COURT FILE AND PARTIES
COURT FILE NO.: 11-09739
DATE: 20120725
ONTARIO
SUPERIOR COURT OF Justice
BETWEE N:
HER MAJESTY THE QUEEN
Paul Tait, for the Crown
Crown
- and -
ELISHA JOHANAN McFARLANE
Donald F. McLeod, for the Defendant
Defendant
HEARD: July 23, 2012
RULING ON BAIL APPLICATION
LAUWERS J.
[ 1 ] Elisha Johanan McFarlane faces the following charges:
(i) The use of a firearm to rob Mohamed Gebril of Cellular Telephones, contrary to section 344(1)(a.1) of the Criminal Code ;
(ii) Pointing a firearm, contrary to section 87(2) of the Criminal Code ;
(iii) Committing an assault causing bodily harm, contrary to section 267 (b) of the Criminal Code .
[ 2 ] Mr. McFarlane has been in custody since November 2011. A show cause hearing was held on March 28 and 29, 2012 before Justice of the Peace Malik (“Justice”).
[ 3 ] The Crown conceded that it could not justify Mr. McFarlane’s detention under the secondary ground in section 515 10(b). Accordingly, I must accept that Mr. McFarlane’s detention is not necessary for the protection or safety of the public, on the basis that there is no substantial likelihood that he will, if released from custody, commit a criminal offence or interfere with the administration of justice.
[ 4 ] The Justice denied bail on the tertiary ground set out in section 515(10) (c) of the Criminal Code , which provides:
(10) Justification for detention in custody - For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case,
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
[ 5 ] The defence challenges his decision.
The Positions of the Parties
[ 6 ] The defence seeks to have the denial of bail reviewed on two basic grounds. The first is “that there has been an error in law to detain Mr. McFarlane on the tertiary grounds” and the second is that “there has been a material change in circumstances.”
[ 7 ] In carrying out my responsibilities on this bail review, I adopt and apply the approach recommended by Justice Gary Trotter in The Law of Bail in Canada – Carswell. In section 8.3(a)(ii)(D), he states:
On the basis of these considerations, a broad scope of review, one that is faithful to the constitutional features of the bail decision, is desirable. It is also sustainable under sections 520 and 521. The moving party on a review ought to be able to have a previous order vacated: 1. on the basis of a material change of circumstances; and/or, 2. by persuading the reviewing judge that a different result ought to have been reached by the Justice. Given the preferred standard of review (i.e., “correctness”), considerations relating to the reasonableness of the justice’s conclusions on fact and law become superfluous. This is not to say that no importance ought to be attached to the conclusions reached at first instance. Findings of fact and determinations of credibility, features of first-instance decision-making which normally attract some measure of deference on appeal or review, ought to be afforded similar treatment under sections 520 and 521. Of course, it is open to either party to adduce evidence which displaces the wisdom of relying on these types of findings.
[ 8 ] The Crown takes the position that detention should be continued on the tertiary ground.
