R v K.L., 2011 ABQB 742

Court of Queen ’ s Bench of Alberta Citation: R v K.L., 2011 ABQB 742 Date: 20111201 Docket: 110993672U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - K.L. Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Background [ 1 ] The Accused applies for review of his previously denied bail based on a material change in circumstance. The Crown continues to oppose the Accused’s release on the primary and secondary ground.

Bail was denied on September 21, 2011 in the Provincial Court because the Provincial Court Judge was satisfied that there was a substantial likelihood that the Accused would return to his girlfriend’s residence and continue to cause damage because of his drug and alcohol problem, and because of his previous breaches.

[ 2 ] The Crown alleges on the June 11, 2011 the Accused broke the window in the Complainant’s residence when no one was home and essentially trashes the residence. The Accused is found in the residence by his father and his brother who have both noted how the place was destroyed. They contact police, and although the Accused flees the scene, he is later arrested and released on a Promise to Appear. The Complainant also gave a written statement to police.

The Accused is charged with breaking and entering with intent to commit and mischief. [ 3 ] Approximately two months later on August 5, 2011 the Accused contacts the Complainant allegedly and tells her that he is going back to the residence to cut up all her clothes and to trash the place again. The Complainant calls police who attended her residence, but they do not find the Accused at the residence.

The next day August 6, 2011, it is alleged that the Accused again calls the Complainant, with the “no contact” provision in effect from the first charge, and threatens that he is going to come over to her place and trash it again like the first time. [ 4 ] The Complainant again calls police, and the same officers who attended the day before attend again, but this time they find the Accused inside the residence.

These same officers also noted that the television had been thrown on the ground, which was not the case the day before which could indicate that the Accused had taken the television the first day and was trying to return it the second day. The Accused was found in the house with the keys on him and he is charged with being unlawfully in the dwelling house, and breaching his “no contact” conditions by attending the residence. Analysis [ 5 ] The Accused is approximately 28 years of age and was born in Wetaskiwin, although he grew up in Edmonton.

He apparently has a grade 12 education and has been self-employed subcontracting drywalling jobs. He has definite employment prospects to go to if he is released. The Accused also has a 1-1/2 year old daughter with the Complainant, and they have been together for a few years. The Accused supports the child, and also provides for the Complainant’s other two children. [ 6 ] Defence counsel has provided a great deal of materials and evidence for the Court to consider as part of this bail review application. [ 7 ] The Accused’s father testified before me with respect to the circumstances of the alleged offence(

s) as he knows them, and in particular the personal and medical problems that the Accused has been suffering from. The father is obviously very concerned about his son’s well being, and he has made a number of substantial commitments to assist his son. The father has described in detail the son’s terrible difficulties with respect to these matters. [ 8 ] The father was initially involved with the first offence that occurred on June 5, 2011 and telephoned the police on his son, which led to the son’s arrest that day.

The father rushed over to the Complainant’s residence because he received a telephone call from a Facebook friend of the Accused advising him that his son was threatening to commit suicide on his Facebook posting. The son had apparently made a very serious attempt the year before to commit suicide and ended up in the intensive care unit for 3 to 4 days.

The Complainant had essentially saved the son’s life according to the father, and tests have shown no permanent damage resulted from the first suicide attempt. [ 9 ] When the father rushed to the Complainant’s residence in Hobbema he found his son passed out on the couch, and the father and the Accused’s older brother tried to talk to the Accused about his suicide threats. The Accused became agitated and eventually fled the scene, at which point the father telephoned the police.

The father advises that the police were more concerned with dealing with the break and enter and the destruction to the Complainant’s property then they were in attempting to help the son with his suicide threats, notwithstanding the father’s pleas for the police to help the Accused by admitting him for a psychiatric evaluation. The son was eventually arrested, but was released on a Promise to Appear the next morning with a “no contact” provision. [ 10 ] Matters apparently settled down for awhile, but the son who obviously has a serious drinking problem eventually binged and crashed again.

What is however only recently become known according to the father is that in addition to the son being a classic binge drinker, is that the Accused has been suffering from an undiagnosed seizure disorder for which he has been taking a succession of anti- seizure drugs to control. Until recently according to the father the Accused, his doctors, and the family has paid little attention to the dangerous side affects of the seizure medications that he has been taking. Recently the father discovered through his internet research

that binge drinking raises the level of Dilantin in one’s blood system increasing the side affects of the drug, causing unusual mood changes or behaviour including signs of depression, suicidal thoughts, and suicide attempts.

In hindsight the father states that it is these anti-seizure drugs for the so far undiagnosed seizure disorder multiplied by binge drinking that is at the root cause of the Accused’s recent problems. [ 11 ] While in custody at the Remand Centre for the last few months since September 21, 2011 the Accused has completed a Norquest College Anger Management Course for which he has provided the Court a Certificate dated October 21, 2011. By all accounts the son has also been much better able to manage his medications, and of course he has not had any opportunity to consume alcohol.

