R. v. Booth, 2011 ABQB 676

Court of Queen ’ s Bench of Alberta Citation: R. v. Booth, 2011 ABQB 676 Date: 20111103 Docket: 111078952U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Kelly Michael Booth Applicant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Booth applies for review of the decision denying him bail. [ 2 ] Mr. Booth is entitled to bail review: the bail judge did not give reasons for denying bail, saying only, “ I think the Crown has made a very good case for denial on the primary and the secondary grounds. It is therefore denied. ” With respect, that is a conclusion, not reasons. [ 3 ] In the result, the accused is entitled to a fresh, or de novo , bail hearing.

[ 4 ] On the de novo hearing, the Crown opposes Mr. Booth ’ s release on the first and second statutory grounds for detention, specifically because of Mr. Booth ’ s criminal record for offences relating to the first ground, such as failing to appear and, for offences relating to the second ground, such as breaching court orders. [ 5 ] Mr. Booth is presumed innocent of the charges he is facing; he has both a constitutional and a statutory right to reasonable bail. The Crown has failed to prove that Mr. Booth should be denied those rights. Specifically, the Crown has failed to prove that it is necessary to keep Mr.

Booth in jail before he is tried, rather than to impose less severe restrictions on his liberty, in order to ensure that he shows up for his trial and to ensure the protection and safety of the public, including the complainant. [ 6 ] Rather than imprisonment, in order to deal with concerns relating to the first ground, Mr. Booth should be released on conditions, including $500.00 cash bail, no deposit, and a reporting condition. Rather than imprisonment, in order to deal with concerns relating to the second ground, Mr. Booth should be released on the condition that he have no contact with the complainant. 1.

Background [ 7 ] Mr. Booth is charged with two counts of assaulting his wife and two counts of uttering death threats to his wife. The police attended at the Booth residence on September 11, 2011 in response to a 911 call; the police observed that Ms. Booth had a red mark on her right cheek where she said that her husband had struck her. The parties ’ 9 month old baby was in the presence of the parties when the events occurred. When the police attended at the Booth residence, Ms. Booth reported an earlier assault and death threat. Mr. Booth was taken into custody by the police from his residence. [ 8 ] Mr.

Booth has been in jail in relation to these charges since September 11, 2011. Mr. Booth is scheduled to be tried on December 14, 2011; the court sittings at which he is currently scheduled for trial is already overbooked at 14.5 hours, 3 hours of which are allotted to Mr. Booth ’ s trial. Mr.

Booth ’ s trial would presumably be given precedence over the trial of accused persons who are not in custody; as between or among accused who are in custody, the accused in custody for the longest time would presumably be given trial precedence; no information is available on this application about the specifics of the other matters which are also scheduled to be heard on December 14. Therefore, it is not certain that Mr. Booth will actually have a trial on December 14, 2011. [ 9 ] Mr. Booth ’ s bail hearing was conducted on September 12, 2011 before a bail judge. The Crown was represented by a police officer.

Mr. Booth was not represented. At the opening of the bail hearing, the bail judge told Mr. Booth: I am also obliged to advise you if we continue with a bail hearing this morning and I make a decision you disagree with, for example, if I decide not to release you, you cannot appeal my decision for at least two to three weeks, and the appeal would have to go to a higher court, the Court of Queen ’ s Bench. . . .

And you understand if I decide not to release you, you have to stay in jail while – if you want to appeal my decision, you have to stay in jail while doing so and the appeal goes to a higher court. [ 10 ] The police officer then told the judge what the complainant had told the police and made some other representations that presumably also came from the complainant relating to Mr. Booth ’ s employment and drug use. The police also referred to Mr.

Booth ’ s criminal record; that record was unfortunately not marked as an exhibit at the bail hearing, but was made available to this court on the bail review application. [ 11 ] Mr.

Booth ’ s criminal record consists of the following: in February 2005, he was convicted of driving with more than 80 mgs of alcohol in his blood and sentence to a fine; in April 2006, he was convicted of disorderly conduct, and sentenced to 12 months probation and a suspended sentence; in May 2006, he was convicted of operating a motor vehicle while disqualified and sentenced to pay a $300.00 fine; also in May 2006, he was found guilty of being in possession of property obtained by crime over $5,000.00 and a separate count of a similar crime in relation to property of a value less than $5,000.00, and of theft under $5,000.00, for which crimes he was sentenced to 30 days ’ intermittent and probation; in August 2006 he was convicted of being unlawfully at large and of failing to attend court, for which he was sentenced to 30 days in jail; also in August, 2006, he was convicted of breach of probation and sentenced to pay a $300.00 fine; in October, 2007, he was found guilty of driving while disqualified, possession of property of a value less than $5,000.00 obtained by crime, failing to comply with a probation order and failing to appear, for which he was sentenced to a total of 55 days ’ imprisonment.

