R. v. Peric, 2011 ABQB 796

Court of Queen ’ s Bench of Alberta Citation: R. v. Peric, 2011 ABQB 796 Date: 20111216 Docket: 110925161U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Sanja Peric Jenny Rodriguez Accused _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Ms. Peric ’ s application for bail review is allowed: the bail judge ’ s failure to give reasons for imposing restrictions on pre- trial release is an error of law, Sheppard , which entitles the applicant to a de novo bail hearing. [ 2 ] On a fresh consideration of bail, the Crown has failed to establish that a pre-trial restriction of the accused ’ s liberty is

necessary to ensure either the accused ’ s attendance at court or the safety and security of the public. Therefore, the accused is released on an undertaking to appear, without conditions. 1. Background [ 3 ] The accused is charged that she did on April 20, 2011, threaten to cause death or bodily harm to five people. The incident arose as a result of an altercation between the two co-accused on the one hand, and another young woman on the other in the early morning hours at the Empire Ballroom at the West Edmonton Mall. [ 4 ] The accused was charged with these offences in early August, 2011.

The accused has no criminal record. [ 5 ] At the bail hearing which was conducted at the same time for the two co-accused, the bail judge heard submissions from the police officer representing the Crown who stated, in relation to the first statutory justification for pre-trial detention: The police officer that was involved in this file attempted – did speak to Ms. Rodriguez once, and after he was able to gather enough grounds to arrest her attempted to set up several meetings with both of the accused in order to speak to them and arrest them for the charges.

However, the accused consistently would make appointments with the police officers and then break them, be unwilling to meet them anywhere, and basically did everything they could to evade the constable to be able to meet up with them again. [ 6 ] The police officer also summarized the police understanding of the events relating to the charges, including the events which occurred after the complainants left the West Edmonton Mall and were attacked by persons who had not, as of the date of the bail hearing, been identified. [ 7 ] After hearing submissions from each of the accused, the bail judge said: I am satisfied that you can be released on cash and conditions. [ 8 ] The bail judge then imposed the following conditions on Ms.

Peric ’ s release: the deposit of $500.00 cash, a curfew between 10 p.m. and 6 a.m., no contact with the co-accused, no contact with any of the complainants and no attendance at the Empire Ballroom. 2. The bail judge committed an error of law by failing to give any reasons for the decision to impose restrictions on the accused ’ s liberty pending the trial of these charges [ 9 ] In criminal matters, a judge must give reasons for their decisions, and the reasons must be sufficient to allow review: R. v. Sheppard 2002 SCC 26 .

The reasons why judges have to give reasons for their decisions were summarized by the Supreme Court of Canada as follows: 1. The delivery of reasoned decisions is inherent in the judge's role. It is part of his or her accountability for the discharge of the responsibilities of the office. In its most general sense, the obligation to provide reasons for a decision is owed to the public at large. 2. An accused person should not be left in doubt about why a conviction has been entered.

Reasons for judgment may be important to clarify the basis for the conviction but, on the other hand, the basis may be clear from the record. The question is whether, in all the circumstances, the functional need to know has been met. 3. The lawyers for the parties may require reasons to assist them in considering and advising with respect to a potential appeal. On

the other hand, they may know all that is required to be known for that purpose on the basis of the rest of the record. 4. The statutory right of appeal, being directed to a conviction (or, in the case of the Crown, to a judgment or verdict of acquittal) rather than to the reasons for that result, not every failure or deficiency in the reasons provides a ground of appeal. 5. Reasons perform an important function in the appellate process. Where the functional needs are not [page871] satisfied, the appellate court may conclude that it is a case of unreasonable verdict, an error of law, or a miscarriage of justice within the scope of s. 686(1) (

a) of the Criminal Code , depending on the circumstances of the case and the nature and importance of the trial decision being rendered. 6. Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, unless the basis of the trial judge's conclusion is apparent from the record, even without being articulated. 7. Regard will be had to the time constraints and general press of business in the criminal courts. The trial judge is not held to some abstract standard of perfection.

It is neither expected nor required that the trial judge's reasons provide the equivalent of a jury instruction. 8. The trial judge's duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge's decision. 9.

While it is presumed that judges know the law with which they work day in and day out and deal competently with the issues of fact, the presumption is of limited relevance. Even learned judges can err in particular cases, and it is the correctness of the decision in a particular case that the parties are entitled to have reviewed by the appellate court. 10. Where the trial decision is deficient in explaining the result to the parties, but the appeal court considers itself able to do so, the appeal court's explanation in its own reasons is sufficient. There is no need in that case for a new trial.

Such an error of law at the trial level, if it is so found, would be cured under the s. 686(1) (b)(iii) proviso. [ 10 ] Although the Sheppard decision deals specifically with the requirement by a trial judge to give sufficient reasons to allow an appeal court to review the correctness of the trial decision, the principle underlying the decision obviously applies to a bail judge who restricts an accused ’ s liberty prior to trial, and whose decision is subject to review as to correctness.

