R. v. DEF, 2011 ABQB 715

Court of Queen’s Bench of Alberta Citation: R. v. DEF, 2011 ABQB 715 Date: 20111121 Docket: 110828100U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - DEF Accused Restriction on Publication Judicial Interim Release – See the Criminal Code,

section 517. By Court Order, this decision and the evidence taken, information given or representations made may not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file. It may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. Editorial Notice: The restriction ended on January 18, 2013.

Corrected judgment: A corrigendum was issued on September 15, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin

_______________________________________________________ I. Introduction [ 1 ] The Accused, in a reverse onus situation, applied for bail before a justice of the peace, a bail review judge and a second bail review judge. He now appears before a third bail review Judge arguing that the second bail review judge made an error in law by failing to provide sufficient reasons for denying the Accused’s application for bail. He asks this Court to consider the matter afresh. II. Procedural History [ 2 ] The Accused faces 16 counts in one indictment.

The alleged offences include assaults, uttering threats, sexual assault and 15 charges relating to breaches of recognizance. One of the breach counts relates to the possession of a shotgun. [ 3 ] Bail was denied on July 16, 2011, by a justice of the peace. His reasons were as follows: All right. I think the Crown has made a very good case to deny on the secondary ground. Bail is therefore denied on the secondary grounds. [ 4 ] The Accused sought a review of bail in this Court on August 17, 2011 (first bail review).

The bail review judge denied the application for bail, providing the following reasons: In this matter, I have reviewed the evidence put before the Justice of the Peace and his decision and reasons. I have now heard from counsel for the Accused providing some additional information and counsel for the Crown. The Accused was ordered detained by the Justice of the Peace on the secondary grounds, and I am satisfied that the Justice of the Peace had proper information before him and was not incorrect in making that ruling.

Further, I think there are some reasons for the Court to be concerned on the primary ground, that the Accused, if released, would not attend before the Court. The defence maintains that these claims by the alleged victim are uncorroborated, but the information that was before the Justice of the Peace and also the information put before me is that there are corroborating witnesses to some of the charges. Accordingly and for those reasons, the Accused will remain in custody. [ 5 ] The Accused brought a second application for bail review in this Court on September 23, 2011 (second bail review).

The Accused indicated at the second bail review application that the basis of the application was that insufficient reasons for denial of his release were provided by the justice of the peace and the first bail review judge. The second bail review judge gave the following decision: . . . 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.

There are corroborating witnesses with respect to 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 cooperation with respect to the serious sexual assault charge. 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.

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. [ 6 ] The Accused now brings this application for a third bail review on the grounds that the reasons of the second bail review judge were also insufficient. The Accused argues that this Court, the third bail review Judge, can consider whether the second bail review judge erred in law by failing to provide adequate reasons and if so, consider the matter anew.

III. Circumstances of the Alleged Offences [ 7 ] The Complainant on the sexual assault, two assaults and two uttering threat charges is the Accused’s spouse. She told the RCMP that she was forced to have sexual intercourse with her husband in order to keep her husband from assaulting her. He assaulted the Complainant and threatened to slit her throat and throw her in the river. He also threatened to get a gun and “blow her head off”. [ 8 ] The Complainant further advised the Police that the Accused had a shotgun which actually belongs to the Complainant.

He had taken the shotgun and then returned it to the Complainant. [ 9 ] After the Complainant reported these matters, the RCMP attended at the residence where they found the Accused with the daughter of the Accused and the Complainant. The daughter told the RCMP that she had heard the Accused yelling at the Complainant and that he had told her he was going to shoot her in the head. [ 10 ] The RCMP determined that the Accused was on two separate recognizances at the time of these events.

Both recognizances had a condition that he must keep the peace and be of good behaviour and one of them included a condition that he shall not be found in possession of any firearm.

The RCMP also spoke to another witness who purported to hear the Accused threaten to slit the Complainant’s throat and get a gun and blow her head off. [ 11 ] In addition, there was reference to a statement by one witness to the effect that a few days before these events took place, the Accused told his brother-in-law that if he needed to, he would take his daughter and go to the Yukon regardless of the views of the Complainant, the mother of the girl. [ 12 ] The Accused does not have a criminal record but faces charges of two counts of assault with a weapon, two counts of uttering threats, two counts of pointing a firearm, one count of possession of a weapon for a dangerous purpose, one count of possession of a firearm and one count of the use of a firearm in the commission of an offence.

