R v JHB, 2012 ABQB 250
Opinion
Court of Queen ’ s Bench of Alberta Citation: R v JHB, 2012 ABQB 250 Date: 20120416 Docket: 091196998Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - J.H.B. Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] The Accused is charged with two counts of armed robbery, one at a hotel, and another at a service station that is alleged to have occurred on the 23rd of July, 2009.
The Accused was previously denied bail on the primary and secondary grounds in this Court on July 25, 2011. His trial date has been set for October 23, 2012, approximately six months from now. [ 2 ] Defence counsel submits that certain outstanding charges that existed at the time of the July 25, 2011 Court of Queen's Bench bail hearing have now been summarily resolved. Another ground for bail review at this time is that the Accused has had several serious problems concerning his medical condition and his personal safety while he has been in the Remand Centre.
The Accused suffers from substantial impairment of the brain since childhood such that he is considered a person with developmental disabilities, and he also
has significant neuro-developmental disabilities which are severe and permanent in nature. The Accused is presently 28 and a half years of age, and requires regular psychiatric medication. Since July 19, 2011 the Accused has been placed in protective custody for his own protection, which amongst other things means that he spends approximately 23 hours of every day in a cell. At other times I understand he has been subjected to triple bunking.
He has also formally complained about the injuries he has suffered as a result of the harsh treatment he has received from Remand staff. [ 3 ] The final material change in circumstance consists of a new employer.
The employer attended at the hearing of this matter, and notwithstanding being present while the Crown opposed this application and went into great detail as to the Accused's alleged robberies, he is still willing and able to immediately employ the Accused as a landscape labourer upon his release. [ 4 ] The Accused owns a residence in Edmonton in which his wife and three young daughters also reside so that he has accommodation if he were to be released. [ 5 ] The Crown submits that the Accused should not be released on the primary and secondary grounds given his absolutely horrendous criminal record which consists of the following: 2002-07-09 MEDICINE HAT ALTA POSS OF PROPERTY OBTAINED BY CRIME UNDER $5000 SEC 355(8) CC (MEDICINE HAT PS 31263) 1 DAY 2002-07-11 STETTLER ALTA
(1) POSS OF PROPERTY OBTAINED BY CRIME UNDER $5000 SEC 354(1)(
A) CC
(2) RESIST PEACE OFFICER SEC 129(
A) CC (RCMP STETTLER 2002 — 1355) (1-2) SUSP SENT & PROBATION 15 MOS ON EACH CHG 2002-07-17 BROOKS ALTA UNAUTHORIZED POSS OF A FIREARM SEC 91(1) CC (RCMP BASSANO) $500 I-D 10 DAYS & MANDATORY PROHIBITION ORDER SEC 109 CC 2002-08-14 BROOKS ALTA THEFT UNDER $5000 SEC 334(
s) CC (RCMP BASSANO) 1 MO 2002-11-20 CALGARY ALTA THEFT UNDER $5000 SEC 334(
B) CC (CALGARY PS 307881) 1 DAY
2002-12-04 CALGARY ALTA FRAUD UNDER $5000 SEC 380(1)(
B) CC (CALGARY PS 307881) 7 DAYS & PROBATION 3 MOS 2003-02-25 CALGARY ALTA OBSTRUCT PEACE OFFICER SEC 129(
A) CC (CALGARY PS 307881) 14 DAYS 2OO3-O4l4 CALGARY ALTA
(1) POSS OF PROPERTY OBTAINED BY CRIME OVER $5000 SEC 355(
A) CC
(2) POSS OF PROPERTY OBTAINED BY CRIME UNDER $5000 SEC 355(
B) CC (CALGARY PS 307881) (1-2) 90 DAYS INTERMITTENT & PROBATION ON EACH CHG 2003-10-01 DRUMHELLER ALTA
