Her Majesty the Queen Crown - v. -, 2016 ABQB 531

Court of Queen’s Bench of Alberta Citation: R v A, 2016 ABQB 531 Date: 20160923 Docket: 160232872U1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - A Applicant Restriction on Publication Judicial Interim Release – See the Criminal Code ,

section 517. In the absence of a request by the applicant for a

section 517 publication ban, but in the spirit of that section, on its own motion, the court orders that the identity of the applicant not be published, broadcast or transmitted in any way until after the completion of the trial. The within reasons are intended to comply with that limited ban and can therefore be published _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Invoking the staying of some of the charges that he was initially facing, and a new release plan, A asks for a fresh assessment of bail. [ 2 ] A’s application for bail is granted. [ 3 ] The Crown agrees that A is entitled to a fresh assessment of bail: there has been a material change of circumstances.

[4] A’s rights under s. 525 of the Code have been breached; however, under Alberta law, such breaches do not automaticallylead to his release on bail. In the circumstances here, to the extent that this court was expected to undertake a s. 525 analysis as towhether A’s trial can be expedited, this court is unable to do so. [5] A Gladue analysis applies to the assessment of A’s pre-trial judicial interim release. A’s chaotic upbringing must be takeninto account in weighing his past failure to meet system deadlines and his past equivocation on counselling opportunities. [6] On the fresh assessment of bail, because A is no longer dealing with a s. 515(6)(

c) situation, the Crown now has the onus ofestablishing that it is necessary to keep A in jail before he is tried. [7] On the first ground, A’s related record is relevant but not decisive; his ties to the community are strong. One thousanddollars cash deposit plus reporting and counselling conditions can deal with legitimate concerns on that ground. [8] On the second ground, despite A’s proposed characterization of the police action in finding the loaded handgun on hisperson as the product of an unconstitutional search, the prosecution case appears strong.

However, A was not committing an offencewhile in possession of the handgun other than the offences implicit within the possession itself, he has no record for similar offences andhis criminal behaviour does not appear to be escalating. Cases and authority cited [9] By the court: R. v Jordan 2016 SCC 27 , 2016 SCC27; R. v Neill 1990 ABCA 257 , [1990] A.J. No. 690(C.A.); R. v Babin 2016 ONSC 2862; R. v Smickle 2013 ONCA 678; R. v Harutyunyam 2012 ONCA 637; R. v Ibishi 2016 ONSC 928;R. v Hutchinson 2015 ONSC 4451; R. v Hope 2016 ONCA 648; R. v Oakes 2015 ABCA 178. Appendix A: A’s criminal record 1. Background

a) Relating to A and the current charges [10] On February 24, 2016, police officers received a report of a stolen vehicle; three suspects had apparently entered the vehicleand left the scene. One of the suspects in the car theft was described as white, 30 years old, shaved head, wearing a black shirt and blackpants. The direction of travel of the vehicle was given. The police team followed the vehicle to the rear of an address which is known tothe police as a residence where there is the purchase and use of speed.

The police conducted a traffic stop in the yard of that residencewhere they placed the accused in investigative detention.

A is 35 years old, fully aboriginal, and has approximately 3 in. of black hair allover his head. [11] While A was under detention, the police found the following on his person: inside his left inside jacket pocket, a loaded 9 mmSmith & Wesson semiautomatic handgun; in his pants pocket, a folding knife; in his right boot, a straight-bladed knife. [12] While A was under detention, but after the police had removed the gun from his pocket, A ran away from police; he wasquickly recaptured. [13] During the first lengthy period of time that he was in police custody, the accused gave false names to the police; it was onlyafter he had been fingerprinted as part of the booking procedure that the police discovered his real identity. [14] A was arrested on a variety of charges including weapons offences, obstruct justice charges, and breaches of recognizance.None of these charges are referred to in s. 515(6)(

