R v DDB, 2021 ABQB 631

Court of Queen’s Bench of Alberta Citation: R v DDB, 2021 ABQB 631 Date: 20210810 Docket: 210268504U1 Registry: Edmonton Between: Regina Crown - and - DDB Accused Corrected judgment: A corrigendum was issued on February 16, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment. Corrected judgment: A corrigendum was issued on August 12, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. Restriction on Publication Judicial Interim Release – See the Criminal Code , section 517(1) and 520(9) .

By Court Order, this decision and the evidence taken, information given or representations made may not be published, broadcast, or transmitted, except by any legal information service that routinely distributes judicial decisions, between legal counsel, or within or between any court, until this publication ban expires. P ublication, broadcast or transmission, otherwise than as specified above, of any identifying information about the accused, his personal circumstances, his criminal record or the charges is prohibited until this publication ban expires. 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. _______________________________________________________ Reasons for Judgment of The Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Restriction on Publication

[ 1 ] Pursuant to ss 517(1) and 520(9) of the Criminal Code , RSC 1985, c C-46 , this decision and the evidence taken, information given or representations made may not be published, broadcast, or transmitted in any way, except by any legal information service that routinely distributes judicial decisions, between legal counsel, or within or between any court, until this publication ban expires. [ 2 ] Publication, broadcast or transmission, otherwise than as specified above, of any identifying information about the accused, his personal circumstances, his criminal record or the charges is prohibited until this publication ban expires.

In order to protect the identity of the accused, initials are being used in place of his name in this decision. B. Introduction [ 3 ] A person detained on two robbery charges applies again for judicial interim release following an unsuccessful release application to the Provincial Court. [ 4 ] The Crown concedes a material change of circumstances. [ 5 ] The new plan centres on electronic monitoring. [ 6 ] I find that, in the context of the proposed conditions overall, electronic monitoring would not adequately manage the public- protection risk here and, accordingly, that release is not warranted. C.

Background [ 7 ] DDB is charged with two robberies, days apart, at the same branch of a chartered bank in Sherwood Park, in March 2021. [ 8 ] He was ordered detained by Judge Cochard on April 6, 2021. Here are her core reasons: … the difficulty here is his record. He received six years back in 2009 for a robbery, then in 2004 there was a 3-year [sentence] robbery, [in] 2002 an eighteen-month [sentence] robbery …. And we’ve got three robberies [one charged now stayed] in no time flat in a very short period of time.

So yes, he might have been in suboxone for two years, and he relapsed, but the reality is that – and he did not use a weapon, and that is a good thing, but the reality is that, for the tellers involved, this would be an incredibly scary experience. I certainly understand the issue of taking into account Gladue factors for bail, but with the record that we have, even with the bail plan that [defence] is proposing, I think that there is a substantial likelihood that he will re-offend, particularly he is using.

So I am denying on these secondary [grounds]. [ 9 ] The defence had proposed $1,500 cash bail with these conditions: • report to bail supervisor by phone within five days of release (and thereafter as required); • no financial-institution attendance without prior written approval of bail supervisor; • reside at an approved address; • maintain employment; and • if required by the Court, house arrest with standard exceptions (including for employment). [ 10 ] Mr.

DDB’s adult record includes these convictions: • 2002: robbery (x 2) ; possession of stolen property over $5,000; and use of an imitation firearm [2.5-year global sentence]; • 2004: robbery [3-year sentence consecutive to existing sentence]; • 2006: robbery and assault [2-year sentence on robbery consecutive to existing sentences; 60 days on assault]; • 2009: robbery (x 3) [6-year-and-4-month global sentence]; • 2016: unlawfully at large [45-day sentence]; • 2017: failure to comply with recognizance (x 2); [2-days pre-sentence custody] • 2017: theft under $5,000, and failure to appear (x 2) [56-day sentence and 18-month probation]; and • 2018: possession for purpose of trafficking [12-month sentence followed by 3-year probation]. [ 11 ] At the time of the latest robbery charges, Mr.

