R. v. Zaman, 2011 ABQB 679

Court of Queen ’ s Bench of Alberta Citation: R. v. Zaman, 2011 ABQB 679 Date: 20111109 Docket: 111233383U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Amjid Zaman Applicant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________ [ 1 ] Mr. Zaman, the accused, and M.W., the complainant, jointly ask the court to remove or modify the bail condition which prevents contact between the two until Mr.

Zaman ’ s trial. [ 2 ] The Crown opposes any variation to the current no contact provision: it takes the position that even though M.W. has stated that she is not afraid of Mr. Zaman and would like to have contact with him by telephone or in a public place, the court should not automatically do what the complainant wishes. The Crown suggests that M.W. is a vulnerable person, being only 17, and that she is a person whom the court should protect whether she wants protection or not.

The Crown also wishes to prevent any contact between the accused and the complainant in order to ensure that the complainant will not be influenced by the accused with respect to the forthcoming criminal trial. [ 3 ] The application to lift the no contact condition is allowed in part: the accused can have contact with M.W. by telephone or in a public place.

[ 4 ] The court is not bound by a complainant ’ s wishes in relation to contact with an accused.

On the contrary, Parliament requires a court to do what is necessary to protect complainants. [ 5 ] Here, a limited relaxation of the no contact condition will prevent any private meeting between the accused and the complainant and will help to ensure that no unhealthy relationship between them will resume. [ 6 ] Here, even if any risk to the administration of justice had been established by there mere existence of an emotional relationship between the accused and the complainant, the existence of a KGB statement is sufficient guarantee that the accused will not interfere with the administration of justice if the no contact condition is varied.

Cases and authority cited [ 7 ] By the court: On the wishes of the complainant: R. v R.F.N. 2007 ABQB 570 , [2007] A.J. No. 1061 ; R. v M.A.B. 2006 ABQB 578 , [2006] A.J. No. 942 ; R. v C.K. 2006 ABQB 449 , [2006] A.J. No. 572 [ 8 ] On the interference with the administration of justice: R. v Babalkher 2011 O.J. No. 4609 (S.C.J.) ; R. v Gowen 2011 NSSC 259 , [2011] N.S.J. No. 388 ; R. v Bhullar 2005 BCCA 409 , [2005] B.C.J. No. 1762 ; R. v Quaiser [2003] O.J. 3668 (S.C.J.) ; 1. Background [ 9 ] Mr.

Zaman is charged with a series of assaults on M.W. including allegations of ligature strangulation, manual strangulation, and forced feeding of pills. M.W. told the police that she was forced to seek medical attention in relation to certain of these assaults. The police obtained a KGB statement, that is a video recorded statement taken under oath, from the complainant outlining her version of the events which formed the basis of the charges. [ 10 ] Mr. Zaman has been released on bail pending his trial on these charges; one of the conditions of his release is that he have no contact with the complainant.

The complainant was not present at the bail hearing and no information was provided to the bail judge about her wishes concerning contact with the accused. [ 11 ] Mr. Zaman does not have a criminal record. [ 12 ] Mr. Zaman and the complainant began a conjugal relationship when she was 15 and he was 21. The complainant is now 17 years old. [ 13 ] The complainant appeared at the bail hearing and informed the court that she was not afraid of Mr. Zaman and that he was essentially a good person. She even asserted that Mr.

Zaman had been a good influence on her, in that he had essentially steered her away from a life of crime. She indicates that she has a criminal record. [ 14 ] The complainant has recently reconciled with her family, and is living in her parents ’ home. She indicates, and Mr. Zaman agrees, that the conjugal relationship between them is terminated and that she has now reconciled herself to that termination. However, the complainant testifies that Mr.

Zaman was an important part of her life for nearly 2 years and that she would like to be able to speak with him from time to time, or at least not feel that if she ran into him in a public place that he might be committing a crime.

2. Impact of the wishes of the complainant on the continued existence of a no contact provision [ 15 ] Obviously, the wishes of a complainant to have no contact with an accused is likely to be reflected in a no contact order as a condition of bail: on a purely civil standard, an adult person is entitled to obtain a restraining order preventing contact by another individual, even where no criminal activity is alleged.

