R. v. Robison, 2012 ABQB 622

Court of Queen ’ s Bench of Alberta Citation: R. v. Robison, 2012 ABQB 622 Date: 20121105 Docket: 120368717P1 Registry: Wetaskiwin Between: Her Majesty the Queen Crown - and - Sawyer Clarke Robison Accused Restriction on Publication Judicial Interim Release – See the Criminal Code,

section 517. By Court Order, the contents of this decision and the evidence taken, information given or representations made may not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file. It may be published after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. Editorial Note: The restriction on publication ended December 12, 2016. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________

I.

Summary..................................................................................................................... Page: 3 II. Supplementary Reasons on the Jurisdictional Point..................................................... Page: 3 III. Review of Errors of Law Alleged by the Crown.......................................................... Page: 7 (

a) Error alleged in respect to the tertiary ground................................................. Page: 7 (

i) Position of the Crown.......................................................................... Page: 7 (ii) Position of the Defence....................................................................... Page: 8 (iii) Analysis.............................................................................................. Page: 8 (

b) Error alleged in respect to the second ground............................................... Page: 10 (

i) Position of the Crown........................................................................ Page: 10 (ii) Position of the Defence ................................................................... Page: 10 (iii) Analysis............................................................................................ Page: 10 (

c) Errors arising in the de novo hearing............................................................ Page: 11 (

i) Position of the Crown........................................................................ Page: 11 (ii) Position of the Defence..................................................................... Page: 12 (iii) Analysis............................................................................................ Page: 12 IV. Conclusion and Disposition of Application............................................................... Page: 13 I.

Summary [ 1 ] The Crown applies, pursuant to ss. 521(1) and (9) of the Criminal Code of Canada ( “ Criminal Code ” ) for review of the decision of Germain, J. made on June 27, 2012 (the “ June 27 hearing ” ) wherein he ordered the conditional release of Sawyer Clarke Robison (the “ Accused ” ). [ 2 ] Counsel for the Accused took a preliminary objection that I did not have jurisdiction to hear an application to review the release decision of another Judge of this Court. At the hearing on September 13, 2012 I dismissed that motion and gave some limited reasons.

I indicated I would provide supplemental written reasons and this decision now contains those additional reasons for confirming jurisdiction. [ 3 ] I also dismiss the application by the Crown alleging errors of law committed on the part of Germain, J. (sometimes referred to as “ the bail review judge ” ) in respect to his examination of the decision of the original bail judge (the “ bail judge ” ) who had refused release on both the second and third grounds.

In the result, I find no errors of law were committed by Germain, J. either in his review of the decision of the bail judge for error or in the de novo hearing which resulted in the granting of release on strict conditions. In light of these findings and because it was conceded by the Crown that there has been no material change of circumstance since the June 27 hearing, it will not be necessary for me to conduct a de novo bail hearing. II. Supplementary Reasons on the Jurisdictional Point

[ 4 ] I commence my discussion of the jurisdictional argument by outlining the applicable statutory provisions. I do this to provide a context for my ultimate rejection of the jurisdictional argument raised by the defence and also to provide a framework to support the approach taken in the Alberta jurisprudence on this subject.

Those cases confirm that one judge of this Court may review a bail review of another judge of this Court on the grounds of error of law or a material change in circumstance. [ 5 ] In respect to the applicable statutory provisions contained in the Criminal Code , I note that an application by either the Crown or an accused person to make or change a release order may occur at any time prior to trial. 520(1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(2), (5), (6), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the accused may, at any time before the trial of the charge, apply to a judge for a review of the order. 521(1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(1), (2), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the prosecutor may, at any time before the trial of the charge, apply to a judge for a review of the order. [Emphasis added.] [ 6 ] These provisions do not say that a further order is possible only when the option of appellate review of the original release order has been exhausted.

Instead, ss. 520 and 510 explicitly provide for further hearings of the same kind. 520(8) Where an application under this

section or

section 521 has been heard, a further or other application under this

section or

section 521 shall not be made with respect to that same accused, except with leave of a judge, prior to the expiration of thirty days from the date of the decision of the judge who heard the previous application. 521(9) Where an application under this

section or

section 520 has been heard, a further or other application under this

section or

section 520 shall not be made with respect to the same accused, except with leave of a judge, prior to the expiration of thirty days from the date of the decision of the judge who heard the previous application. [Emphasis added.] A prohibition is placed on “ further ” applications within 30 days, except for the situation where leave is granted for an additional hearing. This procedural framework provides for multiple reviews, subject only to the time limitation.

