R. v. Paul, 2012 ABQB 431

Court of Queen ’ s Bench of Alberta Citation: R. v. Paul, 2012 ABQB 431 Date: 20120704 Docket: 120519905U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Lewis Sherman Paul Accused 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By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until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 July 10, 2012 . _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Paul asks for bail review of his denial of bail on the second ground; the material change of circumstance he alleges is the setting of a trial date for August 27, 2012 which is beyond the time line suggested by the prosecution ’ s policy on low complexity matters. [ 2 ] Bail review is denied: Technically, there is no change of circumstance here because the bail judge mistakenly understood the prosecution to be proceeding by indictment, where there would inevitably be a considerable delay prior to trial.

Therefore, a trial date as early as late August was presumably well within the bail judge ’ s assumptions when denying bail. [ 3 ] Nor, looking at the situation more expansively, has Mr. Paul established that the setting of a trial date in late August 2012 constitutes a material change of circumstance. The Crown ’ s policy sets only a minimum period of time between the laying of charges and the date of trial, not a maximum delay.

Here, although the actual date set for trial exceeds the minimum delay, there is no particular inappropriateness in the date set for trial as that date does not exceed the maximum punishment that could be imposed on Mr. Paul assuming he were convicted of the offence, and was, moreover, the first date on which the court, the prosecution and the defence could all be accommodated. 1.

Background [ 4 ] On October 7, 2011, following up a report of a stolen vehicle, the police found the vehicle abandoned but running, with the steering column damaged; a canine unit tracked from the vehicle to a garage where a quad was found which had been reported stolen and on which they found a finger or hand print belonging to the accused. It took until May, 2012 to link the print to the accused. The accused was charged with theft under $3,000.00 and the Crown chose to proceed summarily.

The accused has been in custody on this charge since May 5, 2012. [ 5 ] On June 1, 2012, a bail hearing was held in the Provincial Court; no information was provided at this hearing about any bail proceedings prior to June 1, 2012.

On June 1, 2012, the very experienced bail judge, perhaps having in mind the provisions of s. 786(2) of the Code, mistakenly considered bail on the basis that the Crown had chosen to proceed by indictment: transcript of June 1 bail hearing, p. 2, line 3-6. [ 6 ] The accused has a criminal record that was summarized by the prosecutor at the bail hearing as follows: . . . this person is a member of the Priority Prolific Offender Program. I have a report from them. It appears that he has 18 crimes that was convicted while on bail conditions.

Total convictions, 47. . . . 28 convictions that was committed while under sentence for other offences. Total times he ’ s been in custody is 23. Percentage of his life spent in custody is 28. First conviction was when he was 16, last conviction I guess 20 - perhaps or 21. . . . The record was not made an exhibit at the bail hearing, but is exhibited in this proceeding. [ 7 ] The thrust of the accused ’ s position at the bail hearing was that the only evidence linking the accused to the crime was the finger or palm print and that the Crown ’ s case was therefore weak.

However, the accused also offered up to $1,000.00 for bail, a curfew, a weekly reporting condition and an obligation to seek employment or to continue his education. [ 8 ] The bail judge denied bail on the second ground: I ’ m sorry, but he has so many previous convictions. There ’ s a substantial likelihood he will be involved in property offences if he is released from custody. And therefore I deny his bail on the secondary grounds.

[9] After June 1, the accused’s trial date was set for August 27, 2012. [10] On June 4, being 29 days from the date of detention, the custodial institution where the accused is detained requested that ourcourt set a s. 525 - 30 day - detention review hearing. That request was received by this court on June 4. On that date, this court had noinformation about whether Mr. Paul was represented by a lawyer; it therefore scheduled a detention review for June 22, 2012 on thebasis that Mr. Paul was not represented by counsel. On June 21, 2012, however, the clerk’s office came to know that Mr.

Paul was in factthen represented by counsel; the clerk spoke to Mr. Paul’s lawyer to advise that a detention review had been scheduled for June 22, 2012. However, counsel had already scheduled a bail review for Mr. Paul on June 29th, 2012. It was decided to proceed with the bail reviewhearing. No information was available at the bail review hearing about the date set for the re-scheduled detention review. 2. Has the accused established a material change of circumstance? [11] The technical answer to this question is, No.

The setting of a trial date on August 27, 2012 does not, in the circumstanceshere, constitute a material change of circumstance because the bail judge mistakenly believed that the Crown was proceeding by way ofindictment which would lead to an expectation that the trial date would only be set in the far distant future. The fact that the actual trialdate was August 27, 2012 would have been surprisingly good news to the bail judge.

In other words, a trial date as early as late Augustwas presumably well within the bail judge’s underlying assumptions when denying bail. [12] The more principled answer to the question remains, No. In certain circumstances where a court, like the bail judge in thecircumstances here, is concerned about the substantial likelihood that an accused will, if released, commit further offences, a court isable to craft conditions that attenuate the likelihood of the commission of new crimes.

