R v Sobh, 2023 ABCJ 281

In the Alberta Court of Justice Citation: R v Sobh, 2023 ABCJ 281 Date: 20231221 Docket: 200323517P1 Registry: Calgary In the Matter of R v Sobh Between: His Majesty the King - and - Yassar Sobh Reasons for Decision of the Honourable Justice I.L. Maharaj Introduction [ 1 ] This application was brought before me on November 21, 2023. It is an application by Mr. Sobh (the “Accused”) pursuant to section 523(2) (

a) of the Criminal Code for an order vacating a previous order for release or detention, specifically, in this case, detention, with respect to information ending 517P1. [1] The previous order in question is the order of Judge Skinner (as he then was) of the Alberta Provincial Court (as it then was) detaining the Accused as of January 26, 2022, on information ending 517P1 and on information ending 264P1 (the “Detention Order”). [ 2 ] The Accused was ordered detained on January 26, 2022, on the basis that his detention was justified pursuant to s 515(10)(b) (the “secondary ground”) and s 515(10)(c) (the “tertiary ground”). Sections 515(10)(

b) and 515(10)(

c) state that: 515(10) For the purposes of this section, the detention of the accused in custody is justified only on one or more of the following grounds: ... (

b) Where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any

person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and (

c) If the detention is necessary to maintain confidence in the administration of justice having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [ 3 ] The trial on information ending 517P1 commenced on August 25, 2023, and has not concluded.

The allegations are failure to comply with two release conditions set out in a release order dated March 15, 2020, namely to have no contact with Ms. Ola Kawamleh (the “Complainant”) and not to go to the residence of the Complainant, as well as disobeying an order of the Court by virtue of a breach of a s 810 peace bond entered into by the Accused on March 5, 2020 (the “Peace Bond”), which required the Accused to keep the peace and be of good behaviour. [ 4 ] The trial on information ending 264P1 has commenced and has not concluded.

The allegations are aggravated assault, assault with a weapon, and a further breach of release conditions. The complainant in that matter is also the Complainant. Justice Glass of the Alberta Court of Justice is seized with this trial. [ 5 ] Section 523(2)(

a) states that: (

a) The court, judge or justice before which or whom an accused is being tried, at any time, ... may, on cause being shown , vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted. (emphasis added) [ 6 ] The application before me only seeks an order vacating the Detention Order with respect to information ending 517P1, not with respect to information ending 264P1.

Issues [ 7 ] The key issues before this Court are: i. Does the passage of time, in and of itself, constitute a material change in circumstances which ought to result in the Detention Order being vacated in the middle of the trial on information ending 517P1? ii. Has the Defence shown cause as to why the Accused may be released by addressing the concerns raised with respect to the secondary ground? iii. Has the Defence shown cause as to why the Accused may be released by addressing the concerns raised with respect to the tertiary ground?

Summary of the Informations and Alleged Breaches [ 8 ] The facts supporting the Defence’s argument are not in dispute and should have been presented as a

summary of uncontested facts, admissible for the purposes of this application, to streamline consideration of this issue. In the absence of a

summary of the facts, I have reviewed all of the endorsements and created the following

summary. [ 9 ] On or about January 24, 2020, the Accused was charged with the following offence under information ending 561P1: Count 1: On or about the 24 th day of January 2020, at or near Red Deer, Alberta, did unlawfully assault Ola Kawamleh, contrary to

section 266 of the Criminal Code of Canada .

[ 10 ] Information ending 561P1 was withdrawn by the Crown on March 5, 2020, when the Accused entered into the Peace Bond with, inter alia , the condition that he keep the peace and be of good behaviour. The Peace Bond had a duration of 12 months binding him until March 4, 2021. [2] [ 11 ] On or about March 15, 2020, 10 days after entering into the Peace Bond, the Accused was charged with the following offences under information ending 980P1: Count 1: On or about the 15 th day of March 2020, at or near Red Deer, Alberta, being a person bound by a recognizance under

section 810, dated 5 th day of March, 2020, did unlawfully commit a breach of the said recognizance, to wit: keep the peace and be of good behaviour, contrary to

section 811 of the Criminal Code of Canada . Count 2: On or about the 15 th day of March 2020, at or near Red Deer, Alberta, did unlawfully assault Ola Kawamleh, contrary to