These are all charges that arose prior to the charges he is facing in the matter before this Court. [ 13 ] The Accused has a residence to go to if released and can provide $2,000 in cash bail. IV. Issues [ 14 ] The issues the Court have been asked to address are as follows: A. The jurisdiction of the bail review judge with respect to the decisions of earlier bail review judges; B. The scope of review of earlier bail review decisions; C. Whether the second bail review judge provided adequate reasons; and D. If not, what remedies are available. V. Discussion A.

Jurisdiction of the Bail Review Judge on Subsequent Reviews

[15] This Court is being asked to review an earlier decision of a judge of this same Court. [16] I preface this discussion by noting that appellate authority holds that the jurisdiction of a court of appeal judge is engaged only inspecial or exceptional circumstances: R v Semenick, (MB CA), [1985] 2 WWR 132, 30 Man R (2d) 147 (CA), R vGaroufalis (1996), (MB CA), 107 CCC (3d) 173, 110 Man R (2d) 176 (CA), R v Savoie (2001) (NB CA), 239 NBR (2d) 291, [2001] AN-B No 267 (CA), R v Zarubin (1999), (SK CA), 180 Sask R 113, [1999]SJ No 308 (CA). [17] MacPherson J.A. of the Ontario Court of Appeal in R v Durrani, 2008 ONCA 856, 94 OR (3d) 350 at para 22 set out someexamples of special circumstances as found by appellate courts: -there has been a substantial period of delay due to the absence of a transcript from the bail review, the superior court judge refused toproceed without the transcript, and it is essential and urgent that the matter be dealt with -no superior court judge is readily available -two superior court judges on two bail applications have applied differing

interpretations of s. 515 of the Code and the case law -a direct indictment has been filed (considered not to be an exceptional circumstance in Durrani). [18] With respect to the unavailability of a superior court judge, G. Trotter explains in The Law of Bail in Canada, 2nd ed(Scarborough, Ont.: Carswell, 1999) at 330: The luxury of having an abundance of superior court judges may not exist in smaller communities. It may not be appropriate to return tothe same judge for a further review (subject to the exception below).

In these circumstances, if it is not possible to access a judge of anearby jurisdiction, it would be appropriate to move in the court of appeal. This situation is not likely to arise in Alberta, given the number of judges and the availability of video-conferencing. [19] In adopting the “special circumstances” approach, MacPherson J.A. in Durrani discussed the jurisdiction of Canadian courts ofappeal in this regard: 19 Historically, most courts of appeal in Canada have been reluctant to exercise their concurrent jurisdiction in this domain.

Asexplained by Trotter in The Law of Bail in Canada, at 301-02: While there is concurrent jurisdiction under ss. 520 and 521 in two levels of court in most provinces, the overwhelming majority of bailreviews are heard in the Superior or Supreme Court. The courts of appeal have shown great reluctance to exercise their jurisdiction underss. 520 or 521. Attempts to invoke the jurisdiction of an appeal court judge in these circumstances often occur after an application hasalready been heard in the Superior Court pursuant to ss. 520 or 521.

On numerous occasions, appellate judges have said that thejurisdiction of a judge of a court of appeal ought to be invoked only in "special" or "exceptional" circumstances. [20] MacPherson J.A. observed that s 520 clearly envisions more than one opportunity to bring a bail review application. Itcontemplates that different judges of the superior court will sometimes hear these applications and they may consider the order made byanother judge of the same court on a prior review application.

The hearing will often be a blending of the original material, the materialbefore the judge on any prior review, the previous orders made, together with new material that has arisen subsequent to the initialhearing.

[21] It follows that subsequent reviews of orders of Queen’s Bench judges in Alberta, to the extent they are permissible, will typicallyonly be heard by a Queen’s Bench judge. [22] In R v Chan, 2000 ABCA 214, (2000), 146 C.C.C. (3d) 494, Berger J.A. approved of the reasoning in R v Gouveia (1983), (ON SC), 1 CCC (3d) 143 (Ont HC) and R v Saracino (1989), (ON SC), 47 CCC (3d) 185 (Ont HC),stating: 25 In my opinion, ss. 520(8) and 521(9) contemplate successive applications before Justices of the Court of Queen's Bench.

