R. v. Pavlik, 2011 ABQB 803

Court of Queen ’ s Bench of Alberta Citation: R. v. Pavlik, 2011 ABQB 803 Date: 20111221 Docket: 030106629U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Josef Pavlik 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By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until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 September 19, 2012. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

[ 1 ] Invoking an error of law relating to the inadequacy of the reasons given for the denial of bail, Mr. Pavlic asks for bail with conditions relating to the first ground. [ 2 ] The Provincial Court made no error of law in denying Mr. Pavlic bail nor in the reasons given for that denial: the transcript of the bail hearing, read as a whole, establishes that the Provincial Court Judge was effectively stating that, in light of Mr.

Pavlic ’ s record, there were no reasonable conditions that could be imposed to adequately address the concerns on the first ground. [ 3 ] Nevertheless, bail review is granted because of the new circumstances: an important clarification of the record is now before the court and the court has now received information from the CSO supervisor concerning the court ’ s ability to supervise Mr. Pavlic in the community. [ 4 ] On a fresh consideration of bail, the Crown has the burden of proving that it is necessary to imprison Mr. Pavlic prior to his trial in order to meet the bail objectives established by Parliament.

The Crown has established a legitimate concern in relation to the first ground. That concern can be dealt with by imposing conditions which will restrict Mr. Pavlic ’ s liberty while on bail and include the deposit of $1,000.00 cash bail, a reporting condition that mirrors his obligation under the CSO, a requirement that he live at a specified address and not move from that address without the prior written consent of his CSO supervisor, and that he turn himself in to the Edmonton Remand Centre 48 hours prior to his scheduled trial date. 1. Background [ 5 ] Mr.

Pavlic is charged with robbery, pointing a firearm, possession of a weapon for a purpose dangerous to the public and with failing to appear, all arising out of an incident which occurred in December, 2001 in Edmonton. In December, 2001, Mr. Pavlik did not have a criminal record. Mr. Pavlic appeared with a lawyer on 8 occasions in respect of these charges, but when the matter was set for trial in early 2003, Mr. Pavlic did not appear and a warrant was issued for his arrest. [ 6 ] Mr. Pavlic ’ s criminal record since December, 2001 is: 2006-01-23 PRINCE ALBERT SASK

(1) FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1(1) CC (1-3) TIME SERVED (1 DAY) ON EACH CHG CONC

(2) MISCHIEF UNDER $5000 SEC 430(4) CC

(3) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC

(4) FAIL TO ATTEND COURT SEC 145(2)(

B) CC (2 CHGS) (4-5) $200 ON EACH CHG

(5) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (2 CHGS) (PRINCE ALBERT PS 04-2584 05-0226 05-1684 06-1044) 2006-10-03 PRINCE ALBERT SASK

(1) ASSAULT CBH SEC 267(

B) CC

(1) TIME SERVED (56 DAYS) & PROBATION 9 MOS & MANDATORY PROHIBITION ORDER SEC 109 CC

(2) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC

(2-3) SUSP SENT & PROBATION 9 MOS ON EACH CHG

(3) ATT OBSTRUCT JUSTICE SEC 139(2) CC (PRINCE ALBERT PS 06-1865) 2007-02-06 PRINCE ALBERT SASK

(1) ASSAULT SEC 266 CC (2 CHGS) (1-3) 3 MOS ON EACH CHG CONC & PR0BATION 1 YR

(2) FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1(1) CC (PRINCE ALBERT PS 06-2774)

(3) FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (RCMP PRINCE ALBERT 2007-74834)

2008-04-02 GRANDE PRAIRIE ALTA

(1) FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1(1) CC (1-2) $200 I-D 2 DAYS ON EACH CHG

(2) CAUSING A DISTURBANCE SEC 175(1)(A)(

I) CC (RCMP BEAVERLODGE 2008-166405) 2011-05-25 GRANDE PRAIRIE (1) 145(5) (1) $250 (2) 253(1)(B) (2) $1200 & 1 YR PROHIBITION 2011-10-24 RED DEER (1) 266

(2) CDSA 4(1) (3) 145(2)(B) (4) 266 (5) 264.1(1) (6) 783.1(1) (1-6) REINSTATEMENT OF

12 MONTH CONDITIONAL SENTENCE ORDER [ 7 ] Mr. Pavlic lives with his wife and two children in Grande Prairie. [ 8 ] On November 7, 2011, Mr. Pavlic was denied bail on these matters in the Provincial Court for the following reasons: THE COURT: I am not prepared to release him, Mr.

Rauf, despite his claim that he, as I understand what you have told me, he says it was not him, he had nothing to do with this, he did not commit robbery, did not own a firearm, somebody - - obviously the Crown ’ s case is remarkably different than that including his own explanations to the police as to why he had the gun, where he got it from and why he used it.

The Crown ’ s case is, in my estimation, very strong, and given the fact that he has failed to appear, and since that time he has failed to appear on a breach of recogs on, as I count them, 13 occasions, in addition to other criminal convictions, I am satisfied he should be detained on the primary and secondary grounds. Bail is denied accordingly. [ 9 ] Since November 7, 2011, Mr.

Pavlic has provided letters from his brother and sister, who each live in British Columbia, indicating that they are now willing to offer their brother employment, although they were not willing to do so earlier. [ 10 ] Since November 7, 2011, Mr. Pavlic has also been able to rectify the criminal record that was before the Provincial Court. That court was under the impression that a 12 month conditional sentence order was imposed on Mr. Pavlic in October, 2011 by a court in Red Deer.

