R v DDP, 2012 ABQB 229

Court of Queen’s Bench of Alberta Citation: R v DDP, 2012 ABQB 229 Date: 20120405 Docket: 111302840Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - DDP Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [1] The Accused seeks Judicial Interim Release, which the Crown opposes on the primary and secondary grounds due to theAccused’s lengthy and horrendous criminal record.

The Accused is charged with a single count of breaking and entering a dwellinghouse contrary to Section 348(1)(b)/334 of the Criminal Code of Canada. The Accused was previously denied Judicial Interim Releaseon February 25, 2012 before Provincial Court Hearing Officer on the primary and secondary grounds. [2] The Accused now seeks to have this denial of bail reviewed on the basis that he has pled guilty to some other outstandingcharges for which he was arrested on warrant; and because the Accused now has a plan following his proposed release.

Since theAccused is an Aboriginal Person, it is submitted by defence counsel that the Court must consider his release pursuant to the SupremeCourt of Canada’s recent decision in R v Ipeelee, 2012 SCC 13 , 2012 S.C.C. 13, and pursuant to R v Gladue, (SCC), [1999] 1 S.C.R. 688.

[ 3 ] The Crown opposes any special treatment of the Accused because he is an Aboriginal arguing that Gladue and Ipeelee do not apply in bail situations. The Supreme Court of Canada only deals with the sentencing of Aboriginal offenders, and

Section 718.2 (

e) of the Criminal Code in Gladue and Ipeelee . [ 4 ] It is conceded that the Crown has a strong case against this Accused with respect to some aspects of the alleged break and enter charge. Defence counsel submits that the circumstances leading to the Accused ’ s presence in the dwelling house however may not make him guilty of intending to commit an indictable offence therein, but rather tends to make him guilty of being unlawfully in a dwelling house. Defence counsel further submits that the Crown has privately conceded to her during

summary disposition discussions that it would be seeking a period of incarceration of less than two years for this Accused, and defence counsel advises that she will be seeking a Conditional Sentence Order in any event. [ 5 ] The Accused ’ s lengthy criminal record consists of the following: – 2001-11-15 Youth Court North Battleford, Sask

(1) Mischief under $5000 SEC 430(4) CC

(2) Obstruct Peace Officer SEC 129(

A) CC

(3) Fail to Comply with Undertaking SEC 145(3) CC

(4) Poss of Property Obtained by Crime under $5000 SEC 355(

B) CC (3 CHCS)

(5) Fail to Comply with Undertaking SEC 145(3) CC

(6) Possess Firearm Contrary to Order SEC 117.01 CC (1013300802007887810) (RCMP Battlefords 2001- 10389)

(7) Fail to Comply with Recognizance SEC 145(3) CC

(8) Fail to Attend Court SEC 145(2)(

A) CC (Saskatoon PS 69865) (1-4) 6 Mo(

s) Secure Custody On Each Charge Concurrent & Probation 1 Yr(s) (5-6) 6 Mo(

s) Secure Custody on Each Charge Concurrent & Probation 1 Yr(s) (7-8) 6 Mos Secure Custody on Each Charge Concurrent & Concurrent & Probation 1 Yr 2002-01-03 North Battleford, Sask (Youth Court)

(1) Be & Commit Mischief Sec 348(1)(

B) CC

(2) Theft under $5000 Sec 334(

b) CC

(3) Be & Commit Mischief Sec 348(1)(

B) Cc (2 Chgs) (RCMP Onion Lake 2000-2316 00-2318 00-2353 00-2377) (1-2) Time Served (3 Mos) on Each Chg (3) 6 Mos Open Custody On Each Chg Conc

2002-06-05 Lloydminster, Sask (Youth Court)

(1) Be & Theft Sec 348(1)(

S) CC

(2) Theft under $5000 Sec 334(

b) CC

(3) Theft under $5000 Sec 334(

b) CC (RCMP Onion Lake 02 – 859,813,73 5) (1) 5 Mos Secure Custody & Probation 12 Mos (2) 3 Mos Secure Custody Conc (3) 1 Mo Secure Custody Conc 2002-12-04 Onion Lake, Sask (Youth Court)

(1) Robbery Sec 344 CC

(2) Poss of a Weapon Sec 88(1) CC

(3) Obstruct Peace Officer Sec 129(

a) CC (Edmonton PS 253468) (1-2) 4 Mos Secure Custody on Each Chg (3) 1 Mo Secure Custody & Mandatory or Discretionary Prohibition Order Sec 20.1 Yo Act 2007-09-05 Onion Lake, Sask