That indicates to me that a re- review, as opposed to an appeal, is very much the intended option; otherwise the 30 day prohibition would have no meaning. [ 7 ] One of the arguments put forward by counsel for the Accused, suggested that a further s. 520 or a s. 521 review can only occur if there is “ fresh evidence ” . I observe that the Criminal Code provisions do not make that a prerequisite: 520(7) On the hearing of an application under this section, the judge may consider (

a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice, (

b) the exhibits, if any, filed in the proceedings before the justice, and

(

c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor, and shall either (

d) dismiss the application, or (

e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in

section 515 that he considers is warranted. 521(8) On the hearing of an application under this section, the judge may consider (

a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice, (

b) the exhibits, if any, filed in the proceedings before the justice, and (

c) such additional evidence or exhibits as may be tendered by the prosecutor or the accused, and shall either (

d) dismiss the application, or (

e) if the prosecutor shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in

section 515 that he considers to be warranted. [Emphasis added.] [ 8 ] Neither provision indicates that additional evidence “ must ” or “ shall ” be tendered. The additional evidence aspect of re- application is clearly permissive. [ 9 ] In

summary, on the statutory provisions and the arguments put forward in respect to those provisions, I conclude that the Criminal Code provides for a review process within the trial level of courts, rather than an appellate route from a trial court, such as this Court, to an appeal court, such as the Alberta Court of Appeal. [ 10 ] I turn now to a discussion of the Alberta jurisprudence on the subject of whether a judge of this Court can review an earlier decision on release made by another judge of the Alberta Court of Queen ’ s Bench. [ 11 ] Counsel for the Accused relied heavily on R. v.

Smith , 2003 SKCA 8 , 227 Sask.R. 278 , a decision of the Saskatchewan Court of Appeal. However, the thrust of the Smith decision has not been accepted in Alberta and a review of the pertinent Alberta cases shows that the approach of the Saskatchewan Court of Appeal in Smith has been rejected in this Province. I now review those decisions in chronological order.

[12] The first decision is R. v. Alcantara, 2007 ABQB 24, wherein Veit, J. reviewed a decision (made by me) which hadconfirmed the refusal of release by the original bail judge in the Provincial Court of Alberta. Veit, J. considered the Smith decision anddeclined to follow the approach set out in that case. At para. 37 she concluded that in the circumstances a trial level judge was able toreview a decision of a previous bail review judge for legal error. [13] The next case is R. v.

Yakimishyn, 2008 ABQB 139 (“Yakimishyn No. 1”), wherein I examined my own decision in which Ihad refused review of the refusal of release by a provincial court judge. I based my decision on the principles enunciated by Veit, J. inAlcantara . In Yakimishyn No. 1 the review application was granted based on a material change in circumstances and conditional releasewas granted after I conducted a de novo hearing. [14] Finally, I refer to R. v. Yakimishyn (“Yakimishyn No. 2”) 2008 ABQB 188, also a decision of Veit, J., which reviewed mydecision in Yakimishyn No. 1.

At paras. 11 - 15 of Yakimishyn No. 2 Veit, J. concluded that R. v. Chan, 2000 ABCA 214, 261 A.R.351, mandates a particular approach in Alberta, namely that any further ss. 520 or 521 reviews are to be conducted in this Court. Further,at para. 13 of that decision she concluded that in Alberta the contrary decision reflected in the Saskatchewan Court of Appeal in Smith isnot followed. She based her conclusion on a thorough review of the Chan decision from the Alberta Court of Appeal.

I adopt thoseconclusions that this Court has jurisdiction to conduct a further release review based on Chan and the approach taken in Smith is not thelaw in Alberta. [15] Based on my analysis of the applicable statutory provisions and my review of the pertinent Alberta jurisprudence, I concludethat I have jurisdiction to proceed with a review of the release decision of Germain, J., based on the ground of alleged errors of law on hispart. III. Review of Errors of Law Alleged by the Crown (

a) Error alleged in respect to the tertiary ground (

i) Position of the Crown [16] The first error of law alleged by the Crown is that Germain, J. misstated the test for applying the tertiary ground for refusingrelease as mandated by the Supreme Court of Canada in R. v. Hall, 2002 SCC 64, [2002] 3 SCR 309, which reads: 41 This, then, is Parliament’s purpose: to maintain public confidence in the bail system and the justice system as a whole. Thequestion is whether the means it has chosen go further than necessary to achieve that purpose. In my view, they do not. Parliament hashedged this provision for bail with important safeguards.

