R v. C.J.E, 2012 ABQB 468

Court of Queen ’ s Bench of Alberta Citation: R v. C.J.E, 2012 ABQB 468 Date: 20120719 Docket: 120017033U1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - C.J.E Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ Background [ 1 ] The Crown applies to revoke the accused ’ s present Release as a result of three breach charges pursuant to section 145(3) of the Criminal Code , and one obstruction charge pursuant to

section 129 (

a) of the Criminal Code . The alleged offences occurred on January 5, 2012 approximately three weeks after the accused was released on December 14, 2011, following charges laid for first degree murder. The first degree murder charges were laid on June 10, 2011, shortly after a body was discovered with respect to an alleged murder that took place on the May 17, 2009. [ 2 ] The terms of the accused ’ s release on the December 14, 2011 included that the accused was to keep the peace and be of good behaviour; that he would by abide by a curfew and remain at his residence between the hours of 9:00 p.m. and 7;00 a.m.; and that

he would abstain from the possession and use or consumption of alcohol or other intoxicating substances. [ 3 ] It is alleged by the Crown that on January 5, 2012 the accused breached all three of these provisions in his order of release, in addition to obstruction with respect to his arrest that day, and that the accused ’ s release should be revoked under the provisions of section 524(8) of the Criminal Code . Section 524(8) reads as follows: Where an accused described in subsection (3), other than an accused to whom paragraph (

a) of that subsection applies, is taken before the justice and the justice finds (

a) that the accused has contravened or had been about to contravene his summons, appearance notice, promise to appear, undertaking or recognizance, or (

b) that there are reasonable grounds to believe that the accused has committed an indictable offence after any summons, appearance notice, promise to appear, undertaking or recognizance was issued or given to him or entered into by him, he shall cancel the summons, appearance notice, promise to appear, undertaking or recognizance and order that the accused be detained in custody unless the accused having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10).

Analysis [ 4 ] On January 5, 2012 an RCMP constable was responding to a possible impaired driver sitting in a vehicle outside of a bar. The officer investigated at 1:53 a.m. The vehicle was not running and the constable asked the female driver for her name and identification. The driver gave her name but did not have any identification. The constable then observed two cans of beer in the center console of the vehicle in the reach of both the driver and the male passenger. At that time the constable asked the male passenger for identification, which he produced.

The constable looked at the name on the drivers licence, and while he did not immediately recognize the name, he felt that it was somehow familiar. [ 5 ] The constable returned to his vehicle to query the male and his identification on CPIC. At some point during this time, the constable knew that he was dealing with the accused who was released on conditions relating to a first degree murder charge, which conditions included a curfew and no consumption of alcohol. [ 6 ] The constable then immediately summoned backup and kept a close focus on the vehicle in front of him.

As he began to exit his police vehicle, the accused exited the passenger door and began walking towards the police vehicle. The officer says that he told the accused that he was under arrest for breaching conditions, at which point the accused immediately ran away. Moments later, radio transmissions were received that indicated the accused was located at a dumpster behind a Diner several blocks away. The constable attended the location and observed another constable and his police dog with the accused in the dumpster.

The accused appeared to be kicking and screaming in the dumpster, and at some point a knife may have been observed in the possession of the accused, although no knife was ever discovered at the scene. Bite marks were noticed on the left ankle of the accused after the police dog exited, and an ambulance was summoned. The accused was verbally chartered and cautioned for breach of his recognizance. The accused was eventually transported to the hospital, where he eventually had major surgery for injuries to his ankle and leg.

Upon arrival at the hospital the constable also overheard the accused tell paramedics that he “ had a couple of shots ” . [ 7 ] The accused argues that he was never told to remain in the vehicle by the constable, that he was never told that he was under arrest, and that he was never told to get out of the garbage bin before the dog was released into the bin. The accused also argues that the garbage bin was empty, and that there was no reason for the dog to be released into it.

The constable ’ s report indicates that the dog was released into a bin which contained several cardboard boxes that the accused had hidden in, and that there was some indication that the accused had shed some of his clothes to avoid detection. The officer says the accused was given the opportunity to exit the bin before the dog was released into it.

