R. v. Anderson, 2012 ABQB 433

Court of Queen ’ s Bench of Alberta Citation: R. v. Anderson, 2012 ABQB 433 Date: 20120704 Docket: 120450663U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Devon James Anderson 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By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until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 27, 2012. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Anderson, who was denied bail on each of the first and second grounds, applies for bail review; the material new circumstance which he offers is a letter from the complainant stating that she had commenced the physical altercation which led to the charges. [ 2 ] Bail review is denied. At best, the accused only purports to deal with the second ground. Even with respect to that ground, there is no material change of circumstance, given the independent contemporaneous evidence of the complainant ’ s physical condition at the material time and absence of a full recantation. 1. Background [ 3 ] Mr.

Anderson is charged with assault of the mother of his four children. The police report indicates that when they attended at the residence of the accused and the complainant in the early morning hours of the date in question, “ they observed a very prominent swollen left cheek [of the complainant], she was unable to bite down or open her mouth and she admitted to being very sore ” . She related to the police that the accused had punched her in the left cheek. [ 4 ] Mr.

Anderson ’ s record includes 7 convictions for crimes of violence including one previous conviction for assault of the same complainant, 7 convictions for failing to attend court or court-related proceedings, and 5 fails to comply with court orders. [ 5 ] At the bail hearing, Mr.

Anderson offered to post $700.00 cash bail, to live at a residence outside the City of Edmonton and to abide by a condition that he not enter the City of Edmonton and that he report weekly to the adult probation office. [ 6 ] The bail judge denied bail stating: “ I am convinced that if the accused was released he would not show up for his trial and, secondly, that he would likely assault the complainant again ” . [ 7 ] At the bail review hearing, the accused tenders a letter written by the complainant in which she states: . . . and with assault charge I had made, is not true.

We did get into an argument and I was the one who had struck him and scratched him. At that point he had pushed me off him. I don ’ t recall him ever hitting me but it was all out of jealousy and insecurity. So after he had pushed me off, he did go up to our room to sleep and that was when I had called the police and not thinking of the consequences but just that I would win and him in jail. . . . [ 8 ] In this application, the accused asks for bail review based on a material change of circumstance, namely the letter from the complainant. 2.

Has the accused established that there has been a material change of circumstance? [ 9 ] With respect, the accused has not established a material change of circumstance. [ 10 ] The letter from the complainant does not, in the circumstances here, constitute a material change of circumstance. A recantation from a complainant may satisfy the requirement for a material change of circumstance, especially where the evidence which is recanted is the only prosecution evidence.

However, in the circumstances here, there is independent, contemporaneous, evidence of assault: the police officers who attended at the residence at the relevant time observed the complainant and heard her report of how her injuries arose. Moreover, the complainant does not recant the essence of the assault complaint; she merely provides additional information about the circumstances in which the accused, according to her own letter, assaulted her.

Even assuming that the complainant commenced the physical altercation, an offence will still be made out if the accused used more than proportional force in responding to her.

[ 11 ] In addition, the letter from the complainant deals only with the second ground, not with the first ground. That ground remains an independent justification for pre-trial detention. [ 12 ] In

summary, in the circumstances here, the letter from the complainant does not constitute a material change of circumstance from the circumstances that were known to the bail judge. Heard on the 29 th day of June, 2012. Dated at the City of Edmonton, Alberta this 3 rd day of July, 2012. J.B. Veit J.C.Q.B.A. Appearances: Brendan P. Gaunt, Alberta Justice for the Crown Teresa Magee, Knisely Shipanoff for Mr. Anderson