Court of Appeal for Ontario

Date: 2025-04-23
Docket: COA-25-OM-0044
Judge: Michele M. F. Fairburn (Motion Judge)

Between:
His Majesty the King (Respondent)
and
Jessica Martin (Applicant)

Appearances:
D. Sid Freeman, for the applicant
James Clark, for the respondent

Heard: March 31, 2025

Reasons for Decision

A. Overview

[1] The applicant was denied bail on August 28, 2024. At that time, she was charged with numerous offences, including the first degree murder of Jason Brown.

[2] The Crown preferred a direct indictment. It contained five counts. Two of those counts overlap with the ones originally charged and which were the subject of the bail hearing: (i) the kidnapping of Jason Brown; and (ii) obstruct justice. Three offences were added to the indictment preferred against the applicant, specifically: (i) accessory after the fact to murder; (ii) aggravated assault; and (iii) assault causing bodily harm. Notably, the preferred indictment does not include the charge for first degree murder.

[3] This is an application seeking a review of the original bail decision pursuant to s. 680(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The parties are agreed that because the latter three offences contained on the indictment are not included offences pursuant to s. 662(3) of the Criminal Code, and the applicant has never had a first instance bail hearing pursuant to s. 522 of the Criminal Code in relation to them, that they cannot form part of this review. Accordingly, the parties have agreed that if the applicant succeeds on this review in relation to the offences that formed part of the original information and now the preferred indictment, they will jointly attend to addressing the applicant’s release on the other charges.

[4] The applicant seeks a review on the basis that the original bail judge made errors of law or principle that are material to the outcome. Further, she advances the position that there is a critical material change in circumstances that should militate in favour of release, specifically that she no longer faces a first degree murder charge. She also argues that the decision to detain is “clearly unwarranted.”

[5] For the reasons that follow, this application is dismissed.

B. Section 680 of the Criminal Code: Governing Principles

[6] A bail review pursuant to s. 680 typically operates in two stages, the first involving a preliminary assessment by the Chief Justice (or acting Chief Justice) as to whether the matter should be reviewed. Under this first stage, the application is considered from the perspective of whether there exists a reasonable chance of success if a review were to be ordered: R. v. Jaser, 2020 ONCA 606, para 41. If the answer to that question is “yes”, then a panel will review the matter. Ultimately, the panel may confirm or vary the original bail decision, or substitute such other decision that, in the panel’s view, should have been made.

[7] Pursuant to s. 680(2) of the Criminal Code, on the consent of both parties, the powers of the “court” – a panel of three – may be exercised by a single judge of the court: Jaser, at para. 40. In this case, the parties agreed that a single judge could determine the second stage of the s. 680 review. Therefore, this matter proceeded as a single judge review. For convenience, I will simply deal with the matter as if leave had been granted and assess the matter on its full merits.

[8] The standard of review is set out in R. v. Oland, 2017 SCC 17, para 61:

First, absent palpable and overriding error, the review panel must show deference to the judge’s findings of fact. Second, the review panel may intervene and substitute its decision for that of the judge where it is satisfied that the judge erred in law or in principle, and the error was material to the outcome. Third, in the absence of legal error, the review panel may intervene and substitute its decision for that of the judge where it concludes that the decision was clearly unwarranted.

[9] I am guided by these principles in my review of the matter.

C. Analysis

[10] The applicant advances numerous arguments in support of this application. First, the applicant argues that there has been a material change in circumstances which should favour release. Second, the applicant argues that the bail judge misapprehended the evidence in such a significant way as to materially impact the denial of bail. Finally, the applicant argues that the decision to detain in this case was “clearly unwarranted.”

[11] I will deal with the arguments in this order.

(1) No Material Change in Circumstances

[12] The applicant maintains that she is the subject of a material change in circumstances since originally detained. Specifically, she points to the fact that she is no longer facing a first degree murder charge and that this should push toward release.

[13] In determining whether something constitutes a material change in circumstances, sufficient to trigger a reconsideration of release, the question is whether the new information is “such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise” that the original bail judge engaged in: R. v. St. Cloud, 2015 SCC 27, para 137. The new evidence must, therefore, be significant.

[14] At first blush, one might reasonably think that the discontinuation of a first degree murder charge would constitute a material change in circumstances for someone seeking bail. However, in the somewhat unusual circumstances of this case, I find no materiality in this change. The fact is that the bail judge did not base her decision on the first degree murder charge and expressed serious reservations about the viability of that charge in relation to the applicant. Indeed, the bail judge said that satisfying the mens rea to secure a murder conviction “appears to be beyond the reach of the prosecution’s evidence.” Therefore, the bail was not denied on the basis of this charge.

[15] Read in their proper context, the bail judge’s reasons clearly expressed the view that bail had to be denied for three reasons: (i) the balance of the charges faced by the applicant were serious; (ii) there was a substantial likelihood that the applicant would interfere with the administration of justice; and (iii) the applicant did not have sureties who were capable of controlling her behaviour under release. It is the latter two overarching categories for detaining the applicant that are said to constitute errors on the part of the bail judge – alleged errors to which I will now turn.

