R. v. S.M.C., 2011 ABQB 80

Court of Queen ’ s Bench of Alberta Citation: R. v. S.M.C., 2011 ABQB 80 Date: 20110211 Docket: 100569755U2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - S.M.C. Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This is a

Section 525 detention review in which the Federal Crown is opposed to the Accused’s release on both the primary and secondary grounds. The Accused was denied release on the secondary grounds on June 16, 2010 in the Provincial Court of Alberta, and was again denied bail in this Court on August 30, 2010. The Accused is charged with the following:– Section 5(2) x 2 of the Controlled Drugs and Substances Act ; Section 86(1) x 2 of the Criminal Code of Canada ; Section 94(1) of the Criminal Code of Canada ;

Section 355 (

b) of the Criminal Code of Canada ; Section 91(1) of the Criminal Code of Canada ; Section 96(1) of the Criminal Code of Canada ;

Section 117.01(1) x 4 of the Criminal Code of Canada ; and Section 92(1) x 2 of the Criminal Code of Canada . [ 2 ] The allegations here are that on May 11, 2010 at approximately 9:00 p.m. police were conducting surveillance near a known drug house when they observed three vehicles – a Ford Focus, an SUV, and a Voyager Van – arrive to the entrance to the alley near the house. The five co-accused in this matter are all associated with the Voyager Van.

One of the co-accused got out of the Van and walked over to the Ford Focus where he entered the trunk and removed an item that police believe to be a can of pepper spray. This Accused then also got out of the Van, walked over to the same Ford Focus vehicle, went inside the vehicle and then exited a minute later carrying what appeared to be a can of bear spray. These two then walked to the rear of the house under surveillance, where they met up with the resident of the house. These three individuals went in and out of the rear of the house on several occasions.

On the last occasion when they all exited, the resident of the house was carrying a hatchet. This Accused and the other co-accused then got into the Van, with the pepper spray and the bear spray, and the resident went back into the house. [ 3 ] At this point police then conducted a vehicle stop, and inside the rear portion of the Van police observed in plain view a soft sided gun case and numerous rounds of ammunition scattered on the floor around that case. This Accused was a passenger in a rear seat of the vehicle. Police seized the firearm after securing it, and searched the vehicle.

They then found approximately 20 grams of suspected cocaine in front of one of the other co-accused underneath the driver’s front seat. They also found ten tablets of hydro-morphone, a box containing a 22 calibre rifle that was located in the seat next to the Accused, and more of the same ammunition on the floor behind the rear seat. Inside the gun case, police found a loaded 22 calibre rifle.

Also found inside the vehicle was a book containing drug score sheets, and in front of the vehicle, another small amount of cocaine. [ 4 ] The Accused had at this time an outstanding firearms prohibition, and was ordered not to possess a firearm for life. He had only been released 15 days earlier after serving time in jail for a recent conviction. [ 5 ] The Accused is 26 years of age but has a fairly lengthy record for violence and assault with a weapon. He was released on that conviction on April 27, 2010, and then was re-arrested on this series of offences a short time later on May 11, 2010.

There are three violations of statutory release, a prior possession of a scheduled substance for the purpose of trafficking for which the Accused receive 29 months, at which time he was also in possession of a loaded firearm.

There is also an earlier robbery and forceful confinement conviction as well as a few entries that relate to the primary grounds. [ 6 ] The Crown remains vehemently opposed to the Accused’s release particularly given that the Accused was only released 15 days earlier on a prior conviction, and notwithstanding that he was under a firearms prohibition for life, the Accused is again associated with a loaded firearm. [ 7 ] Defence counsel submits that despite the Accused’s lengthy record he is presumed to be innocent, and imprisonment before trial should be a last resort.

Defence counsel points out that all of the co-accused have been released except for his client, and that the Crown’s case appears to be based on conjecture and hypothesis. Defence counsel points out that notwithstanding whatever the police believed when they stopped the Van, neither the bear spray nor the pepper spray were ever found in the Van, and no reason is given why the Van was ever stopped in the first place.