However, the wishes of a complainant to have, or to resume, contact with an accused don ’ t determine whether a judge should make, or lift, a no contact order: Parliament requires a judge to determine what is necessary for the protection and safety of the public generally, including the complainant.

I agree with the conclusion reached by Lee J. in M.A.B. : the court may find itself required to make a no contact order even in circumstances where it assumes that the no contact order will not, in fact, be respected by the complainant. [ 16 ] Although it is easy to articulate the general principle, the weighing of a complainant ’ s wishes in the context of the public interest may be more complicated, as also noted by Lee J. in C.K.

When dealing with adult complainants, a court may respect the wishes of mature complainants where the court concludes that the individual in question is not, in the circumstances as then known to the court, vulnerable to attack by the accused. As Lee J. put it in R.F.N. : 16 While the charges in this matter are very serious, it does appear that the husband was high on drugs, and has taken subsequent steps to deal with his addiction.

Although the Accused's cocaine problems are still not likely behind him, the wife obviously at this time has no fear of the husband, and reconciliation is not even an issue with the wife given that she appears never to have become estranged from the husband.

The wife appears to be an individual who is going to initiate contact on her own in any event notwithstanding the Court Order, unless directly prevented from doing so. 17 While I appreciate the position of the Crown in this matter, it is not the role of the Court to try to protect mature parties from themselves, especially when they do not want or appear to need the Court's protection. There are no innocent third parties such as children involved, no issues with respect to a dependancy of the Complainant on the Accused, and no apparent imminent danger here.

I conclude that as long as the husband can remain drug free, he is not likely to re-offend. There are conditions already in existence with respect to these terms of release that require the husband not only to abstain from the use of illicit substances, but to also submit to random drug testing. 18 Whatever the threat was on the night in question, that threat appears to have dissipated at least temporarily.

The husband spent undoubtedly seven difficult days in custody at the Remand Centre, he will be facing disciplinary action within the dental profession, and he is going to trial in approximately a month on these charges. The husband will not in all likelihood do anything to make matters worse for himself. 19 Accordingly I will remove the conditions that require the husband to reside at a specified residence outside the present matrimonial home, and I will allow him to have normal contact with his wife within the matrimonial home. [ 17 ] Here, the threat posed to M.W. ’ s protection and safety by Mr.

Zaman has been considerably reduced: both parties have realized that their conjugal relationship cannot continue and M.W. has accepted that termination. Moreover, M.W. has returned to live with her parents. Finally, by relaxing the no contact condition only to allow telephone and public contacts, the court continues to prevent in person, in private, contact; despite the parties ’ mutual honest intention not to resume a conjugal relationship, the court must do what it can to support that intention.

In the current circumstances, the relaxation of the condition as requested by M.W. is not substantially likely to result in any threat to her protection or safety. 3.

Interference with the administration of justice [ 18 ] The Crown also opposes the relaxation of the no contact provision on the grounds that allowing any communication between the accused and the complainant will allow the accused to interfere with the administration of justice by influencing the complainant in her testimony at trial. [ 19 ] It is perhaps well to remind ourselves of the basis upon which interference with the administration of justice comes to be considered at a bail hearing.

Although the court in Quaiser was dealing with a reverse onus situation, which does not apply here, its comments about the general application of the second ground for detention and about the meaning of “ interference with the administration of justice ” in that ground apply here:

22 The secondary ground is more troubling. Has he satisfied me that his detention is not necessary for the protection or safety of thepublic, having regard to all the circumstances, including any substantial likelihood that he will if released from custody commit acriminal offence or interfere with the administration of justice? In Regina v. Morales (1992), (SCC), 77 C.C.C. (3d) 91Chief Justice Lamer held that persons are not to be detained simply because they have a proclivity to commit crimes.

Bail is denied onlyfor those who pose a substantial likelihood of committing an offence or interfering with the administration of justice, and only where thissubstantial likelihood endangers the protection or safety of the public. Moreover, detention is justified only when it is necessary forpublic safety. 23 The applicant has no record. However, there is evidence from which it could be concluded he was persuading someone to give hima false alibi.