(2) No Legal Errors

[16] The applicant contends that the bail judge erred in law by concluding that, if released, she would interfere with the proper administration of justice. I see this more as a factual complaint than a legal one. Accordingly, I will address why the bail judge’s finding did not constitute a palpable and overriding error.

[17] The record before the bail judge was replete with evidence of the applicant’s interference with justice. I say this largely based on the applicant’s own words. This was a wiretap case, and the applicant’s communications were recorded in numerous interceptions. The bail judge came to a finding of fact that the interceptions gave rise to a “concerning pattern of behaviour that involves Ms. Martin’s deliberate concealment and destruction of evidence of criminal activity.”

[18] It was open to the bail judge to arrive at this conclusion. And based upon that evidence, it was open to the bail judge to conclude that the applicant may continue to proceed in that direction. I say this based on the evidence from the bail hearing, including the applicant’s own intercepted admissions that she still had access to bloody clothing, that she had retained her cell phone which contained incriminating information and that she knew where other evidence had been left.

[19] Even if the applicant’s argument proves to be true – that all of the evidence has likely already been destroyed, and thus her release poses no further risk in that regard – it seems counterintuitive that the active and intentional destruction of evidence in connection with a murder for the benefit of a criminal organization should bode in favour of release.

[20] Moreover, I agree with the Crown that the bail judge’s concern was not simply that the applicant would actually destroy evidence, but that she was so inextricably linked to others in this criminal operation, that they may “enlist her assistance in covering up the Outlaws’ involvement in the offences.” The bail judge’s concern in this regard was rooted in the evidence and open to her to make.

[21] The wiretap interceptions make clear that the applicant is immersed in a criminal subculture that renders her highly susceptible to interfering with the proper administration of justice.

[22] While these concerns could perhaps be overcome if the applicant had a strong surety plan, she did not. This leads to the second alleged error of fact.

[23] The applicant claims that the bail judge erred in assessing the suitability of the sureties in this case. The proposed sureties were the applicant’s parents. While they may well be good, upstanding citizens willing to fulfill their role, and the bail judge took no issue with that fact (nor do I), this alone does not make them suitable sureties. Despite the best intentions of some sureties, it is clear that the application for bail is ungovernable by those specific individuals. That is what the bail judge found here, and I see no error in her conclusion in that regard.

[24] The bail judge’s conclusion was supported by the fact that both proposed sureties said that they saw or spoke to the applicant every day, yet neither of them had any concept about the life she was leading. As for her mother, based upon a strong evidentiary record, the bail judge concluded that “Ms. Martin bullied her mother and played her parents for fools. She appears to be skilled at deceiving them.” This conclusion was based upon, among other things, the wiretap intercepts that included the applicant telling her mother to “shut up” and threatening to kill her and implicate her in criminal activity. The applicant also told her father she was going to beat up her mother.

[25] This is not a good start when determining whether a surety will be able to control the person seeking bail once in the community.

[26] In my view, the bail judge carefully considered both proposed sureties’ ability to supervise their daughter and the applicant’s potential willingness to comply. The fact that the bail judge found deficiencies on both sides of this equation does not reflect legal error or a palpable and overriding error.

(3) Not Clearly Unwarranted

[27] Finally, I would note that the denial of bail in this case was not “clearly unwarranted” as required for a successful bail review pursuant to s. 680 of the Criminal Code.

[28] The “clearly unwarranted” standard does not invite a reviewing court to simply ask what it might have done had it made the original bail decision. Rather, the question is whether the original bail decision, when considered in its proper legal and factual context, is one that no reasonable judge could have made: R. v. Beairsto, 2017 ABCA 254, para 5.

[29] In my view, considering this matter within its proper context, the decision to detain was a reasonable one. The evidence undeniably places the applicant in the midst of gang activity, however on the periphery she may be. It also places her squarely within the category identified by the bail judge, based on her past behaviour and acknowledged activities, as someone likely to interfere with the proper administration of justice. And it places her in the category of being ungovernable, at least by the sureties she proposed to the bail judge, a proposal that remains unchanged before this court.

[30] This is a situation where all of the statutory factors in s. 515(10)(c) of the Criminal Code favoured detention: (i) the Crown’s case is strong; (ii) the offences with which the applicant is charged, even without the murder, are serious, including accessory after the fact to murder, kidnapping and aggravated assault; (iii) the circumstances surrounding the offences are serious, including the planned ambush and killing of Mr. Brown, all done in the context of a gang setting; and (iv) the potential for a lengthy prison sentence is clear.

[31] On this latter point, I do note that the applicant has been in pre-trial custody for some significant period of time. Every possible step should be taken to move this matter along.

D. Conclusion

[32] I see no basis upon which to interfere with the bail decision.

[33] The application is dismissed.

“Fairburn A.C.J.O.”

[1] This appeal is subject to a publication ban pursuant to s. 517 of the Criminal Code of Canada, R.S.C. 1985, c. C-46.