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BARRHEAD - Whether or not the court convicts a Swan Hill man of multiple criminal charges in connection with an incident near the municipality will largely depend on whether a provincial court justice believes a previous release order was still in effect.
On Oct. 8, in Barrhead Court of Justice, Justice Bruce Garriock delayed a decision to consider the written submissions of both the Crown and the defence in Dan Charles Sound's trial. Sound is accused of operating a conveyance while prohibited, possession of a controlled substance, and failure to comply with release order conditions.
"I must say, this is quite challenging cerebrally, and I want to make sure that I have everything in front of me that I need to embark down this journey," Garriock said, adding he would make a ruling on Dec. 10.
Crown prosecutor Benjamin Wiebe called Const. Zackery Riddell as his first and only witness.
Riddell testified that while on patrol north of Swan Hills on April 2, 2023, on Highway 33, he spotted who he believed to be Dan Sound behind the wheel of an older model white Ford F-150 in the southbound lane heading back into the community.
At the time, Riddell said he was under the understanding that Sound did not have a driver's licence.
"At the time, I was quite familiar with Dan Sound because of other unrelated files," he said, adding he then performed a Canadian Police Information Centre (CPIC) check. "I saw that Mr. Dan Sound did have a suspended driver's licence."
Riddell also asked dispatch to confirm whether the information was current, which they did.
Riddell then attempted to find Sound, eventually positioning himself on a Township Road perpendicular to Highway 33 about 35 kilometres north of Swan Hills, in hopes he would spot the accused on his return to the community.
Eventually, at about 2 p.m., Riddell spotted Sound passing his position and conducted a traffic stop.
He added that he asked the accused to produce his driver's licence, which Sound said he couldn't do as he left it at home.
"I informed Mr. Sound that he was bound by conditions to not be operating a motor vehicle," Riddell said.
Wiebe asked Riddell a series of questions on how the officer identified the accused without identification.
Riddell reiterated that he recognized Sound, as he had previously dealt with the accused on about half a dozen unrelated matters. He added that he was driving the same pickup truck often seen parked in front of his residence.
The Crown then asked for and was granted a history of Sound's release orders, including those still active, to be submitted into evidence.
Defence and Crown's position
Sound's lawyer, Steve Smith, did not question Riddell's testimony, saying his defence hinged on whether the release condition suspending his client's driver's licence was still active.
"In my submission, the evidence does not establish that," he said.
Smith then went through Sound's history of release orders, starting from
Smith noted on March 10, 2022, finishing with the most recent being an Aug. 16, 2022, endorsement, which the Crown submitted in effect when Riddell pulled Sound over.
"My friend takes the position that a release order is in effect until those matters are concluded or the court revokes it," he said. "As a matter of law, I believe my friend is correct. For whatever reason in Alberta, there is a belief that when a non-appearance, a warrant is issued, and once that warrant is executed, that person does not have release."
Smith said he believes that is incorrect.
"What should be happening is when an accused is brought before a justice, after being arrested on that warrant, there should be an application to revoke that previous release, and bail can proceed afresh."
He added whether it happens explicitly, it does happen by necessary implication.
Smith added that the release order for Sound, which the court ordered on Feb. 14, 2023, was the one that was in effect on April 2, 2023.
"But we don't have that release order, so we don't know what that one said," he said. "What I am saying is because we don't know what that release order said, the Crown has not proved that Mr. Crown was subject to a release order prohibiting him from operating a motor vehicle."
Wiebe argued that because the previous forms of release were not formal revocations, the release order, including Sound's driver's suspension, was still in place.
Smith agreed that the endorsements reflect that they were not revoked or cancelled by the court.
However, the action or conduct on the file shows otherwise.
The fact that a warrant was issued, and he was remanded into custody on several occasions, held for a new bail hearing, and not released until he had a new bail order indicates by necessary implication that the court had revoked his release on a previous matter. Had they not, there would have been no basis to hold him in custody."
The Crown agreed with Smith, saying the trial boiled down to whether the release order dated Aug. 16, 2022, was active.
Wiebe then pointed to Section 523 of the Criminal Code.
"According to Section 523 of the Criminal Code, a release order, unless a release order is revoked or cancelled, continues until the charges are dismissed, or the accused is sentenced. That is the Crown's position," Wiebe said. "Under the section, the [release order] is still in effect regardless of whether there is a bail hearing in the future, regardless of whether the person is remanded into custody. The Criminal Code is very clear: the only two things that cause a release order to be cancelled are revocation or cancellation under Section 523."
Barry Kerton, TownandCountryToday.com
