R. v. Taylor, 2011 ABQB 678

Court of Queen ’ s Bench of Alberta Citation: R. v. Taylor, 2011 ABQB 678 Date: 20111109 Docket: 110667094U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Michael William Taylor Applicant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] On October 18, 2011, the custodial institution which is detaining Mr. Taylor applied for a detention review hearing. Mr. Taylor had been remanded in custody on July 24, 2011 on the basis of an information referring to events on June 9, 2011 and alleging 1 count of assault of a conjugal partner, and 2 counts of breaching a probation order by having contact with that partner. By the custodial authorities ’ own assessment, Mr.

Taylor should have been brought before the court for a detention review 30 days - not nearly 90 days - after his remand. [ 2 ] At the detention review, neither party argued that the failure of the custodial authorities to bring Mr. Taylor forward for review at the appropriate time should have any particular effect in the circumstances here. Therefore, the court does not further address this issue, apart from noting that, from September 14, 2011 to November 2, 2011, the date of the detention review hearing, Mr. Taylor was a serving prisoner.

[ 3 ] At the s. 525 hearing, for the first time in relation to the June 9, 2011 charges, Mr. Taylor asked for bail. [ 4 ] The Crown opposes Mr. Taylor ’ s release on bail, on the first, second and third statutory grounds, relying on Mr. Taylor ’ s criminal record and on the fact that he is currently a serving prisoner. [ 5 ] The Crown has proved that the continued detention of Mr. Taylor in custody pending his trial is justified: Mr. Taylor has a long, and recent, record of convictions for offences relating to the likelihood of his appearing for trial.

In those circumstances, no reasonable bail conditions could be structured to ensure Mr. Taylor ’ s attendance for trial. In relation to the second ground, Mr. Taylor has a long, and recent, record of convictions relating to offences against the same person who is the complainant in the charges the court is considering. In those circumstances, there is no reasonable bail condition that could be devised to ensure the protection of the complainant if Mr. Taylor were to be released pending trial. In coming to the conclusion that Mr.

Taylor ’ s continued pre-trial detention is justified, the court does not take into account any issue relating to unreasonable delay as identified in s. 525(3) of the CCC. [ 6 ] In light of its findings in relation to the first and second grounds, it is not necessary for the court to address the third possible ground for pre-trial detention. Nevertheless, the court observes that the fact that Mr. Taylor is currently a serving prisoner does not deprive the court of jurisdiction to order his release on bail when he has finished serving his current sentence: as Mr.

Taylor ’ s s. 525 history shows, there can sometimes be inexplicable delays in complying with Parliament ’ s orders. It is probably as well for prisoners to make whatever arrangements for release they can as soon as they can. 1. Background [ 7 ] Mr. Taylor was remanded into custody on July 24, 2011 based on an information dated June 9, 2011 alleging that he assaulted a conjugal partner and that he breached court orders requiring him to stay away from that partner. [ 8 ] Mr. Taylor ’ s recent history relative to that complainant is somewhat complicated. On October 14, 2010, Mr.

Taylor was convicted of assault of the same individual; in addition to the assault charge, the court also convicted Mr. Taylor of a charge of uttering threats to the same individual, and of breaches of probation orders and of recognizances also in relation to the same individual. On those charges, Mr. Taylor was sentenced to 90 days ’ imprisonment and 2 years probation. It is not known at this hearing whether the sentence imposed on that occasion took into account any pre-trial detention time served by Mr.

Taylor in relation to those charges. [ 9 ] On June 9, 2011, events occurred which resulted in the charges with which we are concerned on this application. The charges arose not out of any report or complaint made by Mr. Taylor ’ s conjugal partner, but as a result of information provided by a citizen who indicated that they heard the conjugal partner screaming words to the effect, “ Stop hitting me ” . [ 10 ] On July 24, 2011, new events occurred which resulted in charges being laid against Mr.

Taylor for assault of his conjugal partner, for obstruction of a police officer, and for two counts of breach of a probation order in relation to Mr. Taylor ’ s contact with his partner. On that occasion, Mr. Taylor was bitten by a police dog; photographs of the bite are shown in ex. B-2. Mr. Taylor states that he did not receive appropriate medical follow-up for that bite. Mr. Taylor was taken into custody as a result of the deployment of the police dog and has remained in custody since. [ 11 ] On September 14, 2011, Mr.