section 266 of the Criminal Code of Canada . Count 3: On or about the 15 th day of March 2020, at or near Red Deer, Alberta, did unlawfully resist Cst. R Wheaton, a peace officer, in the execution of his duty, contrary to

section 129 (

a) of the Criminal Code of Canada . [ 12 ] The Accused was released again, this time by Justice of the Peace Zmurchyk, on March 15, 2020, on a Form 11 with conditions which included, inter alia , that he was to have no contact with the Complainant and that he was not to go to the Complainant’s residence. [ 13 ] On March 16, 2020, one day after he was released, the Accused was apprehended again by the Red Deer RCMP. [ 14 ] On or about March 16, 2020, the Accused was charged with the following offences under information ending 517P1: Count 1: On or about the 16 th day of March 2020, at or near Red Deer, Alberta, being at large on a release order, did fail, without lawful excuse, to comply with a condition of that release order, to wit: have no contact or communication directly or indirectly (including face to face or by means of text, email or social media or through a third party) with: Ola Kawamleh except as approved by your bail supervisor in advance and in writing, as provided in court orders made after the date of this release order, when in court or through legal counsel and with any other exceptions noted below: access to the children shall be arranged through a mutually agreeable third party or as authorized in court orders made subsequent to the date of this release order, contrary to section 145(5) (

a) of the Criminal Code of Canada . Count 2: On or about the 16 th day of March 2020, at or near Red Deer, Alberta, being at large on a release order, did fail, without lawful excuse, to comply with a condition of that release order, to wit: not attend at or within 200 metres of 45 Overdown Drive, Red Deer, Alberta except in the company of a police officer to collect personal belongings on one occasion, contrary to section 145(5) (

a) of the Criminal Code of Canada .

Count 3: On or about the 16 th day of March 2020, at or near Red Deer, Alberta, without lawful excuse, disobey a lawful order made by a Court of Justice, to wit: a common-law peace bond requiring him to keep the peace and be of good behaviour, contrary to section 127(1) of the Criminal Code of Canada . [ 15 ] On March 19, 2020, the Accused was released again , with conditions which included, inter alia, that he was to have no contact with the Complainant and that he was not to go to the Complainant’s residence. [ 16 ] On March 19, 2020, process was transferred from information ending 980P1 to information ending 839P1 and information ending 980P1 was withdrawn by the Crown. [ 17 ] Then, there was a gap in the Accused’s involvement with the law from March of 2020 until January of 2021, a period of less than one year.

During this time, it appears that he complied with the conditions of his release. It is notable that he was also still bound by the Peace Bond at this time. [ 18 ] On August 20, 2021, the Accused pled guilty to the allegations contained in information ending 839P1. He was not sentenced on that conviction until January 20, 2023, when he was given 20 days in gaol. [ 19 ] On January 21, 2022, five months after being convicted of assaulting the Complainant (information ending 980P1/839P1), the RCMP responded to a call regarding an assault at the residence of the Complainant.

When they arrived, the Accused was holding the body of the Complainant in his arms on the front lawn, repeating “I love my wife”. She was discovered to be suffering from significant injuries and required immediate hospitalization.

The allegations of the assault are that the Accused attacked her from a hidden position, grabbed her and beat her head on the concrete driveway, hit her head on the car that was parked in the driveway, choked or strangled her on several occasions during the assault causing her to lose consciousness on more than one occasion, struck her repeatedly with a pair of pliers on her head, neck, and shoulders, and threatened to kill her if she did not return to their marriage. [ 20 ] The Accused was apprehended and charged with the following offences under information ending 264P1:

Count 1: On or about the 21st day of January 2022, at or near Red Deer, Alberta, did unlawfully wound, maim, disfigure or endanger the life of Ola Kawamleh, thereby committing an aggravated assault, contrary to

section 268 of the Criminal Code of Canada . Count 2: On or about the 21st day of January 2022, at or near Red Deer, Alberta, did, in committing an assault upon Ola Kawamleh, carry, use or threaten to use a weapon, to wit: pliers or an imitation thereof, contrary to

section 267 (

a) of the Criminal Code of Canada . Count 3: On or about the 21st day of January 2022, at or near Red Deer, Alberta, being at large on a release order, did fail, without lawful excuse, to comply with a condition of that release order to wit: you shall have no contact or communication in any manner with Ola Kawamleh, contrary to section 145(5) (

a) of the Criminal Code of Canada . [ 21 ] On January 26, 2022, the Crown sought to revoke the Accused’s release on information ending 517P1 and brought that matter forward to address the Accused’s release on both information ending 517P1 and information ending 264P1 at a global show cause hearing. The result of the show cause hearing was the Detention Order. [ 22 ] The Defence brought an application for a review of the Detention Order in the Court of Queen’s Bench (as it then was).

