R. v. Kerik, 2012 ABQB 420

Court of Queen ’ s Bench of Alberta Citation: R. v. Kerik, 2012 ABQB 420 Date: 20120703 Docket: 120548862U1 Registry: Wetaskiwin Between: Her Majesty the Queen Crown - and - Edwin Kerik 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By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until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 March 13, 2013. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr.

Kerik asks for a review of his denial of bail on the basis of a material change of circumstance, namely that he can return to reside at the Centennial Centre, a mental health facility having a dual diagnosis program which integrates psychiatric and substance use disorder treatment. [ 2 ] The Crown opposes the application on the grounds that the residential facility is not secure. [ 3 ] The application is allowed, on the condition that the accused waive his privacy right only to the extent of allowing the probation office to confirm his ongoing residence at the facility with the facility itself. [ 4 ] Although the Centre provides only a voluntary service, effective, economic arrangements can be made to quickly advise the police of any departure from the facility.

Having the accused undergo treatment for his psychiatric and drug dependency problems while awaiting trial is not only in the accused ’ s interest but also in the interests of the community. 1. Background [ 5 ] Mr. Kerik is facing serious charges of unlawful detention, dangerous driving and fleeing the scene of an accident. He has a minor criminal record. He acknowledges that he has a drug dependency problem. He was a voluntary patient at the Centennial Centre, located at Ponoka, Alberta, a mental health facility having a dual diagnosis program which integrates psychiatric and substance use disorder treatment.

He checked himself out of that program and became involved in the incidents which led to the charges. 2. Is the ability to return to Centennial Centre a sufficiently material change of circumstance to reopen bail, and if so, should Mr. Kerik be released on the condition that he reside at that facility? [ 6 ] Mr. Kerik does not contest the denial of bail at the original hearing; on the contrary, he acknowledges that the bail judge made no error in principle in denying bail on the basis of the information provided at the bail hearing.

However, he argues that the current availability to him of a bed at the Centennial Centre is a material change of circumstance. [ 7 ] Mr. Kerik was unrepresented at the bail hearing. Since then, he has obtained legal representation as a result of which he learned that he could be re-admitted to the Centennial Centre. I have concluded that this is a material change from the circumstances that were before the bail judge and that Mr.

Kerik is therefore entitled to a fresh bail hearing. [ 8 ] In considering the issue of whether residence at the Centennial Centre is a sufficient answer to the concern raised by the prosecution in relation to the second justification for pre-trial detention, the protection and safety of the public, I begin my analysis by stating that there is reason to believe that Mr. Kerik ’ s alleged criminal behaviour arises less from an anti-social disposition than from dependency issues linked to abusive drug use. It is clearly in the interests of the community, as well as in the interests of Mr.

Kerik personally, to deal with the true underlying causes of his behaviour as soon and as competently as possible. There can be no doubt that the Centennial Centre for Mental Health and Brain Injury has the professional capacity to assist Mr. Kerik to deal with his severe addiction issues which are linked to his mental health. [ 9 ] While Mr. Kerik is residing at Centennial Centre, he will not be a danger to the public - on the contrary, he will be working towards a healthy re-introduction to the community. It is true, of course, that the Centennial Centre is not a secure facility. As Mr.

Kerik has already proved when he left the facility, a patient can just walk out. Nonetheless, because the Centennial Centre is a government- funded institution, so long as Mr. Kerik provides a limited waiver of his privacy right only to the extent of allowing the probation office

to make regular inquiries of the Centre to ascertain that Mr. Kerik remains in residence, adequate pre-trial oversight of Mr. Kerik can be maintained by the justice system. 3. Conclusion [ 10 ] Mr. Kerik ’ s application for bail review is allowed. He should be released on the following conditions: - while he is on bail, Mr. Kerik will keep the peace and be of good behaviour and appear in court as required; - he will be released only to the Centennial Centre.

Before leaving custody, he must satisfy the adult probation office in Wetaskiwin that a bed is immediately available to him at the Centennial Centre and he has arranged private transportation to take him there. He will then be allowed a two hour window to reach the Centennial Centre after having been released from custody. If for any reason, Mr. Kerik checks himself out of the Centre or is evicted from the program by the Centre, Mr. Kerik must, within two hours of leaving the Centre, report back to custody in Wetaskiwin; - while on bail, he will be supervised by the adult probation office in Wetaskiwin. Mr.

Kerik waives his privacy rights in relation to his stay at the Centennial Centre only to the extent that he permits the adult probation office, at the times and with the frequency that the office deems necessary, to confirm with the Centre that Mr. Kerik remains in residence there; - Mr. Kerik will not while on bail ingest any non-prescribed drugs, including alcohol; - Mr. Kerik will not communicate in any way with the complainant in these matters. Heard on the 26 th day of June, 2012. Dated at the City of Wetaskiwin, Alberta this 30 th day of June, 2012. J.B. Veit J.C.Q.B.A.

Appearances: Greg Genest, Sirrs LLP for Mr. Kerik Stephen Hill, Alberta Justice, Wetaskiwin for the Crown