R. v. D.E.F., 2011 ABQB 583
Opinion
Court of Queen ’ s Bench of Alberta Citation: R. v. D.E.F., 2011 ABQB 583 Date: 20110927 Docket: 110828100U1 Registry: Edmonton Between: Her Majesty the Queen - and - D.E.F. Accused Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This Accused has no Criminal Record, but is presently facing 16 charges which include:
Count 1: On or about March 1st --on or between March 1st and April 30th, 2011, in the Town of [...] in the Province of Alberta, did commit sexual assault on W.F. contrary to
section 271 of the Criminal Code of Canada . Count 2: On or about the 14th of July, 2011, in the Town of [...] in the Province of Alberta, did in person knowingly utter a threat to W.F. to cause death to W.F. contrary to
section 264.l(l)(
a) of the Criminal Code of Canada . Count3: On or about the 15th of July, 2011, in the Town of [...] in the Province of Alberta, did in person knowingly utter a threat to W.F. to cause death to W.F. contrary to
section 264.1(1) (
a) of the Criminal Code of Canada . Count 4: On or about the 10th of July, 2011, at or near the Hamlet of Green Court in the Province of Alberta, did commit an assault on W.F. contrary to
section 266 of the Criminal Code of Canada . Count 5: On or about the 11th of July, 2011, at or near the Hamlet of Green Court in the Province of Alberta, did commit an assault on W.F. contrary to
section 266 of the Criminal Code of Canada . Count 6: On or about the 10th of July, 2011, at or near the Hamlet of Green Court in the Province of Alberta, did being at large on a recognizance entered into before a justice and being bound to comply with a condition of that recognizance: keep the peace and be of good behaviour, without lawful excuse failed to comply with the condition by committing an assault on W.F. contrary to section 145(3) of the Criminal Code of Canada .
Count 7: On or about the 11th of July, 2011, at or near the Hamlet of Green Court in the Province of Alberta, did being at large on a recognizance entered into before a justice and being bound to comply with a condition of that recognizance: keep the peace and be of good behaviour, without laswfiull excuse failed to comply with that condition by committing an assault on W.F. contrary to section 145(3) of the Criminal Code of Canada .
Count 8 On or about the 14th of July, 2011, at or near the Town of [...] in the Province of Alberta, did being at large on a recognizance entered into before a justice and being bound to comply with a of that recognizance: keep the peace and be of good behaviour, without lawful excuse failed to comply with that condition by knowingly uttering a threat to e death to W.F. contrary to section 145(3) of the Criminal
Code of Canada . Count 9: On or about the 15th of July, 2011, at or near the Town of [...] in the Province of Alberta, did being at large on a recognizance entered into before a justice and being bound to comply with a condition of that recognizance: keep the peace and be of good behaviour, without lawful excuse failed to comply with that condition by knowingly uttering a threat to cause death to W.F. contrary to section 145(3) of the Criminal Code of Canada .
Count 10: On or about the 10th of July, 2011, in the Hamlet of Green Court in the Province of Alberta,, did being at large on a recognizance entered into before a justice and being bound to comply with a condition of that recognizance: keep the peace and be of good behaviour, without lawful excuse failed to comply with that condition by committing an assault on W.F. contrary to Section 145(3) of the Criminal Code of Canada .
Count 11: On or about the 11th of July, 2011, at or near the Hamlet of Green Court in the Province of Alberta, did being at large on a recognizance entered into before a justice and being bound to comply with a condition of that recognizance: keep the peace and be of good behaviour, without lawful excuse failed to comply with that condition by committing an assault on W.F. contrary to section 145(3) of the Criminal Code of Canada .
Count 12: On or about the 14th of July, 2011, at or near the Town of [...] in the Province of Alberta, did being at large on a recognizance entered into before a justice and being bound to comply with a condition of that, recognizance: keep the peace and be of good behaviour, without lawful excuse failed to comply with that condition by knowingly uttering a threat to cause death to W.F. contrary to section 145(3) of the Criminal Code of Canada .
Count 13: On or about the 15th of July, 2011, at or near the Town of [...] in the Province of Alberta, did being at large on a recognizance entered into before a justice and being bound to comply with a condition of that recognizance: keep the peace and be of good behaviour, without lawful excuse failed to comply with that condition by knowingly uttering a threat to cause death to W.F. contrary to section 145(3) of the Criminal Code of Canada .
