R v Fehlauer, 2014 ABQB 786

Court of Queen ’ s Bench of Alberta Citation: R v Fehlauer, 2014 ABQB 786 Date: 20141223 Docket: 140390147Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Robert Edward Fehlauer 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 By Court Order, this decision and the evidence taken, information given or representations made may not be published, broadcast, or transmitted in any manner.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. Editorial Notice: The restriction expired on April 7, 2016. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________

Introduction [ 1 ] Robert Fehlauer applies for judicial interim release on a 16-count information alleging that he and Taylor Matchett committed some 12 break and enters in St. Albert and Edmonton, Alberta between December 22, 2013 and March 10, 2014. [ 2 ] The first information was sworn in March, 2014. It is unclear from the file when Mr. Fehlauer was arrested.

He was released on a $1,000 cash recognizance dated May 13, on conditions including that he keep the peace and be of good behavior and that he have no contact with Taylor Matchett, Tracey Lee Smith and Stephanie Dion (later amended to Stephanie Dawn Bain, Mr. Fehlauer’s spouse). [ 3 ] In November, 2014, Mr. Fehlauer and Mr. Matchett were charged with offences relating to a break-in at the NAIT Patricia campus. Mr. Fehlauer and Mr. Matchett were found near the NAIT campus with masks nearby. The crime depicted on NAIT’s surveillance video follows the pattern of many of the crimes Mr. Fehlauer and Mr.

Matchett are charged with in the November to February period. [ 4 ] Mr. Fehlauer was ordered released by Judge Walter of the Provincial Court on terms which I understand to include posting $10,000 in cash. [ 5 ] Release on these original charges was revoked so the application proceeded before me as an initial bail review, but with a reverse onus as provided in s. 515(6) of the Criminal Code . Issue [ 6 ] Has Mr. Fehlauer met the burden of establishing that his release is warranted? Analysis [ 7 ] There are no primary ground concerns here. Mr.

Fehlauer has no previous record and thus there is no objective reason to be concerned that he will not attend court when required. His ties would appear to be with the community and not elsewhere. [ 8 ] There are no significant issues relating to the tertiary ground. Obviously when someone on release is charged with further similar offences allegedly committed on release the tertiary ground must be considered, but these are property crimes, not involving dwelling houses, and there are no personal injury issues involved. No weapons were involved either. [ 9 ] That is not to trivialize property offences.

Breaking and entering while masked is a very serious crime, but for the purposes of the tertiary ground, the public is less likely to lose confidence in the administration of justice over judicial interim release on a property offence than with respect to personal injury offences or offences committed while armed. [ 10 ] As for the secondary grounds, I am well aware of R v Link , 1990 ABCA 55 . The Crown was not unreasonable in opposing release on the basis that Mr. Fehlauer poses a serious risk of reoffending. [ 11 ] Notwithstanding that the initial release appeared ineffective to prevent Mr.

Fehlauer from committing further offences, I am of the view that he has satisfied me that he can be released into the community a second time, with stricter conditions. [ 12 ] I note that Judge Walter granted release. In some ways, to deny release to Mr. Fehlauer on the initial charges would be an appeal from Judge Walter’s decision. I do not have the benefit of the transcript of that application, but I was advised that the Crown opposed bail and it was granted by Judge Walter, but requiring a $10,000.00 cash deposit. [ 13 ] I was advised during the hearing before me that Mr.

Fehlauer was having difficulty arranging that amount of bail but was optimistic that his parents and family could do so. [ 14 ] I recognize that I am not bound by Judge Walter’s decision and must carry out my own analysis, but I certainly take note that a senior, experienced judge saw fit to grant Mr. Fehlauer bail in contested circumstances on essentially the same information as is before me. [ 15 ] The driving factors for me in this application are Mr.

Fehlauer’s relative youth; he is 26 years old, and the fact that he has no prior criminal record. [ 16 ] The conditions he was released on in May, 2014 were non-restrictive but for contact with Mr. Matchett, Mr. Matchett’s girlfriend, and his own girlfriend or spouse. There is no information before me that there were any breaches of the contact provisions, but for contact with Mr. Matchett. [ 17 ] Mr. Fehlauer had sought to vary his original release conditions to permit contact with his girlfriend, Stephanie Bain. Events overtook that application.

