R. v. R.B.M., 2011 ABQB 581
Opinion
Court of Queen ’ s Bench of Alberta Citation: R. v. R.B.M., 2011 ABQB 581 Date: 20110927 Docket: 110373644U1 Registry: Edmonton Between: Her Majesty the Queen - and - R.B.M. Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is a detention review notice pursuant to s. 525 of the Criminal Code .
Transcripts were only provided to me from the previous bail proceedings on the morning this was heard. [ 2 ] On August 30, 2011, a transcript was completed from the July 5, 2011 bail application held in Edson, Alberta. At that time the Accused was denied Judicial Interim Release on the primary and secondary grounds. The Crown continues to maintain those same objections to the Accused’s release presently herein. [ 3 ] The Accused faces a 19 count Information which reads as follows:
Count 1 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did have in his possession a shotgun, while he was prohibited from doing so by reason of an order made pursuant to
Section 109 of the Criminal Code , contrary to
Section 117.01(1) of the Criminal Code . Count 2 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did have in his possession a cross bow, while he was prohibited from doing so by reason of an order made pursuant to
Section 109 of the Criminal Code , contrary to
Section 117.01(1) of the Criminal Code . Count 3 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did have in his possession a rifle, while he was prohibited from doing so by reason of an order made pursuant to
Section 109 of the Criminal Code , contrary to
Section 117.01(1) of the Criminal Code . Count 4 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did have in his possession a Mauser handgun, while he was prohibited from doing so by reason of an order made pursuant to
Section 109 of the Criminal Code , contrary to
Section 117.01(1) of the Criminal Code . Count 5 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did have in his possession a RUGER handgun, while he was prohibited from doing so by reason of an order made pursuant to
Section 109 of the Criminal Code , contrary to
Section 117.01(1) of the Criminal Code . Count 6 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did have in his possession ammunition, while he was prohibited from doing so by reason of an order made pursuant to
Section 109 of the Criminal Code , contrary to
Section 117.01(1) of the Criminal Code . Count 7 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did without lawful excuse have in his possession an instrument suitable for the purpose of breaking into a place under circumstances that gave rise to a reasonable inference that the instrument was intended to be used for such purpose contrary to Section 351(1) of the Criminal Code .
Count 8 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did without lawful excuse store a firearm to wit: a shotgun in a careless manner contrary to Section 86(1) of the Criminal Code . Count 9 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did without lawful excuse store a firearm to wit: a rifle in a careless manner contrary to Section 86(1) of the Criminal Code .
Count 10 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did without lawful excuse store a firearm to wit: a Mauser handgun in a careless manner contrary to Section 86(1) of the Criminal Code . Count 11 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did without lawful excuse store a firearm to wit: a Ruger handgun in a careless manner contrary to Section 86(1) of the Criminal Code .
Count 12 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did without lawful excuse store a firearm to wit: ammunition in a careless manner contrary to Section 86(1) of the Criminal Code . Count 13 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did unlawfully possess a substance included in
Schedule 1, to wit: Methamphetamine, contrary to Section 4(1) of the Controlled Drugs and Substances Act . Count 14 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did unlawfully possess a substance included in
Schedule 1, to wit: Methamphetamine, contrary to Section 4(1) of the Controlled Drugs and Substances Act . Count 15 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did have in his possession property to wit: a portable radio, of a value not exceeding five thousand dollars, knowing that all or part of the property was obtained directly or indirectly by the commission in Canada of an offence punishable by indictment, contrary to
Section 355(
A) of the Criminal Code .