The judge must be satisfied that detention is not only advisable but necessary. The judge must, moreover, be satisfied that detention is necessary not just to any goal, but to maintain confidence in the administration ofjustice. Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has specified. Thejudge cannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he must focus particularlyon the factors Parliament has specified.

At the end of the day, the judge can only deny bail if satisfied that in view of these factorsand related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintainconfidence in the administration of justice. In addition, as McEachern C.J.B.C. (in Chambers) noted in R. v. Nguyen, (BCCA), (1997), 119 C.C.C. (3d) 269, the reasonable person making this assessment must be one properly informed about“the philosophy of the legislative provisions, Charter values and the actual circumstances of the case” (p. 274).

For these reasons,the provision does not authorize a “standardless sweep” nor confer open-ended judicial discretion. Rather, it strikes an appropriatebalance between the rights of the accused and the need to maintain justice in the community. In sum, it is not overbroad. [Emphasis added] [17] The specific words of Germain, J. about which the Crown complains constitute part of one sentence found at pg. 45, lines 38to 40 of his reasons: ... and courts have in fact suggested that it must be reserved for the clearest and most egregious cases, and not just serious cases.

This error is said to have occurred during the course of his review of that part of the bail judge ’ s decision which refused bail on the tertiary ground. [ 18 ] Having set out the alleged error, the Crown proceeded to review statements made in para. 41 of Hall , the case of R. v. Tschetter , 2007 CarswellAlta 2375 , 2008 ABQB 265 and a decision of the Alberta Court of Appeal in R. v. White , 2006 CarswellAlta 233 , 2006 ABCA 65 . The Crown argued that these decisions reflect the correct statement and application of the test in Hall for refusing release on the third ground.

The Crown asserted the use of this ground was restricted to cases which are “ unusual ” or “ rare ” . The Crown suggested this to be a lower or lesser standard than the ‘ test ’ applied by Germain, J. as being used in the “ clearest and most egregious cases ” .

Put another way, the Crown complains the test stated by Germain, J. is too strict. [ 19 ] The Crown closed the argument on this alleged error by stating that Germain, J. ought to have found that the Robison case is so rare and so unusual that a reasonable person, properly apprized of the principles and philosophy of the release system, would say that detention is necessary.

Counsel then went on to refer to the evidence about the use of firearms, the presence of multiple firearms and also of anti-government literature in the house where the gun fight took place. (ii) Position of the Defence [ 20 ] The defence response was that Germain, J. had correctly summarized the applicable statutory provisions and emphasized that the tertiary ground and the Hall test had been discussed at length during the argument phase of the June 27 hearing.

Defence counsel argued further that the Crown ’ s position in respect to the use of the words “ clearest ” and “ most egregious ” are at best an argument about semantics. (iii) Analysis [ 21 ] I reject the proposition that Germain, J., sitting as the bail review judge, misstated the test in Hall or that he made any error of law in his finding that the bail judge had erred in refusing release based on the tertiary ground. [ 22 ] The Crown argument focuses on part of one sentence and in particular the words “ ...clearest and most egregious ” .

The sentence in question appears towards the end of a discussion of s. 515(10) of the Criminal Code where Germain, J. accurately summarizes the four factors to be considered by a bail judge. He then went on to state that there are only three reasons why release should be denied and observes that the bail judge did not rely on the first ground for refusing release.

He proceeded to discuss the third ground in a rather generic way and concluded that there is no case in Canadian law which is presumptively so serious that release cannot be granted. [ 23 ] My first reason for rejecting the Crown allegation is that it is not obvious to me that the bail review judge was actually stating some sort of test, or even referring to Hall , other than in a very general way. [ 24 ] Germain, J. stated further that “ ... courts have in fact suggested ” . This does not appear to be a specific reference to the Supreme Court of Canada in Hall .

Rather, it seems to be a part of a generic discussion of bail practices in Canada. The statement does not equate to any sort of articulation of a test at odds with the directives from the Supreme Court of Canada in Hall . [ 25 ] In the end the Crown was reduced to arguing that Germain, J. made a mistake and should have applied the tertiary ground to refuse release. That misses the point that at this stage of his analysis Germain, J. was not in the de novo phase of the hearing, rather he

was still conducting a review for the presence of an error of law in the decision of the bail judge, who had refused release on the third ground. His conclusion on that issue was that “ ... the learned trial [sic] judge overemphasized the third ground to deny bail by making certain assumptions that a properly informed public would view bail as inappropriate in this case ” , (Transcript of reasons at June 27 hearing, page 47, lines 13 to 15). This is a reference to the test articulated in para. 41 of Hall and shows that Germain, J. had the correct test in his mind as he reviewed the decision of the bail judge.