On or about April 28, 2022, the Court of Queen’s Bench declined to overturn the Detention Order and the Accused remained in custody. [ 23 ] The Defence reiterates that the Accused has been in custody since January 26, 2022, being a period of approximately 22 months. Principles Applicable to Applications under s 523(2)(

a) of the Criminal Code [ 24 ] Section 523(2)(

a) gives a trial judge the exclusive jurisdiction to vary an existing order of detention or release, after the trial has commenced. [ 25 ] Many of the cases considering applications pursuant to s 523(2)(

a) address the question of when the trial actually began or whether it had even commenced relative to the timing of the application. [ 26 ] In the case at Bar, there is no dispute as to whether the trial has commenced with respect to information ending 517P1. Both the Crown and the Defence acknowledge that the trial commenced on August 25, 2023, was continued on October 16, 2023, and is scheduled to continue again on January 4, 2024. The Crown and Defence have confirmed also that the trial of the substantive matters (information ending 264P1) has begun and will continue on December 11 and 12, 2023.

When that trial will finish remains to be seen. [ 27 ] In the case of R v Patterson , the Alberta Court of Appeal wrote a short decision to “offer guidance to the practice about applications for interim judicial release in cases to which s 457.7 C.C.C. [ Criminal Code of Canada ] applies and where new circumstances have arisen since any previous order for release was granted or denied”. [3]

Section 457.7 of the Criminal Code , in 1985, refers to

section 457.8(2) which provides that, inter alia : Notwithstanding subsection (1) ... (

a) the court, judge or justice before whom the accused ... is to be tried ... may, upon cause being shown , at any time vacate any order previously made under this Part ... and make any order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers warranted. [4] (emphasis added) [ 28 ] The current s 523(2)(a), as set out in para 5 of these Reasons for Decision, utilizes similar language and, therefore, the Patterson case is still applicable. [ 29 ] The Patterson decision is not only helpful in this matter but is binding on this Court.

It stands for the general proposition that when an order for judicial interim release is granted or denied under s 522, the trial judge may hear an application, pursuant to s 523(2) (a), for judicial interim release after the trial has commenced. It is not necessary to appeal the original order. [ 30 ] What is required is that the moving party, in the case at Bar, the Defence, must show cause as to why the Accused ought to be released and not detained unless and until the accused is found guilty and sentenced to a term of imprisonment.

In the Patterson case, the Court finds that “cause” in the context of s 523(2)(

a) means “new circumstances not error”. [5] [ 31 ] In the case of R v Frederickson , a 2018 decision of the British Columbia Provincial Court, that Court elucidates the scope of “new circumstances” and states, at paras 33 to 35: [33] A reviewing trial judge under s. 523(2) (

a) of the Criminal Code has jurisdiction to vary a previous order of detention where the accused has shown cause that there has been a material change of circumstances that requires the original order be set aside ( R. v. Tse , 2008 BCSC 1022 at par. 17 ). Section 523(2) (

a) is itself a review provision since it involves consideration of a prior detention or release order ( R. v. Passera , 2017 ONCA 308 at par. 15 ). With regard to the burden of proof, the party bringing the application to vacate a prior order for release or detention must show cause as to why the prior order ought to be vacated ( R. v. Aucoin , 2006 ABQB 895 at par. 33 ). [34] The power of the court under s. 523(2)(

a) to vary bail during a trial is essentially a discretionary one that is to be exercised having

regard to the principles of

Part XVI of the Code and the related jurisprudence. Absent a material change in circumstances it is notappropriate to vary bail (R. v. Brown (Application for bail by Grant], [1999] O. J. No. 4872 (ONSC) at par. 2). [35] In my view, it would typically be necessary for the party making an application under s. 523(2)(

a) to put the circumstancesconsidered and reasons given by the detaining judge or justice before the trial judge so he or she has a reference point from which toconsider if there has truly been a material change in circumstances. ...[6] [32] Also binding on this Court, and instructive with respect to the foundation of s 523(2)(a), is the decision of Justice Mandziuk inR v PO, a 2020 decision of the Alberta Court of Queen’s Bench (as it then was), in which Justice Mandziuk addressed the legislativepurpose behind s 523(2). His Lordship stated, at para 21: [21] Mew J recently observed in R v Cook, 2020 ONSC 2055 at para 9: [t]his

