Court of Queen ’ s Bench of Alberta Citation: R. v. Habte, 2012 ABQB 480 Date: 20120807 Docket: 120422357U1, 120422357U2, 120641196U1 Registry: St. Paul Between: Her Majesty the Queen Crown - and - Nathanael Mehari Habte Accused/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By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until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 Notices: The restriction ended February 21, 2013 . _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary

[ 1 ] Mr. Habte, who is charged with a cluster of serious home invasion-type charges which arose on June 4, 2012, was denied bail, on the second ground, by a Provincial Court Judge. As a result of his conclusions on the bail application, the bail judge then went on to cancel Mr. Habte ’ s promise to appear and undertaking on much less serious matters. Mr. Habte ’ s detention is also the subject of a s. 525 review. [ 2 ] Since his detention, Mr. Habte has made efforts to be admitted into a residential drug treatment program but those efforts have been stymied, understandably, by his detention.

Those efforts do, however, constitute a material change of circumstance entitling Mr. Habte to a fresh consideration of bail. [ 3 ] However, given that the events of June 4 occurred such a short time after Mr. Habte ’ s release in April, Mr. Habte has not satisfied the court that the justification in the second ground for pre-trial detention does not apply to him. Moreover, although it would be in society ’ s interest as well as his own for Mr.

Habte to commence rehabilitation for his drug dependency as soon as possible, in the circumstances here any release into a residential drug dependency program would have to feature a direct transfer from custody to that program. In the result, having considered bail afresh, Mr. Habte is denied bail on the second ground. [ 4 ] Because this court has been unable to set a one day trial for these offences, the detention review court is unable to finalize a decision on Mr. Habte ’ s detention review. It is expected that the court

schedule for 2013 will be released in a month or two. When the court is able to set a trial date for Mr. Habte, that will constitute a material change of circumstance that will entitle Mr. Habte to a fresh bail hearing. 1. Background [ 5 ] Mr.

Habte, who is 23 years old, has a record which includes youth justice convictions in Vermilion, as well as convictions for failing to appear, failing to comply with recognizance, uttering threats and assault in 2008 in Vegreville, two counts of mischief under $5,000.00 in Vermilion in 2009, convictions in 2009 for failing to comply with conditions and possession of property obtained by crime - on which he was sentenced to 5 months in custody, assault causing bodily harm on which he served 3 months in pre-sentence custody and was sentenced to time served, breaking and entering with intent on which he served 1 ½ months in pre-sentence custody and was sentenced to time served - both of which sentences being imposed in 2010, and uttering threats on which he served 27 days in pre- sentence custody and was sentenced to 113 days in jail - which sentenced was imposed in February 2011 and a mischief charge on which he was sentenced to a $500.00 fine in October 2011. [ 6 ] Mr.

Habte ’ s girlfriend is expecting his first child in November. If released, Mr. Habte would have work with an Edmonton roofing contractor. [ 7 ] In April, 2012, Mr. Habte was charged with two offences relating to stolen property of a value less than $5,000.00. As would be expected, he was released on an undertaking to appear, with conditions, by a justice of the peace; at that time, Mr.

Habte gave his address as Vermilion. [ 8 ] On June 4, 2012, an individual whose face was partly masked invaded a home in Vermilion occupied by the complainant, Jennifer McCauley, demanding “ dope ” , macing her and her baby with bear spray, brandishing a baseball bat and striking the complainant ’ s dog with the bat. The complainant was called to give evidence at the bail hearing: she positively identified the accused Habte as the individual who forced his way into her home. She indicated that she recognized him because Vermilion is a relatively small municipality and Mr.

Habte is relatively conspicuous: “ It ’ s pretty obvious when a black person comes to town; everybody knows of them. [Mr. Habte is a black person?] Well, like a half-black half-white they call him. . . . Everybody knows him as - he ’ s called a half- breed ” . She described his clothing as a long black sweater with white writing on it and darker pants and dark shoes.

She testified that she was almost face-to-face with the intruder whom she called by name at the time and whose voice she recognized, yelling at him to leave her residence. [ 9 ] The demand for drugs by the intruder was not fanciful as it appears that drugs may have been sold from that residence, although not by the complainant who states that the house was clean at the time. In May 2012, a different house in which the complainant resided was also broken into although that break-in was never solved.

[ 10 ] Little forensic evidence was found by the police at the complainant ’ s residence on June 4 and the evidence that has been collected has been sent for testing. There was a shoe print on the front door of the residence, but that shoe print does not match the footwear that Mr. Habte was wearing when he was apprehended on June 4. Although the complainant cannot remember whether the person who broke in was wearing a hat, a baseball cap was found outside her residence and sent off for testing; that testing has not been completed.

The complainant testified that the intruder wore a bandana over the lower half of his face; no bandana was recovered. No bat or bear spray has been recovered; no fingerprints have been recovered. The accused was apprehended when he arrived at the courthouse on June 4 for a scheduled appearance connected with the April, 2012 charges; at that time, he was wearing different clothes and shoes from the clothes the complainant described. At this stage of the proceedings, there is no forensic evidence tying the accused to the June 4 events. [ 11 ] If Mr.