That is a serious matter, an obstruction of justice and counselling an offence. (Emphasis added) [20] To summarize: bail can be denied on the second ground only if the Crown proves that there is a substantial likelihood that, ifreleased on bail, the accused will interfere with the administration of justice and it is necessary for the protection of the public to preventsuch interference. [21] As to what constitutes interference with the administration of justice in this context, one classic definition was alluded to inBabalkher where the court said: 30 There has been no threat implied or express made to any victim or to any of the witnesses. [22] Another definition of obvious interference with the administration of justice was mentioned in Gowen: 9 Stephen Gowen's role was a secondary role and, of course, that is by definition of the offence itself.

He provided an alibi and hemisled the police. In

summary, he interfered with the administration of justice and that is a serious offence. He entered a guilty plea thismorning. [23] In Bhullar, the B.C. Court of Appeal demonstrated how the evidence of interference with the administration of justice andthe principle of entitlement to bail must be worked out in an individual case: 52 On the review before us, the Crown's brief contains the following submission on s. 515(10)(b): 30.

The evidence showed that the Applicant had tried to interfere with the administration of justice between the time that his adoptedson's body was found on 25 November and the evening of his arrest on 3 December 2004, a period of only eight days. He confronted thekey crown witness about telling the police about the "pants" - presumably the ones brought to the salon by the Applicant's ex-wife. Hetold other witnesses to "keep their stories straight." He concealed evidence, the clothes, and then is caught taking the replacement clothesfrom their hiding place.

The potential risk to witnesses and the potential interference in the administration of justice is apparent. . . . 55 The Crown's submissions of potential risk focus mainly on Ms. Drover, who appears to have acceded to the applicant's request togather up and put some papers in the bathroom of the salon. However, Ms. Drover was in contact with the police on several occasionsbefore the applicant's arrest and provided information to them.

Whatever intention or ability the applicant may have had to interfere withthe administration of justice in relation to what the Crown has described as their "key" witness was apparently ineffective. The Crownpoints out that other employees who were with Ms. Drover when they went to the applicant's house before his arrest were allegedly toldby him to "keep their stories straight" although there is no indication of what "story" they were told to keep straight.

56 At this point in time, the police search and investigation at the salon has presumably been completed so that any opportunity for the applicant to interfere with the physical evidence is at an end. There is no suggestion that the applicant made any threats of violence to any potential witness and the applicant's alleged attempts to exert pressure or influence on his salon employees seem not to have been effective. 57 In my view, the detention of the applicant cannot be justified on the secondary ground.

What the Crown has referred to as the "potential risk to witnesses" and the "potential interference in the administration of justice" falls markedly short of the "substantial likelihood" test set out in Morales . [ 24 ] From the case law cited above, it might be possible to conclude that “ interference with the administration of justice ” in the second ground refers to a threat to witnesses, or a bribe to witnesses, or tampering with evidence, or some other active attempt to cheat the administration of justice.

The existence of a mere emotional connection between a complainant and an accused may not constitute an interference with the administration of justice as would prevent contact between an accused and a complainant. In other words, it is not clear from the case law that the mere natural reluctance that any spouse or relative might have to assist in the conviction of their relative constitutes an interference with the administration of justice.

Here, there is no evidence that the accused has actively attempted to influence the complainant ’ s trial evidence in any way. [ 25 ] Even assuming that a mere emotional connection may constitute an interference with the administration of justice, the Crown has obtained a KGB statement from the complainant. Therefore, there is no practical risk that what happens between now and the trial will materially influence the complainant ’ s evidence at trial. In that respect, this case is somewhat similar to the Bhullar situation.

Just as in that case bail was not denied even though there was much more evidence that the accused attempted to interfere, or cheat, the administration of justice, so the administration of justice is not so imperilled here by contact between the accused and the complainant as to prevent all such contact. [ 26 ] In all the circumstances here, there is no basis on the second ground to deny the relaxation of the no contact provision. 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: Mr.

Zaman, on his own behalf M.W., third party

on her own behalf Jason J. Track, Crown Prosecutors Office for the Crown