R v Molnar, 2013 ABQB 676

Court of Queen ’ s Bench of Alberta Citation: R v Molnar, 2013 ABQB 676 Date: 20131115 Docket: 131179483Q1 Registry: Calgary Between: Her Majesty The Queen Crown - and - Steven Edward Molnar Accused Restriction on Publication Judicial Interim Release – See the Criminal Code ,

section 517. By Court Order, this decision and the evidence taken, information given or representations made may not be published, broadcast, or transmitted in any manner.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. Corrected judgment: A corrigendum was issued on November 18, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment. Editorial Notice: The restriction on publication ended on February 12, 2014. _

________________________________________ ______________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _________________________________________ ______________ [ 1 ] Mr. Molnar has been in custody for 5 weeks since being denied bail on October 6, 2013. He now applies for bail review. [ 2 ] The bail judge who presided at the bail hearing denied bail on the second ground. However, she provided no reasons for that conclusion, thereby committing an error of law entitling Mr. Molnar to a fresh hearing on bail. [ 3 ] On one information, Mr.

Molnar is charged with 17 counts; of those, two charge criminal harassment of strangers, several relate to driving while disqualified and possession of a stolen vehicle, and many charge breaches of terms of probation and of recognizances. The latter contain many duplications as the same conduct is charged as breach of similar conditions in the probation orders and the recognizances. Many counts charge breaches of provincial traffic legislation. [ 4 ] Mr.

Molnar has a recent record for criminal harassment; it is impossible on this application to make any assessment of the seriousness of that criminal conduct because the one day sentence that was imposed when Mr. Molnar pleaded guilty to the charges arose after Mr. Molnar spent a considerable time in pre-sentence custody, a period which may have been from 6 to 10 months. He also has a recent record for committing indecent acts, for thefts under, for possession of drugs, for mischief, for driving offences, and for failing to comply with court orders.

He also has more dated offences of break and enter and possession of stolen property. [ 5 ] Onus was not addressed either at the original bail hearing or on bail review. Relying on s. 515(6)(

c) of the Code and the information contained in Molnar’s criminal record, ex. BR1, and in order to avoid any concern about the onus on this hearing, I will proceed on the basis that Mr. Molnar has the onus of establishing that he should not be held in custody pending his trial. [ 6 ] The earliest that Molnar can expect to be tried on the criminal charges is April, 2014. [ 7 ] Mr.

Molnar must establish that his detention is not necessary for the protection or safety of the public - including any victim or complainant, any witness, and any individual under the age of 18 - having regard to all of the circumstances, including the substantial likelihood that he will, if released, commit a criminal offence or interfere with the administration of justice. [ 8 ] I have concluded that Mr. Molnar has met that onus. Although there are concerns about Mr.

Molnar’s behaviour, those concerns can be adequately addressed by measures less serious than 7 months’ pre-trial incarceration. [ 9 ] In coming to that conclusion, I have taken the following into account: - although Mr. Molnar appears to have been under regular, perhaps constant, surveillance by the Calgary Police Habitual Offender Management Enforcement Team, the actual evidence accumulated by the police does not justify lengthy pre-trial incarceration as a proportional response to Mr. Molnar’s conduct. For the purposes of this hearing, I accept that Mr.

Molnar went into a licensed establishment and drank a beer, and that he went into another licensed establishment and came out again, and that those actions constituted breaches of his probation order and recognizances. I also accept that Mr. Molnar attended at two malls in Calgary and that that conduct constituted breaches of his probation order and recognizances. I also accept that Mr. Molnar was driving a stolen car and that he was an unlicensed driver. I accept that when he was arrested Mr.

Molnar had on his person a cell phone that can take photographs; I also accept that it is not possible today to buy a cell phone that does not take photographs; I also accept that the police confiscated and searched the cell phone and did not find any kind of prohibited photographs on the cell phone. I do not accept that when Mr. Molnar was parked and didn’t have his hands on the steering wheel he was masturbating. - because of Mr. Molnar’s record, there is a concern about two charges relating to criminal harassment. One relates to one of the Goodlife fitness centres in Calgary.

It appears that a woman who worked out there came to believe that Mr. Molnar was stalking her and she confronted him about that. It is not clear from the material available at the bail hearing whether the alleged stalking occurred in proximity to the fitness centre. A second criminal harassment charge arises out of contact that Mr. Molnar had with a woman at a bus shelter: the woman was waiting for a bus, and Mr. Molnar approached her and asked her about the

schedule for one of the bus routes servicing that shelter. The woman apparently felt uncomfortable and walked away from the bus shelter. Even assuming that Mr. Molnar were convicted of criminal harassment on those charges, it does not appear to me that the sentence that would be imposed would equal 7 months, i.e. the time that Mr. Molnar will have been in custody by the time these charges actually come to trial. - while it is clear from the police information provided on this application, and from Mr. Molnar’s record, that Mr.

Molnar simply does not follow court orders, the breach of the court orders does not, in the main, lead to any new criminal activity other, of course, than the charge of breaching a court order. On the other hand, the allegations of substantive criminal conduct - the alleged criminal harassments - arose, at least in the case of the bus shelter incident, completely independently of probation orders and recognizances; I am not sufficiently familiar with Calgary to know whether the Goodlife premises in question were located in a mall which was named in the “no

go” orders that applied to Mr. Molnar. [ 10 ] In assessing the circumstances here, including the information provided by the police and the fact that Mr. Molnar has already spent 5 weeks in jail before he has been tried on the various charges, I have concluded that a proportional response to Mr. Molnar’s behaviour is to add to the conditions by further restricting his pre-trial liberty. In particular, I have concluded that there should be a considerably higher cash bail put up by Mr. Molnar to guarantee his good behaviour pending trial.

In addition, he should not re-attend at the Goodlife fitness centre which is referred to in the police reports. Nor should he have contact with either of the two complainants. Nor, should he be in a vehicle, except a taxi or a public transportation vehicle, unless the registered owner of the vehicle is physically present in the vehicle. However, I do not agree that there should be a curfew: none of the reported incidents occurred in the evening or overnight period.

Nor should there be a weapons prohibition: no weapons are associated with any of his convictions or any of the current allegations and, therefore, the provisions of the Criminal Code relating to weapons constitute adequate protection of the public. In

summary, then, in addition to the conditions which currently apply to Mr. Molnar from his probation order and recognizances, until the trial of these matters, Mr.

Molnar will also be bound by the following additional conditions: - he will post $2,000.00 cash bail to guarantee that, between now and his trial, he will abide by court orders and not commit any criminal offences; - he will not attend the Goodlife fitness centre where he was a member at the time of the incidents which form the basis of one of the charges; - he will not have any contact with either of the two named complainants; - he will not be in any vehicle, except a taxi or public transportation vehicle, unless the registered owner of the vehicle is physically present in the vehicle.

Heard on the 13 th day of November, 2013. Dated at the City of Calgary, Alberta this 15 th day of November, 2013. J.B. Veit J.C.Q.B.A. Appearances: Kyra Kondro for the Crown J.M. Lutz, Dartnell Lutz for the Accused _______________________________________________________

Corrigendum of the Memorandum of Decision of The Honourable Madam Justice J.B. Veit _______________________________________________________ Paragraphs have been renumbered.