Habte were to be convicted of the charges he is facing, he would undoubtedly be sentenced to a relatively lengthy penitentiary term, the starting point for home invasion in Alberta being 8 years. [ 12 ] The bail judge concluded that there was no basis to justify detaining Mr. Habte on the first ground: although Mr.

Habte had many convictions relating to the first ground, the last of these was in March 2009. [ 13 ] However, the bail judge did deny bail on the second ground, stating: However, I have serious concerns were he to be released on the secondary grounds; and that is serious concerns of the likelihood that he might re-offend. . . . [After reviewing the complainant ’ s evidence] It seems to me that the case against Mr. Habte is not a weak one. He has a serious criminal record. The charges that he is faced with are serious, and if he should be convicted, he would be facing considerable I would think jail time.

Taking all of that into account, I am satisfied that the Crown has shown cause why Mr. Habte should be detained in custody until the charges are dealt with according to law; and I would deny his release on the secondary ground. [ 14 ] The judge then went on, pursuant to the provisions of s. 524(4) of the Code, to cancel the promise to appear and undertaking which the accused had given on the April charges. [ 15 ] Mr. Habte states that he has a serious addiction to drugs. Rehab centres can ’ t give Mr. Habte a firm date for entry into a program because he is in custody.

He has a letter from his addictions counsellor who says that he should attend treatment, but he observes that he can ’ t get an intake date for treatment because he is in custody. [ 16 ] Because of his record, and his previous release, Mr. Habte recognizes that it would be appropriate that he post cash bail. He suggests that he could sell his truck for approximately $5,000.00 to provide cash bail which is the amount he had mentioned to the bail judge.

He proposes that he should be released to a residence in Edmonton owned by his prospective employer, where he would be under what amounts to house arrest other than when he is working at roofing employment which is currently available to him until an intake bed in a residential treatment centre becomes available. He would voluntarily agree to a ban on all non-prescribed drugs, including alcohol. [ 17 ] Mr. Habte asserts that he did not go to the complainant ’ s residence on June 4. He wishes to secure a trial date and has attempted to settle on the first one full trial day available.

He is willing to waive a preliminary inquiry. However, the court administrator in St. Paul is unable to provide him with a firm trial date; the court is waiting for the release of the 2013 court schedule.

2. Bail review

a) Mr. Habte has established a material change of circumstance [ 18 ] Mr. Habte has established material new circumstances: he states that he has a drug dependency and is willing to enter into a residential drug treatment program. [ 19 ] This is a material change of circumstance: indeed, it goes some way to explaining Mr. Habte ’ s property offence record. Since he has been in custody, Mr. Habte has made real efforts to be admitted into a residential drug treatment program.

The program he now believes that he has the best chance of accessing is in Bonnyville; however, despite his need for rehabilitation and assistance of his counsellor, he is unable to register in that program because he is in detention. [ 20 ] Since Mr. Habte has established a material change of circumstance, he is entitled to a fresh consideration of bail.

b) Mr. Habte has not satisfied the court that his detention in pre-trial custody is unjustified in light of the second ground [ 21 ] The events of June 4 occurred a relatively short time after Mr. Habte ’ s release in April, 2012. In those circumstances, and in light of Mr. Habte ’ s own, forthright, admission concerning his drug dependency, Mr.

Habte has not satisfied the court that the justification in the second ground for pre-trial detention does not apply to him; if he were released, there is a substantial likelihood that he would endanger the safety of the community because he suffers from an untreated drug dependency which results in his committing crimes to satisfy that dependency. [ 22 ] Although it would clearly be in society ’ s interest as well as his own for Mr.

Habte to commence rehabilitation for his drug dependency as soon as possible, in the circumstances here any release into a residential drug dependency program would have to be organized to have Mr. Habte transfer direct from custody to that program.

I realize that it may be difficult to make such arrangements as, apparently, many residential rehabilitation programs have concluded that individuals who are detained may believe that they have a commitment to rehabilitation, but, once released from custody, that commitment evaporates; such programs have therefore sensibly stopped accepting, or severely restricted the acceptance of, persons who are in pre-trial custody. Nevertheless, given the support he has from his counsellor, it is not impossible for Mr. Habte to find a residential rehab program that would accept him. [ 23 ] Moreover, Mr.

Habte does not, if I may say so, have a realistic plan with respect to admission to any such program. He has no idea of how much such a program might cost, and how he would afford it. A person in Mr. Habte ’ s situation might satisfy a court that a release plan will not imperil the protection of the community, but any such plan must be practically worked out. [ 24 ] In the result, having considered bail afresh, Mr. Habte is denied bail on the second ground. 3.

Detention review [ 25 ] Because of the unavailability of trial dates for 2013, it is not possible at this hearing for the court to make a final decision about whether the actual trial is so far in the future that Mr. Habte should be released, despite the concerns on any one of the three grounds for pre-trial detention. However, the setting of a trial date, and indeed, the forensic examination results, will constitute material new circumstances that will allow Mr. Habte to bring the issue of bail back before the court. In the result, the court is unable to make any direction for Mr.

Habte ’ s release on the evidence before the court at this time.

Heard on the 23 rd day of July, 2012. Dated at the City of St. Paul, Alberta this 3 rd day of August, 2012. J.B. Veit J.C.Q.B.A. Appearances: H. R. Spencer for Mr. Habte Steve D. Fontaine for the Crown