The Facts Alleged by the Crown
[ 9 ] The allegations recited in the transcript are as follows:
…in the early morning hours of November 2 nd , 2011, the alleged victim, Mohamed Gebril, was at home, Flagstone Way in Newmarket. There was a knock at the door by a young female who is one of the young persons charged. This is at – shortly before one o’clock in the morning. Mr. Gebril opened the door and upon doing so two armed men rushed into the house. It’s alleged that Mr. McFarlane and Mr. Phillips are those two men. Mr. Gebril was yelling for them to leave. He recognized Mr. McFarlane who was wearing glasses, believing that he had seen him about a week prior. The victim attempted to call 9-1-1 on his cell phone, but had the phone knocked out of his hands. It’s alleged that Mr. McFarlane then took the butt of the gun and smashed Mr. Gebril in the head with it causing his scalp to split open. He would later require stitches to close the wound…The two armed men didn’t indicate why they were there. A second occupant of the home ran upstairs and jumped out of the second floor window, ran to a neighbour’s house and called the police. York Regional Police officers responded to the call. All five accused were arrested on scene…A number of the accused, including Mr. Phillips, gave interview – gave videotaped statements to police. When the uniformed officers were converging on the scene, Mr. Phillips and Mr. McFarlane were seen fleeing from the residence towards the car that was parked in the nearby lot that they had driven to the scene. The officer saw both Mr. McFarlane and Mr. Phillips throw what was believed to be the two guns over a fence into an adjacent property…One of the officers who had arrived on scene saw Mr. McFarlane and Mr. Phillips fleeing from the victim’s home towards a vehicle that was later identified as being Mr. McFarlane’s which was parked at the nearby Walmart. The officer saw them throw two objects over the concrete retaining wall and subsequently the two handguns were found where the officer had observed Mr. Phillips and Mr. McFarlane to throw the guns…The statements provided by co-accused indicate that Mr. McFarlane had conceived of the home invasion. He brought the two firearms that were contained in a bag inside the trunk of his car. It was his car that was found at the Walmart parking lot shortly after the arrest and he directed Mr. Phillips to the trunk to get the firearms before the home invasion occurred. Mr. Phillips indicated that he expected to be paid $2,000 by Mr. McFarlane for the robbery. During the course of Mr. McFarlane’s assault on the victim, a significant amount of blood, the victim’s blood, was found on Mr. McFarlane’s jacket and his pants. [This was later clarified to indicate that only the blood on the jacket was tested.]…The allegation is that while Mr. McFarlane was assaulting the victim, Mr. Phillips attended to the top level of the house, entered the private bedroom and ransacked the premise looking for…unidentified items. …Mr. Phillips runs upstairs. By then the second occupant had already jumped out of the second storey window and – and fled to a neighbour’s house. As I understand, Mr. McFarlane is before the Court today 22 years of age, does not have a criminal record, is not otherwise before any other courts… Both firearms were determined to be starters pistols, although there was a live round of ammunition found next to one of the guns that the police concluded had been ejected from the chamber when the gun was thrown over the retaining wall. So they were starters pistols although it would appear that one of them was loaded with a live round.
The Decision of the Justice of the Peace
[ 10 ] The Justice provided a synopsis of the case. He commented favourably on the proposed sureties and then went on to examine the tertiary ground.
[ 11 ] The Justice found that there was “overwhelming evidence [to] support the prosecution’s strong case for reasons of independent, direct and physical evidence as to the commission of violent crime by Mr. McFarlane that involves the guns and the drugs.” The Crown concedes that there is no evidence in the record to support the Justice’s reference to drugs.
[ 12 ] The Justice considered the gravity and nature of the offence to be serious, stating that this offence would “shock the conscience of a reasonable man of this society”. He added: “The community, at large, will be shocked to hear that such serious crime being committed in the neighbourhood and would be at a loss to understand that if such accused people are released from custody, keeping in mind the presumption of innocence, and the obligation on the state not to deny bail without just cause.” He was troubled by the infliction of the head wound using the gun. He understood Mr. McFarlane to be the “mastermind of this plan,” who used four people as accomplices, two of them minors.
[ 13 ] The Justice stated: “Committing a robbery in the middle of the night using the guns is quite serious, which caused the emotional and physical distress to the victim. Such violent crimes cannot be ignored by the informed member of the society.” The Justice found that Mr. McFarlane was exposed to a potentially lengthy term of imprisonment and concluded that the objective of general deterrence in firearms offences is of “paramount concern”.
[ 14 ] The Justice refused bail on the tertiary ground, holding that: “To release this person in a community, in my opinion, in the light of all circumstances surrounding the case, would erode - would erode the public confidence in the administration of justice.”
[ 15 ] I will deal with the grounds put forward by the Applicant in turn.
Did the Justice err in law in detaining Mr. McFarlane on the tertiary grounds?
[ 16 ] Under section 515(10)(c), which sets out the tertiary ground, detention may be justified if it is “necessary to maintain confidence in the administration of Justice, having regard to all the circumstances”. These circumstances include the apparent strength of the Crown’s case, the gravity of the offence, the circumstances surrounding the commission of the offence, and the fact that the accused may be liable to a lengthy term of imprisonment.