[ 12 ] After hearing from the police officer, the bail judge said to Mr. Booth: “ provide me with reasons as to why I should release you ” . [ 13 ] After hearing from Mr. Booth, the bail judge said: Okay. I think the Crown has made a very good case for denial on the primary and the secondary grounds. It is therefore denied. [ 14 ] Since the events of September 11, 2011, Ms. Booth has left the residence that she shared with Mr. Booth. [ 15 ] The Crown acknowledges that Mr. Booth has employment available if released. The Crown makes no submissions concerning drug use on the bail review hearing. 2. Mr.

Booth ’ s entitlement to bail [ 16 ] Mr. Booth has not yet been tried on the charges which he faces; he therefore has a constitutional right to be presumed innocent of those charges. [ 17 ] Mr. Booth has a constitutional right, under s. 11(

e) of the Charter of Rights and Freedoms, not to be denied reasonable bail without just cause. [ 18 ] Parliament has stated, in s. 515(1) of the Criminal Code , that a person in Mr. Booth ’ s situation shall be released on an undertaking - without conditions - to appear at his trial, unless the prosecutor proves that the detention of Mr. Booth is justified or that conditions should be imposed on Mr. Booth ’ s release. Parliament has added that, even where the Crown has proved that conditions should be imposed on Mr.

Booth ’ s release, the court should only impose more restrictive conditions where less restrictive conditions will not suffice: s. 515(3), CCC. 3. Right to a fresh bail hearing [ 19 ] Mr. Booth is accused of four crimes. In our system of justice, an accused person is entitled to the treatment that Parliament has framed in our constitution and in our Criminal Code . Immediately after being accused of these crimes, Mr. Booth was imprisoned. People who are in prison can ’ t go to work; many people - maybe most people - who don ’ t show up for work are fired.

When people lose their employment, they often have no money to pay their rent or their mortgage; they therefore lose their accommodation. If they have no money, they can ’ t hire a lawyer, and have to wait for a legal aid lawyer to be appointed for them. As the bail judge noted, obtaining a lawyer and getting a date for bail review will typically take 2 to 3 weeks during which time an unrepresented accused who has been denied bail remains in jail. In the result, a person like Mr.

Booth who is merely accused of crimes, may end up not only by being treated as though he is guilty of the crimes but also that the only fair punishment is imprisonment which is the most punitive sanction available in our justice system, providing little in the way of rehabilitation.

Not only can an innocent person be imprisoned, but as has been conclusively demonstrated in other decisions of this court, the conditions of imprisonment of a person who has not yet been tried are materially worse that the conditions of imprisonment for a person who has been tried, found guilty, and, after a sentence hearing, been found deserving of a prison sentence rather than another type of sanction. It is sometimes necessary to treat a person who has not yet been tried in the way described above. But, every person who is treated in that way deserves at least to be told why.

In my view, the statement from the bail judge did not begin to explain to Mr. Booth why it was necessary to deny him his rights to bail. In the result, Mr. Booth is entitled to a fresh bail hearing. 4. The first ground: is it necessary for Mr. Booth to be imprisoned before his trial to ensure that he appears for his trial? [ 20 ] It is not necessary to imprison Mr. Booth until his trial in order to ensure that he appears for his trial; concerns relating to the

first ground can be alleviated by the imposition of conditions. [ 21 ] The Crown has demonstrated legitimate concerns relating to Mr. Booth ’ s attendance at his trial: he has twice been convicted of failing to attend court or failing to appear and he has other convictions that are somewhat related to his appearance in court, such as being unlawfully at large. [ 22 ] However, it must also be noted that Mr. Booth ’ s convictions relating to the first ground are dated: it has been 4 years since Mr. Booth has been convicted of any crime, including a crime relating to his attendance for court process. Moreover, Mr.

Booth has ties to the community, including his parents and his infant daughter; Mr. Booth presumably recognizes that any long period without seeing his young child will harm his relationship with that child. Also, Mr. Booth now has a lawyer and that relationship also provides an attachment to the justice system [ 23 ] Because of Mr. Booth ’ s record, it would not be appropriate to treat him exactly as a person without a record relating to the first ground. It is not therefore appropriate to release Mr.