Theintention of Parliament is reflected by ss. 520(7) and 521(8), both of which make clear that, on a review, transcripts of proceedingsbefore a justice at the original hearing, as well as on any previous review, can be filed in support of an application. [23] In R v Smith, 2003 SKCA 8, [2003] 5 WWR 30, a provincial court judge released Smith from custody on $20,000 cash bail,giving no reasons for his order. The Crown applied under s 521 to the Court of Queen's Bench to review the order. The court vacated itand ordered Smith to be detained. Smith applied for a further review.

The order was set aside and Smith was released on conditions. TheCrown appealed to the Court of Appeal. The release order was set aside and Smith was ordered detained. Smith again applied to theCourt of Queen's Bench for a review. The order was vacated and Smith was released. The Crown applied to the Court of Appeal for adecision as to whether Parliament intended by s 521 to provide for the review by a superior court judge of an order made by anothersuperior court judge on a previous review. This was the fifth application in ten weeks, without any material change in circumstancethroughout.

The Court of Appeal held that the Crown did not have the right, under s 521, to make the application to the Court of Appeal,and each of the orders on the Crown’s previous applications was made without jurisdiction. [24] The Saskatchewan Court of Appeal held that ss 520(1) and 521(1) refer only to an order made by a justice, defined to mean ajustice of the peace or a provincial court judge and therefore the right to apply for review does not extend to an order made by a judge,defined to mean a superior court judge.

The scope of review on that first superior court review is broad. [25] The Court further reasoned with respect to the right to a further review under ss 520(8) and 521(9): 48 It is difficult to see how the right conferred by subsections 520(1) and 521(1) - a right which by definition is expressed to apply toan order of the specified type made by a justice - might be interpreted to extend to an order made by a judge.

These are defined terms,which as remarked upon earlier serve to express Parliament's declared intention. 49 Not only that, to so extend the scope of the right would result in the parties having the right not only to a form of hierarchicalreview, which is a common concept in the law, but as well to a form of lateral review by judges of coordinate jurisdiction, which is anuncommon concept.

Only exceptionally are judges of coordinate jurisdiction empowered to rescind or vary one another's orders, and thenusually on the basis of a material change of circumstances, being such change as would likely have resulted in a different order havingbeen made in the first instance... 50 Moreover, from a functional perspective, to interpret these subsections thus would place a strain on the notion of judicial comityand tend toward a regime of bail or judge shopping, unless braked in some way.

But in what way? ... ... 52 It is equally difficult, if not more so, to see how subsections 520(8) and 521(9) might be interpreted to confer, by implication, aright to apply for further review of the nature under consideration, which is to say review by a judge of an order by a judge as distinctfrom a justice. [26] The Court of Appeal went on to find that s 523(2)(b), which allows for review of an existing bail order at the conclusion of apreliminary inquiry, extends not only to an order made by a justice under s 515 but to an order made by a judge on review under s 520 ors 521.

Of similar effect is s 525 which contemplates an application for review of a detention order where the trial is delayed. [27] The Court addressed Saracino, followed by Berger J.A. in Chan, which is authority for the proposition that ss 520(8) and 521(9)allow for repeat applications, and rejected the conclusion in that case, based on the defined terms of ss 520(1) and 521(1).

[ 28 ] This Saskatchewan Court of Appeal decision appears to stand alone. [ 29 ] In R v Alcantara , 2007 ABQB 247 , Veit J. reasoned that where the accused cannot appeal a bail decision, and where it is possible that the accused, presumed to be innocent, will be in custody for a lengthy pre-trial period, a deviation from the normal rule of stare decisis is permissible in the interests of justice.

She held (at para 31) that a bail review judge’s jurisdiction is restricted to a review of the previous bail review judge’s decision; it does not extend to the original bail decision or any other bail review decisions prior to the last one. Her conclusion that the review extended only to the previous bail review judge's decision was based on s 520(7)(

a) and the statutory bail scheme. In her view, the amendment to the provisions of s 520(7)(

a) to specifically refer to transcripts of judges (i.e. bail review judges) who reviewed decisions made by justices (i.e. original bail judges), made it clear that the second, and subsequent, bail review judges could review the decisions of previous bail review judges.