Taylor was convicted of two breaches of probation order and dangerous driving; he was sentenced to 37 days in jail in relation to the probation breaches, and a $1,000.00 fine and 1 year probation in relation to the dangerous driving offence. On the same date, Mr. Taylor was also required to post a peace bond; no information was available at the s. 525 hearing in relation to the nature of that peace bond and, in particular, whether it related to the same complainant with whom we are dealing on these charges. [ 12 ] On October 26, 2011, Mr.

Taylor was found guilty of the July 24, 2011 assault of his conjugal partner and of obstruction of a

peace officer and sentenced to 65 days in jail. [ 13 ] In addition to the convictions mentioned above, Mr. Taylor has a lengthy criminal record which commences in 1991. Among those convictions are convictions which relate to the first ground - will he appear for trial. Those convictions include not only the obvious convictions for failure to appear and for being unlawfully at large, but also convictions for failure to comply with recognizances and terms in probation orders: a person who doesn ’ t comply with formal promises puts in peril the faith which others have in his promises. Mr.

Taylor has also been convicted of what might be described in this context as substantive offences. [ 14 ] Mr. Taylor did not make any application for bail with respect to the June 9, 2011 charges. As mentioned above, Mr. Taylor was taken into custody in relation to those charges on July 24, 2011. On October 18, 2011, the custodial institution which is detaining Mr. Taylor on the June 9, 2011 charges applied to this court for a detention review hearing. The custodial authorities ’ application is dated October 18, 2011, and refers to the fact that Mr.

Taylor ’ s detention review should have been scheduled, in Parliament ’ s words, “ forthwith on the expiration of . . . 30 days ” from the date of his detention. No explanation is provided for the delay in getting Mr. Taylor before the court. On the first day on which Mr. Taylor was scheduled to have his detention review hearing in this court, which was October 31, the matter was adjourned because Mr. Taylor was not present, although he had apparently indicated his wish to be present. An order for delivery was obtained and Mr.

Taylor was brought before the court on November 2, 2011 for the detention review hearing. At the s. 525 hearing, neither party put before the court any submissions concerning whether there has been an unreasonable delay in getting Mr. Taylor to trial. [ 15 ] Mr. Taylor has provided evidence that he has work available as a roofer if released from jail. [ 16 ] Mr. Taylor ’ s trial on the June 9, 2011 charges has been set for January 4, 2012. 2. Compliance with s. 525 [ 17 ] No arguments were made at the hearing with respect to any potential effect on Mr.

Taylor of the apparent breach of the time lines set by Parliament in s. 525. These time lines may be related to the constitutional guarantee to be tried within a reasonable time, as set out in s. 11(

b) of the Charter and to the Askov line of authority related to that right. However, in light of the position taken by the parties, I will not deal further with this issue. 3. The first ground - Is Mr. Taylor ’ s continued pre-trial detention necessary to ensure his attendance in court? [ 18 ] Pursuant to the provisions of s. 525(4) of the Code, on a detention review hearing the court must consider the statutory grounds for pre-trial detention as set out in s. 515(10) of the Code. Before turning to a consideration of the first statutory ground for detention, the court observes that, although Mr.

Taylor was on probation when the June 9, 2011 charges were brought, since those charges were being dealt with by way of information rather than by way of indictment, the reverse onus provisions of s. 515(6) of the Code do not appear to apply to Mr. Taylor; in any event, however, the Crown assumed the burden of proving that Mr. Taylor should be detained in custody pending his trial. [ 19 ] Mr. Taylor has a bad, recent, record in relation to the first ground of detention.

Most persons who are accused of a crime are granted bail on their promise to appear for trial; others are required to meet some conditions to ensure that they will in fact appear for trial. The problem facing Mr. Taylor is that his virtually uninterrupted record of failing to keep his promises means that there are virtually no promises that he could make to the court that the court could realistically consider to be reliable; therefore, no reasonable bail conditions can be crafted to guarantee his appearance for trial. [ 20 ] Mr.