Count 16 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did have in his possession property to wit: a ROCKHOPPER BICYCLE, of a value not exceeding five thousand dollars, knowing that all or part of the property was obtained directly or indirectly by the commission in Canada of an offence punishable by indictment, contrary to
Section 355(
A) of the Criminal Code . Count 17 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did have in his possession property to wit: a KONA BICYCLE, of a value not exceeding five thousand dollars, knowing that all or part of the property was obtained directly or indirectly by the commission in Canada of an offence punishable by indictment, contrary to
Section 355(
A) of the Criminal Code . Count 18 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did have in his possession property to wit: a GREEN JOB BOX, of a value not exceeding five thousand dollars, knowing that all or part of the property was obtained directly or indirectly by the commission in Canada of an offence punishable by indictment, contrary to
Section 355(
A) of the Criminal Code . Count 19 On or about the 31 st day of March, A.D. 2011, at or near Edson, in the Province of Alberta, did have in his possession a firearm to wit: a Ruger handgun, knowing that it was obtained directly or indirectly by the commission in Canada of an offence contrary to
Section 96 (
a) of the Criminal Code . [ 4 ] The Accused also has a lengthy prior Criminal Record which consists of the following: 1999-09-14 Assault CBH $500 Edson Alta Sec 267 CC (RCMP Edson 99-2744) 2000-05-23 Fail to Attend Court $150 I-D 3 Days Edson Alta Sec 145(2)(
B) CC (RCMP Edson 99-4555) 2002-03-25
(1) Poss of Property Obtained (1-3) Susp Sent & Edmonton Alta by Crime over $5000 Probation 18 Mos Sec 355(
a) CC on Each Chg
(2) Poss of Property Obtained
By Crime under $5000 Sec 355(
b) CC
(3) Fail to Comply with Recognizance Sec 145(3) CC (Edmonton PS 255948) 2002-04-16
(1) Theft over $5000 (1) 2 Yrs on Each Chg Conc Edmonton Alta Sec 334(
a) CC (2 Chgs)
(2) Theft under $5000 (2) 3 Mos Conc Sec 334(
b) CC (RCMP Edson 2001-4658 2001-4691 2001-4688)
(3) Poss of Property Obtained (3) 2 Yrs By Crime over $5000 Sec 355(
a) CC
(4) Theft over $5000 (4) 2 Yrs Sec 334(
a) CC
(5) Fail to Appear (5-6) 3 Mos on Each Chg Sec 145(4) CC
(6) Fail to Attend Court Sec 145(2) CC (Inst Grande Cache)
(7) Poss of Property Obtained (7) 2 yrs on each chg By Crime over $5000 Sec 355(
a) CC (2 Chgs)
(8) Poss of Property Obtained (8-11) 3 mos on each chg by Crime under $5000
Sec 355(
b) CC (2 Chgs)
(9) Poss of Prohibited Weapon Sec 90(1) CC
(10) Fail to Comply with Recognizance Sec 145(3)
(11) Fail to Attend Court Sec 145(2)(
A) CC (Edmonton PS 255948)
(12) Fail to Appear (12-13) 3 mos on each chg Sec 145(5) CC conc
(13) Poss of a Scheduled Substance for the Purpose off Trafficking Sec 5(2) CDS Act (RCMP Whitecourt 2001- 3041)
(14) Poss of Property Obtained (14) 2 Yrs by Crime over $5000 Sec 355(
a) CC (RCMP St Albert 02-2225) 2003-08-15 Statutory Release 2004-04-06 Statutory Release Violator Recommitted 2004-04-26
(1) Poss of Property Obtained (1-3) 12 mos on each chg Edmonton Alta by Crime over $5000 (credit for 1 mo Sec 355(
a) CC pre-sentence custody)
(2) Poss of Property Obtained by Crime under $5000 Sec 355(
b) CC
(3) Poss of a Prohibited or Restricted Weapon Knowing its poss is unauthorized Sec 92(2) CC
(4) Flight While Pursued by (4) 12 mos & proh dri Peace Officer 1 yr (credit for 1 mo Sec 249.1 CC pre-sentence custody) (Edmonton PS 255948) Global sentence - 11 mos 2004-11-10 Statutory Release 2005-01-2 7 Poss of Property Obtained 4 Mos (With Credit for the Edmonton Alta By Crime under $5000 Equivalent of 2 Mos Sec 355(
b) CC Pre-sentence Custody) (Edmonton PS 255948) 2005-03-18 Statutory Release Violator Recommitted 2005-04-26 Poss of Break in 1 day Edmonton Alta Instruments Sec 351(1) CC (Edmonton PS 255948) 2005-12-09
(1) Poss of Property Obtained (1) 17 Mos Edmonton Alta by Crime over $5000 Sec 355(
a) CC
(2) Dangerous Operation of (2-3) 17 Mos & Pro Dri Motor Vehicle 18 mos on each chg Sec 249(1) CC
(3) Flight While Pursued by Peace Officer Sec 249.1(2) CC (Edmonton PS 255948)
(Edmonton PS 255948) 2007-12-03
