DATE: 20011217 DOCKET: M27994 (M27850)

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. CRAIG NIELSEN (Applicant)

BEFORE:

LASKIN, GOUDGE and SIMMONS JJ.A.

COUNSEL:

Roger Yachetti, Q.C. and John Abrams

For the applicant, moving party

John McInnes and Steve O’Brien

For the respondent

HEARD:

December 11, 2001

On appeal from the order of Justice G. William Dandie dated March 16, 2001

E N D O R S E M E N T

[1] On May 10, 2000, Craig Nelson was arrested on a charge of first degree murder. On March 16, 2001 he was denied bail. On March 30, 2001 he was committed for trial on this charge. That trial is now scheduled to begin on June 10, 2002.

[2] Pursuant to s. 680 of the Criminal Code and the direction of the Chief Justice of Ontario he now applies for a review of the decision denying him bail pending trial.

[3] It is common ground that in reviewing that decision this court applies the standard of correctness, and that because of the gravity of the charge, s. 515 of the Code places the onus on the accused to show why his detention is not justified.

[4] In our view, the accused is unable to do so on the facts of this case. We conclude that the decision denying bail was correctly made.

[5] For the following reasons, we are particularly concerned about the primary ground set out in s. 515.

[6] The accused has a significant criminal record which includes convictions for crimes of violence and five convictions for breaches of court orders. Two of those five are for failure to appear as required. When cross-examined about one of these, the accused acknowledged that he did not attend court because he did not want to return to jail. Hence he has a history of disregarding court orders including orders requiring his attendance in court.

[7] While the accused has not been convicted of a crime since November 1995, nevertheless, since his arrest on this charge, he admits having used marijuana several times in jail and has been involved in several physical altercations. These events give little comfort that he has put behind him the kind of conduct reflected in his criminal record.

[8] Nor is there a release plan that would instil much confidence that the accused will abide by his obligations. He does not have a certain job to go to. While he would be living with his parents, that was true for most of the time covered by his criminal convictions. It appears that despite their best efforts, his parents have been unable to control the accused in the past. And while they are prepared to post as security most of what they own, there is little in the material to suggest that this matters sufficiently to the accused to provide the required assurances of his future attendance in court. This is particular so given the magnitude of the penalty the accused would face on conviction.

[9] The accused simply has not demonstrated that his detention is not necessary to ensure his attendance in court. Hence we need not address the secondary and tertiary grounds set out in s. 515. However, because the accused put such emphasis on the apparent weaknesses of the Crown’s case, we would note that even if this were so, the accused has been committed for trial on the most serious charge in the criminal law and the killing involved was undoubtedly a brutal murder, and these considerations as well are relevant to the tertiary ground in s. 515.

[10] In all the circumstances we find that the decision denying bail pending trial was correctly made and we would confirm it.

“John Laskin J.A.”

“S.T. Goudge J.A.”

“Janet Simmons J.A.”