[ 8 ] Defence counsel submits that there is a defence to all of the current charges that the accused is facing arising out of January 5, 2012, even with respect to the curfew. While it is conceded that the accused was obviously not in his residence during the curfew, the actus reas it is submitted is not necessarily accompanied by the necessary mens rea .

The Crown argues that it is quite clear that all three breaches have been made out as well as the obstruction charge, and that under section 524(8) the accused ’ s release shall be revoked. [ 9 ] Section 524(8) of the Criminal Code does not specify a standard of proof required, but I conclude that it is not on a basis of proof beyond a reasonable doubt but rather that the Crown must only show on a balance of probabilities that contravention has occurred. I further conclude that the Crown has proven on a balance of probabilities that the accused was out past his curfew.

There may be triable issues with respect to his consumption of alcohol, since the police did not take any breath or blood samples proving alcohol consumption, although the accused was found outside of a drinking establishment just before 2:00 a.m. There may also be arguable defences with respect to the obstruction charge given that the accused claims that he was never told to remain in the vehicle; never told that he was under arrest; and never told that he was to get out of the bin.

Nevertheless, it is sufficient that the accused was clearly absent from his residence during the curfew hours to cancel his previous release, subject to allowing the accused the opportunity to show cause why his continued detention is not justified within the meaning of subsection 515(10) of the Criminal Code.

Additionally, because the accused has been in custody since January 5, 2012, he is eligible for a section 525(1) detention review hearing. [ 10 ] In this regard, the Crown submits that the accused must be kept in custody pending trial on his January 5, 2012 charges, the preliminary hearing of which is not scheduled until January 2013. Defence counsel submits that the accused has already served his time in jail for all of the alleged January 5, 2012 offences even if he were to be convicted.

The Crown however argues that the accused is a serious risk to re-offend and a danger to the public if he were to be released again, given that he was already in violation of his previous terms of release approximately three weeks afterwards. [ 11 ] The Crown also submits the accused ’ s criminal record which consists of five failure to appear - two in 2008 and three in 2010, along with a 2010 breach of recognizance. Further, the accused was convicted in 2010 of assault causing bodily harm and two counts of simple assault.

The Crown submits that the accused is also facing life in prison if convicted of the first degree murder charge, all of which indicate strongly that the accused should be detained on the primary and secondary grounds. Conclusion [ 12 ] The first degree murder charge is scheduled for trial later this year, and I agree with Defence counsel that accused persons held in custody are much more difficult for counsel to defend. Messages left for the accused in the Remand Center seldom if ever are returned, or even given to the accused.

Arguably the conviction rate is higher for those remaining incarcerated pending trial charged with serious crimes. [ 13 ] I also note that although the accused violated the terms of his release by being out past his curfew, he did not re-offend against any general members of the public, public safety was not endangered, and he did not violate some other substantive terms of his release such as contacting Crown witnesses or otherwise interfere with the administration of justice. [ 14 ] I do however need to address that police did observe signs of some intoxication, the Accused was outside of a drinking establishment at 1:53 a.m. three weeks after his release, and he does have a criminal record which includes convictions involving physical violence, as well as the primary grounds. [ 15 ] I conclude that this accused can be released and that his detention is not required if he is released on additional terms and conditions.

There will be imposed the additional posting of a $7,500 cash deposit, plus the $15,000 recognizance that has already been entered into with no cash deposit by his mother. [ 16 ] The accused will also report to Adult Probation at least once a week in person. The Accused will also be subject to24 hour house arrest, the only exception being for gainful employment as approved in writing in advance by the Probation Officer.

The accused will also surrender himself to the Edmonton Remand Center not less than 72 hours in advance of his trial or preliminary inquiry. [ 17 ] The remaining terms and conditions of his release will continue from his December 6, 2011 release provisions except as varied and added to above.

Heard on the 13 th day of July, 2012. Dated at the City of Edmonton, Alberta this 17 th day of July, 2012. Donald Lee J.C.Q.B.A. Appearances: Carrie Sharpe for the Crown Naeem Rauf for the Accused