R v W.R.B., 2011 ABQB 793

Court of Queen ’ s Bench of Alberta Citation: R v W.R.B., 2011 ABQB 793 Date: 20111214 Docket: 110962339U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - W.R.B. Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] The Accused has been in custody since September 2, 2011, charged under Sections 355(

b) Possession Under, 88(1) Possession of Weapons and 351(1) of the Criminal Code ; Sections 5(2) and 4(1) of the Controlled Drugs and Substances Act, Possession for the Purposes of Trafficking, and Section 52(1)(a), 54(1)(a), and 51(1) of the Traffic Safety Act . [ 2 ] Bail was initially refused on September 2, 2011 on the secondary grounds. The Crown remains opposed to the Accused ’ s release. Counsel for the Accused has presented some new recent circumstances.

[ 3 ] A 62 year old individual who attended the bail hearing on September 2, 2011 and who is a friend of the Accused ’ s sister, a long time community member with no criminal record, has stepped forward and expressed a willingness to have the Accused live with him and take him to the Anchorage Program or other community based addictions program. Additionally the Accused is now able to raise a $1,000 cash deposit. [ 4 ] Defence Counsel also submits that notwithstanding repeated attempts to expedite the trial date, the

schedule of the co- accused ’ s counsel in this matter and that of the Provincial Court has resulted in a trial date of mid July 2012. This means that the Accused will have been in custody for 11 months before his trial can be heard, which it is submitted would well be beyond any jeopardy that he faces. Defence Counsel submits that there are serious search and seizure issues in this matter, which may result in the Accused likely only facing relatively minor convictions for simple possess. [ 5 ] The Accused and his common law were noted exiting their motel suite at 3:30 in the afternoon.

The co-accused got into the driver ’ s seat of a 1991 Pontiac Firefly, while the Accused placed a black shoulder bag in the vehicle before opening the hood and jump starting the Firefly, which was noted by police to have extensive ignition damage. The license plate attached to the Firefly was listed as stolen on CPIC, although at the time it was undetermined whether or not the vehicle was in fact stolen. The Firefly was eventually pulled over by police where both Accused were arrested by police for possession of stolen property.

At that point a first search was conducted on the co-accused and 12 spit balls of cocaine in a clear sandwich bag weighing 3.5 grams were located inside her shirt, the street value of the cocaine being approximately $280. Located in the Accused ’ s shoulder bag which he had been seen placing in the vehicle earlier at the motel was a further 1.2 grams of crack cocaine.

Upon a further search of the Accused, 1.2 grams of methamphetamine were located in his front jean pocket, which the Accused submits was for his own personal use. $390 in Canadian currency was located in the Accused front left pocket, along with the cell phone which had several drug related text messages subsequently found on it. Located in the trunk of the Firefly was a two foot machete and a three foot machete. In the centre console, a metal cylindrical object wrapped in a sock, typically used as a bludgeoning object to break glass was also located.

In the black bag located behind the Accused ’ s seat was a can of bear spray, and the Accused also had a 4 inch pocket knife in his right back pocket. The co-accused had a screwdriver in her hand upon arrest which police believed had been used to start the ignition of the Firefly. No registration and no insurance documents were located in the vehicle, and the co-accused did not have a valid driver ’ s license.

Conclusion [ 6 ] I accept Defence Counsel ’ s submission that notwithstanding his recent effort to expedite the hearing of this matter in Provincial Court, that the earliest trial date available there are July 12 and 13, 2012. I do note that the Crown is willing to consent to this trial being heard in the Court of Queen ’ s Bench, so that if this Accused was prepared to Sever and Waive the preliminary hearing, the matter could be heard fairly quickly in this Court.

The existence of many early Queen ’ s Bench trial dates negates the argument that there are problems currently inherent with the lengthy trial delay in Provincial Court. [ 7 ] Although there may be some significant search and seizure issues in this matter, the Crown ’ s position is that these two accused are in joint possession and are engaged in a joint enterprise. While the drugs may not have been handled by this Accused, they are a couple and this Accused was handling the cell phone calls apparently, which cell phone was found in the Accused ’ s pocket with his picture on it.

Parts of the search and seizure are likely justified by officer safety issues, although the whole area of the search and seizure of cell phones and the subsequent retrieval of data from those cell phones is still very much a moot issue not yet decided on in this Province by any binding authority.

Given that there were also weapons present, and spit balls seized along with the cell phone, I conclude that notwithstanding some potentially serious search and seizure issues, the Crown has at least a reasonable case at this point with respect to these potentially serious charges. [ 8 ] It is a positive recent development that a friend of the family has offered the Accused a place to stay and has agreed to take him to any community based addictions program.

All community based addiction programs apparently no longer accept referrals from the Remand Centre, so accused persons must obtain bail before they can be accepted into a program.

The offer of a place to live also represents a significant improvement over the apparent flop house/motel conditions that the Accused was living in a skid row location at the time of his arrest, but this still does not address the overall primary and secondary ground problems that exist in this case. [ 9 ] Notwithstanding the presence of the 62 year old individual with no criminal record who is prepared to let the Accused live with him and take him to the Anchorage Program and other community based addictions program, this Accused ’ s criminal record still consists of approximately 20 related primary ground convictions as part of what only can be described as a horrendous criminal record dating back to Youth Court in 1996, and continuing pretty much unabated for 15 years.

[ 10 ] The Accused is in a reverse onus bail situation because possession of cocaine for the purpose of trafficking is punishable by life imprisonment. [ 11 ] Although Defence Counsel argues that it is not illegal to have a 4 inch pocket knife in one ’ s possession, although the co- accused was driving and in possession of the vehicle, and although there are significant search and seizure issues, I believe that for purposes of the judicial interim release review hearing, the Crown has established a sufficiently strong case against the Accused with respect to some potentially very serious charges. [ 12 ] Accordingly the Accused ’ s application for judicial interim release is denied on the secondary grounds.

Heard on the 23 rd 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: Jonathan Martin and Mike Lippe Publice Prosecution Service for the Crown Timothy Stonhouse for the Accused