[ 17 ] The courts have evolved principles to guide this assessment. An accused person is presumed to be innocent. As a matter of constitutional entitlement an accused will normally be granted bail pending trial: R. v. Morales , 1992 53 (SCC) , [1992] 3 S.C.R. 711, 77 C.C.C. (3d) 91 at para. 11 . The expectation is that detention on the tertiary ground should be rare: R. v. Hall, 2002 SCC 64 () , [2002] 3 S.C.R. 309, 167 C.C.C. (3d) 449 (S.C.C.) at para. 27 . McLachlin C.J.C. said at para 41:
41 This, then, is Parliament's purpose: to maintain public confidence in the bail system and the justice system as a whole … The judge must be satisfied that detention is not only advisable but necessary . The judge must, moreover, be satisfied that detention is necessary not just to any goal, but to maintain confidence in the administration of justice . Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has specified. The judge cannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he must focus particularly on the factors Parliament has specified. At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice. In addition, as McEachern C.J.B.C. (in Chambers) noted in R. v. Nguyen (1997), 1997 10835 (BC CA) , 119 C.C.C. (3d) 269, the reasonable person making this assessment must be one properly informed about "the philosophy of the legislative provisions, Charter values and the actual circumstances of the case" (p. 274).
[ 18 ] See also R. v. A.B. 2006 2765 (ON SC) , [2006] O.J. No. 394 (S.C.J.) per T. Ducharme J. at para. 19 and R. v. Huggins [2011] O.J. No. 4679 (S.C.J.) per Boswell J. at paras. 18-21.
[ 19 ] The defence relies strongly on the decision of Cronk J.A. in R. v. LaFramboise 2005 63758 (ON CA) , [2005] O.J. No. 5785. The appellant was charged with first degree murder and was denied bail on the tertiary ground. Cronk J.A. found that continued detention pending trial was not necessary and granted bail. She found in 30 that the tertiary ground to deny bail “could only be used sparingly” and “will be justified only in rare cases”. She added at paragraph 31 that “the nature of the offence charged, by itself, cannot justify the denial of bail.” Further, she noted that the refusal to grant bail on the tertiary ground cannot rest solely on a strong Crown case because: “Were it otherwise, the presumption of innocence would be undermined.” In that particular case, she concluded that the bail judge had overstated the strength of the Crown’s case. Cronk J.A. went on to endorse the decision of the Saskatchewan Court of Appeal in R. v. Blind 1999 12305 (SK CA) , [1999] S.J. No. 597, 139 C.C.C. (3d) 87, and added her own observations:
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.
[ 20 ] The defence also relies on R. v. Stevenson [1998] O.J. No. 4390 . The case involved drugs. Glithero J. held:
37 In my opinion, the notional member of the public whose confidence we should seek to maintain is that reasonable, fair minded and informed individual who would take all of the circumstances into account. In my best assessment, that person would remain confident in the administration of justice if a person were released on bail, even on a serious charge, and even in the face of what appears at the initial stages to be a strong Crown case, as long as it is likely that the accused would attend for trial, would not commit further offences, and would not otherwise interfere with the administration of justice. If those concerns are satisfied, then the granting of bail does nothing more than delay incarceration, if in fact the Crown's case is as strong as it is billed. To deny bail, in circumstances of an allegedly strong case, in order to maintain public confidence, runs the risk of invoking the end result prior to the proper unfolding of the due process.
39 In the result, I am not persuaded that the detention of the accused is "necessary", which concept is embodied in all three subsections which justify detention.
[ 21 ] In R. v. Barlow [2002] O.J. No. 5652 , Blair J. set out the argument in favour of incarceration, only to reject it. At paragraph 32, he said:
32 Put bluntly, it boils down to determining whether, when the offence is a serious one, the Crown's case is apparently very strong, and the accused faces a lengthy term of imprisonment, an accused's right to bail becomes academic. In other words, if conviction and lengthy imprisonment are almost certain, should society therefore just lock up the accused immediately and keep him or her there while the trial process ultimately confirms that eventuality.
He endorsed the approach of Glithero J. in Stevenson and concluded at paragraph 38: “In our justice system, sentencing and imprisonment come after conviction, not before, unless just cause is shown in accordance with the Section 515(10) criteria why incarceration before trial is "necessary" - a strong word in itself.”
