Park v. St. Jules, 2011 ABQB 86

Court of Queen ’ s Bench of Alberta Citation: Park v. St. Jules, 2011 ABQB 86 Date: 20110215 Docket: FL03 15549 Registry: Edmonton Between: Tanya Jade Park Applicant - and - Dorian Aldrick St. Jules Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ [ 1 ] This is an application by the Respondent to vacate an existing Emergency Protection Order granted in the Provincial Court on September 13, 2010, which was subsequently confirmed in this Court to remain in effect until September 21, 2011.

The Respondent deposes that he was late for Court on September 21, 2010 when this matter was reviewed, and that the entire contents of the Transcript of September 13, 2010 when this matter was dealt with in the Provincial Court are not truthful. [ 2 ] The allegations contained in the September 13, 2010 Provincial Court hearing were extremely serious including alleged family violence inflicted on the Claimant by the Respondent, along with serious threats uttered by the Respondent to the Claimant.

In a lengthy handwritten Affidavit sworn on November 18, 2010 in support of his application to vacate the Emergency Protection Order, the Respondent goes into much detail about how these allegations are untrue.

[ 3 ] I note that a previous Emergency Protection Order was granted in favour of this Claimant in September 2008, and confirmed in this Court to remain in effect until September 30, 2009, but that in November 2008 the Claimant applied and had that terminated. [ 4 ] What is also unusual about this case is that the Claimant also swore an Affidavit recently on February 8, 2011 with respect to this application asking the Court not to cancel the Emergency Protection Order, but to simply change it to say “it is not a breach of this Order to the Respondent to see the Claimant if she comes to jail to visit him”. [ 5 ] The Affidavit goes on to state that the Claimant has heard from family and relatives that the Respondent has a job, and that he wants to be a good father and provide for the children, and that he wants to go to Henwood for treatment for his addictions.

Furthermore the Affidavit from the Claimant goes onto state that she wants to do everything she can to help the Respondent, that if he is in jail she is not afraid to visit him, but she does not want the Emergency Protection Order to be cancelled.

The Affidavit is affirmed by the Claimant before a barrister and solicitor, and also indicates that she could not come to Court when this matter is being heard on February 11, 2011 because she has to have an MRI at a local hospital. [ 6 ] The Claimant’s Affidavit then in some respects leads me to question the necessity for an Emergency Protection Order given the attitudes and feelings that she has expressed towards the Respondent, a view echoed by Duty Counsel. [ 7 ] Further complicating this matter is that the Respondent appears before me in custody with a request that I release him from custody.

The Respondent says he has been held for over three weeks as a result of a minor breach of the current Emergency Protection Order that occurred when he attempted to serve the Claimant’s father with notice of this application to vacate.

If in fact correct, the Court is appalled that an individual would be kept in custody for over three weeks for such a seemingly minor breach. [ 8 ] Although counsel for the Claimant on the original application was again before the Court today when this matter was heard, she could not provide the Court with any particulars as to the nature of the Respondent’s alleged breach of the Emergency Protection Order that keeps him in custody.

It is however common ground that the Respondent has been in custody for several weeks as a result of breaching the current Restraining Order. [ 9 ] Duty Counsel urges me to release the Respondent immediately, and have this matter and the Respondent’s application to vacate either granted based on the Claimant’s own Affidavit, or set down for a viva voce hearing. [ 10 ] Counsel for the Claimant on the original Emergency Protection Hearing urges me to maintain the Emergency Protection Order notwithstanding the recent Affidavit of the Claimant, and to keep the Respondent in custody given the serious allegations that were made as part of that September 2010 hearing that led to the Emergency Protection Order.

Conclusion [ 11 ] I have now had an opportunity to have our Court Clerk thoroughly check the Court Records to ascertain what they indicate with respect to the Respondent. The Respondent has been charged criminally with two counts of disobeying a Court Order under Section 127(1) of the Criminal Code . From the Court Records it appears that the Court Order in question is the Emergency Protection Order.

Unfortunately unlike in a typical civil breach situation proceeded on non-criminally, the present Court Record contains no particulars as to the nature of the breach allegations, so I am not able to confirm the Respondent’s claim that they arose as a result of his attempt to serve the current documents to vacate the Emergency Protection Order on the Claimant’s family member. [ 12 ] I was also able to eventually contact the Respondent’s criminal defence counsel of record with respect to the pending criminal charges, and from that information I am able to discern that the criminal charges are scheduled to be heard Tuesday, February 15, 2011 in Provincial Court.

While criminal defence counsel could not advise the Court as to any particulars as to the breach allegations because he was not personally aware of them, a further review of our Court files does indicate that this Respondent does have a rather lengthy criminal record dating back from 1998 and continuing until at least the latter part of 2007. The criminal record information was only current as of a 2008 criminal records check. In 2008 the Respondent was also charged with disobeying Court Orders, again with

respect to this same Claimant and with respect to an Emergency Protection Order that was in place at the time, but the Claimant voluntarily vacated that Emergency Protection Order shortly afterwards in November 2008. [ 13 ] There is a great deal of other historical material that might be relevant as well to this application, but the Court has finite resources and time within which it can research this matter.

Suffice it to say the allegations of the Claimant, and the Respondent’s record are very serious, although the Claimant’s position both in 2008 and presently are somewhat inconsistent with the serious nature of her allegations and the record against the Respondent. [ 14 ] As such I have decided to simply keep the Respondent in custody until the Provincial Court hearing(

s) can determine what the alleged breach consists of, and the seriousness of the breach. [ 15 ] As for the Respondent’s motion to vacate the EPO, that will be dealt with on February 18, 2011 which is the date requested by the Claimant to enable the Claimant to appear and make submissions on her own behalf. Heard on the 11 th day of February, 2011. Dated at the City of Edmonton, Alberta this 15 th day of February, 2011. Donald Lee J.C.Q.B.A. Appearances: Anne Magusin for the Applicant Dorian A. St. Jules Appeared on His Own Behalf Louise Syme (Duty Counsel)