J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 219 Date: 20050510 Docket: BA2/2005 Judicial Centre: Regina BETWEEN: [D.G.W.] and and HER MAJESTY THE QUEEN Counsel: J.F. Parker for [D.G.W.] B.P. Nychuk for [T.C.M.] R.K. Ottenbreit, Q.C. for Attorney General of Canada J.D. Kalmakoff for Attorney General of Saskatchewan JUDGMENT MATHESON J. May 10, 2005 [1] Mr. [D.G.W.] and Mr. [T.C.M.] have been charged with multitude of offences pursuant to the Controlled Drugs and Substances Act, S.S. 1996, c. 19 and the Criminal Code, which include trafficking in cocaine and methamphetamine, conspiracy to do so with one another and several other individuals, and several Criminal Code offences, including possession of proceeds of crime. Both individuals have been in custody since November 17, 2004. [2] After a show cause hearing on November 24, 2004 her Honour Judge Carol A. Snell refused to release Mr. [T.C.M.] from detention. [3] On January 5, 2005, after show cause hearing, her Honour Judge Janet E. McMurtry refused to authorize Mr. [D.G.W.]’s release. BASIS OF REFUSALS [4] Judge McMurtry’s justification for detaining Mr. [D.G.W.] in custody was to ensure his attendance in court and, having regard to all the circumstances presented to her, the substantial likelihood that Mr. [D.G.W.] would, if released from custody, commit criminal offence. Her conclusion in that respect cannot be seriously questioned. [5] Although only 21 years of age, Mr. [D.G.W.] was convicted, in youth courts in Manitoba, between August, 1998 and February, 2002, of 13 breaking and entering, and theft, and possession of stolen property charges; one charge of assault; three charges of failing to comply with undertakings; and one charge of being unlawfully at large. In November, 2002, as an adult, he was convicted, in Calgary, of two charges of obstructing peace officer and one charge of failing to attend court. [6] At the time of Mr. [D.G.W.]’s arrest he was facing outstanding charges, and arrest warrants, in Manitoba, and drug related charges in Alberta. He was using an alias when arrested. [7] Her Honour Judge Snell refused to release Mr. [T.C.M.] for the same reasons that Mr. [D.G.W.]’s release was denied. Mr. [T.C.M.] is also from Winnipeg, and he, too, has significant youth court record; six convictions involving breaking and entering and theft, and two convictions for failing to comply with disposition and recognizance. In April, 2002, as an adult, he was convicted of two assault causing bodily harm charges, possession of house breaking instrument charge, charge of mischief, and charge of failing to attend court. Once again, the conclusion of Her Honour Judge Snell cannot be seriously questioned. [8] It was asserted by counsel for the Attorney General of Canada that in May, 2004, an investigation into cocaine and methamphetamine trafficking in Regina was commenced. It was stated that Mr. Trinh was involved in selling multi-pound quantities of cocaine and methamphetamine from Calgary, to group in Regina, organized and operated by Mr. [D.G.W.]. Mr. [T.C.M.] is alleged to have been the number two man in the Regina organization. [9] As a result of the foregoing, a review of the detention orders of Her Honour Judge McMurtry and Her Honour Judge Snell would ordinarily be cursory; the applications would have been dismissed. However, a factor which causes concern with the continued detention of these individuals is that, six months after their arrest, not only has a preliminary hearing not been conducted, no date for a preliminary hearing has been set. No preliminary hearing date will be set before May 30, 2005, the next appearance date for Mr. [D.G.W.] and Mr. [T.C.M.] in Provincial Court. [10] The delay in setting preliminary hearing date has been attributed to variety of factors: the number of accused individuals, at least one of whom has not yet retained counsel; the changing of counsel by at least two accused; adjournments to accommodate defence counsel and new defence counsel; the voluminous Crown disclosure documents, stated to consist of 8,000–12,000 pages; and the inability of various counsel for the accused to agree on suitable preliminary hearing dates. [11] Crown counsel have estimated that the preliminary hearing will take two to three weeks. There are apparently three weeks not consecutive available in Provincial Court in August. But even if all counsel should agree to utilize that time, it will likely be several weeks thereafter, in view of the anticipated length of the preliminary hearing, before transcripts of the evidence are available. Thus, it seems unlikely that the trial of these individuals, even from the most optimistic view point, will take place within a year of the date when these individuals were arrested. [12] There will be an order that Mr. [D.G.W.] be released upon entering into recognizance containing the following conditions: 1) Keep the peace and be of good behaviour. 