The Accused has even reconnected with himself through his passion for artwork apparently, and the Accused’s counsel has provided a letter of prospective employment in the drywall field if the Accused were to be released. [ 12 ] To further complicate matters, the Complainant has also written to the Crown on two recent occasions:– 1. To request a lifting of the “no contact” provision; and 2.

To recant her version of events. [ 13 ] The Complainant writes to Defence counsel indicating that these parties had started their relationship in Hobbema, Alberta in the Spring of 2008 and have been living together off and on for almost three years. In spite of a no contact Order, these parties decided to live together again primarily for financial reasons so that the Accused who had a good job could provide for his daughter, herself, and her two other children.

It was only because of the Accused’s continuing alcohol problems that they became estranged at times over their relationship. [ 14 ] The Complainant writes that as single mother and student with little income, the Complainant cannot function without the Accused’s financial support. She writes that she asked the Accused for help and gave him a set of keys to the apartment, which allowed him to come in and help with the children and spend time with her.

Most of the furniture that the Accused has allegedly destroyed was his own property, and her clothes that were cut up were according to the Complainant now were cut up with scissors by her 4 year old daughter. [ 15 ] The Crown urges me to reject the Complainant’s recantations as it is obvious in their submission that the Accused destroyed the Complainant’s clothing, and that it was the Complainant’s furniture and apartment that the Accused trashed.

There is no indication on the Record anywhere that the Accused has ever had his name on the apartment lease, and the Complainant gave a statement to police at the time that clearly incriminates the Accused. [ 16 ] The Crown also provides the Accused’s criminal record which shows over the course of less than two years 13 convictions including 6 failures to comply with recognizance, failures to attend court, and failures to Report. [ 17 ] The Crown also points out that since the second offence was committed while the Accused was on release with respect to the first offence, that the Accused has the reverse onus to establish why he should be presently released.

Conclusion [ 18 ] While the Accused has a very serious criminal record in the past short while, I note that most of the record relates to failures to attend court, failures to comply with recognizance, and failure to Report — almost all of which could relate to his drug and alcohol abuse problems. Certainly the present charges from July and September 2011 are likely a result of his inability to control his consumption of alcohol combined with what appears to be serious side affects related to drugs that he is taking to deal with an undiagnosed seizure disorder.

When one removes the alcohol/drug related problems, the Accused’s record is one simple assault on an

individual not the Complainant in a non-spousal situation from the end of 2009. [ 19 ] Furthermore regardless of the serious destruction and havoc he has reaped in the life of his common-law Complainant, it is noteworthy that he has never threatened to harm her or the children.

In fact it appears that the alleged destruction and damage that he has caused has all occurred while the Complainant and the children have not been present in the apartment. [ 20 ] The father, the family and even the Complainant are very supportive of the Accused, and have given the Court concrete steps/suggestions that they are prepared to undertake on the Accused’s behalf, whose overall condition while in custody has dramatically improved. [ 21 ] Notwithstanding the Crown’s submission in this matter I have in all of these circumstances decided that the Accused’s continued detention is not required, and I will be releasing the Accused pending his March 2012 trial on $1,000 cash bail with the following stringent conditions:– 1.

Keep the peace and be of good behaviour; 2. Appear before the Court when required to do so; 3. Report to adult probation within 72 hours of release and thereafter as required; 4. Reside at the father’s residence in Edmonton, Alberta, and notify the Court or the Probation Officer in advance of any change of name, address or employment; 5. Remain in the Province of Alberta and not leave the Province of Alberta without prior written consent of the Probation Officer, or his or her designate; 6.

Abstain from the purchase, possession, use or consumption of illegal drugs or other intoxicating substances, alcohol, non- prescribed drugs, and any prescribed drugs which you have not disclosed to your Probation Officer; 7. Take all medications as directed and remain under the care of a doctor; 8. Abide by a curfew and remain within your approved residence between the hours of 10:00 p.m. and 6:00 a.m., except for emergencies, medical appointments and other exceptions as approved by your Probation Officer; 9.

Shall attend all treatment and counselling as your Probation Officer shall direct, specifically for alcohol and drug abuse; 10. Have no contact directly or indirectly with the named Complainant, or from going within 200 feet of the named Complainant’s residence. Heard on the 25 th day of November, 2011.

Dated at the City of Edmonton, Alberta this 30 th day of November, 2011. Donald Lee J.C.Q.B.A. Appearances: Susanne E. Thompson Crown Prosecutor’s Office for the Crown Laurie I. Wood Wood Law Office for the Accused