DDB was still bound by that probation order. [ 12 ] In Provincial Court and again before me, the Crown emphasized (i.e. in addition to DDB’s record) the strength of its case, noting in particular that DDB was arrested within one hour of the second (March 16 , 2021) robbery and found with certain serial- numbered currency forming part of the money stolen from the bank, that a search warrant for his residence yielded the precise amount of cash (in fresh-bill state) stolen in the earlier (March 10, 2021) robbery as well as clothing matching that seen by bank employees and

captured on CCTV, plus certain distinctive-appearance footwear with foot patterns matching in-the-snow footprints left at or near the bank branch. [ 13 ] In both venues, defence stressed several Gladue factors for this aboriginal accused (child of an aboriginal father and non- aboriginal mother) including both paternal grandparents being residential-school victims, some children of that family (siblings of DDB’s father) dying while in residential-school care, DDB’s father’s alcoholism and drug addiction (on top of his mother’s serious drinking problem), being either ignored or abused (slapping, beatings with belts, spoons, and extension cords) by his parents throughout his childhood, DDB suffering serious sexual abuse inflicted by a male cousin and two male babysitters before he was 11 or 12, and leaving his parents’ home by age 14. [ 14 ] Defence also emphasized DDB’s relationship with a partner and his close bond to his partner’s child (now10) for whom he has been a father figure for six years.

It also stressed that DDB had been working full time at the time of the current charges and that his job is there for him if released. [ 15 ] It also emphasized that, while DDB had (per Provincial Court submissions) “previously suffered from addictions … which he advised drove his criminal behavior…, he [has] been on suboxone since December of 2018. He did stop taking suboxone in January of this year, he did relapse, he’s back on its since he’s been at the Edmonton Remand.

He advises he intends on continuing to take suboxone through the OPP clinic for … his foreseeable future.” [ 16 ] It also noted (at Provincial Court) that the current charges do not feature allegations of firearm use, that the alleged robberies were not “heinous or hurtful”, and were not committed in a “gang or domestic context.” [ 17 ] On strength-of-case, defence argued that the accused enjoys the presumption of innocence, that the Crown’s evidence did not show precisely how DDB came to possess the stolen money he was found with, and that even an apparently airtight Crown case can unravel. D.

Electronic monitoring [ 18 ] Before me, defence outlined that the accused, with his mother’s financial assistance, has tentatively arranged for electronic monitoring, via ankle bracelet, through a monitoring program offered by Recovery Science Corporation of Toronto. [ 19 ] Defence presented an extensive document describing the technical operation of such monitoring, how it can be customized to reflect permitted outings, and a selection of case law (largely from Ontario courts) reflecting circumstances in which such monitoring has been approved and rejected as a component of a release plan. [ 20 ] As Mr.

Rauf described it, such monitoring here should be an effective deterrent to Mr.

DDB reoffending in any way, given that his movements will be tracked or traceable and that unapproved out-of-bounds movements by him will trigger an alert to police and close follow-up by them. [ 21 ] The Crown was skeptical, noting that such monitoring only discloses where a person is, not what they are doing, and that, more fundamentally (in light of his criminal record), DDB is unlikely to be materially deterred from criminal conduct by electronic monitoring’s traceability and alert features emphasized. [ 22 ] Here the Crown pointed, in part, to comments of the Ontario Court of Appeal in R v JJ , 2020 ONCA 280 (Brown JA in chambers), which I will come to below. [ 23 ] In short, the Crown characterized DDB as a “serial bank robber” who has also shown a serious deficit in complying with court orders and obligations.” E.

Case law [ 24 ] Below are excerpts from recent cases explaining the nature of electronic monitoring and how it may or may not provide effective risk management, depending on the circumstances, followed by a Quebec case offering a helpful synthesis of “ Gladue and bail” principles. Electronic monitoring as part of a release plan [ 25 ] In R v JJ , 2020 ONCA 280 , Brown JA (in chambers) observed: … I have read the materials filed by the applicant from RSC.