a) of the Code. The breach charges are, of course, referred to in s. 515(6)(

c) of theCode; however, the alleged crimes that provided the basis for the conditions of release which are now alleged to have been breachedhave been stayed. More specifically, at the time of his arrest, A was on bail for other charges; those charges essentially related to analleged assault of A’s spouse. One of the conditions of his release on those other charges was that he not be in possession of firearms.That condition appears to have been imposed pursuant to s. 515(4.1)(

a) of the Criminal Code as a standard condition arising out of analleged assault; no firearm had been used in the alleged assault. The charges which were the basis for the imposition of bail conditionshave now been stayed. [15] A has a minor criminal record: see Appendix A. It should be noted that although A has, on three relatively recent occasions,forfeited cash bail for having failed to comply with some requirement relating to court process, he was not convicted of any offence inany of 2012, 2014 and the first half of 2016.

Perhaps unsurprisingly in light of his minor record, A has never received counselling withrespect to alcohol and other drugs. [16] A is aboriginal; his grandparents were in residential schools; he has suffered a highly disrupted childhood. [17] A is the father of 6 children. The children have been apprehended from their mother’s care.

A’s spouse indicates that herunderstanding is that if A were released, the children would be returned to him. [18] A has training as a carpenter and post-secondary training and experience as a pipefitter. [19] A’s trial on the only outstanding current charges is scheduled for late February, 2017. [20] A admits to alcohol addiction. [21] While A has been in custody, he has completed one day classes in each of: communication & creating change; financialliteracy; stress management; employment preparation; pre-release planning. [22] The lawyer who appeared for A on this bail review application has been retained for this application only and was retained

only in early September. That lawyer has no information about the s. 525 application heard in August, 2016.

b) Relating to A’s s. 525 detention review [ 23 ] As indicated above, A has been in custody since February 24, 2016. On the basis of a 1:1.5 calculation, A has therefore already served, approximately, a 10 and ½ month jail sentence. If he remains in custody until his trial, at the commencement of his trial he will have served the equivalent of an 18 month sentence. Of all the offences with which A is charged, the only one which carries a minimum sentence is the alleged s. 95 offence; the punishment for that offence, if dealt with as an indictable offence is 3 years and if dealt with as a

summary conviction offence is 1 year. The Crown has elected to proceed by way of indictment. 2. Modified s. 517 publication ban [ 24 ] With a view to raising issues of potential general application, while preserving A’s right to a trial which has not been tainted by premature partial disclosure, and realizing that counsel for the applicant may, in choosing not to apply for a publication ban, have relied on my usual practice of imposing the full s. 517 ban, I have concluded that A’s interests will not be adversely affected by publication of this decision which does not provide any identifying information. 3.

A is entitled to a fresh assessment of bail [ 25 ] The Crown acknowledges that the staying of many of the charges facing A has been a material change of circumstance and that A is therefore entitled to a fresh assessment of bail. 4. Onus is on Crown [ 26 ] Because the assault charges which A was facing and which were the basis for the establishment of bail conditions have now been stayed, A no longer has the burden of proving that he should not be jailed prior to his trial.

The burden is now on the Crown to establish that it is necessary to keep A in jail prior to his trial. [ 27 ] The Crown objects to A’s release from pre-trial custody on the first and second grounds. In particular, relying on A’s criminal record, the Crown states that A has not been compliant with court imposed orders and, relying on A’s possession of a loaded handgun while under an explicit court order – albeit now revoked – not to be in possession of any firearm, states that there is a substantial likelihood that the accused will, if released, commit further offences. 5.

A’s rights under s. 525 of the Code have been breached; however, those breaches do not result in an automatic grant of bail [ 28 ] A’s statutory right under the Criminal Code to have his detention in custody prior to trial reviewed has been breached. Nevertheless, for the reasons that follow, the court concludes that these breaches do not automatically entitle A to release on bail pending his trial. [ 29 ] The courts have recently imposed a bright line standard for the reasonable time within which a trial must be held – 30 months for an indictable offence, see Jordan .

