WARNING RE PUBLICATION BAN

Pursuant to Section 517(1) of the Criminal Code of Canada

In the matter of

HER MAJESTY THE QUEEN

vs.

Marilyn Ely Reid

(Date of birth: January 7, 1966)

The court in this case has ordered a Publication Ban under section 517(1) of the Criminal Code. Consequently, the evidence taken, the information given or the representations made and the reasons given or to be given at this Bail Hearing, shall not be published in any document or broadcast or transmitted in any way before such time as the accused is discharged after a Preliminary Inquiry or if the accused is tried or ordered to stand trial, before the trial is ended.

Dated at the city of Toronto in the Province of Ontario on the 10th day of June 2013.

Sgd. P.H. Kowarsky

P. H. KOWARSKY Justice of the Peace Province of Ontario

Case Information

Case Name: R. v. Marilyn Reid

Between: Regina, and Marilyn Reid

Ontario Court of Justice Toronto, Ontario

Before: P. Kowarsky J.P.

Heard: June 5th, 2013

Judgment: June 10th, 2013

Counsel:

• Crown Counsel: Mr. P. Clement
• Defence Counsel: Ms. D. Smith

JUDICIAL INTERIM RELEASE HEARING

REASONS FOR JUDGMENT

P. KOWARSKY J.P.

A. INTRODUCTION

[1] At the conclusion of the Bail Hearing on Wednesday, June 5th, 2013, I reserved my decision until today, Monday, June 10th, 2013. This is my judgment.

B. THE CHARGES

[2] Marilyn Ely Reid is charged that on or about May 18th, 2012:

a) By criminal negligence, she caused bodily harm to Shackara Nicol contrary to section 221 of the Criminal Code; and

b) That she wounded Shackara Nicol, thereby committing an aggravated assault contrary to section 268 of the Criminal Code; and

c) That she unlawfully caused bodily harm to Shackara Nicol contrary to section 269 of the Criminal Code.

C. OVERVIEW OF THE ALLEGATIONS

[3] The Crown Attorney read the allegations into the record from the police synopsis.

[4] The accused is a 47-year-old female, who immigrated to Canada from Venezuela some five years ago. She is a Permanent Resident of Canada, and lives alone in an apartment in Newmarket, Ontario.

[5] My understanding is that her occupation, prior to these events was that she worked as a hairdresser and/or a house-cleaner and did some artistic painting as well.

[6] In her avaricious pursuit of significant financial gain, she devised a scheme to induce vulnerable, trusting women to subject themselves to a program of medical procedures for bodily enhancement.

[7] To this end the accused established an Internet website called www.pmmainjection.com which advertised her services for 'buttocks lifts', muscle augmentation and Botox injections for body enhancement. The website advertised that PMMA was the only substance used in these procedures. It provided an email contact address and telephone number together with a Price List for the services offered.

[8] Despite the information which she provided to her clients to the effect that she had been trained to perform such procedures, which were safe and produced immediate positive results, she is allegedly not licensed nor qualified to execute any such procedures in Canada.

[9] Unsuspecting women, interested in securing her services, contacted the accused through the website, and after settling on the specific procedure required and the price, they made arrangements to have the procedure done. However, the location was always either in a hotel/motel room or at the residence of the client, and the agreed price was paid upfront, and in cash only.

[10] According to the police, PMMA is a material which is used by plastic surgeons in Canada for bone reconstruction, although it is not regulated by Health Canada. Apparently, PMMA is easily obtained in liquid form in some South American countries.

[11] Buttocks augmentation procedure is considered to be medical surgery, requiring that it be performed in a hospital setting by a surgeon, duly qualified and licensed in Canada.

[12] It is alleged that the accused would arrive at the agreed venue for the procedure concerned together with a bag containing the 'medication' and the instruments which she required, and did not warn the 'clients' in relation to any possible adverse effects.

[13] The method which the accused is alleged to have used in regard to buttocks augmentation, is that she sanitized the buttocks area, and after filling a syringe/needle device or a 'caulking gun' with the substance from a plastic bottle, she injected the substance into the buttocks area of the client, informing the client that there would be immediate enhancement seen.

[14] Numerous women became seriously ill, allegedly as a direct result of these procedures, and after failing to obtain satisfactory assistance or direction from the accused, many of these women made complaints to the police, who commenced an investigation which resulted in the accused's being arrested and charged with numerous offences.

[15] Although there is only one Information before me charging the accused with three charges, the accused is already on two Recognizances in relation to similar charges arising out of reports by a number of different complainants. Because the three charges on the Information before me pre-date the charges with respect to the prior bails, there is no motion to cancel the earlier bails pursuant to section 524 of the Criminal Code.

[16] Nevertheless, following the Criminal Code's direction to take into account 'all the circumstances' the Crown read the allegations in relation to all the charges which the accused is facing. Accordingly, if I do grant bail on the three charges before me, it would be the third of three separate bail orders.