(1) THEFT UNDER $5000 SEC 334(
B) CC (7 CHGS)
(2) P055 OF PROPERTY OBTAINED BY CRIME SEC 354(1) CC
(3) MISCHIEF UNDER $5000 SEC 430(4) CC (RCMP DRUMHELLER 03 — 2531 03 — 2885 03 — 2568 03-2914) (1-3) 3 MOS ON EACH CHG CONC 2003-11-03 CALGARY ALTA
(1) THEFT UNDER $5000 SEC 334(
B) CC
(2) FAIL TO APPEAR SEC 145(5) CC (2 CHGS)
(3) UNLAWFULLY AT LARGE SEC 145(1)(
B) CC
(4) UTTERING FORCED DOCUMENT SEC 368(1)(
A) CC (CALGARY PS 307881) (1-4) 1 DAY ON EACH CRC CONSEC & CONSEC TO SENT SERVING
2004-01-23 DRUMHELLER ALTA
(1) THEFT OVER $5000 SEC 334(
A) CC (6 CHGS)
(2) THEFT UNDER $5000 SEC 334(
B) CC (2 CHGS)
(3) POSS OF PROPERTY OBTAINED BY CRIME OVER $5000 SEC 355(
A) CC (RCMP DRUMHELLER) (1) 1 YR & PROBATION 1 YR (2) 1 YR & PROBATION 1 YR (3) 1 YR & PROBATION 1 YR 2006-04-26 BROOKS ALTA UTTERING THREATS SEC 264.1(1) CC (RCMP BASSANO 2005- 566) $500 I-D 8 DAYS & PROBATION 1 YR 2006-05-04 MEDICINE HAT ALTA FAIL TO COMPLY WITH RECOGNIZANCE SEC 145(3) CC (MEDICINE HAT PS 2006-9838) 4 DAYS 2006-11-08 BROOKS ALTA
(1) ASSAULT WITH A WEAPON SEC 267(
A) CC
(2) THEFT OVER $5000 SEC 334(
A) CC
(3) POSS OF PROPERTY OBTAINED BY CRIME OVER $5000 SEC 354(1) CC
(4) FAIL TO COMPLY WITH PROBATION ORDER SEC 733.1(1) CC
(5) THEFT UNDER $5000 SEC 334(
B) CC (5 CHGS) (RCMP BROOKS 2006- 1216264, -1217771, (1-3) 2 YRS ON EACH CHG CONC (4-9) 6 MOS ON EACH CHG CONC & CONC
-1219222 ,-1242484, -1218427, -1242131)
(6) POSS OF PROPERTY OBTAINED BY CRIME UNDER $5000 SEC 354(1) CC
(7) FAIL TO COMPLY WITH UNDERTAKI NG SEC 145(3) CC
(8) FRAUDULENTLY OBTAIN TRANSPORTATION SEC 393(3) CC
(9) POSS OF A WEAPON SEC 88(1) CC (RCMP BASSANO) 2007-01-23 MEDICINE HAT ALTA THEFT UNDER $5000 SEC 334(
s) CC (INST BOWDEN) 7 DAYS CONC WITH SENT SERVING 2008-03-06 STATUTORY RELEASE 2008-04-09 BROOKS ALTA FLIGHT WHILE PURSUED BY PEACE OFFICER SEC 249.1(1) CC (INST EDMONTON 0901) 1 YR CONSEC TO UNEXPIRED PORTION OF SENTENCE SERVING 2008-06-06 STATUTORY RELEASE VIOLATOR RECOMMITTED 2008-09-16 MEDICINE HAT ALTA UTTERING THREATS SEC 264.1(1)(
A) CC (INST EDMONTON) 90 DAYS CONSEC TO UNEXPIRED PORTION OF SENTENCE SERVING 2009-06-18 STATUTORY RELEASE 2009-09-25 STATUTORY RELEASE VIOLATOR RECOMMITTED 2009-11-04 HINTON ALTA POSS OF A
SCHEDULE I SUBSTANCE SEC 4(1) CDS ACT (INST EDMONTON ALTA) 30 DAYS CONSEC TO SENT SERVING
[ 6 ] The Crown advises that the Accused's criminal record consists of some 37 property offences, several related offences to the current charges, as well as several convictions for assaulting police officers all relevant to the secondary grounds. As well there are a number of offences related to the primary grounds including several failures to appear, several failures to comply, several violations of terms of statutory release, and criminal flight.
The Crown submits that the Accused obviously cannot be trusted to comply with any terms of release, and that the only material change with respect to his criminal record since he was last denied bail is that his criminal record has actually expanded. [ 7 ] In that regard it appears that the Accused was arrested after not appearing on several occasions for these charges to be dealt with, although Defence counsel advises that the Accused was hospitalized at the time of those court appearances so that he had a legitimate excuse for not showing up. [ 8 ] As for the circumstances surrounding the two alleged robberies, Defence counsel submits that identity is very much in issue.