She determined that in order to limit the possibility of multiple review applications (and presumably concern regarding forum shopping), each bail review is limited to a review of the last bail review. [ 30 ] In R v Yakimishyn , 2008 ABQB 188 , Veit J. again addressed the issue, expressly relying on Chan in preference to Smith for the proposition that a Queen’s Bench judge does have jurisdiction to conduct a review of a previous bail review decision of a Queen’s Bench judge.

She opined, however, that legislative reform by Parliament of the existing system could possibly provide an appeal to the Court of Appeal on a matter of law, while leaving jurisdiction in the superior courts in respect of material changes of circumstance prior to trial. [ 31 ] MacPherson J.A. in Durrani at para 30 adopted the following statement of Huband J.A. in Zeneli at 480 to the effect that there is no impediment to one superior court judge reviewing the decision of another: Crown counsel submit that special circumstances exist because of an error of law on the part of Menzies J. in failing to provide reasons for his decision in spite of a statutory requirement to do so.

It is argued that this distinguishes the present case from the usual situation where changed circumstances are alleged. It is further suggested that another judge of the Court of Queen's Bench might be reluctant to find judicial error. Further, if judicial error were to be found, allowing a fresh discretion to be exercised, a judge of the Court of Queen's Bench might be reluctant to come to a different conclusion than his or her colleague on the Court of Queen's Bench.

In my opinion, the fact that the intended review is based initially on an alleged error of law does not, by itself, qualify as a special circumstance justifying a judge of this court to entertain a review.

In my opinion, judges of the Court of Queen's Bench will fulfil their responsibilities by finding judicial error if error indeed exists and by exercising an independent discretion if the circumstances call for an independent discretion. [ 32 ] MacPherson J.A. concluded at paras 32 and 33 by discussing policy and practical reasons for adopting the “special circumstance” overlay to the concurrent jurisdiction set out in s 520: 1) if evidence is to be heard at the bail review, the Superior Court is better positioned to hear the review; it has the facilities, staff and mechanisms to respond to this necessity; and 2) there are many other provisions in the Code that confer concurrent jurisdiction on a court of appeal as a "superior court of criminal jurisdiction", but an appellate court would rarely, if ever, exercise those powers for practical and policy reasons: for example, in respect of wiretaps, release of blood samples for testing, trying indictable offences, examination of seized solicitor-client privileged documents, retention orders in relation to items seized, forfeiture of offence related property, and insurance of out-of-province subpoena. [ 33 ] Despite these policy reasons, as pointed out by Veit J and the Court in Smith , a lateral review hierarchy can lead to strain on the notion of judicial comity and considerable judge shopping, given the often lengthy current pre-trial delays.

Indeed, where there has been no change in circumstances, a lateral review of a previous decision of a judge of the same court is tantamount to an appeal being made to the same court. Would an accused be confident of a fair and impartial hearing of his appeal by a colleague of the judge who previously denied him bail on precisely the same facts? [ 34 ] Further, it should be noted that the decisions of a Queen’s Bench judge are not binding on other members of the court.

Therefore, an error in law may be perpetuated by those choosing to follow an erroneous decision, whether it be the previous decision or the decision overturning it. Of course, conflicting decisions also create uncertainty in the bar and lower courts, making it difficult to predict or determine an outcome. I do not believe that Huband J.A.’s comments in Zeneli fully address these policy issues. [ 35 ] If our Court of Appeal indeed ascribes to the “special circumstances” approach, then it is difficult to imagine what those might be in this day and age where technology would likely overcome any availability issues.

In light of the policy arguments regarding judicial comity, judge shopping, appearance of impartiality and risk of uncertainty, where the Code contemplates concurrent jurisdiction and the liberty of an accused is at stake, it may be appropriate for the Court of Appeal to consider alleged errors of law as being “special

circumstances”. B. Scope of Review [ 36 ] This is not a review by this Court of a decision of a Provincial Court judge or a justice of the peace. In such cases, I believe this Court can review their decisions regardless of whether there has been a change in circumstances and determine whether the Accused should be detained in custody on any one or more of the grounds set out in s 515(10). [ 37 ] There is no doubt in Alberta that the Court of Queen’s Bench is entitled to and should review a prior decision of the same Court where there has been a material change in circumstances.