[ 22 ] In terms of the role of public opinion, Corbett J. in R. v. Thomson [2004] O.J. No. 1873 (S.C.J.) commented at para. 51 :
There is nothing before me to indicate that the public has a particular concern about Thomson's release. On the record before me, there would be no reasonable basis for such a reaction in any event. An appeal to public opinion must be based on more than a knee-jerk reaction that crime is a bad thing and more ought to be done about it. It must be based on reason, not emotion. The crime alleged here is dreadful but that is not enough to deprive Thomson of her liberty for months or years before she has been found guilty. In my view, respect for the administration of justice would be diminished, not enhanced, by detaining Thomson without bail.
[ 23 ] In R. v. A.B. T. Ducharme J. said at paragraph 18:
18 In considering public opinion, "(c)ourts must be careful not to pander to public opinion or to take account of only the overly excitable." As Justice Trotter puts it in his authoritative text, The Law of Bail in Canada, "Permitting the detention of an accused on the basis of the public interest is not a warrant to judicially recognize and bend to public clamour or hysteria." In Hall, McLachlin C.J.C stated that the touchstone for s. 515(1)(c) must be "a reasonable member of the community" who is properly informed about "the philosophy of the legislative provisions, Charter values and the actual circumstances of the case."
[ 24 ] I now turn to the circumstances listed in section 515(10) (c) of the Criminal Code .
The Strength of the Crown’s Case
[ 25 ] I concur with the Justice that the Crown’s case is very strong. The defence concedes that strength, but points to some qualifying concerns.
[ 26 ] First, the defence notes that the Justice appears to have effectively made a finding of guilt, which is contrary to the presumption of innocence that ought to remain in play throughout the assessment process. The Justice said:
The reality is the firearms which were used allegedly by Mr. McFarlane. He had an easy access to the handguns. No doubt, Mr. McFarlane committed the (ph) offence using the firearms, causing bodily harm by inflicting head injury without realizing its further implications.
The defence argues that in making this statement, the Justice wrongly departed from the presumption of innocence and that may have guided his thinking throughout.
[ 27 ] The Crown suggests that it might be better to read the sentence this way:
Mr. McFarlane committed the (ph) offence using the firearms causing bodily harm by inflicting head injury, no doubt without realizing its further implications.
While the Crown’s construction has a certain plausibility to it, there is force in the defence’s submission.
[ 28 ] There is a second error in which the Justice states:
He was the mastermind of this plan. He conceived this plan. He executed this plan. He employed the four people; two people of very tender young age and the other two people…
[ 29 ] In reaching this conclusion, Mr. McLeod argues that the Justice relied improperly on the sworn statement provided by the co-accused. The Justice said: “The sworn statement provided by the co-accused, Mr. Phillips, and Mr. McKenzie, the summary is as follows: Mr. McFarlane conceived and planned and executed the robbery plan. Mr. McFarlane brought the firearms with him in his car. Mr. McFarlane asked Mr. Phillips to take out the firearms from the trunk of his car and these firearms were used subsequently in commission of this offence.”
[ 30 ] The defence argues that it was improper for the Justice to rely on these statements of the co-accused to reach the conclusions that he reached.
[ 31 ] Finally, the defence argues that the identification evidence in this case is not entirely clear. The victim noted that the assailant had glasses on at the time of the assault. When Mr. McFarlane was apprehended by the police, he was not wearing glasses. There was no line up or other mechanism used by the police to identify Mr. McFarlane. Although the defence concedes that the victim’s blood was on Mr. McFarlane’s jacket, this does not necessarily make him the assailant.
The gravity of the offences
[ 32 ] Mr. McFarlane is alleged to have committed very serious offences. The seriousness is heightened in considering the circumstances around the commission of the offences.
The circumstances surrounding the commission of the offences
[ 33 ] As noted earlier, in LaFramboise Cronk J.A. required “something more” than simply meeting the criteria in section 515(1)(c) to justify continued detention under the tertiary ground. The cases suggest that this “something more” is most likely to be found in the surrounding circumstances.