Parliament has imposed a bright line obligation – 90 days for an indictable offence - for the amount of time an accused person shall be in jail before a court must apply its mind to whether the accused should be released on bail if the accused’s trial cannot be expedited, see s. 525 Criminal Code . [ 30 ]

Section 525 reads as follows: Review of Detention where Trial Delayed Time for application to judge 525

(1) Where an accused who has been charged with an offence other than an offence listed in

section 469 and who is not required to be detained in custody in respect of any other matter is being detained in custody pending his trial for that offence and the trial has not commenced (

a) in the case of an indictable offence, within ninety days from (

i) the day on which the accused was taken before a justice under

section 503, or . . . the person having the custody of the accused shall, forthwith on the expiration of those ninety . . . apply to a judge having jurisdiction in the place in which the accused is in custody to fix a date for a hearing to determine whether or not the accused should be released from custody. . . . Matters to be considered on hearing

(3) On the hearing described in subsection (1), the judge may, in deciding whether or not the accused should be released from custody, take into consideration whether the prosecutor or the accused has been responsible for any unreasonable delay in the trial of the charge. Order

(4) If, following the hearing described in subsection (1), the judge is not satisfied that the continued detention of the accused in custody

is justified within the meaning of subsection 515(10), the judge shall order that the accused be released from custody pending the trial of the charge on his giving an undertaking or entering into a recognizance described in any of paragraphs 515(2)(

a) to (

e) with such conditions described in subsection 515(4) as the judge considers desirable. . . . Directions for expediting trial

(9) Where an accused is before a judge under any of the provisions of this section, the judge may give directions for expediting the trial of the accused. (Emphasis added) [ 31 ] As indicated above, A was taken into custody on February 24, 2016. Therefore, the application for his 90 day detention review was due on May 24, 2016. The institution where A was detained sent an application to the court for a detention review on July 20, 2016, i.e. almost 60 days after Parliament’s deadline, and therefore a breach of Parliament’s requirement to bring the application “forthwith”.

On July 20, 2016, our court, as is the court’s practice, forwarded direct to A a court form asking whether A sought to be released and whether A wished to be present at the detention review hearing; no mention is made on the form of the potential to have the trial expedited. Our court scheduled a s. 525 detention review hearing on August 31, 2016, i.e. 99 days after A had already been in custody for 90 days. The entire proceeding was clearly not within the spirit of Parliament’s intention to ensure that accused persons who are in custody are given some type of priority in relation to setting down of trials.

The experience of delay in requesting a s. 525 hearing of the type which occurred in this case is common in Alberta; I assume that the delay occurs because of a lack of resources and that delays of this type are equally common across Canada [ 32 ] A was represented at the August 31, 2016 detention review hearing which lasted less than a minute. A’s then lawyer “waived” the hearing on the basis that a bail review was set for late September and A was waiting for a transcript of the original bail hearing.

A did not make any request for an expedited trial. [ 33 ] Assuming that the expedited trial element of a detention review was waived to this bail review, I have embarked on an expedited trial analysis. [ 34 ] I have first considered whether the breaches of s. 525 are, in Alberta, a sufficient basis for release from custody, and I have concluded that they are not. [ 35 ] In Neill , our Court of Appeal made a court’s responsibility on a s. 525 hearing clear: “The change to s. 525(9) changes a power to an obligation, and so now a judge hearing a s. 525 matter is obliged at least to consider directions for an expedited trial. . . .

The significance to me is that . . . where an accused is detained [the judge] shall give directions to speed the pre-trial process”. (Emphasis added) [ 36 ] The Law Reform Commission of Canada’s Working Paper 57 on Criminal Law, Compelling appearance, interim release and pre-trial detention , redrafts portions of what is now s. 525 and recommends an amendment to the Code to the following effect: “A court before which an application is made shall make an order to expedite the trial”, p. 82.

The Working Paper also addresses, but does not resolve, the difficult issue of breaches of the 90 day time limit: “Recommendation 54. An arrest or subsequent custody is unlawful where it is in breach of the procedures providing for arrest or custody.” The paper continues: Not addressed in this scheme is the question of the appropriate remedy where violations of these rules occur. Generally, at least where the breach is not a violation of constitutional standards, contravention of these rules should not ordinarily result in the liberation of the person in custody.