Further, as Doherty J. observed in Saracino at 191-192, where the subsequent review application is based on an alleged substantial change in circumstances, then judicial comity dictates that where possible, the judge that heard the initial review application should hear the second review application as well. Trotter notes at 330 that this not only promotes efficiency in the administration of justice, but the judge who heard the initial application will likely be best situated to gauge the impact of new evidence on the previous decision.

As well, the practice discourages judge-shopping, and keeps as many judges as possible in the pool of potential trial judges. [ 38 ] In this case, counsel for the Accused candidly acknowledged that there has been no change in circumstances since the last bail review.

Assuming for the purpose of argument that this Court is the appropriate forum in which to embark on a subsequent review for an alleged error of law, what does such a review entail? [ 39 ] In Alcantera , Veit J. held that bail review is, in its nature, an assessment of whether an error of principle was committed by the previous court or whether new circumstances have arisen since the last judicial consideration of bail, and that a bail review court does not embark on a de novo bail hearing nor is it entitled to merely substitute its opinion concerning bail for that of the court whose decision is being reviewed.

She noted that Doherty J. in Saracino established that a review was statutorily permissible whether the previous decision had been to grant bail or to deny bail, but did not address serial 30 day hearings. Veit J. held that she had jurisdiction to review the decision of the prior bail review judge for errors of law and new material circumstances that had arisen since the last bail review. In her view, the second, and subsequent, bail review judges may not merely substitute their opinions on bail for that of the previous bail review judge.

To find otherwise “would lead to chaos”. [ 40 ] Berger J.A.’s comments in Chan as set out above could be interpreted to suggest that the review would extend to the reasons of the original justice of the peace, as the transcripts from all proceedings are before the reviewing judge.

The Court in Smith remarked that an unsuccessful review leaves the initial order in place, and in that sense, subsequent reviews are of that initial order. [ 41 ] In R v QHT , 2004 ABQB 526 Watson J., in the course of discussing whether an initial bail review should be de novo , commented: 43 ...inadequacy of reasons is not necessarily sufficient as a point of law upon which one would justify disturbing the order or for that matter moving procedurally to a de novo review of the situation. [ 42 ] Veit J. in R v Patton , 2008 ABQB 502 found that the bail judge (a justice of the peace) had committed an error of law in failing to give reasons as required under s 515(5) of the Code and as described by the Supreme Court of Canada in R v Sheppard , 2002 SCC 26 , [2002] SCJ No 30.

She held that these standards apply especially to decisions denying bail due to the explicit and unusual statutory requirement for reasons in s 515(5) and the fact that a decision to deny a constitutional right is an extremely serious decision. As a result, the accused was entitled to a de novo hearing. See also R v Booth , 2011 ABQB 676 . [ 43 ] It is significant that the Sheppard test allows a reviewing court to consider the record as a whole in order to determine whether meaningful review is possible.

Binnie J. stated: 46 ...Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene.

On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where ... there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the

appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention.

It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function. [ 44 ] Therefore, in the particular case of alleged insufficient reasons permeating successive reviews, the isolated reasons of the last reviewing judge are not viewed in isolation, and in fact ss 520(7) and 521(8) of the Code mandate that the transcripts from all of the preceding hearings will be before the reviewing court.

Particularly in a case such as this one, where the status quo has been maintained throughout, the reasons of the judge who most recently reviewed bail must be viewed in the context of all of the preceding hearings in order to determine whether the accused knows why he is in custody, which would also be essential to the decision being scrutinized on a review.

Therefore, whether one characterizes the review as being restricted to the prior judge’s decision or extending to the initial bail decision, the result is the same in this case. [ 45 ] Where a reviewing judge finds that the reasons, viewed in context, are sufficient, that is the end of the matter unless some other error is alleged. This does not resolve the issue of serial applications for review.

As noted in Saracino , second applications under s 520 or s 521 should not be a forum in which a disappointed party to the initial review seeks a fresh exercise of judicial discretion, or a re- determination of findings of fact made on the initial review.