section has been described as “a deliberate legislativechoice to confer upon the trial judge the authority to alter an accused’s judicial interim release status as trial proceedings unfold”: R vPassera, 2017 ONCA 308 at para 112”. See also R v Patterson, 1985 ABCA 73 at para 13. It appears that by having the Trial Judgehear these applications, Parliament intended s 523(2) to be a check on “bail shopping” by creating an institutional bias.[7] [33] Further, in PO, Justice Mandziuk refers to a “useful

summary of the approach to s 523(2)”, as set out in the Québec Cour deQuébec case of R v Swierkot, at paras 72 to 78. The decision of that Court was not binding on Justice Mandziuk, nor is it binding on me,but its explanation of the operation of s 523(2) is enlightening. While lengthy, it is worth capturing in this decision, so I will quote it infull: The nature of a hearing under s. 523(2)(

a) is best understood by reference to the general scheme for reviewing an accused’s continuedpre-trial detention as set out in ss. 520-525 of the Criminal Code: (

a) Under s. 520 C.C., an accused can review a detention order in Superior Court on the grounds of a material change in circumstancesor errors made by the detaining judge or justice. Such application can only be brought before the trial has commenced; (

b) Under s. 523(2) C.C., the accused can make a show-cause application to the trial judge to vacate a previous detention order. Thisapplication can be made once the trial has commenced, at the conclusion of a preliminary inquiry, or at any time with the consent of theprosecutor; (

c) Under s. 525 C.C., an accused who has been held in pre-trial custody for 90 days (in the case of indictable offences) is entitled to abail review in Superior Court if the trial has not started. This mechanism was addressed in detail by the Supreme Court of Canada in therecent case of R. v. Myers, 2019 SCC 18. Once the trial has commenced, it appears that an accused’s ability to review his continued detention is limited to an application to thetrial judge under s. 523(2)(a). At this stage of the proceedings, s. 523(2)(

a) C.C. is a type of review provision: R. v. Passera (2017), 2017 ONCA 308 , 352C.C.C. (3d) 478 (Ont. C.A.) at para. 15; R. v. Prete, [1987] O.J. No. 2480 (Ont. S.C.J.) at para. 4; R. v. Ibrahim, 2009 ONCJ 385 atpara. 18. As such, it does not entitle an accused to a de novo hearing: R. v. Prete, [1987] O.J. No. 2480 (Ont.S.C.J.) at para.4; R. v.Ibrahim, 2009 ONCJ 385 at para. 18. Similarly, it is not meant to be a fresh bail application or a completely open-ended review of the initial detention order.

Fundamentally,the reviewing judge may not simply substitute his view for that of the justice or judge who made the original decision to detain theaccused: The hon. M. Vauclair & T. Desjardins, Traité générale de preuve et de procédure pénales, 25th ed., Montréal, Éditions YvonBlais, 2018 at 946. Instead, a reviewing judge has jurisdiction to vary a previous order of detention where the accused has shown cause that there has been amaterial change of circumstances that requires the original order to be set aside R. v. Tse, 2008 BCSC 1022 at paras. 17-18; R. v.Frederickson, 2018 BCPC 263.

The power is a discretionary one and must be exercised in the spirit of s. 515(10) C.C. and keeping inmind the recurring warnings from the Supreme Court of Canada that the justice system must place the highest emphasis on minimizingthe chances of unwarranted denial of liberty R. v. Antic, 2017 SCC 27 , [2017] 1 S.C.R. 509; R. v. Myers, 2019 SCC 18. … The onus rests on the accused: R. c. Ouellette, [1998] J.Q. no. 2848 (C.S.) at para. 107; R. v. Aucoin, 2006 ABQB 895 at para. 33 on abalance of probabilities R. v. Prete, supra, at para. 4; R. v. Bhullar, 2016 BCSC 2506 at para. 29.

From a logical standpoint, the material change in circumstances must be in a respect material to the basis upon which detention was ordered in the first place, in order to discharge the onus of showing cause. Absent any such change, it is not appropriate to vary bail. [8] [ 34 ] To sum up, an application for a trial judge to vacate an order of judicial interim release or detention after the trial has commenced, pursuant to s 523(2)(a) , may be made by either the Crown or the Defence. The moving party must show cause as to why the existing order ought to be vacated.