Instead, the conditions of custody should be altered so as to conform to these rules and redress may be accessed outside any code structure. A variety of mechanisms are available to ensure this result. Civil suits and disciplinary proceedings are possible. Provincial ombudsmen or provincial human rights commissions could examine the complaints of person in custody.

In addition, we will be proposing in future studies reforms in the area of both remedies generally and extraordinary remedies which could also redress these breaches. [ 37 ] The irony of the lack of consequences when custodial institutions breach a requirement of the Criminal Code is presumably not lost on Canada’s large inmate population. [ 38 ] Turning then from breaches of the s. 525 procedure to the s. 525 factors, I note that s. 525 is somewhat difficult to interpret.

On the one hand, it states that the court is to consider whether the accused should be released within the meaning of s. 515(10) – see s. 525(4) - but, on the other hand, the judge is also to consider whether there has been any unreasonable delay, a factor which is not considered in s. 515(10) – see s. 525(3). [ 39 ] In any event, there is no evidence on this application of any unreasonable delay by either the Crown or the defence. [ 40 ] Moreover, on this application, neither the prosecutor nor defence counsel had had previous carriage of the file.

Therefore, no information was available about efforts to ensure that the trial could be heard prior to February 2017. The charges themselves, although numerous, are straightforward.

Apart from possible testing of the handgun to see if it worked, the Crown basically had all the evidence it needed to make its case on February 24, 2016. [ 41 ] Nor does the delay to anticipated conclusion of trial – a total of approximately 12 months - offend the Jordan bright line. [ 42 ] Apart entirely from any delay caused by either party or the total delay to trial, it appears to me that a judge is also entitled, and perhaps required, to consider on a s. 525 hearing whether the delay to trial is unreasonable on the basis that delay will have the effect of requiring the accused to serve more time in pre-trial custody than would probably be imposed even if he were convicted at trial.

Since we can now expect trial delays on indictable matters of up to 30 months, the 525 hearing may be the only occasion on which a judge can

consider whether lengthy pre-trial detention is unreasonable having regard to the probable penalty imposed if the accused were convicted. [ 43 ] Here, A faces a minimum 3 year sentence if he is convicted at trial of the s. 95 charge.

He has not yet served the equivalent of a 3 year sentence, and will not have done so by the end of February 2017. [ 44 ] As to whether he is likely to be convicted of the s. 95 offence, A may well have a sound argument on the unconstitutionality of the police search, but he will have to face the subsequent assessment of admissibility of the non-conscripted evidence. [ 45 ] In addition to the other issues, defence counsel on this application is retained only for the application itself; it is therefore not sensibly possible, in light of all the circumstances, to make any order in relation to expediting the trial since another defence counsel may have to live with the consequences. [ 46 ] In the result, despite the clear direction from our Court of Appeal that I should make an order to expedite the trial, I find myself unable to do so. 6.

A Gladue analysis must be applied when considering interim judicial release [ 47 ] The Crown agrees that a Gladue analysis must be applied when considering interim judicial release: Hope , Oakes . [ 48 ] The Crown also agrees that A is personally entitled to a fulsome Gladue assessment. [ 49 ] A’s circumstances are, indeed, worthy of review: - he is a treaty Indian whose grandparents were in residential schools; - his own upbringing was chaotic, with placements in foster homes and reunification with his siblings after long years of separation; - even after reunification, his family circumstances were poor. [ 50 ] A’s past failures to meet the deadlines imposed by the court system and his past equivocation with respect to counselling programs must be weighed against his chaotic upbringing and his possible cultural resistance to authority. 7.

Crown has not proved that detention is necessary on the first ground [ 51 ] For the reasons which follow, I conclude that the Crown has not proved that detention is necessary on the first ground. i.e. attendance in court. In coming to that conclusion, I rely on the following: - although A has convictions relating to the first ground, the sentences are minor, and presumably reflect A’s degree of responsibility for those crimes.