2) Appear in court whenever required to do so. 3) Maintain his residence at [location 1], Regina, Saskatchewan and not change that residence without the prior consent of the Commanding Officer, or his designate, Drug Section, Division, RCMPolice. 4) Report to the Commanding Officer, or his designate, Drug Section, Division, RCMPolice, Dewdney Avenue, Regina, Saskatchewan, not later than 5:00 p.m. each Friday until the final disposition of the charges against Mr. [D.G.W.]. 5) Not leave his place of residence between the hours of 10:00 p.m. and 7:00 a.m. the following day, and shall present himself personally to any peace officer checking such curfew. 6) Abstain from the consumption of alcohol and non-prescription drugs, and shall not enter any public premise which serves alcoholic beverages. 7) Not be in possession of any cellular telephones. 8) Not travel farther than 100 km. from the City of Regina without the consent in writing of the officer in charge, or his designate, of Drug Section, Division, RCMPolice. 9) Not possess any prohibited weapon. 10) Have no contact with the other alleged co-conspirators except for the purpose of preparation for trial. 11) Have no contact with any of Kent Heise Wilson Trinh David Roberts Steven Gagnon Sabrina Mark Jeremy Patrick Portia Nichol 12) File with the court security in the amount of $1,000.00 cash. [13] There will be an order releasing Mr. [T.C.M.] upon entering into a recognizance containing the following conditions: 1) Keep the peace and be of good behaviour. 2) Appear in court whenever required to do so. 3) Maintain his residence at Apartment #17 [location 2], Regina, Saskatchewan and not change that residence without the prior consent of the Commanding Officer, or his designate, Drug Section, Division, RCMPolice. 4) Report to the Commanding Officer, or his designate, Drug Section, Division, RCMPolice, Dewdney Avenue, Regina, Saskatchewan, not later than 5:00 p.m. each Friday until the final disposition of the charges against Mr. [T.C.M.]. 5) Not leave his place of residence between the hours of 10:00 p.m. and 7:00 a.m. the following day, and shall present himself personally to any peace officer checking such curfew. 6) Abstain from the consumption of alcohol and non-prescription drugs, and shall not enter any public premise which serves alcoholic beverages. 7) Not be in possession of any cellular telephones. 8) Not travel farther than 100 km. from the City of Regina without the consent in writing of the officer in charge, or his designate, of Drug Section, Division, RCMPolice. 9) Not possess any prohibited weapon. 10) Have no contact with the other alleged co-conspirators except for the purpose of preparation for trial. 11) File with the court security in the amount of $1,000.00 cash. J. W.R. Matheson
The accused has been in custody since November 17, 2004. After show cause hearings, the court refused to release the accused from detention. The accused apply for a review of the detention orders. HELD: 1) A review of the detention orders would ordinarily be cursory and the applications dismissed. The reasons for the decisions to refuse to release the accused cannot seriously be questioned. 2) However, a factor that causes concern is that 6 months after their arrest, not only has a preliminary hearing not been conducted, no date for a preliminary hearing has been set. No preliminary hearing date will be set before May 2005. The preliminary hearing will take 2 to 3 weeks.  It seems unlikely that the trial of these individuals will take place within a year of the date of their arrest. 3) They are ordered released on terms and upon the filing of security in the amount of $1,000.