By necessity, this will involve showing why the detention is not justified, or the release ought to be revoked, on any of the grounds set out in s 515(10). The determinative test for an application pursuant to s 523(2)(

a) is whether the moving party has shown cause that there has been a material change in circumstances, but not an error, which material change in circumstances must be proven on a balance of probabilities by the moving party. Position of the Parties Argument by the Defence [ 35 ] In the case at Bar, the Defence argues that the Accused has been in custody for an extended period of time; a period of time which, in the view of the Defence, far exceeds the amount of time to which the Accused would be sentenced if convicted on the breach charges set out in information ending 517P1.

The passage of time is alleged by the Defence to constitute the “material change in circumstances” from the date that the Detention Order was issued to the date of this application. [ 36 ] The Defence states that the Accused has completed a number of courses while he has been in remand, such as: gospel/bible studies, family violence prevention, anger management, communications, and life skills, as some evidence of a material change in circumstances. [ 37 ] With respect to the secondary ground, while the Defence correctly does not deny that there are legitimate concerns, the Defence proposes a bail plan that it argues should alleviate any concerns that the Court has with respect to the secondary ground. [ 38 ] In that regard, the Defence proposes the following bail plan: a.

The Accused will reside with a friend in Red Deer, Alberta. b. The Accused will offer a $2500 promise to pay, in lieu of a cash deposit. c. The Accused will agree to have no contact, direct or indirect, with the Complainant but insists on having contact with his children. d. The Accused will agree to a no-go condition with respect to any known residence, place of employment, education or worship of the Complainant. e. The Accused will agree to surrender his Syrian passport.

He is not a Canadian citizen and only has permanent residence status in Canada. [ 39 ] The Accused will not enter into a condition restricting him from possessing weapons, including tools, as he states that he works in renovations/construction.

There was no concession in this regard, despite the fact that the most serious allegations under information ending 264P1 include the charge of assault with a weapon. [ 40 ] There was no offer of a surety to ensure the Accused’s compliance with his conditions. [ 41 ] With respect to the tertiary ground, the Defence argues that the length of time that the Accused has spent in pre-trial custody with respect to the information ending 517P1 exceeds the likely sentence that he would receive even if convicted on all three breaches and that the administration of justice would be brought into disrepute by the Accused’s continued detention.

Argument by the Crown [ 42 ] The Crown argues that it is important, in considering this application, to consider the totality of the historical and active charges against this Accused, in particular the initial allegation of assault against the Complainant (which resulted in the Peace Bond), the next assault against the Complainant (which resulted in the guilty plea and conviction), and then the allegations of aggravated assault and assault with a weapon against the Complainant (information ending 264P1) which is mid-trial.

The breach charges that are before me, and the breach alleged in information ending in 264P1, are breaches of the release conditions and peace bond conditions specifically as they pertain to the protection of the Complainant. [ 43 ] The Crown argues that the application to vacate the Detention Order must fail as, prima facie , the Defence has not shown cause that there has been a material change in circumstances with respect to the facts upon which the Detention Order was issued and the facts as they stand at the time of this application.

Further, the Crown states that the Defence has not answered the secondary ground and tertiary ground concerns which are the foundation of the Detention Order, and which remain outstanding.

[ 44 ] The Crown says that the Defence’s argument rests primarily on the passage of time and the fact that the Accused has taken some courses while in remand.

The Crown argues that these circumstances do not rise to the level of a material change in circumstances. [ 45 ] Regarding the secondary ground, the Crown’s position with respect to the proposed bail plan is that it is essentially the same as the release conditions that the Accused has allegedly breached on more than one occasion and, therefore, the Court should have no confidence that the Accused will comply with any form of conditions requiring him to have no contact with the Complainant and not to go to her residence, if released at this time. [ 46 ] Further, the Crown argues that the promise to pay, while a significant amount, is meaningless unless the Accused has cash, or assets that can be easily converted to cash, to satisfy the promise in the event that the Accused breaches his conditions again.

