ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: BR 10000405/12
DATE: 20130107
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BRYSON MURLE
Defendant
A. Shachter, for the Crown
Peter Lam, for the Defendant
HEARD: December 28, 2012
B. P. O’marra J.
bail review application
the application
[1] Bryson Murle was arrested on June 1, 2011 and consented to a Detention Order in the Ontario Court of Justice on October 25, 2011. He now seeks a form of release based on a plan that includes four sureties, drug counselling and support services for people of Aboriginal heritage.
criminal ANTECEDENTS
[2] From 2005 through 2009 inclusive, Mr. Murle accumulated numerous convictions for weapons, violence and firearms offences. He also had three convictions for breach of recognizance, two of which involved breaches of house arrest terms.
[3] In September of 2009 he was placed on two years probation on top of a jail term of 23 months. One of the terms of that probation was that he not possess non-prescription drugs.
[4] In March of 2011 he was charged with Possession of Proceeds of Crime, Breach of Probation and Possession of Cocaine for the purpose of trafficking. He was released after a show cause hearing on a Recognizance in the amount of $7,000 without deposit but with one surety, being his mother Barbara Murle. The release terms provided for house arrest as well as a term that he not possess non-prescription drugs.
[5] The most current charges now before the Superior Court are alleged to have occurred in April and June of 2011. In April of 2011 he is alleged to have trafficked in heroin with an undercover police officer. In June of 2011 he is alleged to have possessed cocaine for the purpose of trafficking as well as possession of proceeds of crime being $9,055 in Canadian currency. He is also charged with two counts of breach of recognizance being the house arrest term as well as the term that he not possess non-prescription drugs.
aboriginal heritage issue
[6] Mr. Murle has recently been put in touch with support services for people of Aboriginal heritage through his grandmother who is part of the Six Nations near Branford, Ontario. The plan on release is that he start treatment with Anishnawbe Health Toronto as part of a plan of care provided by the Aboriginal Legal Services of Toronto.
the proposed plan of release
[7] Mr. Murle’s parents would be sureties and he would reside with them in Toronto. The terms would be virtual house arrest other than to attend counselling or when accompanied by one of the sureties.
[8] Two further sureties have been proposed. They are Mr. Murle’s grandmother who resides in Toronto and a friend who lives in Pickering.
application of gladue principles at the judicial interim release stage
[9] In Gladue the Supreme Court of Canada mandated a different framework of analysis for sentencing Aboriginal offenders taking into consideration the distinct situation of Aboriginal peoples in Canada.
R. v. Gladue, 1999 679 (SCC), [1999] 1 S.C.R. 688.
[10] The Gladue factors are not limited to sentencing but should be considered by “all decision makers who have the power to influence the treatment of Aboriginal offenders in the justice system” whenever an Aboriginal person’s liberty is at stake.
Gladue at para. 65.
United States of America v. Leonard, 2012 ONCA 622 at para. 85.
[11] The Gladue principles must be applied at the bail stage where the alleged offender is of Aboriginal heritage. The Court must look at whether the sureties offered, in the context of the Aboriginal culture, can control the behaviour. The court must also look at whether detention of the Aboriginal accused has a disproportionately negative impact on the accused and whether that impact could be alleviated by strict bail conditions. Finally, the court must look at whether Aboriginal law and customs provide the assurances of attendance in court and protections of the public that are required for release. Each case will be dependent on its specific facts, but a broader analysis is required where the accused is an Aboriginal.
R. v. Silversmith, [2008] O.J. No. 4646, para 19 (OSC).
analysis
[12] This is a reverse onus situation. I am satisfied that with the proposed sureties there is no concern on the primary grounds. The proposed plan for release is a material change in circumstance.
[13] The problem rests on the secondary grounds. The proposed release plan for addiction counselling through Aboriginal Legal Services would clearly be of significant benefit to Mr. Murle. Based on his criminal antecedents, however, there remains a substantial likelihood that he will, if released from custody, commit a criminal offence.
[14] I accept the good faith and commitment of Mr. Murle’s parents. Unfortunately, he has in the past breached house arrest terms of release where his mother was a surety.
[15] The most current charges allege trafficking in two particularly dangerous drugs (heroin and cocaine). Mr. Murle also possessed over $9,000 cash which is entirely consistent with high end traffic in drugs. At the time of the allegations he was on probation and bail, both of which had terms that he not possess non-prescription drugs. The recognizance with his mother as surety had house arrest terms that appear to have been breached.
[16] The onus is on Mr. Murle to show that his detention is not justified. He has shown cause on the primary grounds but not on the secondary grounds.
disposition
[17] Detention confirmed.
B. P. O’Marra J.
Released: January 7, 2013
COURT FILE NO.: BR 10000405/12
DATE: 20130107
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
BRYSON MURLE
Defendant
bail review application
B. P. O’Marra J.
Released: January 7, 2013