He would like to have contact with her because of their relationship. [ 18 ] There is no such thing as a second chance principle with respect to bail. Indeed, s. 515(6) makes detention mandatory for someone who commits offences while on release unless the accused shows cause why his detention is not justified. A judge must treat with great suspicion one who says “this time I will obey”. [ 19 ] I will not purport to list circumstances where it may be appropriate to give someone a second chance. The starting point is that there must be a release plan that provides greater control over the accused.

That may be accomplished by a large cash deposit in some

circumstances; it may be accomplished by greater restrictions on freedom in others. The accused will not always be able to meet the burden on him. [ 20 ] Here, Judge Walter used the device of a large cash deposit with respect to release on the new charges. For a relatively young accused and with no prior record, I am of the view that release with a curfew and other conditions will accomplish the objective of protecting the public from the risk of further offences. Mr. Fehlauer has met the burden of showing that this step will have the likely effect of ensuring his good behaviour until trial. [ 21 ] Mr.

Fehlauer cited my decision in R v Pemberton , 2009 ABQB 107 . While the circumstances in that case were very different (there, an accused with a lengthy record but not having been on bail or probation at the time of the alleged offence), the similarity is that there, as here, the circumstances suggest that the imposition of appropriate conditions may create stability and lessen the likelihood of any further crimes, making release appropriate. [ 22 ] I note that the preliminary hearing date on these charges is not until November, 2015.

The Crown suggests that earlier dates might be obtained, as the November, 2015 date was chosen while Mr. Fehlauer was on release. [ 23 ] Regardless of an earlier date, his trial would not take place until sometime in 2016 and the length of time on remand for a young man with no criminal record is also a factor in my conclusion that Mr. Fehlauer should be given a second chance at judicial interim release.

He has not been released on onerous conditions, and that is a step which should be employed before denial of bail altogether. [ 24 ] I would observe that third chances are highly unlikely, and any violation of any of the conditions would bring the tertiary ground into play on any subsequent bail application. [ 25 ] I thus order Mr. Fehlauer released on the following conditions: 1. He shall post a $20,000.00 no-cash recognizance; 2. He shall keep the peace be of good behaviour; 3.

He shall report to Edmonton Court Intake within 24 hours of his release and thereafter report in the manner and frequency required by his bail supervisor; 4. He shall attend court when required; 5. He shall reside at a residence approved in advance and in writing by his bail supervisor; 6. He shall change residence only on the prior written consent of the bail supervisor; 7. He shall abide by a curfew of 8 pm to 5 am; 8. He shall maintain a land telephone line and present himself by telephone to any peace officer during his curfew hours; 9.

He shall present himself at the door of his residence on request of any peace officer during his curfew hours; 10. He shall have no contact directly or indirectly with Taylor Matchett, Tracey Smith and only indirect contact with Stephanie Bain for the purposes of arranging access to his children; 11. He shall seek and maintain employment; 12. He shall not leave the province of Alberta. [ 26 ] I realize that Mr. Fehlauer wishes to have contact with Stephanie Bain, his common law spouse and the mother of his children. However, Ms. Bain is a witness against him and Mr.

Matchett on these charges, having apparently given statements to the police implicating Mr. Matchett and Mr. Fehlauer in the offences charged. She and Ms. Smith are key witnesses. While there are arguments that Ms. Bain may not be compellable against Mr. Fehlauer, and Ms. Smith not compellable against Mr. Matchett, there should still be no communication between or among these parties. [ 27 ] If the parties have difficulty setting the terms of this order, they should contact me through my assistant Joy Jarvis at 780- 422-2320. Heard on the 3 rd day of December, 2014.

Dated at the City of Edmonton, Alberta, this 23 rd day of December, 2014.

Robert A. Graesser J.C.Q.B.A. Appearances: J. Werbicki and S. Pittman for the Crown C.F. Moustarah for Fehlauer K.A. Quinlan for Matchett