The Defence has not provided any proof or confirmation that the Accused has the financial capacity to satisfy the amount of the promise to pay and has argued that his time in custody has made it impossible for him to earn a living and, presumably, to accrue any savings to satisfy the promise to pay. Therefore, the offer of a significant promise to pay is a “pie crust promise”, easily made and easily broken, and not a step up the Antic ladder. [9] [ 47 ] Finally, the Crown notes that the allegations against the Accused under information ending 264P1 include assault with a weapon.

The Accused had previously agreed to a weapons prohibition and has not agreed to the same prohibition in the proposed bail plan. [ 48 ] Regarding the tertiary ground, the Crown also argues that the administration of justice is not brought into disrepute by the detention of the Accused because he has repeatedly assaulted the Complainant and, in each case, breached the release conditions that were imposed upon him in an effort to restrain him from repeating his assaults on the Complainant.

Further, the Crown notes that the level of assault has escalated and there is a reason for this Court to be concerned that the Accused would, once again, breach release conditions endangering the safety of the Complainant. [ 49 ] The Crown argues that the Accused presents a real, present, and continuing danger to the safety of the Complainant and that the administration of justice would be brought into disrepute by the release of the Accused prior to the outcome of his various trials. [ 50 ] Further, the Crown argues that the period of remand, being 22 months, applies not only to the breaches described in information ending 517P1, but to the more substantive charges under information ending 264P1.

It is impossible to say how much of the time in custody is attributed to either information.

Thus, the Defence’s argument that the Accused has been detained for 22 months with respect to the breach charges under information ending 517P1 is a fallacious argument. [ 51 ] While the Crown does acknowledge that a 22-month sentence would be at the top of the range of sentencing for the breaches set out in information ending 517P1, the Crown reiterates that the top end of the sentencing range on the aggravated assault is 14 years and the top end of the sentencing range with respect to the assault with a weapon is 10 years.

The Crown also states that it is relevant for this application, as it will be upon sentencing if the Accused is convicted of the assaults set out in information ending 264P1, that the aggravated assault and assault with a weapon would be the third incident of assault against the Complainant. [ 52 ] When considering the Defence’s argument that the administration of justice would be brought into disrepute by the continued pre-trial detention of the Accused, the Crown suggests that the administration of justice would be brought into disrepute by releasing the Accused prior to the conclusion of his trial on the assaults set out in information ending 264P1 in light of the two prior incidents of assault against the Complainant and the fact that two of the assaults, one with respect to which the Accused pled guilty and the other as alleged in information ending 264P1, occurred when the Accused breached his conditions, showing a blatant disregard for the Court’s orders. [ 53 ] Finally, the Crown argues that because the Accused is detained on the more serious charges set out in information ending 264P1, this application is frivolous vexatious as the Accused is only seeking release with respect to the charges set out in information ending 517P1.

The Accused remains detained by the Detention Order on information ending 264P1. There is no similar application to vacate the Detention Order that has been brought on information ending 264P1. Reasons for Decision [ 54 ] I am not aware of the history that led to the separation of the breach charges, information ending 517P1, from the substantive charges, information ending 264P1. However, only information ending 517P1 is being heard by me. Information ending 264P1 is being heard by Justice Glass. [ 55 ] I note that the Detention Order applies to both information ending 517P1 and information ending 264P1.

For the purposes of considering judicial interim release, the two informations were viewed holistically by Judge Sinner; however, I can only consider matters as they relate to information ending 517P1. [ 56 ] The Defence would have me allocate all of the Accused’s time in custody since the issuance of the Detention Order to information ending 517P1 and find that the pre-trial detention of approximately 22 months on the breach charges represents a material change in the circumstances that were before Judge Skinner and brings the administration of justice into disrepute. [ 57 ] It is logically impossible for me to apportion the time that the Accused has been detained pursuant to the Detention Order as between the two informations to which it applies nor is it reasonable to apportion all of the time to either one or the other information and, thus, I find that it is an unworkable methodology to apply to the case at Bar.

I find that it is a more appropriate methodology to consider the two informations holistically, because the Detention Order was granted considering both informations together, and the informations both pertain to offences against the Complainant. [ 58 ] Section 523(2)(

a) states that the moving party must show cause that there has been a material change in circumstances

sufficient to justify a trial judge considering vacating and/or modifying an existing form of release or detention during a trial. [ 59 ] As set out in para 35 of the Frederickson case, in order to determine whether there has been a material change in circumstances, evidence of the submissions before the judge who granted the original order of detention (or release) ought to be placed before the trial judge who is asked to consider an accused’s release status during the trial. [ 60 ] I have been provided with and read the transcripts of proceedings that occurred on January 26, 2022, which resulted in the Detention Order. [ 61 ] During the January 26, 2022, proceedings, the Accused represented himself.