[ 34 ] There are three elements here that could suffice. The first is that this was a home invasion. Section 481.1 of the Criminal Code specifically cites home invasion as an aggravating circumstance in relation to robbery. This was a home invasion involving personally inflicted injury using a firearm. As Baltman J. observed in R. v. J.B. 2011 ONSC 1150 () , [2011] O.J. No. 875, at paras. 19-20 :
19 In addition to the obvious physical harm, the devastating psychological effects of home invasions were clearly articulated nearly two decades ago by Moldaver J., as he then was. As he stated in R. v. Hachez , [1992] O.J. No. 2712 :
In addition to the fear and terror experienced by the victims during the course of an armed robbery, this type of crime can have long-term, crippling effects. It can literally wreak havoc upon the lives of those who have been victimized.
[C]onduct which brutalizes the mind can be far more painful, devastating and long-lasting than conduct which causes physical injuries.
20 Since then the Court of Appeal has repeatedly stated that denunciation and general deterrence are the guiding principles in offences of this nature: R. v. Nelson , 2010 ONCA 870 , [2010] O.J. No. 5478 ; R. v. Wright , 2006 40975 (ON CA) , [2006] O.J. No. 4870 (C.A.) ; R. v. Mann , 2010 ONCA 342 , [2010] O.J. No. 1924 (C.A.) . In Wright the court observed that the "range" of sentences generally imposed for home invasions is four to five years at the low end, and up to 11 to 13 years at the high end. It noted that the obvious breadth of such a range means that there are many factors, often nuanced, that must be examined, and that there may even be exceptional cases that fall outside of that range, at either extreme. The court stated that certainly "a stiff penitentiary sentence is generally called for." (para. 24).
[ 35 ] In R. v. MacDougal 1999 BCCA 509 () , [1999] B.C.J. 2034 (C.A.) the court upheld the continued detention of an accused in a home invasion where the victim was assaulted with a hammer. In R. v. Purewal [2006] O.J. No. 5788 (S.C.J.) , per Durno J. noted at para. 61: “Where a particular type of offence has become prevalent in the community, such as home invasions, there may as well be additional basis to detain on the tertiary ground.”
[ 36 ] There is no evidence that this was a random home invasion, which would escalate its gravity. There is no evidence of an epidemic of home invasions that has sensitized the public.
[ 37 ] In R. v. Obeng, [2005] O.J. No. 4428 (S.C.J.) per Chapnik J., the accused was charged with a home invasion with weapons. The nature of the weapons is not disclosed in the reasons. The court granted judicial interim release with sureties.
[ 38 ] The second element is that firearms were involved. In the Greater Toronto Area, crimes involving weapons have become increasingly prevalent. The caselaw generally reflects this growing concern. While a charge of simple possession of a firearm might not qualify under the tertiary ground: R. v. A.B. 2006 2765 (ON SC) , [2006] O.J. No. 394, the egregious circumstances of the use of a firearm might: R. v. McGowan [2009] O.J. No. 3686 (S.C.J.) per Trotter J. (drive-by shooting). In this case, however, there was no discharge of the weapon.
[ 39 ] The third troubling circumstance is the allegation that Mr. McFarlane pistol-whipped the victim in the head, causing significant bleeding. The personal violence and cruelty of that action must be taken into account.
[ 40 ] Against these negative elements must be balanced the positive factors related to the accused. Mr. McFarlane has no criminal record. He is a young man still going to school. There is no hint of other anti-social behavior or affiliation with anti-social individuals. He does volunteer charitable work.
The potential for a lengthy term of imprisonment
[ 41 ] The defence concedes that the charges carry the potential for a lengthy term of imprisonment. Mr. McLeod estimates the range at 5-8 years if Mr. McFarlane in convicted on the first offence, that of using a firearm to rob, contrary to section 344(1)(a.1) of the Criminal Code , with the other sentences to run concurrently. Mr. Tait cites the decision of the Court of Appeal in R. v. Wright (2006), 2006 40975 (ON CA) , 83 O.R. (3d) 427 at para. 21 , 22 that the upper end of the range could well be higher. He also notes that conviction under section 85(2) of the Code regarding the use of an imitation firearm (the starter pistol) in the commission of an offence, which may be a charge that arises after the preliminary hearing, would add a consecutive minimum year to any other sentence imposed on Mr. McFarlane.