The monitoring service it offers uses a GPS ankle bracelet attached to the applicant and provides real-time information about the applicant’s location, as well as periodic compliance reports. There are limits to the practical effectiveness of the RSC service . In a document titled, “Overview of Criminal Programs”, the company states: In our view, monitoring ought not to be relied upon if the required standard is to prevent violations or to ensure an immediate police response.

Rather, monitoring is best thought of as a risk management tool - it cannot prevent an accused from fleeing nor can it guarantee police intervention in a breach or offence in progress. RSC makes a similar point in a document titled, “Radio-Frequency (RF) & GPS Monitoring for Criminal Cases – Program

Summary”,

which states: 16. While the system can and does deliver violation alerts very quickly, typically in 1-10 minutes, we do not encourage reliance on rapid police response time as a factor in making a decision to release rather than detain an accused .

This is for two reasons: firstly, because there are many factors that create the potential for delay in the chain of communications that lead from a violation event to the ultimate police response and, secondly, because even when there are no such delays and the police response is immediate, that may still not be sufficient to prevent an accused from fleeing or committing an offence. 17.

These considerations regarding response time lead us to encourage decision makers to view monitoring not as a prevention tool but as a risk management tool that, in some cases, can have a significant impact on a plan’s ability to meet the applicable legal requirements… In R. v. Fleming , [2015] O.J. No. 4380 (S.C.J.) , Trotter J. (as he then was), pointed out at para. 18 that GPS monitoring only reveals where a person is, not what he is doing . As observed by Hourigan J. (as he then was) in R. v. Palijan , [2012] O.J.

No. 6549 (S.C.J.), at para. 25 , a company such as RSC focuses on gathering evidence of compliance, not preventing non-compliance. The weight to be given to an applicant’s willingness to enter into a GPS monitoring program with a company such as RCS will depend on the specific circumstances of a case : R. v. Sotomayor , 2014 ONSC 500 , at para. 41 , fn. 1. In the present case, I am not persuaded that the proposed GPS monitoring program significantly reduces the likelihood of the applicant committing an offence that will endanger the safety of the public.

While a GPS monitor can record the presence of the applicant at a specific location , such as the one where the events of November 28, 2019 are alleged to have occurred, it cannot provide a quick response that would prevent such events. As well, the applicant does not have an unblemished record of complying with court orders . [paras 23- 27] [emphasis added] [ 26 ] In R v Stojanovski , 2020 ONCA 285 , Brown JA (again in chambers) found: … GPS ankle bracelets have their limits. They are not designed to prevent violations or ensure an immediate police response; they function more as a risk management tool: R. v.

Jesso , 2020 ONCA 280 , at paras. 24-25 . GPS monitoring reveals where a person is, not what he is doing, and focuses more on gathering evidence of compliance rather than preventing non-compliance : R. v. Fleming , [2015] O.J. No. 4380 (S.C.J.), at para. 18 ; R. v. Palijan , [2012] O.J.

No. 6549 (S.C.J.), at para. 25 . [para 24] [ 27 ] On GPS monitoring as a risk-management tool, see also these other release-pending-appeal decisions: R v Bailey , 2020 ONCA 315 (Pardu JA in chambers) at para 24 ; R v Mohsenipour , 2020 BCCA 205 (Fitch JA in chambers) at para 13 ; R v Moazami , 2019 BCCA 226 (Frankl JA in chambers) at para 37 ; and Chun c R , 2015 QCCA 1021 (Mainville JA in chambers) at paras 30-33 . [ 28 ] In R v BMD , 2020 ONSC 2671 , Monahan J. recognized the limitations of electronic monitoring, concluding that, as one element of an overall rigorous release plan, it can materially assist in managing risk of on-release offending: In considering whether and how GPS electronic monitoring might meaningfully contribute to a plan of release, it is important to recognize the role and function of electronic monitoring.

Generally, electronic monitoring does not seek to prevent a person who intends to commit a criminal offence from carrying out that intention but, rather, to deter a person from forming that intention in the first place . It is now well established that the certainty, severity and swiftness of criminal sanctions are key factors in deterring crime. GPS electronic monitoring, because it provides continuous oversight of an individual, increases the certainty that police will detect a violation of release conditions, and also makes such detection immediate.