Booth on an undertaking without conditions. [ 24 ] When, as in this case, legitimate concerns about future attendance at trial have been established, the task of a judge at a bail hearing is next to determine whether keeping an accused in jail until his trial is the only fair solution to the concern. Parliament has told bail judges that we must consider a graduated series of conditions as perhaps being able to balance the risk of having the accused fail to appear for trial and treating the accused as if he were guilty.

Between setting some bail conditions, i.e. some pre-trial restrictions on liberty, and jail there is a very wide spectrum. [ 25 ] In the circumstances here, the relatively minimal risk that Mr. Booth will not show up for his trial can be addressed by the imposition of two conditions: first, he must provide a recognizance in the amount of $500.00, no deposit, to guarantee his attendance at trial. Second, within 24 hours of his release from prison, Mr. Booth must attend at adult probation in Edmonton and thereafter report as required by the probation officer. 5. The second ground: is it necessary for Mr.

Booth to be imprisoned before his trial to ensure the protection and safety of the public, including the complainant, having regard to all the circumstances including any substantial likelihood that, if he is not kept in jail, the accused will commit a criminal offence or interfere with the administration of justice? [ 26 ] It is not necessary to imprison Mr. Booth until his trial in order to ensure the protection and safety of the public, including the complainant. [ 27 ] The only evidence relating to this ground is Mr. Booth ’ s criminal record, which includes convictions for breaching court orders.

It seems clear from the submissions made at the bail hearing, that Ms. Booth does not want to have any contact with Mr. Booth other than in connection with court appearances. Therefore, it seems obvious that Ms. Booth wishes to have a no contact order to prevent contact from Mr. Booth. The Crown has established that there is some concern about whether Mr. Booth will obey a no contact order given his record for failing to comply with court orders. [ 28 ] The Crown also argues in relation to the second ground that the circumstances of the offence are serious.

In the circumstances here - as indeed in most cases - the seriousness of the allegations is not a factor which can be taken into account in determining pre-trial detention since Mr. Booth is presumed innocent of the charges. It is not necessary in the circumstances here to review any of the types of circumstances in which the mere allegations might legitimately be taken into account in denying bail. It is clear that the type of charges Mr. Booth is facing is not the type of charge for which bail is not available. [ 29 ] Although Mr. Booth does have a record for failing to comply with court orders, Mr.

Booth does not have a criminal record for violence. Nor does he have any record for failing to comply with a condition that prohibits him from having contact with an individual. [ 30 ] Indeed, although Mr. Booth seems to have gone through a very bad patch in 2006 during which he was convicted of many

crimes, since then, he went for more than a year without being convicted of a crime and, since 2007, has not been convicted of any offence. [ 31 ] The only submission before the court in relation to Mr. Booth ’ s conduct since he has been jailed is that Mr. Booth has made no attempt to contact Ms. Booth, even though there was no court order preventing such contact. [ 32 ] Overall, therefore, although there is some minimal concern that Mr.

Booth will, if released, commit a crime such as an assault on his wife between the date of release and the date of trial, any concern which does exist can be alleviated by the imposition of a condition on release that, until the trial, Mr. Booth have no contact direct or indirect with his wife. The no contact condition should be framed as the court ’ s usual form of family law restraining order and Ms. Booth should be provided with the usual information about how to enforce that order for her protection and safety. Mr.

Booth has wisely made tentative arrangements with his mother to facilitate access to his daughter in the expectation that he need not have any contact with his wife, even for the purpose of arranging access. Any such approaches by Mr. Booth ’ s mother to arrange for access will not be deemed to be an indirect contact between Mr. Booth and the complainant and will not be considered to be a violation of the no contact provision. 5.

Additional bail conditions [ 33 ] The prosecutor has not been given the opportunity to address the issue of conditions of release; therefore, the court leaves open the possibility that additional conditions might appropriately be imposed on Mr. Booth. Counsel are invited to make arrangements for the continuation of the bail hearing so that they can make further submissions with respect to possible additional conditions of release . Heard on the 2 nd day of November, 2011. Dated at the City of Edmonton, Alberta this 3 rd day of November, 2011. J.B. Veit J.C.Q.B.A. Appearances: Ian D.

Runkle, Student-at-Law, Beaver Leebody Frank & Simic for Mr. Booth Jodie B. Currie, Crown Prosecutors Office, Fort Saskatchewan for the Crown