Conclusions on the tertiary ground
[ 42 ] While the circumstances set out in section 515(10) (c) of the Criminal Code can be made out on the facts with some qualifications, I find that element of “something more” to justify continued detention required by the binding precedents is missing. If the egregious facts in LaFramboise involving a callous murder, or in Thomson involving conspiracy to murder, or the facts in the other cases cited above were not sufficient to justify detention on the tertiary ground, then neither are the facts in this case. In my view, a reasonable member of the community who is properly informed about the philosophy of the legislative provisions, Charter values including the presumption of innocence, and about the actual circumstances both of the case and about the accused, would not consider Mr. McFarlane’s continued detention before trial to be necessary. Part of the evaluation by such a reasonable member of the community would also take into account whether sufficiently onerous bail conditions could be crafted to substitute for continued detention. In my view they can. Accordingly Mr. McFarlane will be released on terms.
Material change in circumstances
[ 43 ] The Justice was apparently satisfied with the sureties, describing them as “well-meaning”, “sincere” and informed, but he did not carry out any analysis given his conclusion on the tertiary ground.
[ 44 ] Mr. McFarlane proffers a considerably enhanced surety package. His father, Stanley McFarlane, a pastor in the Seventh Day Adventist Church, and his mother, Charmaine McFarlane, are prepared to pledge the equity in their family home of $200,000.00 as surety. Further, Sharon Fowler is Mr. McFarlane’s Aunt. She is 53 years old and is on disability. She has experience as a correctional officer. She is prepared to pledge $100,000.00 as surety made up of a number of different elements. His brother, Abraham McFarlane, joins as surety and is prepared to pledge his savings of approximately $6,000.00 as surety, subject to the same conditions. They are confident that Mr. McFarlane will abide by the conditions. They are all prepared to personally supervise the accused
[ 45 ] I find the sureties to be sufficient.
[ 46 ] The terms proposed by the defence are the following:
(i) That Elisha reside at […], Aurora, Ontario, which is the family home;
(ii) That Elisha remain in the aforementioned residence at all times, except in the direct presence of a surety;
(iii) That Elisha be amenable to the rules of the household;
(iv) That Elisha not communicate, directly or indirectly, with Mohamed Gerbil, Visal Hussein, Shelford Phillips, Michel McKenzie, or any other person indicated by this Honourable Court;
(v) That Elisha present himself at the door within 5 minutes in the event any police officers attend at the residence to inquire about his whereabouts;
(vi) Whenever Elisha is outside of the residence, each surety is to be made aware of Elisha’s whereabouts and where Elisha is going;
[ 47 ] Mr. McFarlane has sworn an affidavit agreeing to the bail conditions. He notes that his experience since being in jail since November 2011 “has been a very difficult and disheartening experience for me. It has been particularly difficult knowing how traumatizing this experience has been on my family.”
[ 48 ] He goes on to say: “I have thought very carefully with respect to the impact bail would have on my family. I understand that all my potential sureties have respectfully pledged their entire assets in an effort to secure my release. I can advise this Honourable Court that these individuals are my role models and mentors, and I refer to them for guidance. In light of the fact that they have each worked so hard and impacted on my life so greatly, I have every intention of ensuring that none of their assets would ever be compromised as a result of any of my actions.”
[ 49 ] In my view, the release plan must amount to virtual house arrest so that Mr. McFarlane is not permitted to leave the house except in certain specific circumstances. The proposed plan would permit him to be outside the house in the company of a surety almost anytime, and this is much more personal freedom for Mr. McFarlane than I would be prepared to accept.
[ 50 ] Accordingly, the release plan must also require Mr. McFarlane to reside at his family home and to be there at all times except for the following purposes: attending at a hospital, or at a doctor’s or dental office, attending religious services, meeting with counsel, and travelling directly to and from these attendances. Mr. McFarlane must be in the company of a surety at any time that he is not in his family home.
[ 51 ] I understand that the Crown is content with the sureties and the release plan as modified.
Justice P.D. Lauwers
Released: July 25, 2012