R. v. Mussack, 2011 ABQB 797

Court of Queen ’ s Bench of Alberta Citation: R. v. Mussack, 2011 ABQB 797 Date: 20111216 Docket: 111261391U3 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Justin Kenneth Mussack Accused Restriction on Publication: By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. See the Criminal Code , s. 517.

Editorial Notice: The restriction ended on March 16, 2012. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Mussack asks for bail review, alleging that the bail judge committed an error of law by over-emphasizing the importance of his criminal record in relation to the second statutory justification for pre-trial detention.

[ 2 ] The application is denied. [ 3 ] Even though Mr. Mussack was in a reverse onus situation, being charged with new crimes while on existing bail release does not attract an inevitable pre-trial detention order. In some situations, the allegations will be properly treated as mere allegations. However, in the circumstances here, because the allegations relate to an alleged drug sale to an undercover police officer, even Mr.

Mussack acknowledges the strength of the prosecution case in relation to those new charges. [ 4 ] The bail judge did not over-emphasize the accused ’ s criminal record; rather, she emphasized the difficulty of crafting effective second ground restrictions when the current restrictions, which included a hefty cash deposit, had not been effective in preventing Mr. Mussack from being involved in apparent criminal behaviour [ 5 ] Because a trial date has not yet been set for the drug trafficking and related charges, it is premature to consider the possibility that Mr.

Mussack may be detained in pre-trial custody for an inordinately lengthy time. Any issue relating to the constitutional right to be tried within a reasonable time can be raised either as a material change of circumstance or in a s. 525 hearing. 1. Background [ 6 ] On January 29, 2011, Mr. Mussack was released on a $2,000.00 cash deposit recognizance on a series of charges which included a home invasion robbery during the course of which a firearm was used and the complainant was injured.

One of the terms of his release was that he should keep the peace and be of good behaviour while on release. [ 7 ] On October 21, 2011, Mr. Mussack sold 1.5 grams of crack cocaine to an undercover police officer for $100.00. When he was arrested a short time after the transaction, Mr. Mussack had an additional $395.00 in his possession which the police allege is the proceeds of crime. [ 8 ] Mr.

Mussack ’ s criminal record consists of the following convictions: September 23, 2009, obstruction January 5, 2010, breach of recognizance, sentence 10 days obstruction, sentence 10 days January 11, 2010, offence under the Provincial Procedures Act, sentence $172.00 fine January 27, 2010, obstruction of peace officer February 3, 2010, two breaches of recognizance, sentence 30 days each. [ 9 ] After hearing from each party, the bail judge said: Referring back to JOIN tracking sheet convictions, it appears that Mr.

Mussack has been released before on terms and conditions but has been unwilling or unable to abide by those conditions leaving me with absolutely no confidence that if I were to release him that be would feel bound by anything that I would impose upon him. While the Court of Queen's Bench released him in January on a $2,000 cash recognizance on the very serious charges that I mentioned, it appears very clear to me that that was not enough of an incentive for him to abide by conditions and basically stay out of trouble. So that essentially again doesn't give me much confidence that if I were to release him that he

would feel bound by anything that I would impose upon him. So therefore, as you can appreciate, Mr. Moreau, I am denying Mr. Mussack's bail based on the secondary ground. [ 10 ] Mr. Mussack recently changed counsel on the group of charges including the home invasion charge; because of that change of counsel, the trial of those charges has been adjourned for several months. Mr. Mussack is therefore concerned that it may take several months before he can obtain a trial date with respect to the drug trafficking charges which he is now facing.

Both counsel agree that the Provincial Court is currently setting trial dates in October 2012. 2. Has Mr. Mussack established that the bail judge made an error of law in denying him bail on the second ground? [ 11 ] Mr. Mussack has not established that the bail judge made an error of law in applying the second ground for pre-trial detention.

Although the bail judge, properly, referred to the accused ’ s record for a variety of offences that relate to the first ground - offences such as obstruction and failing to comply with recognizances - she did not deny bail on the first ground. [ 12 ] Rather, she denied bail on the second ground. As the above excerpt from the bail hearing transcript demonstrates, in relation to the second ground, the bail judge stated that although the release conditions in January, 2011 were relatively onerous, including a hefty cash deposit, the risk of losing $2,000.00 was obviously an insufficient incentive to ensure that Mr.

Mussack would “ stay out of trouble ” . [ 13 ] The “ trouble ” the bail judge is referring to are the new charges of drug trafficking. While it is true that the new charges are merely charges and have yet to be proved beyond a reasonable doubt at trial, in assessing the second ground risk of release, a bail judge is entitled to take into account the strength of the prosecution ’ s case in relation to the new charges. Here, because the new charges involve an undercover police officer, even Mr. Mussack acknowledges the strength of the prosecution ’ s case.

In other words, the risk of the accused “ committing a criminal offence ” has been amply demonstrated by the new charges. [ 14 ] The bail judge did not misinterpret or misapply the second ground for pre-trial detention. 3. Has Mr.

Mussack established that he should be granted bail because of the potential disproportion between the amount of likely pre-trial custody and the likely sentence if convicted? [ 15 ] The institutional inability to have a trial within a reasonable time may be a factor to be taken into account in determining whether an accused should be granted bail; indeed, that appears to be part of the very purpose for which Parliament instituted the detention review procedure in s. 525 of the Criminal Code .

It goes without saying that Parliament ’ s mechanism for supporting the constitutional right to a relatively speedy trial is, from an accused ’ s perspective, much more efficacious than, say, an Askov determination. [ 16 ] However, the problem here is that the court does not have any information on an actual trial date for the drug trafficking charge: it cannot make a release decision based on the mere possibility that a trial date cannot be arranged within a reasonable time.

The actual setting of a trial date may constitute a material change of circumstance that would allow the accused to renew his application for bail review. In any event, the institution in which Mr. Mussack is incarcerated will be bringing Mr. Mussack back before the court in or around January 22, 2012; at that time, a trial date may have been set, and the court will be able to assess arguments made in relation to the likely trial date. 4. Conclusion [ 17 ] In

summary, Mr. Mussack has failed to establish that the bail judge committed an error in deciding that Mr. Mussack had not

proved that his detention in pre-trial custody was unjustified. Heard on the 14 th day of December, 2011. Dated at the City of Edmonton, Alberta this 16 th day of December, 2011. J.B. Veit J.C.Q.B.A. Appearances: Paul L. Moreau, Moreau & Company for the Accused Carly L. Kovendi, Public Prosecution Service of Canada for the Crown