R. v. Buffalo, 2012 ABQB 419

Court of Queen ’ s Bench of Alberta Citation: R. v. Buffalo, 2012 ABQB 419 Date: 20120629 Docket: 120486329U2 Registry: Wetaskiwin Between: Her Majesty the Queen Crown - and - Terrance Emery Buffalo Applicant 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By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until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 August 14, 2012. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Buffalo asks for bail review, and, if review is granted, to be released on conditions that do not require the posting of any kind of consideration, on the grounds that there have been two material changes of circumstance since the setting of the $300.00 deposit condition: he has not been able to raise the money and a trial date has now been set for mid-August. 1. Background [ 2 ] Mr.

Buffalo is a 19 year old, unemployed aboriginal man who is charged with possession of stolen property over $5,000.00, having been found in the back seat of a vehicle which had run off the road into a ditch and whose ignition box had been punched out. The Crown is proceeding summarily. [ 3 ] Mr. Buffalo has a relatively minor criminal record: in March 2011 he was convicted of a s. 129(

a) offence and a s. 145(3) offence and fined $300.00 on the former and $200.00 on the latter. In April 2011, he was convicted of two s. 145(3) offences and one s. 145(2) offence for which he received a reprimand. In June 2011, he was convicted of a s. 145(5) offence and sentenced to time in custody. [ 4 ] At the bail hearing, Mr. Buffalo was represented by duty counsel who informed the bail judge that Mr. Buffalo had told him that he could probably post up to $400.00 cash. Mr. Buffalo remains in jail and now advises, through his lawyer, that he has not, in fact, been able to raise that amount of cash.

Since the bail hearing, indeed as recently as May 31, 2012, a trial date has been set for August 14, 2012 at 1:30 p.m.; Mr. Buffalo will, by then, have spent approximately 4 months in custody if he is not released prior to his trial date. 2. Did the bail judge commit an error of law? [ 5 ] Given what even Mr. Buffalo describes as his unenviable record in relation to the first ground, a recent conviction for failing to appear for which a custodial sentence was imposed, and given the information presented to him at the bail hearing concerning Mr.

Buffalo ’ s financial means, the bail judge committed no error in requiring Mr. Buffalo to post $300.00 cash bail as a condition of release. 3. Has there been a material change of circumstance? [ 6 ] For the purposes of this application, I accept that each of the failure to raise the cash bail, and the setting of a trial date are material changes of circumstances which entitle the accused to a fresh bail hearing. 4.

Has the Crown satisfied the burden of establishing that some conditions are justified on the accused ’ s pre-trial release? [ 7 ] The Crown has satisfied the burden of establishing that conditions in relation to the first ground are justified on the accused ’ s pre-trial release. [ 8 ] In coming to that conclusion, I note the accused ’ s recent, related record of failing to attend when he is required to attend and of failing to abide by conditions. In those circumstances, some conditions are appropriate to ensure that the accused will in fact attend for his trial.

The conditions are not necessarily money: a young, unemployed accused may indeed be unable to raise any money to ensure that he attends at trial. However, once the obvious mechanism of money or financial security is no longer available as an earnest for appearance, the Crown cannot be expected to know what might be available from the accused ’ s perspective to guarantee attendance at

court. The accused is in the unique position of knowing how his affairs might be arranged to offer an appropriate guarantee; in other words, the evidentiary onus shifts to the accused/applicant to provide some mechanism for guaranteeing attendance. [ 9 ] Mr. Buffalo has not suggested any first ground alternative to money; he suggests only that the money condition should be removed. In those circumstances, as the court remains concerned about the first ground, Mr. Buffalo ’ s application for bail is denied. [ 10 ] Similar reasoning applies to the setting of a trial date. Here, Mr.

Buffalo states that the trial date is so far away that, if convicted, he will have more than served his sentence in pre-trial custody. I agree that if the likely sentence is shorter than pre-trial custody period, that is a relevant factor in determining whether the accused should remain in pre-trial custody. However, Mr. Buffalo does not present any case law to support his assertion of likely sentence and the prosecutor does not agree that the likely sentence would be shorter than the period of pre-trial custody. In those circumstances, it is not clear that pre-sentence custody would be excessive and unfair.

In any event, I note that Mr. Buffalo will shortly be entitled to a s. 525 detention review, which is potentially more focussed on the constitutional right to trial within a reasonable time; he will have the opportunity at that review, to ask for an earlier trial or for release because of the length of the pre-trial period. 5. Conclusion [ 11 ] For the reasons set out above, although Mr.

Buffalo ’ s application for bail review is granted based on a change of circumstance, on the resulting fresh bail hearing the court concludes that the prosecution has satisfied the burden of establishing that, in relation to the first ground, Mr. Buffalo ’ s pre-trial detention is justified. Heard on the 26 th day of June, 2012. Dated at the City of Wetaskiwin, Alberta this 28 th day of June, 2012. J.B. Veit J.C.Q.B.A. Appearances: Stephen Hill, Alberta Justice, Wetaskiwin for the Crown Ken Sockett, Q.C. for Mr. Buffalo