R. v. F.A.F., 2011 ABQB 575

Court of Queen ’ s Bench of Alberta Citation: R. v. F.A.F., 2011 ABQB 575 Date: 20110926 Docket: 101444289U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - F.A.F. Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is an application by the Accused to have cash bail which is presently set at $30,000.00 reduced by one half to $15,000.00.

The Accused is unable to raise the $30,000.00 cash bail and has presently served 10 months in custody since the date of his arrest on these charges, which include 2 counts under Section 5(2) of the Controlled Drugs and Substances Act and 7 counts under Section 145(3) of the Criminal Code . [ 2 ] The Accused argues that the 10 months already spent in pretrial custody will be significantly further lengthened if he is not released on a lower cash bail as a result of the recent, untimely death of his defence counsel, Sid Tarrabain Q.C. [ 3 ] The Accused argues the refusal to reduce cash bail in this matter is tantamount to a denial of judicial release in the circumstances.

[ 4 ] The Crown opposes the application for any reduction in cash bail, although it concedes that the recent, untimely death of the Accused ’ s defence counsel does represent a material change in circumstances. [ 5 ] The Crown argues that although this Accused has no criminal record, the cash bail is in fact required on the secondary grounds to prevent the Accused from re-offending. [ 6 ] This amount of cash bail was originally dealt with in Provincial Court when the Crown opposed the Accused ’ s release on the primary and secondary grounds.

In Provincial Court, the Provincial Judge set the release of the Accused on the posting of $75,000.00 cash bail, without considering whether or not the Accused was in any position to raise that sum of money. I conclude that this decision to impose a $75,000.00 cash bail on the Accused without inquiring as to the Accused ’ s financial circumstances was an error that occurred in Provincial Court on December 6, 2010. [ 7 ] The matter was brought to this Court on January 6, 2011.

One of my colleagues heard the same application on March 28, 2011, to reduce the $75,000.00 cash bail, and concluded the Court had to take into consideration the Accused ’ s background and his ability to pay before fixing cash bail. My colleague, then on March 28, 2011, reduced the cash bail from $75,000.00 to $30,000.00. The Alleged Circumstances Concerning the Offence [ 8 ] On the 14 th of October, 2009, police were dealing with an unrelated matter when they saw a vehicle known to belong to the Accused meet up with another vehicle at which time they observed the Accused getting into the other vehicle.

The Accused then got out of the vehicle carrying a heavy bag and put it in the back of his vehicle. Police arrested the Accused based on what they believed to be a drug transaction as well as other information they had on the Accused. They found on him 12 grams of cocaine, 3 cell phones and there was a co-accused in the vehicle who possessed a small amount of cocaine and marihuana. Significantly, however, the bag the police observed the Accused carrying was found in the back of his vehicle and it contained two kilograms of cocaine.

The Accused was subsequently released on charges arising from October 14, 2009, on a $20,000.00 cash bail.

His terms of release included keeping the peace and being of good behaviour, refraining from the purchase, possession, use or consumption of alcohol or illicit drugs and not possessing a cell phone except for the purposes of work. [ 9 ] The following year, in 2010, Edmonton Police received confidential informant information indicating that the Accused had continued to work as a multi-level and multi-kilogram-level cocaine dealer and was driving a vehicle owned by his girlfriend/common- law spouse. [ 10 ] On October 15, 2010, members of the Edmonton Police observed that vehicle entering a pizza and pub, and the Accused was confirmed allegedly to be the driver and observed talking on a cellular phone.

Police believed that the Accused was breaching his recognizance in his use of the cell phone, which was limited only to the operation of his framing business.

The police did not arrest the Accused with respect to the October 15, 2010 matter. [ 11 ] On November 7, 2010, it is alleged by police that the Accused was observed in what they believe was a hand-to-hand drug transaction, again talking on his cell phone in a movie theatre, representing a breach of his recognizance. [ 12 ] On November 12, 2010, the Accused is then allegedly seen entering the pub and pizza place and engaging in activity which is consistent with a drug transaction.

The Accused is allegedly observed speaking on his cell phone not related to his framing business. [ 13 ] This pattern allegedly continues on November 18 and 26, 2010, at which point Edmonton Police Tactical stops the Accused and arrests him along with other individuals. The Accused is searched and a large plastic bag containing four individually-wrapped pieces of soft cocaine and two individually-wrapped pieces of hard cocaine are found in his jacket pocket.

[ 14 ] Subsequently, a search warrant is executed on his residence and it is alleged that numerous drugs, drug paraphernalia and drug trafficking tools are found in the residence. The Accused is charged with further counts of possession with the purpose of trafficking as well as for the breaches of recognizance. [ 15 ] Furthermore the Crown alleges that on June 14, 2010, the Accused arrived at a hospital with two gunshot wounds above the kneecap as a result of a drive-by shooting, related to his past charges from October 2009 when he was found in possession of over 2 kilograms of cocaine in his vehicle.

The Crown submits that the shooting is a clear message for the Accused that certain individuals are calling in the major drug debt from the Accused estimated at over $500,000.00 as a result of the seized 2 kilograms of cocaine. Conclusion [ 16 ] It is correct that the Accused has no criminal record, that he is 33 years of age, that he has a framing company, and that he has what appears to be a stable relationship with his common-law spouse who is gainfully employed other than in the drug trafficking business.

One of the problems is that the common-law spouse is also a co-accused, and the framing company does not seem to be a very active one. [ 17 ] Given that this Accused is in a reverse-onus situation having allegedly re-offended while previously on recognizance, I must be concerned with setting a level of cash bail that is high enough to deter the Accused from re-offending, even if the primary grounds are not directly relevant here. [ 18 ] The recent, sudden accident that took the life of the Accused ’ s defence counsel will certainly put the Accused in further jeopardy as there will be greater delay in this matter coming to trial.

The Accused is presumed to be innocent, and defence counsel submits that the Crown does not have a strong case. Defence counsel will be arguing that the use of the cell phone was permissible as part of the Accused ’ s business, among other things. [ 19 ] The drive-by shooting, however, in which the Accused appears to be the targeted victim is very relevant in these proceedings given that it appears that the Accused owes a $500,000.00 debt as a result of the seized cocaine, which certain criminal elements are attempting to collect.

To release this Accused, even though he has already spent 10 months in pretrial custody, on only a $15,000.00 cash bail, given the large debt he appears to owe to criminal elements, will put the public at significant risk of this Accused re-offending, perhaps yet again in the high level drug trafficking business.

Any deterrence represented by the $15,000.00 cash deposit pales in comparison to the $20,000.00 cash bail previously deposited which apparently did not deter the Accused, and the $500,000.00 he apparently owes as a result of the 2 kilograms of cocaine seized from his vehicle [ 20 ] As such, the $30,000.00 cash bail that has already been set in this matter, reduced from the $75,000.00 previously set in Provincial Court, continues to be a reasonable amount in the circumstances. The Accused ’ s application to reduce cash bail to $15,000.00 is dismissed. Heard on the 21 st day of September, 2011.

Dated at the City of Edmonton, Alberta this 23rd day of September, 2011.

Donald Lee J.C.Q.B.A. Appearances: Ms. M. B. Dion, Justice Canada for the Crown Adam Y. Karbani, Tarrabain & Company for the Accused