R v T.R.E., 2011 ABQB 766

Court of Queen ’ s Bench of Alberta Citation: R v T.R.E., 2011 ABQB 766 Date: 20111214 Docket: 111202305U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - T.R.E. Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] The Accused applies for bail review having been refused previously on October 25, 2011 in Whitecourt Provincial Court on the primary and secondary grounds.

He is charged with assault; breach of probation; breach of recognizance; and in breach of Peace Bond. His trial is scheduled in early 2012. [ 2 ] Defence counsel submits that it is clear from recent witness statements provided after the Provincial Court hearing of October 25, 2011 that there are serious questions about the strength of the Crown’s case which has now been undermined by two independent witnesses. The Crown continues to oppose the Accused’s release on the primary and secondary grounds.

[ 3 ] In Provincial Court, the allegation was that a female complainant was in hospital being treated for injuries on October 9, 2011 at 4:55 a.m. as a result of an assault by the Accused outside a Bar and Grill located in Whitecourt, Alberta.

The Complainant provided an audio statement at the Whitecourt Medical Centre at that time in which she alleged she left and went outside while at the Bar and Grill at 1:00 a.m., at which point the Accused followed her outside, grabbed her by the hair, pulled her off the deck of the restaurant, punched her with a closed fist in the face six or seven times, and stated that if she was not going to be with him, she was not going to be with anybody.

The Complainant had significant bruising to both her eyes, broken blood vessels. [ 4 ] The Accused had been arrested previously on September 13, 2011, for assaulting the same Complainant, and for breaching various conditions. [ 5 ] Defence counsel now provides the Court with a written statement dated October 21, 2011 from the lounge supervisor at the Bar and Grill located in Whitecourt, Alberta where the alleged assault took place.

The lounge supervisor states in her signed letter that she was working on the evening of October 8, 2011 from 5:30 p.m. to 2:00 a.m., and did not see either the Complainant or the Accused in the establishment that night.

While the lounge supervisor does not know either individual personally, the Accused’s mother came to see her regarding the incident and showed her photos of both of them who she had never seen before. [ 6 ] The Bar and Grill manager also provided a written statement on October 31, 2011 in which he states that on the night in question both he and the lounge supervisor worked until closing at 2:00 a.m.

The bar manager states at no point throughout the night did he encounter either the Complainant or the Accused, both of which he apparently knows personally, and furthermore that there were no altercations that happened on any part of the premises throughout the entire evening. [ 7 ] Defence counsel further submits that his information is that the patio area at which the alleged assault took place is Closed after 1:00 a.m., and a janitor is stationed at the patio door to ensure no one can enter that area from within the Bar. Furthermore the patio is enclosed by a four foot fence.

Accordingly Defence counsel submits that with these two accounts from independent witnesses, and other information observed from the scene, that the Complainant’s accusations against the Accused of a 1:00 a.m. assault on the patio are not credible. [ 8 ] The Accused is also able to reside with his father, and is prepared to remain under house arrest except for purposes of employment, attendance at medical appointments, absences once a week to purchase necessities, and attendances to attend Court or report to adult probation.

The Accused has already spent approximately 60 days in pre-trial custody, and Defence counsel submits that he represents no flight risk. As for the secondary grounds, the Accused’s record all relates to the same Complainant presently involved in the outstanding charges. Conclusion [ 9 ] Following Defence counsel’s submissions with respect to several recent developments at the initial hearing of this Judicial Interim Release Review Application, the Crown asked for and was granted the opportunity to further review this matter. The local Chief Crown Mr.

Marr has now provided a detailed response dated December 5, 2011 that has been further reviewed by Defence counsel on December 12, 2011. [ 10 ] I accept that the lounge supervisor at the Bar and Grill working on the night in question appears satisfied that she did not see either the Complainant nor the Accused that night in the establishment, and that if someone was beaten up that evening she would have heard about it as the lounge supervisor.

After the initial hearing before me the lounge supervisor was interviewed and provided an audio and video statement with respect to the night in question. [ 11 ] As for the Bar manager, there is a dispute as to what role he plans to take in this matter. The RCMP report that on their request to interview him, he was not interested in becoming involved further. However Defence counsel has more recently discussed the matter again with the Bar manager and he will be a witness at the trial - he was just too busy to meet with the RCMP officer on short notice.

[ 12 ] While the lounge supervisor and the manager did not hear or see anything untoward that night, and while the alleged assault was not reported to them, it appears that the night in question was also a very busy one for the establishment given that there was a UFC championship match on television.

Therefor it is possible that while neither the lounge supervisor or the Bar manager noticed or heard anything; while the alleged assault was not reported to them; while the bar manager was personally familiar with both the Complainant and the Accused and does not recall seeing serving either one of them that night, an assault of the nature alleged by the Complainant could have transpired very quickly off the patio deck without either employee realizing it.

However the Accused still enjoys the presumption of innocence herein, which in normal circumstances would see him released now given that Defence counsel’s investigative skills have clearly raised some doubts about the Crown’s case. [ 13 ] However Police also took photographs of the deck from whence the Complainant alleged she was pulled and beaten, and there is an access and egress point on the deck from whence the Complainant could have been pulled at the very corner of the building.

Furthermore the deck is not surrounded by a four foot fence as submitted by Defence counsel, but rather the patio is surrounded by what appears to be a waist high three foot railing. [ 14 ] Also it is very obvious from the photos of the Complainant that she was beaten by someone, and there is a strong history of domestic violence between the Complainant and the Accused as the Accused’s record clearly indicates. [ 15 ] The Accused was found guilty on February 17, 2011 of assault causing bodily harm against this Complainant at which point he was sentenced to 45 days incarceration plus 15 months probation.

On that same date, relative to another allegation of assault against this Complainant the Accused entered into a

Section 810 Peace Bond such that at the time of the alleged offence currently before the Court he was bound by both a Probation Order and was on a

Section 810 Recognizance. [ 16 ] On the July 27, 2011 the Accused received a further 60 day period of incarceration plus a further 18 months probation for yet another assault against the same Complainant.

Therefore at the time of this alleged assault in October 2011 there were two outstanding Probation Orders both of which the Accused is alleged to have breached, and one recognizance. [ 17 ] Furthermore the Crown advises that the Accused is awaiting trial on March 7, 2012 for yet another alleged assault on the Complainant plus a series of breaches of probation and recognizance charges, and finally that the Accused is awaiting trial on an impaired driving charge scheduled to be heard on February 1, 2012.

The Accused’s trial with respect to the within matter is scheduled for January 4, 2012. [ 18 ] Accordingly notwithstanding the Accused’s general presumption of innocence and the strong investigative work done by counsel for the Accused, I conclude that even the new evidence and information before me does not satisfy me that the Accused should be released because of the existence of the secondary ground. [ 19 ] The Accused is clearly in a reverse onus situation with respect to his current application for Judicial Interim Release.

Given that this is a domestic situation, with a history of domestic violence, there appears to be reasonable basis for the Complainant to fear violence from this Accused, and indications from the Accused’s record that Court Orders or bail conditions will not be honoured as it relates to this specific Complainant. Heard on the 21 st day of November, 2011. Dated at the City of Edmonton, Alberta this 14 th day of December, 2011.

Donald Lee J.C.Q.B.A. Appearances: Jason Track and Robert E. Marr Crown Prosecutor’s Office for the Crown Robert Kassian for the Accused