(1) Uttering Forced Document Sec 368(1) CC

(2) Fail to Appear Sec 145(5) CC (2 Chgs)

(3) Obstruction Sec 129(a)

(4) Fail to Comply with Undertaking Sec 145(3) CC (2 Chgs) (RCMP Onion Lake 2007-841289 2007-994672 2005- 57137) CC (1) 8 Mos Conditional Sentence Order (2-4) 6 Mos Conditional Sentence Order On Each Chg Conc & Conc 2007-11-06 145(3) 1 D jail 2007-11-29 Edmonton, Alta

(1) Traffic in Scheduled Substance Sec 5(1) CDS Act

(2) Fail to Attend Court Sec 145(2)(

A) CC (Edmonton PS 253468) (1) 2 yrs (2) 14 days & mandatory prohibition order Sec 109 CC 2008-05-29 Breach of Conditional Sentence Order Sec 742.6(9)(

D) CC (Entry dated 2007-09-05) Order Terminated 2008-07-27 CDSA $100 fine 2009-06025 Statutory Release 2010-01-19 Bonnyville, Alta (RCMP Bonnyville 20091383411) Obstruct Peace Officer Sec 129(

A) CC 1 day a & (Credit for the equivalent of 114 days pre- sentence custody)

2010-02-10 Statutory Release Violator Recommitted 2010-04-22 Statutory Release 2010-12-15 Statutory Release Violator Recommitted [ 6 ] When the Accused was originally arrested on October 16, 2011 on the break and enter charge, he was released on his Promise to Appear because in the words of the police detective who arrested him “ there were no concerns with (the Accused) recommitting the offence as he has not been arrested/charged for any break and enters since the 2010 break and enter.

There was also no concern for the well-being of the complainants as the offence occurred approximately nine months ago and no contact between the parties has been reported. ” [ 7 ] The Accused however was subsequently re-arrested for his failure to attend Court in this matter, and for other bylaw infractions that went to warrant, in February 2012, at which time he was refused Judicial Interim Release.

The charge of Failing to Attend Court was never pursued by the Crown in light of the Accused ’ s confirmation that the reason he missed Court was that he was in attendance on November 22, 2011 at the burial and wake of his stillborn child. [ 8 ] The Accused ’ s next Court appearance is May 4, 2012 at Arraignments. Conclusion [ 9 ] Based on my understanding of the Supreme Court of Canada ’ s decisions in Gladue in 1999, and most recently in 2012 in Ipeelee , they expressed grave concerns with the Courts not fully taking into account the specific and special circumstances of the Aboriginal offence on sentencing.

While neither case specifically addresses Aboriginal persons in applications for Judicial Interim Release, I conclude that in addition to the rights of all Canadians under the Charter to reasonable bail, persons of Aboriginal status applying for bail should have their individual special circumstances considered as well irrespective of the existence of the primary, secondary or tertiary grounds.

The failure to consider an Aboriginal person ’ s special circumstances during the often lengthy, protracted and stressful pre-trial period would amount to ignoring the important reality of our criminal justice system, which is that pretrial custody can adversely, directly and inevitably affect the Aboriginal offender long before the time he/she is sentenced.

If the rehabilitation of the Aboriginal offender is to be deal with meaningfully, it should begin as soon as possible; and if the recidivism rates for Aboriginal offenders are to be brought down, their special and individual circumstances must be addressed at the pre-trial custody stage. [ 10 ] In the present circumstances of this Accused there is no doubt that he has a horrendous criminal record, and that the primary and secondary grounds could apply in several instances.

The Accused has four convictions for Obstructing Justice, four convictions for Failing to Comply with an Undertaking, four convictions for Failing to Appear in Court, a conviction for Failing to Comply with a Recognizance, a Conditional Sentence Order Breach conviction, two convictions for being a Statutory Release Violator, and related prior break and enter convictions - the same offence for which he is currently charged. [ 11 ] However this Accused who is 27 ½ years of age has also had a horrendous family history as a result at least in part of his Aboriginal status as described in the following letter submitted by his mother on his behalf: – The Accused was raised by me, his mother, and by his father.

When the Accused was three years old, his father perished in a house fire at our family home in North Battleford Saskatchewan on 18 June, 1988. Several months after the passing of his father, I moved away from North Battleford Saskatchewan to Edmonton where I began abusing

alcohol to deal with my grief and stress of being a single parent. I soon began taking

part in drinking party ’ s at my older brother ’ s house often taking the Accused and his sisters along because I has no one to babysit them. The Accused and his sisters witnessed many different behaviours associated with intoxication as they were surrounded by alcohol and drug abuse. As my dependency to alcohol and drugs grew, the Accused ’ s role as parent grew as well because most times I would be too drunk or too stoned to get my children ready for school and many times he would get himself and sisters ready for school by preparing their lunches and preparing breakfast for them.