One of the eye witnesses who was robbed told police that the person with the knife was a native man. The Accused is clearly not apparently a native person, and additionally has a large tattoo that covers half of his face, which was not noted by the eye witness. [ 9 ] The Accused however was in the presence of two other individuals in an apartment where a number of items were found that related to the robbery. The vehicle used in the robbery was traced to the apartment, and the keys to the vehicle were found in the apartment along with cash from the robbery, as well as hoodies and a knife used in the robbery.
When police entered the apartment, they Accused jumped out of the apartment and ran outside hiding under a car. The Crown submits that this post-offence conduct plus the items seized within the apartment clearly establish a link to the persons in the apartment and the robberies.
Defence counsel however points out that the Accused was also wanted on a Canada wide warrant for possession of cocaine, and for obstruction, which possibly explained why the Accused tried to run away from police. [ 10 ] The Accused gave a totally exculpatory statement to police indicating that he went to visit the other individuals in the apartment, only to see them leave with hoodies and a knife, and return with cash. The Accused stated that he knew nothing about the robbery.
However two of the other individuals in the apartment implicated the Accused as a person who actually participated in the robberies, and who intended to use the cash to purchase cocaine for personal use and for trafficking purposes. [ 11 ] Defence counsel points out that the other individuals only gave statements to the police after they were in jeopardy themselves, and that the two other individuals gave inconsistent statements as between themselves and within their statements.
Conclusion [ 12 ] While the Crown is correct that harsh treatment with pre-trial custody in a remand centre setting should be generally only be taken into account at sentencing, my colleague Marceau J. in Trang v.
Alberta (Edmonton Remand Centre) , 2010 ABQB 6 also dealt with the potential Charter right violations that can occur to accused persons while in pre-sentence custody at the same remand centre that the Accused is presently being held. [ 13 ] There are primary and secondary grounds present in this case, but there are also significant mental health issues that this accused is suffering from including Fetal Alcohol Syndrome, and documented mood/anxiety disorders. The Accused requires proper medical treatment and access to psychiatric medication.
His conditions of custody have ranged from triple bunking, to solitary confinement. The Accused has filed complaints against Remand Centre guards with respect to their harsh treatment, and injuries that he alleged he suffered as a result.
While those complaints were investigated, and no charges laid, the reality of the situation for this accused within the Remand Centre is that he suffers far beyond that of the normal remand centre inmate, and is at significant risk for his own personal safety and to his ongoing health. [ 14 ] The strength of the Crown's case could be compromised by the identification evidence of the eye witness. The incriminating statements from the other individuals present in the apartment in a “cut-throat” situation tying the Accused to the robberies may not be terribly compelling either at the end of the day.
Accordingly the secondary grounds is somewhat mitigated by the strength of the Crown's case with respect to the current charges. Releasing the Accused on what is in effect house arrest, along with a $1,500 cash bail could alleviate the remainder of the primary and secondary grounds that exist in this case.
[ 15 ] There have been some material changes, some of a positive nature since the Accused was denied bail on July 29, 2011. He has dealt with the charges for which a warrant had been issued, and he has served his time for the charge of resisting arrest and for obstruction. An employer has stepped forward and notwithstanding having listened to all of the information outlined above, that employer who has 18 commercial sites under contract for landscaping still wishes to hire the Accused immediately upon his release as a landscape labourer.
The Accused has also reported a number of alleged incidents of assault by Edmonton Remand Centre staff, although none of the allegations lead to any charges being laid. The conditions in which he is housed consisting largely in protective custody 23 out of 24 hours a day while for his own safety, logically would take a severe toll on his personal well being, and potentially violate his Charter right not to be subjected to harsh and unusual punishment amongst other things.
The fact that his next court appearance is not until the end of October more than six months hence given the weaknesses potentially of the Crown's case also suggests that the Court should exercise some discretion in granting this Accused judicial interim release. [ 16 ] Accordingly the Accused will be released under house arrest and curfew subject to the following terms and conditions:– (
a) A $1,500 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 his Residence under House Arrest. He shall remain in the residence at all times with the following exceptions for:–
(1) Full time employment;
(2) Attendance at Court;
(3) Attendances at Defence counsel’s offices for appointments made in advance;
(4) Reporting in person to the Bail Supervisor;
(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; Heard on the 4 th day of April, 2012. Dated at the City of Edmonton, Alberta this 16 th day of April, 2012.
Donald Lee J.C.Q.B.A. Appearances: James Rowan Crown Prosecutor's Office for the Crown Derek Henderson Knisely Shipanoff for the Accused
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