R v USD, 2011 ABQB 734

Court of Queen ’ s Bench of Alberta Citation: R v USD, 2011 ABQB 734 Date: 20111128 Docket: 111351557U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - U.S.D. Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is an application to review the November 11, 2011 decision of the Justice of the Peace denying bail to the Accused on the secondary grounds.

Defence counsel submits that the Justice of the Peace failed to consider the trivial nature of the allegations, and defence counsel also submits that there has been a material change in circumstance in that the Accused has now decided that he will be ending his marriage with his wife. [ 2 ] The Crown submits that the lack of a transcript from the hearing before the Justice of the Peace means that this Court cannot conduct a proper review, or any review of the Justice of the Peace ’ s Reasons. The Crown continues to oppose the Accused ’ s release.

[ 3 ] I conclude that notwithstanding the lack of a transcript, the Court can still consider any material change in circumstance advanced by counsel for the Accused. [ 4 ] The circumstances of the alleged offence are that on November 11, 2011 at approximately 4:00 a.m. the Accused returned home to his residence and went to sleep. The Complainant was sleeping in a separate bedroom with her mother and two children. The Accused woke up at approximately 9:00 a.m. that morning and allegedly confronted the Complainant demanding that they have sexual intercourse.

The Complainant resisted the Accused ’ s advances as the Complainant ’ s two young children were present at the time. The Accused is then alleged to have become angry that the children would not leave the Accused and the Complainant alone in the bedroom, and the Accused began yelling and cursing at the Complainant.

The Accused is then alleged to have grabbed the Complainant by her ponytail, and while holding the Complainant by her ponytail, he is alleged to have made a threatening comment to the effect that he could hit the Complainant and the oldest daughter could do nothing about it. [ 5 ] The Accused pulled the children away from the Complainant demanding that they be left alone, at which point the Complainant called 911, and the daughter spoke to the 911 dispatcher with the complaint of the Accused ’ s actions.

When the Accused learned that police were on their way, the Accused fled the scene. [ 6 ] When police arrived they spoke to the Complainant who advised them of the circumstances, and the Complainant further attended for an interview at the police station. The Accused was eventually contacted and agreed to turn himself in at the South East police station, which he did at 2:30 p.m. that day. [ 7 ] At the time of this alleged offence on November 11, 2011, the Accused was further bound by a Probation Order and a Recognizance that was a result of a July 19, 2011 conviction for assaulting the same Complainant.

The Accused was bound by another Recognizance of September 19, 2011 which stems from an assault on an unrelated complainant that involved allegedly a weapon and threats. [ 8 ] Defence counsel advises that the September 2011 charges arise out of a recent breach and assault on a different complaint as a result of a dispute involving the Accused ’ s truck. The Accused is a professional truck driver who owns his own vehicles, and he allegedly was not able to park his truck in his designated stall because another truck was parked too close.

The Accused contacted the owner of the truck yard and advised him of the situation at which point the Accused essentially confronted the other truck driver demanding that he remove his truck.

When the other truck driver refused to do so there was a confrontation, and a subsequent assault apparently occurred in which a weapon is alleged to have been involved being a metal steal rod. [ 9 ] Following the July 2011 conviction of assault against his wife, the Accused moved back to live with the wife at the wife ’ s request, and their relationship seemed fine again until the most recent development on November 11, 2011. The Accused denies that he wanted sexual relations with his wife.

Rather he was just asking his wife to prepare some food for him since he had been driving his truck for many hours until 4:00 a.m. that morning, and he was very hungry by the time he woke up at 9:00 a.m. [ 10 ] Counsel for the Accused advises that his client and the wife own a nice house, and that he owns at least two trucks that he operates commercially. It is submitted that there is no reason that he would not appear before the Court whenever required to do so, and now that the husband has decided that his marriage has ended, he is prepared to stay away from his wife and does not wish to contact her.

Conclusion [ 11 ] With respect to the material change in circumstance, the fact that the husband has now decided that his marriage is at an end does not mean there is automatically no continuing threat to the wife. We know that this couple have two infant children ages 5 and 9 years of age, and counsel for the Accused acknowledges that the Accused likely will be seeking some sort of custody and parenting time with the children. [ 12 ] Accordingly I conclude that whatever turns on the ending of the marriage as it relates to a continuing threat to the

Complainant wife may well have simply been converted to a probable custody battle over the children. Accordingly the fundamental change is really not a change at all in relationship to the secondary grounds which still exist in this case. Even if the Court were to accept the Accused ’ s version of what happened on November 11, 2011 the allegations still involve an assault on his wife in the presence of his two young children, four months after he was convicted and placed on probation for assaulting the same individual.

I do not believe that the November 11, 2011 alleged assault can be classified as “ trivial ” as submitted by Defence counsel. [ 13 ] Furthermore the Accused was also on release on a Recognizance for alleged acts of violence against another truck driver, involving a weapon and uttering threats as recently as September 18, 2011. [ 14 ] Accordingly I conclude that bail should be once again denied on the secondary grounds for the safety and protection of the public, particularly his wife. Heard on the 21 st day of November, 2011. Dated at the City of Edmonton, Alberta this 28 th day of November, 2011.

Donald Lee J.C.Q.B.A. Appearances: Jason Track, Q.C. Crown Prosecutor ’ s Office for the Crown Barinder Pannu Pannu Law Office for the Accused