In addition, the location data obtained by GPS satellites allows police to track the location of the individual and increases the likelihood that he or she will be apprehended quickly should they flee and/or commit further crimes. It also provides a record of the individual’s location, which may assist in the prosecution of any crimes committed while on release. As such, other things being equal, one would expect electronic monitoring to have a significant deterrent effect on those individuals who are subject to such monitoring, thereby inducing increased compliance with their conditions of release .

As Nordheimer J. (as he then was) observed in R v. Doucette , the individual being monitored knows that, “in addition to the watchful eyes of his sureties, there is an electronic eye on him that will automatically alert the authorities if he strays out of the designated area .” Nordheimer J. noted that this greatly reduces the window of opportunity for the commission of an offence. To be sure, electronic monitoring will not eliminate the possibility of breaching certain release conditions.

There will be a certain proportion of individuals who may calculate that, notwithstanding the continuous monitoring, they will nevertheless be successful in fleeing and evading police apprehension. There will also be those determined or resolved to commit certain crimes regardless of whether they are subsequently apprehended. Nevertheless, one would expect the presence of electronic monitoring to contribute materially to greater compliance with release conditions.

Regardless of whether electronic monitoring in general may have a deterrent effect, the Crown takes the position that electronic monitoring will not be effective in ensuring that BMD complies with the terms of his release. The Crown observes that there is nothing to prevent BMD from simply cutting off the ankle bracelet and fleeing . It would take some minutes, and perhaps considerably longer, for the police to arrive on scene. By that time, BMD would be long gone.

Moreover, while the ankle bracelet enables the monitoring of BMD’s location (assuming he has not improperly removed the bracelet), it does not permit observation of his behaviour. As such, even if BMD remains within his grandmother’s residence, he will still be able commit further crimes. I find that the risk of BMD cutting off the ankle bracelet to be low. As Stephen Tan indicated in his evidence, experience in Ontario over the last decade suggests that individuals on pre-trial release rarely cut off an ankle bracelet.

The Crown has not raised any primary ground concerns in relation to BMD, which suggests that he is not regarded as a flight risk. On prior occasions when he has been released, he has appeared in court and reported to police as required.

In any event, the issue is not whether it is possible that BMD will cut off the ankle bracelet but, rather, whether there is a “substantial likelihood” that he will do so . Having heard from BMD, and considering his prior conduct while on release in the past, I do not find that there is any substantial likelihood that BMD would cut off an ankle bracelet and attempt to flee.

As for the concern that BMD would be able to commit further criminal offences even while wearing the ankle bracelet within his grandmother’s residence, it is important to recognize that the electronic monitoring is merely one component of the proposed plan of release. BMD will also be subject to 24-hour supervision by either his father or his sister, who will be living with him. Although the GPS satellites cannot observe what BMD is doing when he is at home, the sureties can and, I believe, will .

Having heard from both sureties, I find (consistent with the finding of Corrick J.) that they understand and take seriously their responsibilities as sureties. While there is no guarantee that BMD will not commit further crimes, no such guarantee is required . Based on the release plan as a whole, I do not find there is a substantial likelihood that BMD will commit further crimes if released. [paras 56-64] [footnotes omitted] [emphasis added] [ 29 ] In R v [H] , 2020 ONSC 2083 , faced with different (higher-risk) circumstances, Monahan J. concluded: In this case, there is strong evidence suggesting that [Mr.

H] is willing to take active steps to avoid police capture. In the circumstances, I find the electronic monitoring would have little deterrent effect . As such, it cannot address the concerns identified on either the primary or secondary ground in s. 515(10). [ 30 ] In R v [R] , 2020 ONSC 2118 , Harris J. observed: In some instances, electronic monitoring can be a valuable tool on bail.

Monitoring can function as a specific deterrent on an individual released on bail. … An accused person subject to electronic monitoring will know that not only will they be apprehended if they violate their house arrest but that the GPS device will produce cogent evidence to assist with their prosecution. To most, this will act as a real deterrent.