It has now become clear that the CSO was imposed on March 29, 2011 in Saskatchewan, that the CSO was transferred to the Grande Prairie CSO supervisors because Mr. Pavlic lived there, that an allegation of a breach of the abstinence provision of the CSO was alleged against Mr. Pavlic but that the Alberta CSO decided not to proceed with that allegation because Mr. Pavlic had been doing so well on the CSO, and the CSO continued undisturbed. Indeed, his Alberta CSO supervisor has indicated that Mr.

Pavlic has grown in maturity just in the time that he has been subject to the current order, and that he is a “ different man ” from the man whose criminal record is before the court. 2. Has Mr. Pavlic proved that there has been a material change of circumstance since November 7, 2011 that would entitle him to a fresh consideration of bail? [ 11 ] Although Mr.

Pavlic ’ s application was initially brought on the basis that the Provincial Court made an error of law in failing to give Sheppard quality reasons for denying him bail, I have concluded that the transcript of the bail hearing establishes that the Provincial Judge gave sufficient reasons which were that, in light of what was known of Mr. Pavlic ’ s record at the time, no reasonable conditions could be crafted that would adequately address the concern about whether Mr.

Pavlic would appear on these charges when required. [ 12 ] Turning then to the second basis for granting bail review, the existence of a material change of circumstances, the court concludes that Mr. Pavlic has established such a change: the new information concerning Mr. Pavlic ’ s record, together with the new information from his CSO supervisor, provide materially new information about Mr. Pavlic ’ s willingness and ability to comply with court orders and directions.

Although the letters from his brother and his sister are new in the sense that the letter from his brother is dated December 12, 2011 and the letter from his sister is also presumably prepared after November 7, 2011, in my view they do not constitute a material change of circumstance because those letters do not appear to have a full understanding of Mr. Pavlic ’ s actual criminal record. 3. Is it necessary to imprison Mr. Pavlic prior to his trial in order to ensure his attendance at court?

[ 13 ] The Crown has the onus of proving that it is necessary to imprison Mr. Pavlic prior to his trial in order to meet any one of Parliament ’ s bail objectives. The Crown has established a legitimate concern with respect to the first statutory justification for denying bail, the need to ensure that Mr. Pavlic attends for his trial. [ 14 ] Mr. Pavlic ’ s record related to the first ground is both recent and serious. However, during the last year Mr. Pavlic appears to have made some important changes for the better. In the result, although it is not necessary to jail Mr.

Pavlic before his trial, it would be foolhardy for the court to release him without conditions designed to ensure that Mr. Pavlic will appear in court when required.

In the circumstances, those conditions include: - he keep the peace and be of good behaviour; - that he appear in court as required; - that he deposit $1,000.00 cash; - that he report in person within 24 hours of his release to the adult probation office in Grande Prairie and that he report thereafter in connection with these matters to his CSO supervisor in Grande Prairie; - that he not leave Alberta without the prior written approval of his CSO supervisor in Grande Prairie; - that he reside at a residence approved by his CSO supervisor and that he not move away from that residence without the prior approval in writing of the CSO supervisor; and, - that he turn himself in to the Edmonton Remand Centre 48 hours prior to the scheduled commencement of his trial on these matters. 4.

Is it necessary to imprison Mr. Pavlic prior to his trial in order to ensure the protection or safety of the public? [ 15 ] The Crown has not established that it is necessary to imprison Mr. Pavlic pending his trial in order to ensure the protection or safety of the public. [ 16 ] Mr. Pavlic has a bad record relative to the first ground but his record relative to the second ground is not nearly so lengthy nor so troubling: although he has a recent record for assault, the sentencing court which weighed the gravity of Mr. Pavlic ’ s offences and Mr.

Pavlic ’ s degree of responsibility for the offences determined that it would be fair and just to allow Mr. Pavlic to serve his sentence in the community. Since that CSO sentence was imposed after a consideration of all pertinent information it may therefore be characterized as being a more comprehensive assessment of Mr. Pavlic ’ s degree of dangerousness than has been carried out on this hearing. Mr. Pavlic is certainly not any more dangerous to the protection or safety of the public today than he was when the CSO was imposed. In

summary, it is not necessary to restrict Mr. Pavlic ’ s liberty in order to ensure that Parliament ’ s objectives relative to the second ground are met. [ 17 ] I note in passing that there is no indication that Mr. Pavlic was ever, since 2001, in contact with the complainant in those charges; therefore, there is no need to make it a condition of release on the second ground that Mr. Pavlic have no communication with the complainant. 5. Is it necessary to imprison Mr.

Pavlic prior to his trial in order to maintain the reasonable person ’ s confidence in the administration of justice? [ 18 ] As the Supreme Court has reminded us, it will only be in the relatively narrow circumstances as illustrated by the Hall decision that the third ground justifying pre-trial detention can be successfully invoked. There are no issues here that are not dealt with by consideration of the first and second grounds. Heard on the 14 th day of December, 2011. Dated at the City of Edmonton, Alberta this 21 st day of December, 2011.

J.B. Veit J.C.Q.B.A. Appearances: Nicole N.C. Lachance, Crown Prosecutors ’ Office for the Crown Kathryn A. Quinlan, Royal Teskey for the Accused