My alcohol and drug dependency continued for a number of years all of which the Accused and his sisters lived and experienced through me and my addictions. In the summer of 1991 I believe, my partner at the time, had enough of my drinking and drugging, and when I was out one night partying, he had taken my children to the Children ’ s Crisis Home here in Edmonton. They were placed in foster care for a period of six months. During this time, in order for me to get my children back, I had to secure a safe home for them, quit drinking and provide evidence that I was involved in treatment programs.

For the first 2 months of my children being in foster care, I did not see them. I threw myself deeper into alcohol and drugs. I was drunk or stoned all day whatever I could get my hands on, I used. I could not face the reality that I had lost my children and yet I was still too selfish to let go of my addiction to alcohol and drugs. After six months, I was able to get my children back however I was still far from being drug and alcohol free and after Christmas in 1991, I had taken my family back to Saskatchewan. Once in Saskatchewan, the drinking started again as everybody in my family are alcoholics.

I found myself drinking more and because this is a small city, I didn ’ t have access to my drugs which I was craving and wanting. I told my first cousin and his wife that I had to go back to the city (Edmonton) because I needed something from there. My cousin knew about my addictions and alcohol dependency and he agreed to take my children. I left his place and returned to Edmonton.

While in the care of my cousin, the children ’ s aunt stated that because she is the sister of the Accused ’ s father, she should have been given the right to care for my kids and because my cousin and his wife did not want to create a big deal about this, they agreed to allow my children to live with their aunt on the Red Pheasant First Nation this was in 1993 to 1995. During this period I met and married my ex-husband we were both alcoholics and our relation was always very rocky. In the fall of 1996, I had made arrangements to have my children returned to me.

My children made the adjustments to their new lives with me and their step father. However, my exhusband could not adjust to the changes of inheriting an instant family. The relationship between the Accused and his step father soon became very stressed and negative. My ex husband had the preconceived notion that being a male, you had to work no matter what your age was.

He would often comment to the Accused and myself that when he was 11 years old he was already building houses and getting up early in the morning to work. ” Because the Accused did not agree with his step father ’ s ideas about working, this created feelings of resentment in my ex husband and he soon began dealing with the Accused with more verbal and physical abuse. It was at this time that the Accused began staying away from home more often. He found comfort being the company of the friends he made at school, friends that shared similar histories as him (alcoholic families etc).

At a young age the Accused began experimenting with alcohol when he was away from home. I do not know the exact reasons he chose to drink, however I can only assume that he had been harboring many unresolved issues related to being in foster care, feeling of abandonment caused by my own addictions. I believe it was in 1997 or 1998 when the Accused ’ s alcohol abuse began to take control over his life. In 1999 Darrell ’ s youngest sister was born and this was when I had given up my addictions. I began living traditional ways and teachings of Cree people.

As I gained strength and knowledge of understanding my addictions, and developing new coping skills, I did my best to reach out to my son and reel him back to sobriety. During my recovery, I was able to obtain a Bachelor degree in Psychology specializing in addictions with extensive training in human services and preservation. I have been alcohol and drug free for 12 years. In 2004, the Accused and his common law spouse had a baby boy, I thought the birth of his son was the ground breaker for the Accused, I hoped it would help him give up alcohol.

His drinking patterns turned into binges and he was smoking weed daily. When the Accused ’ s son turned 3 months old, his common law left him and their baby. The Accused moved back with me and I helped him take care of his baby. The relationship with his step dad did not change, it was still a negative one and the Accused left home again, leaving his son with me. The Accused ’ s alcohol dependencies lead from bad to worse.

While at a house party in the summer of 2005 on the Onion Lake First Nation, the Accused was targeted by about 5 or 6 locals who wanted him to join their gang and because the Accused had refused to join, he was beaten to mere inches from his life. He was left for dead in a field near the house where the party was. The people who beat him had crashed this party and began their attack. My oldest daughter who was also at this party was the one who told me about her brother. She and a group of people chased the other guys away and she had called the ambulance for her brother.

Two people who were charged for this were charged with aggravated assault and attempted murder but they were only convicted with aggravated assault. The Accused stayed in the ICU at the Saskatoon Royal University Hospital for a period of 2 weeks. He had undergone reconstructive facial surgery, and had his jaw wired. The neurologist had mention that was damage done to his brain and that his cognition and may not show any signs of defect right away. In total the Accused stayed in the hospital for 4 weeks recovering from his injuries.

