nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 34 Date: 2007 01 23 Docket: B.A. 30/2006 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and LESTER WAYNE FAVEL Counsel: Tammy E. Pryznyk for the Crown Lester Wayne Favel self-represented JUDGMENT GUNN J. January 23, 2007 [1] Lester Favel (the “accused”) brings an application pursuant to s. 520 of the Criminal Code for a review of the order denying him judicial interim release. Mr. Favel previously entered guilty pleas to number of offences which include assault on Santana Stonechild, break and enter residence, assault on Tamara Michiskinic, and four charges of breach of undertaking. Mr. Favel received conditional sentence on these charges April 12, 2006 and the Crown alleges that Mr. Favel has breached the conditions imposed at that time. Pursuant to s. 742.6 of the Criminal Code this places the onus on Mr. Favel to show cause why his detention in custody is not justified. [2] In addition, Mr. Favel is facing new charges. He is charged that he did on or about September 15, 2006 assault Juanita Sunshine. He was originally released on that charge on October 2, 2006, but failed to appear in court as required to do on October 16, 2006. He appeared in court in custody on October 31, 2006 and he has remained in custody since that time. He is also charged with the offence of assault causing bodily harm on Robert Landry on October 31, 2006 and with breach of his undertaking. Because the accused was previously released on bail and is now charged with additional offences and with breaching the conditions of his previous release the onus is also on the accused in respect of these charges to show cause why his detention in custody is not justified within the meaning of subsection 515(10). [3] The powers of judge on review application are set out in subsection 520(7) of the Criminal Code. They are the following: 520.(7) On the hearing of an application under this section, the judge may consider (a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice, (b) the exhibits, if any, filed in the proceedings before the justice, and (c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor, and shall either (d) dismiss the application, or (e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted. [4] The grounds upon which the detention of an accused is justified are set out in subsection 515(10) of the Criminal Code. This section provides as follows 515.(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (b) where the detention is necessary for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit criminal offence or interfere with the administration of justice; and (c) on any other just cause being shown and without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for lengthy term of imprisonment. [5] In deciding this matter have received and reviewed the original Informations on all outstanding matters involving the accused. have considered the criminal record of the accused which has been admitted by him. have not considered the transcript as it relates to the circumstances of the new offences, as am not satisfied that the comments of Crown counsel contained in it are evidence within the meaning of s. 518 of the Criminal Code. No admission was sought from, nor made by the accused who was representing himself, concerning any of these factual assertions. The accused did not make any admissions in relation to the alleged facts on this bail review. [6] The accused’s criminal record commences in December 2001, with the last conviction being registered July 19, 2006. It consists of 36 convictions including six offences involving assault or threats. There are also 11 convictions which show that the accused does not comply with court orders. These convictions include driving while prohibited, breach of probation and breach of undertaking. In addition, there are two convictions for failing to appear and one for being unlawfully at large. [7] The Crown submits that all outstanding matters will be dealt with in Provincial Court on February 12, 2007. It is opposed to the accused’s release relying primarily on s. 515(10)(b) of the Criminal Code. [8] The accused submits that he would have place to stay with his grandmother if he were to be released. He further submits that he would be prepared to comply with any conditions imposed by the Court. He submits that alcohol treatment is essential to his success. He wants to make significant changes in his life. [9] In R. v. Morales, 1992 CanLII 53 (SCC), [1992] S.C.R. 711; (1993), 17 C.R. (4th) 74 (S.C.C.), Lamer C.J.C. commented on the “public safety” component of s. 515(10)(b) at pp. 736 and 737, as follows: The public safety component of s. 515(10)(b) provides that pre-trial detention is justified where it is necessary “for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will, if he is released from custody, commit criminal offence or interfere with the administration of justice”. The appellant concedes, quite properly in my opinion, that danger or likelihood that an individual will commit criminal offence does not in itself provide just cause for detention. In general, our society does not countenance preventive detention of individuals simply because they have proclivity to commit crime. The appellant accepts this proposition but submits that there is just cause for preventive detention where an individual who presents danger of committing an offence is already awaiting trial for criminal offence. ... Bail is not denied for all individuals who pose risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose “substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous. [10] The accused submits that he will attend court on February 12, and if alcohol can be eliminated from his life, that protection and safety of the public will not be an issue. [11] It should be noted that the accused received the benefit of conditional sentence in April of 2006 and in July was found to have breached the orders which formed part of the conditional sentence. He is now facing additional allegations of breach. Even though he was still bound by conditional sentence and was charged with another violent offence, which is alleged to have occurred in September, he was once again released from custody in October. This was followed by the allegation of yet another and more serious assault which has lead to Mr. Favel remaining in custody for the past three months. [12] I am satisfied based on the material before me that Mr. Favel’s continued detention at this time is necessary for the protection or safety of the public. In coming to this decision I put significant weight on Mr. Favel’s continued disregard of court orders and the fact that the number and severity of the assault incidents is increasing. [13] find that the accused has failed to meet the onus on him to justify that his detention in custody is not necessary and pursuant to s. 520(7)(d) of the Criminal Code his application is dismissed.
The accused brings an application pursuant to s. 520 of the Criminal Code for a review of the order denying him judicial interim release. HELD: The accused's continued detention is necessary for the protection of the public The Court puts significant weight on the accused's continued disregard of court orders and the fact that the number and severity of the assault incidents is increasing. The accused received the benefit of conditional sentence in April 2006 and in July was found to have breached the orders which formed part of the conditional sentence. He is now facing additional allegations of breach. Even though he was bound by conditional sentence and was charged with another violent offence, which is alleged to have occurred in September, he was once again released from custody in October. This was followed by the allegation of yet another and more serious assault which has lead to the accused remaining in custody for the last months.