R. v. Janvier, 2012 ABQB 500

Court of Queen ’ s Bench of Alberta Citation: R. v. Janvier, 2012 ABQB 500 Date: 20120730 Docket: 120431069U2 Registry: St. Paul Between: Her Majesty the Queen Crown - and - Ian Brent Janvier 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By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until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 on August 30, 2012. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] On this s. 525 detention review hearing, the accused contends that, because the prosecution case against him is weak, he should be released on bail pending his trial even though the trial date has been materially advanced. [ 2 ] The court concludes that the accused should not be released from custody pending his trial. [ 3 ] The main purpose of the s. 525 hearing is to determine whether an accused ’ s pre-trial detention is justified in light of the accused ’ s constitutional right to a trial within a reasonable time. Here, Mr. Janvier ’ s lawyer has been successful in bringing Mr.

Janvier ’ s trial forward from February, 2013 to August 30, 2012. Mr. Janvier ’ s pre-trial detention was the subject of an unsuccessful bail review application by himself in the late part of May, 2012. Since then, there have been no material changes of circumstance, other than the bringing forward of the trial date. In those circumstances, the court will not order Mr. Janvier ’ s release from pre-trial custody. 1. Background [ 4 ] Mr. Janvier is facing a series of charges arising out of events which took place on April 8, 2012. On that date, Kelly Janvier, a relative of Mr. Janvier ’ s, arrived at Mr.

Janvier ’ s residence. At this stage of the criminal proceedings, the facts surrounding what occurred at the residence are somewhat in dispute. What is clear, however, is that Mr.

Janvier was assaulted and injured by the complainant Kelly Janvier, that a passenger in Kelly Janvier ’ s vehicle told the police that when the vehicle in which she was riding was leaving Ian Janvier ’ s residence, she heard a bang and saw a blue flash which she assumed to be a shot from a firearm, that the police attended at Ian Janvier ’ s residence within 20 minutes of an anonymous report of a shot being heard in the area of the church on the Cold Lake Reserve and could not find any evidence of shell casings around the residence, that the police were denied entry to the Ian Janvier residence but that Ian Janvier admitted owning a shotgun but told the police that the shotgun was located away from his residence.

The police noted a broken door jamb on Ian Janvier ’ s residence and footprints on the front door. Ian Janvier originally told the police that Kelly Janvier had used a firearm when he broke into his residence, but later retracted that version of the events; he then told police that he had heard from others that Kelly Janvier had been shooting off a weapon around the reserve, but that he did not personally see Kelly Janvier with a weapon.

Despite maintaining a version of events pursuant to which Ian Janvier fired at him as he was leaving the Ian Janvier residence, Kelly Janvier did not report any firearm incident on April 8, 2012 to the police; Kelly Janvier did give a statement to police on April 13 th stating that he believed that Ian Janvier had fired at his vehicle. Kelly Janvier also told police that Ian Janvier made death threats against him.

Ian Janvier is subject to a firearms prohibition as a result of an earlier criminal conviction. [ 5 ] Ian Janvier has what the prosecutor described as a bad record, including convictions for aggravated assault, assault causing bodily harm, assault of a police officer and common assault. He has also been convicted of failing to attend court and failing to comply with conditions.

Ian Janvier ’ s criminal record was not made an exhibit in the proceedings. [ 6 ] At the bail hearing on May 10, 2012, the Provincial Court Judge summed up the facts this way: “ . . . it ’ s a fuzzy-wuzzy story between two cousins and a gunshot but I think the gunshot did occur. Now, who shot, who did what, I don ’ t know. It will probably come out at trial or hopefully it will. ” The bail judge also noted that “ his trial date is off a ways ” . Indeed, the original trial date was set for February, 2013.

In the result, the bail judge denied bail on the first and second grounds, stating: And if there ’ s substance to what happened on this occasion, if there was a weapons violation and the threats . . . I cannot in all good conscience release this man on bail conditions which I think would satisfy the concerns of the court and in particular the safety of the public and the people he ’ s threatened. [ 7 ] Denial of bail was reviewed by this court on May 22, 2012, but this court did not vary or set aside the Provincial Court Judge ’ s decision.

A transcript of that bail review decision was not made available on this detention review. [ 8 ] Since May 22, 2012, Ian Janvier ’ s lawyer was successful in moving the trial date up from February 2013 to August 30, 2012. [ 9 ] At the detention review hearing, Ian Janvier indicated that a petition requesting his return to his community, signed by some 25 to 30 individuals from that community, was available.

2. Purpose of the s. 525 detention review [ 10 ] Parliament ’ s main objective in developing the s. 525 detention review mechanism was to impose upon this court the statutory responsibility of oversight of an accused ’ s continued pre-trial detention in light of the accused ’ s constitutional right to a trial within a reasonable time. In coming to that conclusion, I rely on the fact that the bail review mechanism developed by Parliament provides either the accused or the Crown the opportunity of having bail decisions reviewed to correct errors of law and to account for material changes of circumstance. The

section 525 procedure must serve a different end from that served by bail review. The timing provisions of s. 525 suggest that the mischief which Parliament was attempting to address in that

section was the possibility that an accused person who poses legitimate concerns relating to the three justifications for pre-trial detention, a person who is presumed in our justice system to be innocent, would be detained in custody for a lengthy period before a trial could be held.. [ 11 ] In light of my conclusion concerning the purpose of s. 525, I also conclude that the s. 525 detention review is not an appeal of an earlier denial of bail review. 3.

Application of the principle to the circumstances here [ 12 ] This court has previously concluded that there is no basis on which to interfere with the bail judge ’ s conclusion that bail should be denied on the first and second grounds. There has been no material change of circumstance since then, save for Ian Janvier ’ s lawyer ’ s success in bringing the trial forward. [ 13 ] Although it is always important to respect an accused ’ s right to a trial within a reasonable time, the importance of that right is emphasized in a situation such as this one where the prosecution ’ s case is “ fuzzy-wuzzy ” . Mr.

Janvier ’ s lawyer has been able to secure a relatively quick trial date, approximately one month from today. In light of the fact that there has been no material change of circumstance since this court determined that Mr. Janvier ’ s pre-trial detention was justified on the first and second grounds, and that there has been a significant shortening of the time which Mr. Janvier is required to spend in pre-trial detention, I have concluded that Mr. Janvier should not be released from custody pending his trial. Heard on the 27 th day of July, 2012. Dated at the City of St.

Paul, Alberta this 30 th day of July, 2012. J.B. Veit J.C.Q.B.A. Appearances: Steve D. Fontaine, Crown Prosecutors Office, St. Paul for the Crown

Laurie I. Wood, Wood Law Office for the Accused, Mr. Janvier