Again, at this point he was not conducting a de novo hearing in respect to release; he was still at the stage of examining the decision of the original bail judge for legal error. [ 26 ] The next reason for rejection deals with the argument raised by the defence that the Crown position is nothing more than an argument about semantics. The use of the word “ rare ” to describe the cases where the tertiary ground has been used to refuse release, seems to be a term accepted by the appellate courts in Canada.

Even if the words “ clearest and most egregious ” somehow do not equate to “ rare ” , I observe that Germain, J. cautioned himself when he stated at pg. 46 of his reasons “ ...

I take from those cases the direction that a judge ought to use the third reason to deny bail, that of the administration of justice, sparingly ” (lines 15 to 16); and again on pg. 47 of his reasons where he stated, “ I am reminded that our Alberta Court of Appeal and the Supreme Court of Canada have indicated, as I mentioned earlier, that this ground should be used sparingly ” (lines 18 to 20). [ 27 ] In my mind, the use of the word “ sparingly ” equates to the word “ rarely ” or to “ the rarest of circumstances ” .

Even if the use of the words “ egregious and clearest of cases ” are somehow offensive, then the later use of the word “ sparingly ” amounts to a correction of any earlier error. [ 28 ] My final reason for rejecting the alleged error asserted by the Crown is that the test in Hall had been raised during the argument phase of the bail review being conducted by Germain, J. It was asserted by the defence that he had the correct test in his mind when he made his decision.

Indeed, my examination of his reasons reveal that he had the correct test from Hall very much in his mind, as shown by the excerpts which I have referred to above, especially his reference to “ a properly informed public ” (Transcript of reasons, page 47, lines 13 to 14). [ 29 ] In

summary, Germain, J., in his capacity as the bail review judge made no legal error in the conduct of his examination of the decision of the bail judge where he refused release on the third ground. (

b) Error alleged in respect to the second ground [ 30 ] The second alleged error appears to be that Germain, J. relied on evidence of “ aggressive and positive community support ” as a risk reduction factor in the course of deciding that the bail judge had made a legal error in refusing release on the second ground, i.e. the “ public danger ground ” (Transcript of reasons, page 47, lines 26 - 27 and page 48, lines 32 and 33). (

i) Position of the Crown [ 31 ] The Crown commenced its argument on this point by again referring to Hall , and made specific reference to para. 27 of that decision, where the Supreme Court of Canada referred to the importance of public confidence as part of the proper functioning of the bail system. The Crown interpreted these statements to mean that release should not be denied because there is a strong view in the community against release.

In reference to Germain, J. ’ s reliance on evidence of “ aggressive and positive community support ” Crown counsel stated that “ ... it was an error to consider it at all, just as much as it would have been an error to consider, as indicated, a strong pro-detention community voice in another case ” (Transcript of Argument, page 11, lines 21 to 31 and following). (ii) Position of the Defence [ 32 ] Counsel for the defence responded that it was appropriate to take the evidence of community support into account when considering whether an error had been made by the bail judge in refusing release on the second ground.

The defence asserted that such

evidence could provide comfort to a bail judge that an Accused person would comply with strict conditions of release. It was arguedfurther that the evidence of community support does go to reduce the risk of the Accused posing a danger to the public upon his release. (iii) Analysis [33] In his decision Germain, J. actually found two legal errors had been committed by the bail judge in refusing bail on thesecond ground.

The first error was that the bail judge “...made an error in his handling of the second ground of the denial of bail byreferring to a memorandum of the Court of Appeal that is inconsistent with the decision of the Supreme Court of Canada, R. v. Morales,reported widely, but in the materials filed before me, (SCC), 77 CCC (3d) 91.” He went on to say that the Alberta Courtof Appeal has long indicated that their memoranda are to be considered non-binding on trial judges because they are often delivered fromthe bench without a full legal analysis, and certainly without the background facts.

He then proceeded to discuss Morales, supra, whichhe noted was a decision which was binding on him. (Transcript of reasons, page 47, line 38 to page 48, line 18. [34] I note that the Crown did not take issue with Germain, J.’s finding of error in respect to the incorrect reference to the non-binding effect of a memoranda of the Alberta Court of Appeal. [35] Rather, the error complained of is said to consist of his reliance on evidence of “aggressive and positive community support”as a risk reduction factor in the course of deciding that the bail judge had made a legal error in refusing release on the second ground. [36] I will begin by stating that the reference to “aggressive and positive community support” appears to be an accuratecharacterization of the evidence before both the bail judge and also before Germain, J., in his capacity as the bail review judge. [37] Germain, J. was satisfied that the evidence supported a conclusion that there would be a reduction in the risk of danger to thepublic if the Accused were to be released on strict conditions.