A’s forfeiture of bail monies must be balance against the evidence that, in the end, A was never convicted of any of the offences for which cash bail was presumably posted; - A has very strong ties to the community. Those ties include his own 6 children in addition to his other relatives. There is no suggestion that he would leave the area; the worst that would happen is that he would not show up at the time and place designated for an appearance.

The potential harm to the system occasioned by that kind of problem can be alleviated by a new cash bail and by setting conditions which are likely to increase A’s sense of responsibility and ability to meet his obligations; 8.

Crown has not proved that detention is necessary on the second ground [ 52 ] For the reasons that follow, I conclude that the Crown has not proved that detention is necessary on the second ground, i.e. the protection or safety of the public: - the evidence that A had a loaded handgun on his person at the time of his detention is extremely concerning: loaded handguns are worryingly dangerous even if there is no immediate intent to use them for a criminal purpose.

In addition, A’s possession of a handgun at the time of his detention evidences a failure to comply with what was, at the time, a binding court order; - nonetheless, as the Crown acknowledges, there is no law which prevents granting bail to an accused who is in physical possession of a loaded handgun: Babin , Smickle and Harutyunyan . There are, of course, situations in which an accused who is charged with being in physical possession of a loaded handgun is, properly, denied bail: Ibishi.

I note, however, that the bail application in the last case was heard on October 23, 2015 relative to a trial that was scheduled for, and did indeed take place on, January 16, 2016; The total pre-trial incarceration was therefore far below that which A faces in this case; - nor should it need articulating that just because an accused has a legitimate defence argument, whether or not Charter based, the accused will not necessarily be acquitted: Hutchinson ; - however, in this case, there is no previous related record, and there is no individual and no community which has been threatened by A’s possession of the handgun; - finally, there is no evidence that A had led or is leading a criminal lifestyle. 9.

Crown has not raised any issues on the third ground [ 53 ] Because the Crown has not raised any issues on the third ground, I will not address those factors.

Conclusion [ 54 ] For the reasons set out above, A should be released on terms which include: - an undertaking to keep the peace and be of good behaviour and appear in court as required; - to report in person, within 24 hours of his release to his probation officer and thereafter to report as and when required; - to reside with his brother – whose name and address are known to the parties – and not to move out of that residence unless A has first received permission in writing from his probation officer to do so; - assuming that he is able to arrange care for his children, to make his best efforts to find and keep employment, especially at a sober camp; - taking his employment and child care responsibilities into account, he shall participate in whatever counselling programs for drug, including alcohol, consumption which can be made available to him by his probation officer.

Given the past difficulties in A’s commitment to programs that were offered to him, and A’s right to distinguish between counselling programs and treatment programs, if the parties require a further working out or clarifying, of this counselling requirement, they are entitled to do so; - he shall post bail in the amount of $1,000.00 cash; - when he is not living in a work camp, he will be subject to a curfew from 9:00 p.m. to 6:00 a.m. - he will carry the terms of his release on his person and will produce them on request to any peace officer Heard on the 21 st day of September, 2016.

Dated at the City of Edmonton, Alberta this 23 rd day of September, 2016. J.B. Veit J.C.Q.B.A. Appearances: Mark Jordan, Tarrabain Raponi & Company for the Applicant Kevin T. Mott for the Crown Appendix A

2002-10-07 - 335 take auto without consent - 145(2)(

a) fail to appear Susp sent and 9 mos probation $150 2006-05-03 - 145(3) breach recog $150 2009-02-17 - 266 assault Susp sent 12 mos probation 2016-07-20 -145(2) (

a) fail to appear 1 day 2016-07-21 - 145(2) (

a) fail to appear - 145(2) (

a) fail to appear 1 day 1 day 2016-07-29 - 145(3) 15 days

Bail forfeited August 1/2012 - $100 cash Bail forfeited May 12/2014 - $500 cash Bail forfeited June 14/2016 - $1000