Count 14: On or about the 11th of July, 2011, at or near the Hamlet of [...] in the Province of Alberta, did being at large on a recognizance entered into before a justice and being bound to comply with a condition of that recognizance: keep the peace and be of good behaviour, without lawful excuse failed to comply with that condition by committing a sexual assault on W.F. contrary to
section 271 of the Criminal Code of Canada . Count 15: On or about the 11th of July, 2011, at or near the Hamlet of [...] in the Province of Alberta, did being at large on a recognizance entered
into before a justice and being bound to comply with a condition of that recognizance: keep the peace and be of good behaviour, without lawful excuse failed to comply with that condition by committing a sexual assault on W.F. contrary to
section 271 of the Criminal Code of Canada .
Count 16: On or about the 15th of July, 2011, in the Town of [...] in the Province of Alberta, did being at large on a recognizance entered into before a justice and being bound to comply with a condition of that recognizance: shall not be found in possession of any firearms, ammunition, explosives or any other type of weapon whatsoever and shall surrender any firearms, ammunition, explosives or any type of weapon currently in your possession to the [...] RCMP detachment within 24 hours of your release, without lawful excuse failed to comply with that condition by knowingly being in possession of a single shot shotgun contrary to section 145(3) of the Criminal Code of Canada . [ 2 ] A Justice of the Peace initially denied Judicial Interim Release on the secondary grounds on July 16, 2011.
My colleague Hall, J. dealt with this matter on August 17, 2011, on a Review application. He too ordered the Accused detained on the secondary grounds. [ 3 ] Most of the charges involve a series of alleged breaches of the condition to “ keep the peace and be of good behaviour ” . There is also breach in relationship to a shot gun, and he has been on release for some other charges for which the preliminary hearing is already concluded and the matter is scheduled for trial in Edmonton Court of Queen ’ s Bench in November.
That release included “ no contact provisions ” and reporting conditions, and it appears that the Accused has been able to comply with those conditions. [ 4 ] The Accused has a residence to return to, and can post some cash bail.
He is 49 years old and is an apprentice carpenter. [ 5 ] With respect to the substantive charges other than the alleged breaches, there are two alleged assaults, two alleged uttering of threats, and the most serious allegation that of sexual assault. [ 6 ] Defence counsel points out that with respect to the sexual assault, there is an issue of credibility and apparently no independent DNA evidence or other independent evidence.
Drug use is alleged by the Complainant. [ 7 ] There is also the very serious accusation that the Accused told the brother-in-law just days before these events that if he needed to, he would take his seven year old daughter and go to the Yukon where he apparently feels above the law. So we have a situation where the Accused is alleged to have threatened to leave the jurisdiction with his young child. [ 8 ] The Court is also faced with the alleged threat of a firearm being used, and the Accused ’ s ability to gain access to a firearm.
If this Accused is convicted as charged, he could be looking at a lengthy period of imprisonment. [ 9 ] Defence counsel points out that the Accused was actually returning the shotgun to his wife, and that the Crown must show a “ substantial ” likelihood that he will re-offend to justify the secondary grounds. Defence counsel submits that given the Accused has no Criminal Record, and that the alleged primary grounds are just a threat to leave the jurisdiction, they are insufficient to keep this Accused in custody.
Defence counsel also submits that there are insufficient reasons both at the Court of Queen ’ s Bench level on August 17, 2011, and on July 16, 2011, before the Justice of the Peace to justify the Accused ’ s continued detention.
Conclusion [ 10 ] I conclude that the onus is on the Applicant Accused to show that the previous decisions were in error. While the Reasons may have been brief in both the July 16 and August 17, 2011, hearings, the decisions are clear and the decision makers appear to be alive to the matter before them. [ 11 ] There are corroborating witnesses with respect to the two threat charges and the Court must be concerned with the serious nature of the domestic assault charges alleged.
It is not necessarily unusual that there is no independent corroboration with respect to the serious sexual assault charge. [ 12 ] I am concerned that the seven year old daughter in this case appears to be a vulnerable individual that she could be the subject of the Accused ’ s threat to leave the jurisdiction, risking further victimization on her. [ 13 ] Accordingly, I conclude that there has been no error in the previous reviews, and that there are sufficient primary and secondary grounds to continue this Accused ’ s detention. 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: Dallas Sopko Alberta Justice, Edmonton Rural & Regional Response Office for the Crown Anna Konye Pringle MacDonald & Bottos for the Accused
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