Court of Appeal for Ontario
R. v. Laframboise
Date: 2005-12-28
Counsel: Vanessa V. Christie and John J. Navarrete, for accused, appellant. Alexander Hrybinsky, for the Crown, respondent.
Court File No. M33280
The judgment of the court endorsed on the appeal record is as follows:
Cronk J.A.: —
I. Overview
[1] This is a review under s. 680 of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code"), of the order of Lally J. of the Superior Court of Justice (the "bail judge") dated July 19, 2005 detaining the appellant in custody pending trial.
[2] The appellant was arrested on March 17, 2005 on a charge of first degree murder. After approximately four months in custody, he sought bail pending trial. The bail judge ordered the continued detention of the appellant based solely on s. 515(10)(c) of the Code, the Crown having conceded at the bail hearing that ss. 515(10)(a) and (b) of the Code are not engaged in this case.
[3] On October 19, 2005, the Chief Justice of Ontario ordered a review of the detention order pursuant to s. 680(1) of the Code. In accordance with s. 680(2) of the Code, the parties agreed that a single judge could hear the review.
[4] For the reasons that follow, I conclude that the appellant has demonstrated that his continued detention pending trial is not necessary within the meaning of s. 515(10)(c) of the Code. Consequently, the detention order cannot stand.
II. Background Facts
[5] On March 17, 2005, the appellant was arrested and charged with the first degree murder of Adam Bender. The appellant is 23 years of age. At the time of his arrest, he resided in Bowmanville with his wife and infant son. He was employed by his brother-in-law at a welding and fabricating business in that town.
[6] Approximately two months after the appellant's arrest and following an extensive police search, Kyle James Odette was also arrested and charged with first degree murder in relation to Bender's death.
[7] During the proceedings before the bail judge, the Crown suggested that Bender had been selling crack cocaine and that the appellant, Odette and Bender were associated and involved together in the drug trade. The Crown also asserted that, on the day in question, the appellant and Odette drove together to Bender's home in the appellant's car to collect a drug debt from Bender, that Bender was subsequently seriously beaten and ultimately shot at, and that he later died either as a result of this beating or from hypothermia caused by exposure to freezing temperatures, in association with the beating. No bullet was found in Bender's body following his death.
[8] On August 9, 2005, a post-mortem examination report concerning the victim, which was not available at the time of the bail hearing, was provided to counsel for the appellant. It confirmed that the cause of Bender's death was hypothermia due to exposure to cold environment. "Acute ethanol intoxication (ethanol-induced cold susceptibility)" was described in the report as a significant contributing factor to the cause of death. On consent, this report was introduced as fresh evidence on this review hearing.
[9] In addition, two forensic reports from the Ministry of Community Safety and Correctional Services became available after the bail hearing. These reports, filed on this review hearing without objection from the appellant's counsel, detail the results of forensic testing, including DNA analysis, on various items. They disclose that a small amount of Bender's blood was detected on one of the appellant's shoes and in the trunk of his car following the appellant's arrest.
[10] Detective Pat Finnegan, an investigating police officer, testified at the bail hearing on behalf of the Crown. He said that, at the time of his death, Bender was living with his girlfriend, Jenoa Meagher, in Belleville. According to Finnegan, Meagher told the police that Bender had been selling drugs, including crack cocaine, in the Belleville area, that a man named Odette from Oshawa was his crack cocaine supplier, and that Bender was indebted to Odette in the amount of $1,500.
[11] Meagher provided a statement to the police. She said that on March 12, 2005, Odette and the appellant, who was a stranger to Meagher, went to Meagher's apartment. Sometime thereafter, the two men left the apartment with Bender to go to a local strip club. Later that night, Odette and the appellant returned to the apartment. Bender arrived subsequently. He was drunk and appeared to have been beaten up.
[12] When Bender discovered Odette in his girlfriend's bedroom, he threw a cup of coffee in Odette's face. This caused Odette to rush Bender out of the apartment and to begin beating him. When the beating stopped, Meagher attempted to clean Bender up with a towel. He appears to have been bleeding profusely. Meagher asked the men to leave. Odette and the appellant did so, indicating that they would take Bender with them and drop him off at his mother's house in Oshawa. According to Meagher, Bender expressed no reluctance to accompany Odette and the appellant. The trio left in the appellant's car.
[13] Meagher also told the police that she did not see the appellant participating at any time in the beating of Bender at the apartment.
[14] Bender's body was later discovered by the police in a field following a report from nearby residents that they had found bloodied clothes in a ditch and that they had heard two gunshots in the vicinity during the early hours of March 13, 2005. The body was naked notwithstanding below zero temperatures.