Defence counsel argues that the Crown cannot establish that the Accused had knowledge and control with respect to any of the items that were found within the Van given that the Accused was merely seated in the passenger seat, and there are no finger prints found on any of the drugs, or on the firearms or ammunition. [ 8 ] Defence counsel argues that it is virtually impossible to imagine that a person who got into a Van, if he had anything to do with the ammunition, would take that ammunition out of whatever case it was in, and then scatter it all over the floor of the vehicle.

The 20 grams of crack cocaine was found underneath the driver’s seat along with other items, leading to the inference it was the owner or the driver of the vehicle who was in possession, not the passenger sitting in the rear seat. [ 9 ] This matter was reserved to give the Crown the opportunity to produce more particulars as to the location of the various items seized. Both Crown and Defence counsel have now had an opportunity to comment on this further information.

Conclusion [ 10 ] When the Provincial Court Judge dealt with this matter, and she stated that the Crown could have difficulty in establishing the requisite elements needed to convict with respect to this Accused with respect to the drug offences.

I would agree with the observation that there are some live issues with respect to the Accused’s knowledge and control as to those drugs and drug related items. [ 11 ] Regarding the weapons offences, I conclude that there are some live issues as well given that the firearm and the ammunition were only observed by the police officer upon opening the rear hatch door of the Van. That area of the Van according to the police officer was quite “messy”, with a variety of other personal items such as miscellaneous clothing also strewn in the back.

The rifle case was lying in the middle portion of the cargo area with nothing on top of it, and it was unzipped. Upon opening the case the officer noted the rifle, and the loose rounds of ammunition inside the case as well as around the outside of the case within the cargo area. [ 12 ] While all of this was clearly visible upon opening the rear hatch, the Accused was seated on the rear bench seat passenger side, and the police stop occurred late at night.

The closest item to the Accused is the clean winter jacket draped over the top of the rear bench seat of the Van, but it was only after the police officer moved that winter jacket aside that the large amount of 22 calibre ammunition fell from the jacket onto the floor board area of the rear seat. Nothing therefore was clearly visible to an occupant of the rear seat upon his entry into the vehicle. [ 13 ] On the primary grounds, the Accused has a lengthy record including one failure to appear in 2002.

I conclude that while there are insufficient primary grounds to justify his continued detention, the Court must nonetheless require some cash deposit if the Accused is otherwise releaseable. [ 14 ] With respect to the secondary grounds, it is correct that the Accused has a history of prior violent and weapons related convictions. The Accused had been released on April 27, 2010 after serving custodial time for assault with a weapon, and he was under a lifetime weapons prohibition ban when he is arrested on May 11, 2010.

The secondary ground is present here, but at issue is the strength of the Crown’s case as against this Accused. The Accused is presumed to be innocent until proven guilty. In my opinion at this point the Crown’s case with respect this Accused’s knowledge of, and possession/control of, some or all of the seized items in the Van will be a live issue in the upcoming mid-April 2011 trial in this matter. [ 15 ] As such I have decided to release the Accused on the following terms and conditions: (

a) No contact provisions with each of the co-accused unless in the presence of counsel for court purposes; (

b) A curfew between 11:00 p.m. and 6:00 a.m.; (

c) A cash deposit in the amount of $1,000.00; (

d) Keep the peace and be of good behaviour; (

e) Attend Court as required by law and as directed by the Court; (

f) Report to a bail supervisor (probation officer) within 24 hours of his release and thereafter in the manner and as often as directed by his bail supervisor; (

g) Reside at an address approved by his probation officer; (

h) Not to be in possession of any firearms, ammunition, explosive substances, imitations or replicas thereof; (

i) Abstain absolutely from the possession or consumption of any drugs unless they have been prescribed for him by a duly licensed medical practitioner.

Heard on the 18 th day of January, 2011. Dated at the City of Edmonton, Alberta this 10 th day of February, 2011. Donald Lee J.C.Q.B.A. Appearances: Dawn MacDonald Public Prosecution Services of Canada for the Crown Naeem Rauf for the Accused