WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code. This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:
- Order directing matters not to be published for specified period.—(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as
(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.
(2) Failure to comply.— Every one who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
CITATION: R. v. Shanks, 2015 ONCJ 358
DATE: 2015·05·14
COURT FILE No.: Windsor 14-8646 and 14-11504
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
JAY DAVID SHANKS
Before: Justice of the Peace DeBacker
Heard on: May 13, 2015
Reasons for Judgment released on: May 14, 2015
Counsel: Mr. Weatherston ................................................................... counsel for the Provincial Crown Mr. McDermit ………………………………………………….…… counsel for the Federal Crown Mr. Marley ............................................................................................ counsel for the accused
JUSTICE OF THE PEACE DEBACKER:
[1] Held in this matter was a reverse onus bail hearing. Jay Shanks has been in custody since July 2014 on a number of very serious charges.
[2] His first set of charges are criminal in nature and begin on 15 May 2013. The Court heard then, Michael Simpson resided at 35 Bayview Place in Leamington. Jay Shanks resided at 26 Bayview Place, across the street. It is alleged that on the 15th of May, 2013 Richard Larocque attended his friend, Jay Shank’s home at 26 Bayview Place, Leamington. Shanks was consuming large amounts of alcohol and complained to Larocque about Simpson. It is alleged Larocque seen Shanks attend Simpson’s home at 35 Bayview Place with a can of spray paint. Later that same date, the landlord of 35 Bayview Place complained to police regarding graffiti on 35 Bayview Place, the words, “rat, theif and thiaf” and a picture of a rat.
[3] It is alleged on the 20th of May, 2013 again Larocque attended the home of Shanks where Shanks was consuming large amounts of alcohol. Shanks ranted to Larocque about Simpson. Again Larocque seen Shanks leave for Simpson residence with spray paint. A neighbour reported to police the next day seeing the words, “fuck you, thief” spray painted on 35 Bayview Place.
[4] On the 8th day of July, 2013, similarly, Larocque attended Shanks home where Shanks was consuming alcohol. This time it is alleged Shanks threatened to torch Simpson’s home. Larocque tried to talk him out of it however could not and it is alleged Larocque seen Shanks leave for Simpson’s home with a white cylinder. Larocque seen Shanks ignite the cylinder and aim the torch through a window of Simpson’s home. Both men quickly left the neighbourhood and as they left, smoke could be seen billowing from 35 Bayview Place. Fortunately, 35 Bayview Place was unoccupied at the time.
[5] It is further alleged Shanks continued, up until the end of January, 2014, to provoke fear in Larocque from speaking of the arson and what Larocque had witnessed in an attempt to impede the administration of justice. The charge is under Section 423(1)(a) of the Criminal Code. Further, during this time it is alleged Shanks threatened Larocque in an assaultive manner with a knife then later struck Larocque from behind, unexpectedly, in the back of the head. Larocque indicated he lost consciousness briefly and had a lasting affect from the assault.
All this while, Jay Shanks also finds himself charged with breaches, breach of probation two counts, for no weapons and no alcohol. The synopsis further indicated Mr. Shanks was also on probation to not communicate with Mike Simpson although there is no charge alleging any breach in respect of that condition.
[6] These are very egregious allegations. Setting fire to a dwelling home, all the while disregarding terms of probation.
[7] After a contested hearing, Mr. Shanks was released on a Recognizance with a Surety on the 12th of March, 2014 regarding the above criminal code charges. That surety, Cindy Britton, sought to have herself removed on 2nd July 2014 and an Order for Committal issued. Mr. Shanks has been in custody on that Order for Committal since his re-arrest in July, 2014.
[8] On July 3, 2014, Marie Hildebrandt’s father and brother attended the Leamington OPP to report their daughter and sister, Marie Hildebrandt was missing and they were very concerned regarding her safety. It was reported that Hildebrandt resided common-law with Jay Shanks at 144 County Road 20. It was reported that Marie Hildebrandt woke to Jay Shanks being on top of her, punching her in the face, telling her she was going to die. Marie Hildebrandt suffered facial injuries and a concussion. Police were further aware, at this time, of the Order for Committal outstanding for the arrest of Jay Shanks as a result of his surety no longer willing to act as surety.