D. THE ONUS

[17] Since the accused is not charged with committing offences after her release on the two previous bails, the onus rests on the Crown to satisfy the court, on a balance of probabilities, why it is necessary that the accused be held in pre-trial custody.

[18] The Crown's concerns are on the primary and secondary grounds. Essentially, having regard to all the circumstances, the issues are as follows: If she is released on bail subject to the terms of the plan of release presented to the court, a) will the accused come to court to face the charges or flee to another country so as to avoid facing the charges? And/or b) Is there a substantial likelihood that she would commit further criminal offences which would endanger the welfare and safety of the community or interfere with the administration of justice?

[19] In order to make an informed assessment of these issues, the court is required to examine the plan of release. Are the two proposed sureties sufficient to attenuate the court's concerns and to reduce them to an acceptable level?

E. THE APPARENT STRENGTH OF THE CROWN'S CASE

[20] I do not intend to deal with each of the complaints which culminated in the charges being laid against the accused. There are numerous witnesses who have come forward with statements to the police with respect to the pain and suffering which they have endured as a direct result of the injections which they had received from the accused.

[21] There are Doctors and nurses who are able to testify with respect to the infections and injuries which the complainants suffered.

[22] The accused was arrested while en route to a hotel to render her services to a prospective client. The police seized the accused's motor vehicle and executed a search warrant of that vehicle, in which they found the accused's bag containing bottles of substances, syringes and other paraphernalia in relation to her activities.

[23] I make the inference that the accused knew that what she was doing was unlawful and dangerous. Payments were made in cash. Absent any records, she would likely not be subjected to the payment of income tax on these earnings. Furthermore, if she had not known that it was illegal why did she perform these procedures in motel rooms or in the private homes of her clients rather than transparently in a facility properly equipped and staffed for such procedures?

[24] Complainants' statements given to the police will likely also reveal that she had informed some of them that she had been a licensed medical Doctor in Spain, but had not yet obtained her Canadian Certification. She is also alleged to have told clients that she had been a practicing nurse in her native Venezuela, trained and proficient in such procedures.

[25] In my view, having regard to all the circumstances coupled with the expected viva voce evidence and the items seized, the Crown's case appears to be rooted in a very strong evidentiary foundation.

[26] However, notwithstanding my finding in relation to the strength of the Crown's case, it is not the task of the bail justice to punish the accused, but rather to determine whether bail is justified in light of the rights of the accused and the strength of the plan of release.

F. THE RIGHTS OF THE ACCUSED

[27] In considering the accused's application for bail, I take into account her rights under the Canadian Charter of Rights and Freedoms:

• To the presumption of innocence, which is the bedrock of our criminal justice system;
• To reasonable bail;
• Not to be deprived of her liberty or security except in accordance with the principles of fundamental justice.

[28] Furthermore, the abundant jurisprudence with respect to these rights illustrates that imprisonment prior to trial should be the last resort; pre-trial detention is extra-ordinary in our system of criminal justice; and there are no categories of offences for which bail is not a possibility.

G. THE PLAN OF RELEASE

[29] Two sureties were proposed. Ms. Reid's friend, Eliana Rocha, would pledge her jewelry worth $7000.00. She has a full-time job. She would continue to supervise the accused by being in regular daily telephone or direct communication with her. Ms. Rocha has been Ms. Reid's surety since her initial arrest in November 2012, and there have been no breaches.

[30] Ms. Benazir Khan testified that she is the accused's best friend. She would be the second surety, and is prepared to pledge $4000.00 which constitutes her entire savings. She also works on a full-time basis, but will continue to be in regular daily contact with Ms. Reid by telephone and/or in person. She is confident that Ms. Reid will not breach any of the conditions of her bail.

H. THE ADEQUACY OF THE RELEASE PLAN

[31] Even at this early stage of these criminal proceedings, I am persuaded that the accused relentlessly continued to pursue her goal with reckless disregard for its hazardous consequences.

[32] There are allegations that, after treatment, when her clients contacted Ms. Reid to express their concerns about the adverse effects of the injections, the accused was apparently unmoved, and had little or any interest whatsoever in addressing the serious adverse health consequences of her treatments. She is alleged to have nonchalantly dismissed her clients or advised them to obtain antibiotics or drink chicken soup.

[33] Ms. Reid appears to be a vicious, malicious and dangerous person whose ruthless disregard for the health and welfare of her clients was evident and ongoing. In numerous cases the treatments resulted in persistent infections, illness and disease, requiring extensive hospital stays, treatment, medication and surgery, and in some cases resulting in possible lifelong disability.

[34] There is little doubt that the accused knew that what she was doing was unlawful, and that she was unlicensed and unqualified to perform such treatments. She knew that the PMMA substances which she used could not be legally obtained in Canada. Therefore, she surreptitiously imported the substances from South America.