It was appropriate for Germain, J. to consider this evidence in the course ofdetermining that the bail judge had made an error in wrongly deciding that the Accused did pose “a public danger”.

Put another way,Germain, J. did not make an error when he found the bail judge had failed to take this evidence into account when he refused release onthe second ground. [38] In the result, I am not convinced that Germain, J. committed an error of law in relying on this body of evidence as part of hisanalysis of why the bail judge had made an error in his decision to refuse release and had wrongly relied on the second ground for doingso. This alleged error on the part of Germain, J. is not made out to my satisfaction. (

c) Errors arising in the de novo hearing [39] Having concluded that the bail judge had committed a legal error in respect to the second ground, Germain, J. entered into ade novo hearing as to whether the Accused should be released. The Crown alleges a number of errors occurred during this phase of thehearing and the essence of those errors consist of a failure by Germain, J. to take into account relevant evidence and further that hemisapprehended the effect of relevant evidence in concluding that the Accused did not constitute a risk to the public. (

i) Position of the Crown [40] On this bundle of alleged errors, the Crown conducted an extensive review of the evidence, including materials whichexpress antagonism to various institutions of the state, such as the police, the courts and government institutions generally. It was argued

that Germain, J. failed to connect this substantial body of evidence of antisocial tendencies on the part of the Accused with the evidence of the presence of many firearms and ammunition, the circumstances of the shootout in the Uncle ’ s home and other aggravating factors which are alleged against the Accused in this case. There was a brief detour by the Crown to anticipate an argument which might be made by the defence, namely that the Accused had been compliant with all conditions of his release and therefore should be left alone.

The Crown then returned to argue that Germain, J. failed to take into account evidence of bullets coming out of the windows as the two wounded officers retreated from the home. It is said the discharge of these two rounds can only be attributed to the Accused.

It is suggested that Germain, J. failed to consider this evidence in deciding on the second ground of danger to the public if the Accused were to be released. (ii) Position of the Defence [ 41 ] The essence of the defence response was that this was simply an attempt by the Crown to reargue the case and was nothing more than an argument that Germain, J. should have reached a different conclusion on the evidence when he refused to rely on the second ground for refusing release. (iii) Analysis [ 42 ] Having concluded that there had been errors made by the bail judge, Germain, J. went on to consider the evidence presented to him for and against release in relation to both the second and third grounds. [ 43 ] He noted the existence of several serious circumstances, including the possession by the Accused of materials which clearly indicated anti-government attitudes to public institutions, including some new evidence on the subject which had been put before him.

He summarized accurately the serious circumstances of the incident, including the “ extensive discharge ” of ammunition from more than one type of firearm. He balanced all of that evidence of aggravating circumstances against the evidence about the Accused, including the fact that he had no criminal record and that there was substantial community support for the Accused.

It is important to note that he conducted a balancing exercise and having completed this balancing, he concluded that the risk of release was manageable in terms of a danger to the public. [ 44 ] I can see no error in his approach, nor do I see that he overemphasized one piece of evidence over another. He carried out the mandated balancing exercise and was satisfied that he would order release without imposing an undue risk on the public.

It was not necessary for him to refer to every piece of the extensive evidence which was put before him in the record before the bail judge and the new evidence put before him. [ 45 ] To the extent the Crown is arguing that he did not specifically tie the antisocial materials to the firearms aspect of the case, I do not see this as an error. It is clear from his reasons that he was cognizant of all of these bodies of evidence as being present in the case and that they required consideration and he gave them consideration. IV. Conclusion and Disposition of Application [ 46 ] I find that: (

a) Germain, J., sitting as a bail review judge, made no error of law in finding that the bail judge had made legal errors in respect of the second and third grounds when he refused to release the Accused on conditions; and

(

b) Germain, J., did not commit any error of law in conducting a de novo bail hearing and coming to a conclusion that the Accused should be granted bail on strict conditions. [ 47 ] Having found no errors of law, this Court will not embark on a de novo bail hearing. The application by the Crown is dismissed. Heard on the 13 th day of September, 2012. Dated at the City of Edmonton, Alberta this 2 nd day of November, 2012. D.R.G. Thomas J.C.Q.B.A. Appearances: Mr. Rodney A. Clark (Crown Prosecutor ’ s Office Wetaskiwin) for the Crown Mr. Brian A. Beresh, Q.C. (Beresh Cunningham Aloneissi O'Neill Hurley) for the Accused