However, unless the Court of Appeal takes jurisdiction in some fashion on subsequent reviews raising errors of law, there appears to be no impediment to successive Queen’s Bench reviews on the grounds of insufficient reasons. [ 46 ] If the reasons are found to be insufficient, and that is the only basis upon which the judge is being asked to review the decision, the only possible approach of the reviewing judge, practically speaking, is to consider the application afresh based on the representations made at the previous hearings. C.

Are the Reasons Sufficient? [ 47 ] Until such time as an accused is found guilty of an offence beyond a reasonable doubt, he remains innocent. Where an accused has been denied bail, he or she is entitled to know the reasons why bail was denied. The accused cannot be expected to hear that bail is denied on one or more of the grounds set out in s 515(10) of the Code and know the facts or circumstances making that ground applicable unless the judge makes it clear.

Section 515(5) requires the judge to provide a statement of his or her reasons for ordering an accused to be detained in custody. [ 48 ] As emphasized by Veit J. in Patton at para 11 , the reasons of the Supreme Court of Canada in Sheppard may be even more applicable to decisions of bail judges and, in particular, decisions denying bail. A review of a bail decision cannot be properly undertaken unless the bail judge makes those reasons for denial intelligible (at para 12). The reasons need not be lengthy or written.

However, they must be meaningful. [ 49 ] The simple question for this Court is whether the Accused has been told why he is being detained in custody. (This would coincidentally enable scrutiny of the decision.) [ 50 ] As mentioned above, in my view Sheppard mandates that the reviewing judge consider everything that has happened since the first detention order as the context in which the most recent decision was made. [ 51 ] The reasons of the second bail review judge in this case are brief.

He refers to some of the submissions made by counsel including the fact that the Accused has a residence and can post some cash bail. He also refers to the nature of the offences, the Accused’s threat to take the seven-year-old daughter to the Yukon and the Accused’s ability to gain access to a firearm. Finally, he refers to the fact that the Accused has no criminal record. [ 52 ] The second bail review judge then provides his conclusion and refers to the two threat charges and the serious nature of the domestic assault charges.

All domestic assault charges are serious so when he refers to the serious “nature” of these charges, it must be in the context of the Complainant being forced to have sexual intercourse in order to keep the Accused from assaulting her. This clearly raises a concern on the secondary ground as to the safety of the public which is further emphasized by the Accused’s access to a shotgun.

[ 53 ] The second bail review judge also refers to the threat by the Accused to take the seven-year-old daughter out of the jurisdiction and his concern for her vulnerability and the risk of her “further victimization”. This allegation raises concerns on both the primary and secondary grounds. Further, and while not specifically addressed by the bail review judge, the Accused is facing 11 counts relating to the breaches of recognizances that he was on at the time these alleged offences took place.

While there is clearly some overlap between the charges, it is also evident that if any of the substantive charges on the indictment are made out (that is, the sexual assault, the assaults or the uttering of threats), then there was clearly a breach of one or more of the recognizances. [ 54 ] Finally, it must be emphasized that this was a reverse onus situation. It was incumbent upon the Accused to establish that his detention was not necessary to ensure his attendance in Court or for the protection or safety of the public or to maintain confidence in the administration of justice.

It is unnecessary for the bail review judge to provide extensive reasons why various conditions could not be imposed to address those grounds. That is, under s 515(6), where the onus is on the Accused to show cause why his detention in custody is not justified, it is incumbent upon the Accused to establish to the satisfaction of the bail review judge that his detention is not justified.

The Accused in this case did not satisfy the second bail review judge that his detention was not justified. [ 55 ] I conclude that the reasons in question, viewed in the context of the proceedings to date, inform the Accused as to why he is being detained in custody pending trial. VI.

Conclusion [ 56 ] Despite the concurrent jurisdiction on subsequent bail reviews, there are a number of policy reasons suggesting that it would be helpful if the Court of Appeal would consider that errors of law constitute “special circumstances” warranting its intervention. [ 57 ] While brief, the reasons provided by the second bail review judge in this case were sufficient. Heard on the 10th day of November, 2011. Dated at the City of Edmonton, Alberta this 21 st day of November, 2011. Eric F. Macklin J.C.Q.B.A. Appearances: Dallas Sopko for the Crown Anna Konye Pringle MacDonald & Bottos

for the Accused _______________________________________________________ Corrigendum of the Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ The Accused’s name is redacted in the style of cause.