(1) Driving While Disqualified (1-2) Susp Sent & Probation Hinton Alta Sec 259(4) CC Yr on Each Chg
(2) Poss of a Scheduled Substance Sec 4(1) CDS Act (RCMP Edson 2006-8707 32) 2007-12-14
(1) Fail to Comply with (1) 4 Mos on Each Chg Edmonton Alta Recognizance Sec 145(3) CC (5 Chgs)
(2) Obstruction Sec 129(
a) CC (2) 6 mos
(3) Fail to Attend Court (3) 1 mos & mandatory Sec 145(2) CC
(4) Poss of a Weapon (4) 6 mos & mandatory Sec 88 CC or discretionary prohibition order Sec 109-110 CC (10 year) (RCMP Edson 2007-1353859 2007—337574) 2009-03- 11 Assault with a Weapon Time Served (12 Mos) on Edmonton Alta Sec 267(
a) CC each chg (2 Chgs) (RCMP Edson 2008992 547) [ 5 ] The Accused says that the firearms that were seized were part of a collection of weapons of his late father who had not arranged for the proper disposal of his collection prior to his death. The allegedly stolen items found inside the residence as a result of the search warrant being executed, were not in the Accused’s submission within his exclusive control as there were others living in the residence. The Accused argues that he is not guilty of those offences because of his lack of control or his lack of possession.
In fact the Accused points out, through his counsel, that this residence in which these items were seized was also the subject of a real estate Listing For Sale, in which several months prior the real estate lock box had been broken and the key stolen. Other individuals also live in the residence, and the Accused primarily occupies only one room in the house.
[ 6 ] The Accused who is 36 years of age also can live with his employer, and has been employed since mid-February as a swamper by the owner of the company, who will continue to give him a job if he is released. [ 7 ] The Crown argues that the employer has a Criminal Record as well, and that at least one independent witness, the realtor, has indicated that the Accused was asleep in the room where the cross bow was located.
Conclusion [ 8 ] In addition to the lengthy Information, the Accused also faces a one count Information alleging that he unlawfully possessed Methamphetamine contrary to s. 4(1) of the Controlled Drugs and Substances Act , and this Information along with the 19 count Information previously listed above form part of the same file in the matter presently before the Court herein. [ 9 ] The trial of this matter is not scheduled until March 13, 2012, which essentially means that the Accused will have spent 11 ½ months in custody if he is not released prior to trial.
I do note however that some of the offences that he is charged with have minimum sentences starting at one year. [ 10 ] The Accused’s Criminal Record includes several failures to comply, several revocations of bail, and several forfeitures of bail previously granted. The Accused’s Criminal Record is essentially continuous from 1999 until the end of 2007. Since 2008, there have only been two convictions one in March 2009, assault with a weapon and two counts under s. 267(
a) for which he served 12 months on each charge; and January 24, 2011, under s. 17.01(1) for which he was fined $600. [ 11 ] As for the strength of the Crown’s case, the Crown apparently does have some individuals such as neighbours who will apparently indicate that the Accused has been seen living in the premises and coming and going in and out of the premises.
Undoubtedly the Crown faces some challenges in proving that the Accused has possession of the items seized for which he is charged with, but at this point the Crown only needs to show that it has a prima facie case upon which there is a reasonable possibly of conviction on some or all of the charges. [ 12 ] The items seized represents a significant amount of stolen property as well as a number of unsafely stored firearms. [ 13 ] I conclude that given this Accused’s lengthy Criminal Record which includes a number of failing to comply with release conditions and failures to appear, that he ought not to be released on the primary and secondary grounds.
Heard on the 23 rd day of September, 2011. Dated at the City of Edmonton, Alberta this 27 th day of September, 2011.
Donald Lee J.C.Q.B.A. Appearances: Janine Kidd Crown Prosecutors’ Office for the Crown Paul Moreau Moreau & Company for the Accused
Loading document…