For example, a court could impose a no contactprovision if the anticipated crime is assault of a particular individual, or a curfew if the anticipated crime would be committed at night,or a prohibition on drinking alcohol if the anticipated crime would be committed while inebriated by alcohol, or a driving prohibition ifthe anticipated crime would be committed in connection with a motor vehicle. But where the likelihood is that an accused will commitproperty offences, none of those usual conditions are particularly apt; it is not surprising that the experienced bail judge concluded thatthe only way to keep Mr.

Paul from committing property offences while awaiting trial on this charge was to keep him in jail. On bailreview, no effective proposals were offered by the accused to deal with the second ground: Mr. Paul suggested that, if released, he wouldreside with his mother, which is where he was living while he was acquiring his considerable record. That is not an effective answer tothe legitimate concerns on the second ground. [13] Taking an even more expansive view of the matter, the answer remains, No.

Although the parties will delve more deeplyinto the s. 525 factors whenever that hearing can now be re-scheduled, one could assume that the s. 525 hearing will focus more on theconstitutional right to a trial within a reasonable time than on the constitutional right to reasonable bail. At that hearing, one couldassume that the prosecution will have information available to the court about the reason why Mr. Paul’s low complexity trial has beenset for August 27, rather than for an earlier date. On this application, only the most cursory assessment was made of that issue. Mr.

Paulstates that, in low complexity cases like his, he understands the prosecution policy to be that a lapse of 6 weeks from the date of arrest tothe date of trial is required in order to ensure that all subpoenas have been served. A delay of that magnitude would put the first potentialtrial date at the beginning of July rather than at the end of August. However, even if Mr. Paul’s understanding is correct, the Crown’spolicy merely establishes a minimum delay between the laying of a charge and the setting of a trial date, not a maximum delay. In theresult, even accepting Mr.

Paul’s information about Crown policy, there is no conflict in the circumstances here between Crown policyand the actual trial date. [14] Nonetheless, the focus of a s. 525 inquiry is not, like that in an Askov hearing, on whether charges should be stayed, but onthe much more limited question of whether the accused should be released on bail pending a trial. The 8 to 10 month period suggestedby the SCC in R. v Morin (1992) (SCC), 71 C.C.C. (3d) 1 as the period beyond which

summary charges might beeffectively dismissed by the imposition of a stay is therefore not the appropriate yardstick for determining whether an accused should begranted bail if there is a lengthy delay between the laying of a charge and the date of trial.

I accept that a much shorter time period ispresumably an appropriate yardstick for the much less severe remedy of releasing the accused on bail while preserving the charges.Indeed, I accept that it is presumptively unreasonable to detain an accused in pre-trial custody for a longer period than would apply if hewere convicted of the crime with which he is charged. Here, the post-charge delay to the date of trial is somewhat less than 4 months. Allof the pre-delay charge was attributable to investigation and there is no suggestion that any of it resulted in any prejudice to Mr.

Paul; theissue of compliance with s. 786(2) of the Code is presumably a matter for trial. Because the Crown has chosen to proceed summarily, themaximum sentence that could be imposed on Mr. Paul is six months’ incarceration. Our Court of Appeal has determined that themaximum sentence is not reserved for the most serious crime committed by the worst offender; the theft of the quad in the circumstanceshere is not the most serious crime since the quad was presumably returned to its owner. Nevertheless, the maximum penalty ispresumably still available to the court should Mr. Paul be convicted at trial. Mr.

Paul observes that his most recent sentence for theft, asentence imposed on November 9, 2011, was for a period of 28 days after taking into account 17 days Mr. Paul had spent in pre-sentencecustody, resulting in an effective sentence of 45 days; he states that, even if he were convicted of theft of the quad, he would not expect

the jump principle to justify a sentence longer than 90 days, or three months. I note, however, that in 2009, for example, Mr. Paul received a 6 month sentence for possession of property over $5,000.00 obtained by crime; it is not clear, therefore, that if convicted of the theft of the quad, Mr. Paul would necessarily receive only a three month sentence. In any event, even if he were convicted and sentenced to the maximum penalty available, I assume that Mr.

Paul would be eligible for statutory remission; in the absence of any submission on that issue - which lack of information presumably occurred because of the approaching s. 525 hearing - I assume that Mr. Paul would be entitled to a 1/3 remission for good behaviour. That brings the maximum available sentence to 4 months; the current trial date is still within that limit. Moreover, as I understand the submissions of Mr. Paul, the August 27 th date was the first date on which the court, the prosecutor and defence counsel were all available. [ 15 ] In

summary, on the information provided at this hearing, I cannot conclude that Mr. Paul should be released on bail, despite the real concern on the second ground, because his trial will only be heard on August 27, 2012 rather than on some earlier date. Heard on the 29 th day of June, 2012. Dated at the City of Edmonton, Alberta this 4 th day of July, 2012. J.B. Veit J.C.Q.B.A. Appearances: Teresa Magee, Knisely Shipanoff for the Mr. Paul Brendan P. Gaunt, Alberta Justice for the Crown