] The most compelling argument in addition to the offer of employment that the Accused has is that he has served approximately 100 days in custody already in the Remand Centre, and his sentence with respect to the alleged offences may not exceed the period of time already served in custody, particularly since there is still almost two months to go before his trial occurs.

Conclusion [ 7 ] The Accused was arrested as a result of an argument arising from a domestic dispute. The Complainant and the Accused have been in an on again/off again relationship since March 2008, and the relationship began again in March 2010. The Accused apparently was not able to pay rent as a result of having pawned the Complainant’s goods to buy drugs to feed a drug addiction that the Accused has. When the Complainant confronted the Accused with respect to this, the Accused allegedly grabbed the Complainant’s throat and struck the Complainant in the back of her left leg with a baseball bat.

A one centimetre in diameter bruise was found on the Complainant’s neck, and an 8 inch by 2 inch bruise found on the back of her left leg. The Accused is then alleged to have taken a 3 inch kitchen steak knife and threaten to kill the Complainant. [ 8 ] The Complainant had no trouble leaving their apartment after this incident in which police were called, and the Complainant was on blood thinners at the time of the alleged incident which meant that she would bruise easily.

The Court has viewed the picture of some of the injuries suffered by the Complainant, and the bruising does not appear to be of remarkable. [ 9 ] When this matter was spoken to in Docket Court on April 14, 2011, the Complainant indicated to a police officer that she did not wish to proceed with the charges because the Accused is from the same country as she is, he has two children to raise, and she does not wish to make life difficult for the Accused. The Complainant will not be reconciling she says with the Accused.

The Crown is continuing to press on with the charges as the Accused did not retract or resile from what occurred in the apartment. [ 10 ] The Accused is a refugee from Sierra Leone, a war torn country but he is presently 33 years of age so he is not an individual of tender years. His problem appears to involve serious addictions, but he has been in the Remand Centre now for over a 100 days so hopefully has been able to rid himself of at least some of the addiction problem. [ 11 ] The Accused’s criminal record is not recent, but it is also not dated.

It includes one serious conviction for robbery from 2007, and several convictions for failures to appear; obstruct peace officer; failure to attend Court; and failure to comply with probation order. [ 12 ] I am prepared to release the Accused but only on stringent conditions given that the nature of the present alleged offences appears confined to this particular Complainant, and the Complainant does not appear to be afraid of the Accused.

The relationship between the Accused and the Complainant appears to be over, although this Accused continued to telephone the Complainant from the police station on the night he was arrested demanding to know why she had caused his arrest. The Complainant recently requested that the Crown not proceed with it’s prosecution of the Accused.

[ 13 ] Accordingly given the primary and secondary considerations herein, to keep the Accused under close supervision in these circumstances the Accused will deposit the sum of $1,500 cash bail. The Accused will be released in addition to the normal conditions of reporting to Adult Probation within 24 hours of his release and thereafter as directed by his Probation Officer; having no contact, direct or indirect with the Complainant; attending Court as directed; and keeping the peace and being of good behaviour, on the following additional conditions of release:– (

a) The Accused will take whatever assessment, treatment or counselling as required by the Bail Supervisor; (

b) The Accused will abstain from the possession, use or consumption of any intoxicating substances; (

c) The Accused will reside at an approved address (apparently the Accused has a place that he can stay); (

d) The Accused will not possess any weapons (prohibited or restricted as defined in the Criminal Code ) nor will he be in possession of any edged instruments except to prepared and eat his own meals; (

e) The Accused shall promptly notify the Court or his bail supervisor, in advance, of any change of his name, address, employment or occupation; (

f) The Accused shall seek or maintain employment and provide proof of attendance of his place of employment to his bail supervisor and advise his bail supervisor in writing of the address and telephone number of his employer; (

g) The Accused shall provide on demand samples of his breath, urine or blood to his bail supervisor or a peace officer having reasonable grounds to believe he has failed to comply with the direction to abstain from the possession or consumption of any intoxicating substances, specifically alcohol and non-prescribed drugs. [ 14 ] The Accused can therefore be released on a $1,500 cash bail and the completion of a Recognizance with the above mentioned conditions. Heard on the 30 th day of June, 2011. Dated at the City of Edmonton, Alberta this 13 th day of July, 2011. Donald Lee J.C.Q.B.A. Appearances: Janine Kidd

Crown Prosecutor’s Office for the Crown George Isshak Attia Reeves Tensfeldt Snow for the Accused