The one thing that electronic monitoring cannot do is protect against an out-of-control, irrational accused who does not care about apprehension or prosecution . [emphasis added] [ 31 ] In R v Syed , 2020 ONSC 2195 , Harris J. echoed his earlier finding: Electronic monitoring was also proposed. I accept that in some circumstances, it can be a major safeguard in a bail order.

But electronic monitoring cannot alleviate severe problems with [this] applicant and his proposed surety. [ 32 ] In R v TL , 2020 ONSC 1885 , Molloy J. held: … just because it would be possible to commit a crime while on bail, notwithstanding an ankle bracelet, does not mean that an ankle bracelet is not a useful supervision tool in many bail situations . It has, at the very least, a psychological deterrent effect. Mr. L. will know that any breach, no matter how minor, will be detected and reported. He will have no illusions about his sureties not betraying him.

The electronic bracelet will not be swayed by emotion. I believe the ankle bracelet also reinforces for the surety and other people in the home the importance of strict compliance with the terms of the bail. [In R v KD , 2020 ONSC 3791 , Molloy J. reached a different conclusion, in different circumstances (non-deterrable individual)]. [ 33 ] In R v Williams , 2020 ONSC 2237 , Stribopoulous J. concluded: To most accused, a GPS ankle monitor will serve as an effective deterrent to help ensure compliance with a home confinement condition: [cited cases omitted].

In a case on the margins, it can undoubtedly make the difference between detention and release. However, deterrence invariably depends on rationality – an inclination towards weighing costs and benefits . I am far from persuaded that Mr. Williams is such a person . [emphasis added] [ 34 ] In R v SA , 2020 ONSC 3622 , Schreck J. held: … the applicant now proposes electronic monitoring.

I accept that electronic monitoring can be a very effective part of a release plan in certain circumstances, as was explained in Williams , at paras. 118-119 : For most accused, a GPS ankle monitor will serve as an effective deterrent to help ensure compliance with a home confinement condition: see R. v. Doucette , [2016] O.J. No. 852 (S.C.), at para. 5 ; R. v. T.L ., 2020 ONSC 1885 , at para. 22 ; R. v. Rajan , 2020 ONSC 2118 , at para. 32 . In a case on the margins, it can undoubtedly make the difference between detention and release.

However, deterrence invariably depends on rationality -- an inclination towards weighing costs and benefits. In this case, there is considerable doubt as to whether the applicant is the type of person who would weigh the costs and benefits of his actions . If the allegations are true, he participated in a murder on a city street in the early evening where any number of witnesses could have seen him. He brazenly returned to the victim’s car, apparently to search for a mobile phone, and then gave up and left it there for the police to find.

He apparently brazenly handled a firearm and allowed himself to have a permanent video recording made of him doing so. He breached his bail by communicating with his co-accused in a public area where he easily could have been (and was) seen. He participated in an assault at the TSDC despite knowing that it was likely that he would be caught on video doing so. In my view, there is little reason to be confident that the knowledge that a breach would be discovered through electronic monitoring would deter the applicant. [paras 37 and 38] [emphasis added] Gladue and bail

[ 35 ] In R v Penosway , 2018 QCCQ 8863 , Galiatsatos J. took a wide swath of Gladue -and-bail cases, harvesting the following principles: 1) A sentence hearing and a bail hearing are fundamentally different proceedings with different objectives. It would therefore be illogical to apply s. 718.2(

e) C.C. or the Gladue principles equally in both cases. For example, at the sentencing stage, the principles of deterrence, denunciation and retribution are all relevant, sometimes predominant; moreover, these are precisely the principles that are most likely to be adjusted downwards after the principled consideration of Gladue principles. Yet these same factors should not be considered at the interim release stage. [65] The analytical framework is simply different. 2) That being said, the Gladue principles must nevertheless be considered at the interim release stage.