Just as a convict is entitled to know why she was convicted, so a person who is presumed innocent is entitled to know why her liberty is being restricted prior to trial. [ 11 ] Here, the accused has no criminal record. She had been in the community without restriction of any kind between April and August, 2011; there was no evidence that she had, during those months, committed any criminal offences or that she had been in contact with any of the complainants.

Before imposing restrictions on a person ’ s liberty, Parliament has established that the restrictions must be necessary to effect one of the purposes set out in the Criminal Code , i.e. to ensure attendance at trial, to ensure the protection and safety of the public, or to maintain the reasonable person ’ s confidence in the administration of justice. [ 12 ] The bail judge ’ s comment that the accused could be released on the payment of cash and the requirement to abide by certain conditions does not explain to the accused why these restrictions are necessary.

Nor does the comment allow this court to have an effective review of the bail judge ’ s reasons for concluding that restrictions were necessary. The reasons for the bail judge ’ s conclusion are not obvious from the hearing. The failure to provide adequate reasons is therefore an error of law [ 13 ] Because the bail judge committed an error of law, the applicant is entitled to a fresh bail hearing. On that hearing, the Crown bears the burden of establishing that pre-trial restrictions on the accused ’ s liberty are necessary. 3.

Has the Crown established that it is necessary to impose restrictions on the accused ’ s pre-trial liberty in order to ensure her attendance at trial? [ 14 ] The Crown has not proved that, prior to her trial on the charges, it is necessary to impose restrictions on the liberty of this accused. [ 15 ] The accused has no criminal record. There is no reason to believe that she will ignore an obligation to appear in court especially as she is now represented by a lawyer who will be working with her to prepare for the appearance in court.

[16] It is not clear from the transcript of the bail hearing whether this accused had direct contact with a police officer in relation tosetting up a voluntary appearance at the police station; even if she had, her failure to meet voluntarily with a police officer is notdeterminative of whether she will obey an order of the court. [17] In

summary, the Crown has not established that it is necessary to restrict the applicant’s liberty prior to her trial in order toensure her attendance at trial. 4.

Has the Crown established that it is necessary to impose restrictions on the accused’s pre-trial liberty in order to ensurethe protection or safety of the public, with particular reference to any substantial likelihood that the accused will interfere withthe administration of justice? [18] The Crown has not proved that, prior to her trial on the charges, it is necessary to impose restrictions on the liberty of thisaccused. [19] In considering the protection or safety of the public, the court considers first the safety of the complainants.

There is noevidence that, after the events of early April, 2011 and until the charges were laid in early August, 2011, the accused had any contactwhatever, direct or indirect, with the complainants on these charges. Therefore, there is no reason to believe that the safety of thosecomplainants was in any way jeopardized by the accused’s being at large.

Nothing has occurred since then that would lead to a differentjeopardy analysis. [20] As to the safety of the public generally, the accused had no record at the time of the events that led to the charges, and shehas not been charged with or convicted of any offences since the date of the events.

In other words, there is no evidence of a substantiallikelihood that, unless her liberty is restricted, the accused will commit criminal offences. [21] Finally, there is no evidence that, unless her liberty is restricted, the accused with interfere with the administration of justicefor example by counselling her co-accused to lie or by otherwise cheating the administration of justice.

The Crown suggests that if the nocontact provision relating to the co-accused is lifted, it is possible that the two accused will get together to fabricate a common responseto the charges which common response might cheat the administration of justice.

With respect, the potential for fabrication is a matterwhich can typically be addressed, on the one hand, by ordinary police investigation techniques and, on the other, by ordinary advocacytechniques; these two women are not part of a criminal organization or criminal gang and there is no evidence that there is a substantiallikelihood that contact by the accused with her co-accused will cheat the administration of justice. 5.

Has the Crown established that it is necessary to impose restrictions on the accused’s pre-trial liberty in order to maintainthe reasonable person’s confidence in the administration of justice? [22] As the Supreme Court of Canada held in R. v. Hall 2002 SCC 64 , [2002] 3 S.C.R. 309, it will only be in relativelyunusual circumstances that the third statutory justification for pre-trial restrictions will have any application.

Here, given Canada’sconstitutional support for the presumption of innocence and the safeguards developed by Parliament with respect to pre-trial detention,the Crown has not established any basis for recourse to the third ground. 6. Conclusion [23] In all the circumstances, the only condition which the court imposes on the applicant is an undertaking to appear in court asrequired.

Heard on the 14 th day of December, 2011. Dated at the City of Edmonton, Alberta this 15 th day of December, 2011. J.B. Veit J.C.Q.B.A. Appearances: Robert J. Wachowich, Wachowich & Co. for the Accused Nicole N.C. Lachance, Crown Prosecutors Office for the Crown