[35] The allegations are that the treatments which she administered produced substantial revenue for the accused. Payments made by complainants were in the range of $1800.00 to $4800.00 per treatment. As such, I believe that there is a considerable likelihood that she would resort to similar lucrative illegal measures to maintain that level of income.

[36] In order to prevent recidivism and future dangerousness, a very strong plan of release must be crafted, incorporating extremely reliable and responsible sureties, who will be able to maintain constant supervision over the accused. A very strict 'house arrest' bail is what is required in this case.

[37] Unfortunately, neither of the two proposed sureties is willing or able to have the accused reside with her while she is on bail. This factor constitutes a significant weakness in the release plan.

[38] Ms. Rocha testified that she and the accused have been friends since the summer of 2011. She lives with her husband and her two sons in Bradford, Ontario. They live in a house which she and her husband own jointly. They have equity of about $200,000.00 in their home. She is not prepared to risk any of that equity to secure the release of the accused on bail. She is also not willing to have the accused reside with her.

[39] Ms. Rocha is already Ms. Reid's surety on her two other bails, and has pledged $5000.00 with respect to the one, and $1000.00 with respect to the other. She testified that there have been no breaches. She had no knowledge of Ms. Reid's alleged criminal activities in relation to the injection treatments until she bailed her out in November 2012. According to her, Ms. Reid was an artist who painted pictures, and cleaned houses for a living.

[40] I found Ms. Rocha to be anything but forthright and compelling but rather largely unconvincing and implausible. Under cross-examination she was meandering and circuitous; she was hedging and evasive in apparent attempts to deviate from responding to the questions and to divert the attention of the court from the issues ingrained in the questions.

[41] One example of implausible testimony on Ms. Rocha's part is that when she bailed the accused out of jail in November, having never heard of any of her injection activities, she did not ask her anything about such activities because she was upset, and when she's upset she doesn't like to talk.

[42] However, later, during the bus trip from College Park Court in Toronto to the accused's residence in Newmarket, there was some discussion, but she would not provide direct answers to the questions no matter in how many different ways the Crown expressed them.

[43] When the Crown Attorney asked whether the accused had explained to her why the police had found all the injection material and syringes in the accused's car, her response was: "She said that the police confiscated that." She continued to avoid giving answers in this regard. At one point she said that Ms. Reid was embarrassed to tell her anything about the activities which led to the charges being laid. The Crown asked Ms. Rocha: "What explanation did she give you as to why the [injection] stuff was in the car?" The response was: "I had no knowledge of this."

[44] I find the testimony of Ms. Rocha to be improbable, dubious and lacking in veracity. Her attempts to avoid answering critical questions, and her evasive responses strain credulity. Her comment that "I don't agree about the injections" is telling of her attitude to the implication of the accused in these serious criminal proceedings.

[45] She is already Ms. Reid's surety on two other bails relating to the same charges albeit with different complainants. There is no evidence before me about the identity, quantity, quality or value of the jewellery which she tells the court is valued at $7000.00. How such a pledge could ever form the subject matter of forfeiture proceedings is beyond my understanding. Moreover, as a non-resident surety, I am of the view that the level of supervision which she could provide would be inadequate, and insufficient.

[46] On the other hand, I found Ms. Khan to be cogent, balanced and truthful. Her testimony, both in direct and cross, was convincing. If the plan provided for Ms. Khan to be a residential surety as opposed to one who lives in Brampton with her daughter, her aunt and the aunt's daughter, I would have been much more inclined to fashion a release order. Ms. Khan also works full-time, but I believe that she would be responsible and reliable as a surety.

[47] In R. v. Cornel, [2011] O.J. No. 6262 (Ont. S.C.) in considering the adequacy of sureties, the Ontario Superior Court made the following instructive comment:

"For a surety to be sufficiently reliable one must be willing to make a very significant commitment to alter one's personal life on behalf of another person. In order to accept the surety, the court needs the reassurance that there is some logical reason or connection for his taking on what is clearly a very real burden for a considerable period of time."

[48] Neither one of the proposed sureties is in a position or willing to make the type of commitment envisaged in R. v. Cornel (supra) which I believe would be essential in this case, where the numerous charges are extremely serious, where the likelihood of conviction is high, and where, having no family or roots in Canada, the impetus to flee to her mother, her sister and her brother in Venezuela would be an attractive proposition.

I. DISPOSITION

[49] I find the plan of release to be inadequate. As such, on a balance of probabilities, in all the circumstances of this case, I am of the view that there is a considerable risk of the accused's flight to avoid coming to court to face the charges against her. In addition, for the reasons which I have given, I am of the view that if I were to release the accused subject to the proposed plan, there is a substantial likelihood that she would commit further offences which would endanger the welfare and safety of the community.

[50] Consequently, I am satisfied that the Crown has met its onus, and there will be a detention order on the primary and secondary grounds.

P. H. Kowarsky J.P.