[9] Police attended 144 County Road 20 to check on the well-being and safety of Marie Hildebrandt. In an effort to locate Hildebrandt and out of concern for her safety, police entered the residence at 144 County Road 20. Neither Shanks nor Hildebrandt were present. Daniel Tiessen was present. Dan Tiessen answered the door.
[10] Police viewed marijuana plants and what appeared to be an elaborate marijuana grow operation. The operation was divided into several rooms with numerous grow tents, electrical work and ventilation. Mr. Tiessen was arrested. Police returned with a CDSA search warrant and under authority of the warrant found and seized:
- a money or bill counter
- two digital scales
- marijuana plants in various stages of growth filling seven large, clear evidence bags, namely, 69 mature marijuana plants, 124 immature marijuana plants, 500 clone plants, 33 additional marijuana plants, 632 grams of trimmed leaves and zip lock bags of dried marijuana bud
- assorted drug paraphernalia and packaging material
- five bags of suspected contraband cigarettes
- four zip lock bags of packaged contraband cigarettes
- letter of instruction setting out everything needed have and do to grow marijuana
- documentation in the name of Jay Shanks and Marie Hildebrandt, and
- airline vouchers, in plain view, in the name of Jay Shanks from Windsor to Calgary then onto Kelowna, British Columbia.
There was a packed suitcase sitting in the living room which Dan Tiessen told police belonged to Jay Shanks.
[11] On July 4th, 2014, police observed Jay Shanks leave the residence at 144 County Road 20 in a Chrysler PT Cruiser. They stopped this vehicle and arrested Mr. Shanks. At the time of his arrest, Mr. Shanks had alcohol on his breath. Police noticed an unopened can of beer in the vehicle’s centre console and an empty can of beer in the passenger area. Jay Shanks had in is possession at the time of his arrest, a packed suitcase, Canadian passport and West Jet Airline boarding passes from Windsor to Calgary through to Kelowna, British Columbia.
[12] As a result of the July incident, Mr. Shanks is charged with possession of marihuana for trafficking, Section 5(2) CDSA; produce marihuana Section 7(1) CDSA and two counts of breach of recognizance, 145(3) CC for failing to comply with 1) reside at 26 Bayview Place and 2) an alcohol breach.
[13] It should be noted Mr. Shanks has a licence to grow and possess not more than 98 marihuana plants. The allegations are that 726 plants were seized, clearly in excess of Mr. Shanks legal limit.
[14] Mr. Shanks has not yet had a bail hearing regarding these July allegations.
[15] It should be further noted what happened to Marie Hildebrandt. The Court heard Ms. Hildebrandt received a brain injury and certainly a concussion from Jay Shanks assaulting her in early July, 2014. Jay Shanks plead guilty to that assault and received 9 months incarceration sentence for same as a result of the seriousness of the assault.
[16] Jay Shanks has an extensive, extensive criminal record. It is four pages long. It is consistent without let-up spanning four decades. It started in Chatham and Windsor then to British Columbia and Alberta in 1982. In 2006 Mr. Shanks returned to the Windsor-Leamington, Essex County area. He has 13 convictions for breach of release or probation conditions. Two convictions for failing to attend court; 4 convictions for being unlawfully at large; he was recommitted to prison after a statutory release as a parole violator in 1993. He has amassed a number of convictions for theft, robbery, robbery with a firearm, unlawfully in a dwelling house. He has nine convictions of assaultive behavior, namely, assault, assault causing bodily harm and attempting to choke, suffocate or strangle another person. For these crimes causing harm against people, some of his sentences received were 18 months; 3 months consecutive to time served; 60 days; 8 months for the one where strangling was involved and most recently 9 months for harming Ms. Hildebrandt, her face, head and brain. He has impaired driving convictions which indicate a problem with alcohol; produce a controlled substance and, just as concerning and disturbing Jay Shanks has been convicted of arson and conspire to commit arson. Albeit the arson convictions are from 1989, there is a very serious concern here. Certainly something very serious occurred because he was sentenced to 4 years on each count and ordered to pay $100,000 restitution. His record, and assaultive behaviour causing harm to others, goes on and on without lightening up over all these many years.