He argued that he needed to be released so he could take a job that he had been offered outside of Red Deer. He made no argument with respect to the behaviour that resulted in the two informations before the Court and how he could satisfy the Court that he ought not to be detained on any of the grounds set out in s 515(10). [ 62 ] The Crown submitted the history of the Accused’s involvement with the criminal justice system, particularly as it pertained to aggression against the Complainant.

The Crown opposed the Accused’s release on all three grounds set out in s 515(10). [ 63 ] Ultimately, Judge Skinner detained the Accused on the secondary ground and the tertiary ground, finding, at page 20 lines 8 to 15, as follows: As a result, I have to rule in favour of the Crown in this matter. Basically, we have to stop the terrorizing of his wife. She has the right to be free from contact with him and to live her life in a free society and in a free manner and be safe in her own home and these – this incident occurred at basically her sanctuary.

I’m going to detain the accused both on the secondary grounds that there is a likelihood of him reoffending, there are numerous counts of failing to comply with his release conditions before this Court, three of them in any event, and also on the tertiary grounds that in the public interest that the accused be detained in custody. [10] [ 64 ] On that basis, the Accused was ordered detained and has remained in custody since that date. [ 65 ] During his time in custody, nothing has changed for the Accused, beyond having time to consider his behaviour and to take some courses.

I find as a fact that taking a few courses is not significant enough to be considered a material change in circumstances for the purpose of an application pursuant to s 523(2)(a). [ 66 ] However, I interpret the concept of material change in circumstances to apply not only to the Accused himself and what has changed for him during his time in custody, but also to the circumstances that gave rise to his detention on the specific grounds upon which he was detained.

In the case at Bar, the Accused was detained on both the secondary and the tertiary grounds. [ 67 ] The question that I have turned my mind to is whether, in the last 22 months while the Accused has been in custody, has there been a material change in the circumstances that supported the Accused’s detention on the secondary ground and the tertiary ground as presented to Judge Skinner on January 26, 2022. [ 68 ] With respect to the secondary grounds, the Defence submits that the proposed bail plan represents a material change in circumstances sufficient to justify vacating the Detention Order. [ 69 ] In determining whether the proposed bail plan could address the Court’s concerns on the secondary ground and whether it reflects a material change in circumstances, I note that the conditions with which the Accused was ordered to comply when he was released on March 16, 2020, are more stringent than the proposed bail plan. [ 70 ] The conditions of the Accused’s prior release were, inter alia , the following: 1) Promise to pay $1200, if he failed to comply with his conditions; 2) Reside at a specific address approved by the Court or in writing by his bail supervisor; 3) Have no contact with the Complainant; 4) Not go to any residence of the Complainant; 5) Not to possess any weapons, including knives, except those required for the preparation and consuming of food; and 6) Not to possess any firearms or prohibited weapons. [ 71 ] The only difference in the bail plan that is proposed at this time is that he is proposing to surrender his Syrian passport this time and, he is refusing to accept the weapons prohibition or the firearms prohibition.

The surrendering of the passport is intended to address the concern that he would flee the jurisdiction, not whether he will breach no contact and no-go conditions and pose a risk to the safety of the Complainant ... again. [ 72 ] The lack of a weapons prohibition and a firearms prohibition, in light of the allegations of aggravated assault and assault with

a weapon, renders the current proposed bail plan less persuasive than the release conditions that the Accused was subject to in March of 2020, and which he allegedly breached. The proposed bail plan is, in my opinion, less stringent than the previous conditions of release and does not give me any comfort that the secondary ground concerns have been addressed by the Defence. [ 73 ] I put weight on the fact that the alleged breaches before me in information ending 517P1 are alleged to have occurred one day after no contact/no-go conditions were imposed.

If these allegations are true, they show that the Accused has no respect for Court orders, particularly those designed to protect the safety of the Complainant. I have no confidence that he will comply with any release conditions I might be asked to impose on him today, specifically any no contact or no-go conditions with respect to the Complainant.