In August of 2010 the mother of the Accused ’ s first child showed up wanting to take their son back to Saskatchewan and because the Accused had no legal papers of custody, he had let his son go. Once he was gone the Accused could not deal with the loneliness he felt and began drinking again very heavily. I was finally able to get the Accused to commit to attending school so he could get his safety tickets. The Accused wanted to get his son back and obtain custody the legal way and I told the Accused that he needed to work on

getting himself fixed first. Slowly the Accused began asking questions about the type of program I run at work and what types of resources are available. I had set him up with the resources available to him and he managed to get his safety tickets. The Accused had suffered another loss in 2011. He and his girlfriend had lost their baby shortly after birth. However instead of turning to alcohol and drugs, the Accused fixated his grief on finding a job which he did with Iron Furniture Ltd. Used his work as an escape from his sorrow and loss.

The Accused has come to the point in life where he knows that alcohol and drugs have caused many problems in his life and are the root of all his problems. Although they are not huge steps to quitting drinking the Accused has made significant changes in relation to the amount and frequency of his drinking patterns. I always say to my clientele, changes require baby steps, learning new coping skills require baby steps. We all need to reprogram our brains on how to think and react to circumstances which takes time and practice.

The Accused has shown effort and commitment to move forward with his life and I believe that with the right support network, he can complete the change as I have and work with me to stop the cycle of substance abuse which plagues our family. Alcohol abuse and dependency has been in his family for 2 generations. Indirectly he has felt the residual pangs of residential school through my experience growing up with parents who were both in the residential school system.

This Exhibit Was Edited by the Court for Continuity of the Document and to Protect the Identity of the Parties [ 12 ] The Accused ’ s mother has proposed that her son can enter the Salvation Army Treatment Program for alcoholics and persons addicted to illicit drugs, as she is a Provider in this Program and has made special arrangements for her son ’ s enrollment. She will not be directly involved however in her son ’ s treatment in the Program, which is a six week non-residential treatment program. Following each day of treatment, the mother advises that her son can come home and live with her.

The mother is also prepared to put up a $1,000 cash deposit. [ 13 ] I conclude then based on the unique circumstances as an Aboriginal that this Accused has brought forward, and in light of the Supreme Court of Canada ’ s decisions in the sentencing of Aboriginal persons generally which I find apply to pre-trial custody and bail applications, this Accused should be released and begin his treatment and rehabilitation program, rather than languish at the Remand Centre in custody.

I conclude that the special circumstances as an Aboriginal that the Accused has advanced are sufficient to justify his release at this time. These special circumstances include the alcohol and drug addictions of the Accused which require immediate treatment, and the fact that the Accused was brought up in very tragic circumstances by a mother who was also drug and alcohol dependent, but who has since 1999 become self-sufficient and who now has a key role in the Salvation Army ’ s Treatment Program.

The other sad details of this Accused ’ s upbringing and existence have been described at length in the mother ’ s letter and undoubtedly dovetail with many of the criminal convictions that appear on the Accused ’ s lengthy record. [ 14 ] The Accused ’ s conditions of release will include the usual terms plus the following: – (

a) A $1,000 cash bail will be posted; (

b) The Accused will report once a week in person as well as whenever required by his Adult Bail Supervisor; (

c) The Accused will abstain absolutely from the consumption of alcohol/or the use of any illicit substances or drugs; (

d) The Accused will reside at the Residence of his Mother, under House Arrest. He shall remain in the Mother ’ s residence at all times with the following exceptions for: –

(1) Attendance at Court;

(2) Attendances at Defence counsel ’ s offices for appointments made in advance;

(3) Reporting in person to the Bail Supervisor;

(4) Regular daily attendances at the Salvation Army Addictions Treatment Program for six weeks;

(5) Two hours a week for personal shopping to purchase and maintain the necessities of life;

(6) Medical and dental emergencies;

(7) Such other additional exemptions as approved in advance and in writing by the Bail Supervisor; (

e) Such further and other terms of release as agreed upon by Crown and Defence counsel. Heard on the 4 th day of April, 2012. Dated at the City of Edmonton, Alberta this 5 th day of April, 2012. Donald Lee J.C.Q.B.A. Appearances: James Rowan Alberta Crown Prosecutor ’ s Office for the Crown Gloria Grieco Dawson, Stevens, Duckett & Shaigec for the Accused