[17] Jay Shanks, you are going to be ordered detained not only because of this record, it is one factor, also because what is alleged to have occurred here, an arson, which is disregard for human life, is way too egregious. Further, given that after being placed on bail for the arson charge, you beat a female so badly it hurt her brain and you were convicted for that, that conviction, demonstrates you are very capable of causing harm to persons. Your conviction for arson, albeit some time ago, and sentence therefore of 4 years, demonstrates to the court you are capable of arson.
[18] I know the arson allegation is only an allegation and is to be treated as such and you have a right to reasonable bail. However, you are capable of harming persons, you have demonstrated that with Ms. Hildebrandt and your record. Defence will point to weaknesses in the crown’s case. Surely the police will give evidence that the fire that occurred at 35 Bayview place was real. Who set the fire is an issue for trial, by all means. I am not in any way persuaded of a weakness in the crown’s case by a fellow comrade in crime under immunity proposing another version. Contrarily, and in the context of the secondary grounds, safety of the public, when one looks at the motive for the arson, it is alleged you were angry with Michael Simpson for complaining to or providing information to police. Given that, the Court must absolutely be very concerned, and I am, regarding the safety of Richard Larocque. There is a very real, live concern regarding the protection and safety of Mr. Larocque, a witness to the alleged arson given the motive for arson was to harm an informant. Further, there does exist an allegation of attempting to cause fear and intimidate Richard Larocque already.
[19] Given your blatant disregard for court orders, it is alleged you were on probation to stay away from Michael Simpson, the target of the alleged arson, the court can have no comfort whatsoever that any condition of bail will adequately address the safety of Mr. Larocque.
[20] Nancy Whittle was the proposed surety. Nancy Whittle a well-meaning individual is motivated to be surety because she hopes Mr. Shanks will help her with renovations. Ms. Whittle also lives very nearby Bayview Place. Ms. Whittle also appears to be a very meek and weak individual. I’m sorry to say that. Ms. Whittle has known Jay Shanks since 2005 however has not had any influence over his criminal behaviour since then or in helping to retrain his criminal mind. Ms. Whittle herself has recently recovered from a stroke. Thankfully she appeared with full function of her limbs and speech. She is weakened however and has other health concerns. The court found Ms. Whittle, although honest for her part, did not possess any authority over Jay Shanks and would not be able to adequately influence him. It is also Mr. Shanks himself. He does what he wants when he wants and has no regard whatsoever for court order or conditions. Further, given Mr. Shanks demonstration of violence against his last most recent partner, Marie Hildebrandt, I would be concerned regarding the safety of Ms. Whittle from Mr. Shanks.
[21] Furthermore, regarding the crown’s case on the drug charges, I find the crown does have a very strong case with a plethora of real significant evidence. We heard the defence will vehemently oppose police entry into the property and pursue Charter breaches. We also heard police concern for the safety of Marie Hildebrandt was not only urgent, it was real and substantiated by the injuries Ms. Hildebrandt received, for which Jay Shanks plead guilty to.
[22] Lastly, we must not forget the airline ticket to Kelowna, British Columbia. Defence claim Mr. Shanks was going on holiday to visit his family. Conveniently however, the timing of the ticket and Mr. Shanks planned departure, came just after the serious assault upon Marie Hildebrandt and after police discovered the marijuana grow operation, before his arrest for same, which we know, is alleged to have occurred while on bail for the arson charges.
[23] The offences before the court are ones where Jay Shanks is liable upon conviction to a substantial term of imprisonment. Given that factor and the fact that he was arrested with a suitcase packed and airline ticket in hand, the court finds detention is necessary to ensure Jay Shanks attendance in court in order to be dealt with according to law.
[24] Finally, for the reasons already set out, this Court finds there does exist a substantial likelihood that if released from custody, that Jay Shanks will both – commit a criminal offence and interfere with the administration of justice. Therefore, it is necessary to order you be detained for the safety and protection of the public including all victims and witnesses.
[25] An Order is being made under Section 515(12) that while you are in custody awaiting your matters to proceed, you are not to communicate with Richard Larocque, Alfred Kettle, Marie Hildebrandt or Dan Tiessen, not through a third party, letter, telephone, any way, shape or form. Do you understand this order? You should know that should you disobey this order, you are liable to being sentenced to a term of imprisonment if convicted of disobeying this order. Do you understand?
Released: May 14, 2015
Signed: “Justice of the Peace H. DeBacker”