Taylor argued that he had shown diligence in dealing with the June 9, 2011 charges; that is patently untrue, given the police need to deploy the canine unit to arrest Mr. Taylor on July 24, 2011 and Mr. Taylor ’ s subsequent conviction for obstruction of the police on that occasion. Mr.

Taylor also says that he has connections with this community; even assuming the existence of such connections, despite the relatively recent convictions in Ontario (October 2010) Cold Lake (September 2011, January 2007, and July 2004) and High Level (January 2005) as examples, those connections have not had any impact on the reliability of Mr. Taylor ’ s promises to appear or to comply with terms of recognizances or of probation orders.

[ 21 ] Where, as here, the Crown establishes such serious concerns on the first ground that the accused ’ s attendance at trial can only be assured if the accused is detained because no form of promise including a promise to report to the police or a bail supervisor would be effective, an evidentiary burden then shifts to the accused to indicate that he is in a position to offer a promise of money; this evidentiary burden arises because the Crown is not in any position to know what financial earnest the accused may be able to provide to guarantee his attendance. Here, Mr.

Taylor did not suggest any form of financial guarantee of his attendance at trial. [ 22 ] In all the circumstances, the Court concludes that Mr. Taylor ’ s continued detention is required to ensure his attendance at trial. 4. The second ground - Is Mr. Taylor ’ s continued pre-trial detention necessary to ensure the protection and safety of the public, including the complainant? [ 23 ] Mr. Taylor has a bad, recent, record in relation to the second ground of detention: within the last year, he has been convicted of two sets of crimes relating to his conjugal partner.Mr.

Taylor acknowledges that the relationship with the complainant was volatile, but he asserts that the relationship has now ended and that he has no interest in resuming a relationship with the complainant were he to be released on bail pending his trial. [ 24 ] Even if Mr. Taylor were honest in his statement that he intended to terminate his relationship with the complainant, it is obvious from his record that he had a very close relationship with that individual for at least the last year. Mr. Taylor ’ s promises to the justice system are, generally, unreliable.

There is no reason to believe that his promise to give up a relationship that clearly meant something very serious to him for one year and that even resumed after Mr. Taylor had served one jail sentence for assaulting that partner would be any more reliable. In other words, given Mr. Taylor ’ s recent conduct, there is no condition which the court can envisage that would ensure the protection and safety of the complainant. [ 25 ] In all the circumstances, the Court concludes that Mr. Taylor ’ s continued detention is required to ensure the protection and safety of the public, including the complainant. 5.

The third ground - Is Mr. Taylor ’ s continued pre-trial detention necessary to maintain confidence in the administration of justice? [ 26 ] Mr. Taylor ’ s continued detention in relation to the June 9, 2011 charges is not necessary to maintain confidence in the administration of justice. [ 27 ] The Supreme Court of Canada has noted that recourse to the third statutory ground for pre-trial detention will rarely be successfully invoked, given that, in Canada, people are presumed innocent until they are proved at trial to be guilty.

In the situation here, none of the exceptional circumstances which justify the invocation of the third ground are present. [ 28 ] The Crown states that Mr. Taylor is a serving prisoner and that the court should therefore not consider bail relating to offences other than those for which he is serving a sentence. With respect, any order which the court might make today concerning Mr. Taylor ’ s entitlement to bail relative to the June 9, 2011 charges could obviously only take effect when Mr. Taylor has finished serving the sentence which he is currently serving.

It is not an affront to the administration of justice that a prisoner should bring an application for bail while still a serving prisoner: as Mr. Taylor ’ s own background demonstrates, even Parliament ’ s clear directions are not always followed by custodial authorities; it is therefore not offensive for a prisoner to take whatever steps are available to ensure that his detention is not longer than necessary. [ 29 ] Overall, however, as indicated above, the court is satisfied that Mr. Taylor ’ s continued pre-trial detention is justified on the first and second grounds.

Heard on the 2 nd day of November, 2011. Dated at the City of Edmonton, Alberta this 9 th 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. Taylor Jason J. Track, Crown Prosecutors Office for the Crown