[15] Finnegan testified that only one set of footprints was visible leading through the field to the spot where Bender's body was found.
[16] After the recovery of Bender's body, the police interviewed various witnesses at the strip club. They confirmed that an altercation occurred at the club and that one male was slapped. None of these witnesses said that they saw the appellant hitting Bender at the club.
[17] Odette was interviewed by the police at the time of his arrest. A copy of his statement was filed at the bail hearing.
[18] Odette made several important admissions in his statement. He told police that after he left Meagher's apartment with the appellant and Bender, they pulled the car over to the side of the road. Odette said that he opened the door to the back seat of the car where Bender was sitting and started hitting Bender and demanding his money back. He told Bender to strip because he "just wanted him to be cold and...to suffer like...I didn't want him to suffer this bad....". He also stated"I remember shooting the gun this way and he was here and I shot it over here...". Odette claimed that although he kicked Bender when he was on the ground and fired his gun near Bender, Bender ran away and he, Odette, did not know how Bender died.
[19] Odette also told the police that the appellant never got out of the car and that the appellant did not have a gun.
III. Discussion
[20] The appellant argues that the bail judge erred in his refusal of bail based on s. 515(10)(c) of the Code, the tertiary ground, by ignoring the presumption of innocence and by misapplying the principles set out in R. v. Hall (2002), 2002 SCC 64, 167 C.C.C. (3d) 449 (S.C.C.), to the facts of this case.
[21] Section 515(10) of the Code provides:
515(10) For the purpose 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, including any victim of or witness to the offence, 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) 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 a lengthy term of imprisonment.
[22] In this case, the Crown conceded at the bail hearing that the detention of the appellant could not be justified under either the primary or secondary grounds for detention set out in ss. 515(10)(a) and (b). Instead, the Crown sought the continued detention of the appellant based solely on the tertiary ground set out in s. 515(10)(c).
[23] In Hall, supra, the Supreme Court of Canada emphasized that bail can be denied pursuant to s. 515(10)(c), that is, on the basis of maintaining confidence in the administration of justice, only in limited circumstances.
[24] Hall also establishes that, in determining whether detention is necessary under s. 515(10)(c), consideration must be given to all the circumstances of the case including, especially, (i) the apparent strength of the prosecution's case; (ii) the gravity of the nature of the offence; (iii) the circumstances surrounding the commission of the offence; and (iv) the potential for lengthy imprisonment.
[25] The Supreme Court elaborated at para. 40:
Section 515(10)(c) sets out specific factors which delineate a narrow set of circumstances under which bail can be denied on the basis of maintaining confidence in the administration of justice. As discussed earlier, situations may arise where, despite the fact the accused is not likely to abscond or commit further crimes while awaiting trial, his presence in the community will call into question the public's confidence in the administration of justice. Whether such a situation has arisen is judged by all the circumstances, but in particular the four factors that Parliament has set out in s. 515(10)(c) - 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 imprisonment. Where, as here, the crime is horrific, inexplicable and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence upon which the bail system and the justice system as a whole repose.
[26] The presumption of innocence is a foundational principle that animates the entirety of Canadian criminal law. In this context, s. 11(e) of the Canadian Charter of Rights and Freedoms, provides that a person charged with an offence has the right not to be denied reasonable bail absent demonstration of just cause for detention. This right rests on the presumption of innocence and recognizes the right to a fair trial before punishment.
[27] On this review hearing, the issue is whether the appellant has met his burden of demonstrating that his detention pending trial is not necessary in order to maintain confidence in the administration of justice within the meaning of s. 515(10)(c) and the developed jurisprudence. The applicable test was enunciated in Hall as follows (at para. 41):
At the end of the day, the judge can only deny bail if satisfied that in view of these factors [the factors identified in s. 515(10)(c)] and related circumstances a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice.
[28] Section 515(10)(c) of the Code thus seeks to strike an appropriate balance between the rights of an accused prior to trial and the need to maintain justice in the community: Hall, at para. 41.
[29] I conclude that the appellant has met his burden to demonstrate that his continued detention pending trial is not necessary for the purpose described in s. 515(10)(c) of the Code and that the bail judge erred in denying bail on the basis of s. 515(10)(c). I say this for several reasons.
[30] First, in my view, the import of the Supreme Court of Canada's decision in Hall is that s. 515(10)(c) can only be used sparingly to deny bail. Where, as here, the Crown places no reliance on ss. 515(10)(a) and (b) of the Code to oppose bail, the detention of an accused under s. 515(10)(c) will be justified only in rare cases. I did not understand the Crown to challenge this proposition on this review.
