A Yukon judge has declined to revoke the bail of a Carcross man, recently convicted of breaking and entering a residence for the purpose of sexually assaulting the occupant.

Melvin Joseph Harper appeared in territorial court by phone last Thursday before Judge Michael Cozens. Harper was found guilty July 30.

He is in Slave Lake, Alta., caring for his sick, elderly mother, who had been taken back to the hospital last Monday. He did not disclose the health issues she is facing.

Harper said he was given permission from his bail supervisor to be outside of the territory.

Crown prosecutor Jean-Benoit Deschamps presented an application to have Harper’s bail revoked and be remanded into custody until the sentencing hearing on Oct. 5.

The Crown argued that he did not have to show cause for the bail revocation, saying case law supports their argument. Deschamps explained the case law is clear that since Harper has been found guilty, he can be taken into custody.

Deschamps explained that bail is granted on the notion that the affected party is presumed innocent until proved guilty.

He said in this case, there no longer is a presumption because he was found guilty. He explained this is not a presumption of guilt because a judge found him to be guilty of the crime.

“It’s an enforceable finding of guilt,” Deschamps said.

Cozens said he is familiar with this case law, adding he has seen one of his colleagues make this revocation before.

“I know in this jurisdiction it has happened,” Cozens said.

Deschamps continued with his argument by pointing to the seriousness of the offence.

He said the sexual assault was on a victim who was sleeping in her home. He added she should have felt safe in her residence.

The Crown also argued that the court has to maintain public confidence in the administration of justice. He felt it would be in the public’s best interest to revoke bail.

He said the court can’t treat people who were found guilty in the same way as those presumed innocent.

Deschamps said he understands why Harper is in Slave Lake, but explained the court still needs to consider that this offence will warrant a longer jail sentence because it’s higher on the scale of severity.

When Cozens told Deschamps he felt the Crown still needed to show cause for bail revocation, Deschamps again pointed to the guilty verdict. Cozens noted there are no consistent guidelines in the case law.

Norah Mooney, Harper’s lawyer, argued the Crown needed to show cause. She said her client has mostly stuck to his bail guidelines since he was released on May 3, 2017.

She said there had been a breach, when he was found driving impaired before the trial in June. He had been on an order to not drink alcohol. She said the Crown could have asked to revoke bail in June, but did not.

She told the court Harper has taken steps to deal with those offences, and has hired a lawyer to assist him.

Mooney explained he was released on a promise to appear in court. She said he has made all his court dates without issue, and has kept contact with his probation officer and lawyer.

“He’s regularly checked in,” Mooney said.

She added there are examples in case law of bail not being revoked immediately upon a guilty verdict as well as the opposite. In the cases where bail was revoked, she argued, the Crown had to show there was a need for such action.

Mooney explained that the bail revocation could have negative effects on her client because it would impact his ability to prepare for his sentencing.

She said it would make it harder for him to contact her, get letters of reference and get his overall affairs in order before serving his sentence.

Cozens asked when Harper is planning to return to the Yukon and if he has any other family in Slave Lake. Harper confirmed he has more family in the area.

Mooney said there should be no concern about Harper not returning to the territory. She pointed out his kids are in Carcross, arguing he has a deep connection to the jurisdiction. She said he is not trying to get away from these matters.

Deschamps countered that the Crown did not seek to revoke bail in June because Harper was still presumed innocent. He repeated that since the man had been found guilty, he should be in custody.

Cozens said he understands the Crown’s application and noted that it’s not wrong. That being said, he did not feel that bail needs to be revoked in this case, noting he has discretion.

The judge said he did have some concerns. He said sexual assault is a severe crime, and letting Harper remain on bail could undermine the integrity of the court. That, however, needs to be weighed against why he is arguing to not be in custody.

Cozens felt that Harper has been responsible and diligent during the proceedings. He did not see a risk to the victim, as Harper has abided by all no-contact orders.

He agreed that the presumption of innocence no longer applied, but the that public needs to also consider Harper’s circumstances.

With that, the judge said he was not satisfied that he needed to revoke Harper’s bail, but he did decide to add a new bail condition.

Harper will have to report to his bail supervisor by 4 p.m. on Sept. 27.

Cozens said he wants Harper back in the territory at least a week before the sentencing hearing.