I am satisfied that there is a significant likelihood, verging on a certainty, that the Accused will re-offend if released, particularly while matters are actively before the Courts, and emotions may be running high. [ 74 ] The Crown has rightly pointed out that, pursuant to s 518(1)(c), I can consider the other proceedings which involve this Accused in reaching my conclusion as to whether the Detention Order ought to be vacated. [ 75 ] Section 518(1)(

c) states: 518(1) In any proceedings under

section 515, ... (

c) the prosecutor may, in addition to any other relevant evidence, lead evidence i. to prove that the accused has previously been convicted of a criminal offence, ii. to prove that the accused has been charged with and is awaiting trial for another criminal offence, iii. to prove that the accused has previously committed an offence under

section 145, or iv. to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction of the accused ... [ 76 ] Further, I put weight on the fact that the aggravated assault and assault with a weapon allegations set out in information ending 264P1 are alleged to have occurred while the Accused was on release and was subject to no contact and no-go conditions relating to the Complainant. [ 77 ] The clear basis for the Accused’s detention on the secondary ground was the risk that he posed to the safety of the Complainant.

As time passed, the level of violence against the Complainant has escalated to the stage where he has been charged with aggravated assault and assault with a weapon under information ending 264P1. [ 78 ] I find as a fact that there has not been a material change in circumstances with respect to the risk that the Accused poses to the Complainant.

The Accused has shown a propensity to exhibit violence towards the Complainant, as evidenced by the charge of assault that was resolved by the Peace Bond and the guilty plea and conviction of assault against her on August 20, 2021, for which he was sentenced on January 20, 2023, which violence has not been curbed by the imposition of conditions restricting him from contacting her or attending at her residence. [ 79 ] The Defence argues that the Accused’s detention for 22 months on the breach charges set out in information ending 517P1 brings the administration of justice into disrepute as 22 months represents an amount of time that would exceed any reasonable sentence that the Accused could anticipate in the event of his conviction. [ 80 ] The Crown reiterates that the Detention Order was a global order and included consideration of the more serious charges set out in information ending 264P1.

The Crown argues that I ought to take those circumstances into account in assessing whether the tertiary ground concerns have been addressed. The Crown notes that the Defence’s argument on the tertiary ground is limited to the length of time that the Accused has spent in custody and does not address the question of whether the administration of justice would be brought into disrepute by releasing the Accused prior to adjudication of the allegations against him of repeated breaches of conditions and repeated, and escalating, assaults against the Complainant.

The Crown also notes that the 22 months of detention apply both to information ending 517P1 and information ending 264P1. [ 81 ] In this regard, if the only matter before the Court was the breach charges, the Defence would be in a better position to make this argument.

However, the trial with respect to information ending 264P1 is live before Justice Glass and presenting jeopardy for the Accused that could run as high as 14 years of gaol with respect to the aggravated assault and 10 years of gaol with respect to the assault with a weapon. [ 82 ] I find as a fact that the Defence has not shown cause that there has been a material change in circumstances with respect to the foundation for the tertiary ground concerns. [ 83 ] I am mindful of the significance of the presumption of innocence and an accused’s right to judicial interim release on the least restrictive conditions that are reasonable.

I do not believe that a reasonable person, relatively educated about the purpose of the Canadian Charter of Rights and Freedoms , the right of an accused person to judicial interim release on the least restrictive conditions that are reasonable, and the presumption of innocence, would be offended by the fact that this Accused is not being released pending determination of his guilt or innocence on either the breach charges or the aggravated assault and assault with a weapon charges. [11] [ 84 ] While the Accused is entitled to judicial interim release on the least restrictive conditions reasonable, unless it is shown that

his release is justified on any one or more of the grounds set out in s 515(10), my task is to determine whether there has been a material change in the circumstances which were presented to Judge Skinner when he issued the Detention Order, detaining the Accused on the secondary ground and on the tertiary ground. [ 85 ] I have determined that the Defence has not shown cause that there has been a material change in circumstances relevant to either or both of the secondary ground or the tertiary ground. Therefore, there is no basis upon which the Accused’s bail status ought to be varied.

Conclusion [ 86 ] Based on my findings above, the Defence’s application to vacate the Detention Order as it pertains to information ending 517P1 is dismissed. [ 87 ] The trial of the allegations contained in information ending 517P1 is scheduled to continue on January 4, 2024, in Red Deer, Alberta. Dated at the City of Calgary, Alberta this 21st day of December, 2023. I.L. Maharaj A Justice of the Alberta Court of Justice Appearances: Alan Hogg for the Crown David Reeves for the Accused