[31] Second, the nature of the offence charged, by itself, cannot justify the denial of bail. As observed by the Saskatchewan Court of Appeal in R. v. Blind (1999), 139 C.C.C. (3d) 87, at para. 15, under Canadian criminal law there are no categories of offences for which bail is not a possibility. While murder is undeniably a grievous crime, Parliament has not chosen to place pre-trial bail beyond the reach of those accused of murder.
[32] Nor can a detention order under s. 515(10)(c) rest solely on a strong Crown case against an accused. Were it otherwise, the presumption of innocence would be undermined. The force of the Crown's case is but one factor, albeit an important one, to be considered in the s. 515(10)(c) analysis.
[33] Third, I am of the opinion that the bail judge overstated the strength of the Crown's case against the appellant. He stated:
Applying the Chief Justice's remarks [in Hall] to this case, there is no doubt in my mind that both Mr. Odette and Mr. Laframboise are guilty of culpable homicide.
I agree with [defence counsel] that the chances of Mr. Laframboise being convicted of first degree murder are slim. But I agree with [Crown counsel] that he is a party with Odette to the killing of Adam Bender. And the Crown has a strong case against Mr. Laframboise for culpable homicide.
[34] In this case, having regard to the statements made to the police by the victim's girlfriend and the co-accused Odette, I do not believe that it can be said that the Crown's case against the accused is overwhelming for either murder or manslaughter.
[35] On this record, the evidence suggests that there is a significant difference between the appellant's interactions with Bender and those of Odette. In addition, the fresh evidence in the form of the post-mortem examination report further weakens the Crown's case against the appellant Although the DNA testing results may augment the appellant's connection to Bender's death, there are a variety of possible explanations for the presence of Bender's blood on the appellant's shoe. Bender's beating at the apartment, for example, apparently caused considerable bleeding. Moreover, the thesis that Bender was transported in the trunk of the appellant's car appears to be inconsistent with the balance of the evidence. It is significant, in this regard, that Odette's statement to the police places Bender in the back seat of the appellant's car prior to the second beating and that Bender appears to have accompanied Odette and the appellant willingly. Odette's statement is hearsay in respect of the appellant, but I find it of assistance in considering the potential impact of the appellant's release. It demonstrates that Odette and the appellant are very differently situated. Proof that the appellant was present at the crime scene is a start, not the finish, to fixing the appellant with criminal responsibility for Bender's death.
[36] Fourth, and perhaps most importantly, the reasons of the bail judge do not support the conclusion that the facts here are sufficient to elevate this case to that narrow category of cases where detention may be justified exclusively under s. 515(10)(c) of the Code.
[37] The bail judge based his detention order on; (i) his view that the Crown had a strong case against the appellant for culpable homicide; (ii) his conclusion that there is a real potential in this case for lengthy imprisonment; (iii) the apparent circumstances surrounding Bender's death; and (iv) the fact that the offence charged is grave. No other reason for the continued detention of the appellant is articulated in the reasons of the bail judge.
[38] In Blind, the Saskatchewan Court of Appeal stressed that a detention order under s. 515(10)(c) requires a showing of "something more" than the fact that the charge is grave, potential punishment may be lengthy and the Crown has a strong case in the context of the circumstances surrounding the commission of the offence. The Court of Appeal stated at para. 15:
There are few crimes of violence or of murder where one could not say that the gravity of the offence, considered on its own, without regard for the purpose of bail, justifies detention. There are also many cases where the strength of the Crown's case appears, at the pre-trial stage, to be overwhelming only to have it unravel as the trial progresses. It is also dangerous to place too much emphasis on the possibility of a lengthy prison term as all serious crimes carry the possibility of such. Giving undue weight to this factor becomes a means to start punishment before conviction.
[39] In this case, the "something more" is the circumstances surrounding the commission of the crime. They are egregious. As the bail judge observed, it appears that Bender was "stripped naked, beaten, shot at and left naked in the woods where he froze to death". But this factor must be considered with what seems to be the appellant's limited involvement and the question of the strength of the Crown's case.
[40] I conclude that there is nothing that sets this case apart from those in which detention was denied because it could not be justified on the ground that it was necessary to maintain confidence in the administration of justice.
IV. Disposition
[41] Accordingly, for the reasons given, I would set aside the detention order and substitute in its stead an order granting bail to the appellant on the terms agreed by counsel, attached hereto as Schedule "A" [omitted], pending trial or further court order.
Order accordingly.