The Court must be particularly sensitive to systemic or background factors relevant to the accused, consider the over-representation of Aboriginal persons in the prison system and seek to the extent possible to find an appropriate release plan that would allow incarceration to be avoided . Here, I refer to the approach proposed by Turnbull J. in R. v. Silversmith . 3) Even a generous application of the Gladue principles does not allow the Court to disregard the criteria set out in s. 515(10) C.C. or distort the analysis of grounds (a), (

b) and (

c) for the purpose of promoting the principles of corrective justice, however commendable that objective may be. 4) The Gladue principles are more likely to influence the analysis of the primary and tertiary grounds set out in s. 515(10) C.C. Conversely, they will have less weight in the assessment of the secondary ground. Therefore, if the Court finds that there is a substantial likelihood that the accused’s release will endanger the safety of the public, this consideration must prevail. [part of para 115] [emphasis added] F.

Application of those principles here [ 36 ] I find that DDB is unlikely to be materially deterred by electronic monitoring and that the proposed release conditions overall are insufficient to contain a material risk of on-release re-offending, for these reasons: • record (robbery dimension) : DDB was convicted of seven robberies between 2002 and 2009, all aside from the other offences forming his record. Between his various sentences he has spent well over half of his adult life incarcerated for robbery offences. Yet the spectre of imprisonment and ever-increasing sentences did not deter him.

It is unlikely, given this backdrop, that he would be particularly deterred by the tracing and alert features of electronic monitoring.

Whatever it is that drove DDB to commit robbery after robbery, and it may well be (as represented to Cochard PCJ) his addictions, was obviously more powerful than the potential downsides of being found out, charged and convicted; • record (non-compliance dimension) : as noted, DDB’s record also reflects repeated unwillingness or inability to comply with court orders; • opiate addiction : exacerbating the first two factors are his acknowledged opiate addiction, no explanation or larger context for his “going off” suboxone (an addiction-management medication) earlier this year, and (despite a stated intention of resuming suboxone use) the absence of any particular rehabilitation, treatment or addiction-management plan as part of the release plan; • looseness of release plan : as was proposed to Judge Cochard, the new plan contemplates DDB returning to his at-time-of-arrest employment (concrete labouring).

However, unlike the escorted-absence scenarios painted in the Recovery Science materials, the release plan here did not include any escort or other “supervision dimension” for DDB’s while-at-work times; • balance of release plan insufficient to offset these uncertainties : the new release plan did not include a surety element, offered less cash ($1,000 compared to $1,500) than the original plan, and lacked any other material risk-management features; and • Gladue dimension : I accept, and adopt, the Penosway analysis here, where our focus is the second (public protection) ground i.e. the Gladue factors, however compelling, do not enter into the public-protection equation. [ 37 ] I also accept the Crown’s characterization of its case as “very strong”, in light of the serial-numbered bills, exact-amount-of- cash, clothing, and footprint evidence described above.

G. Conclusion [ 38 ] I accept Mr. Rauf’s position that electronic monitoring should not automatically be discounted as a release factor just because it is not foolproof and does not guarantee no on-release offending. [ 39 ] However, the focus here is risk management, as in many of the cited cases. And the risk factors here (identified above) are too serious to be effectively managed by electronic monitoring.

With his record, his addiction, and his inconsistent efforts to manage the latter, DDB is not a good candidate for electronic monitoring. [ 40 ] Protection of the public predominates here, requiring DDB’s continued detention. [ 41 ] I thank both counsel for their helpful submissions.

Heard on the 3 rd and 4 th day of August, 2021. Dated at Edmonton, Alberta this 10 th day of August, 2021 following the delivery of an oral synopsis of these reasons in Court in Edmonton, Alberta on the 6 th day of August, 2021. M. J. Lema Justice of the Court of Queen’s Bench of Alberta Appearances: Ian Ross Prosecutor (Edmonton Rural and Regional Respondent Office) for the Crown Naeem Rauf Barrister and Solicitor for the Accused _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice M. J.

Lema _______________________________________________________ Changed paragraph 31 to this: " In R v Syed , 2020 ONSC 2195 , Harris J. echoed his earlier finding ..."

_______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice M. J. Lema _______________________________________________________ Changed paragraph 38 to: “ I accept Mr. Rauf’s position that electronic monitoring should not automatically be discounted as a release factor just because it is not foolproof and does not guarantee no on-release offending.”