ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 253/12
DATE: 2013 12 20
B E T W E E N:
HER MAJESTY THE QUEEN
Scott Latimer, for the Respondent
Respondent
- and -
GARY MURRAY
Michael A. Moon, for the Applicant
Applicant
HEARD: December 16, 2013
REASONS FOR JUDGMENT
(B A I L)
(Non Publication Order Pursuant to s. 517(1) Of the Criminal Code)
F. Dawson J.
[1] Gary Murray applies for judicial interim release on a charge of being an accessory after the fact to murder, contrary to s. 240 of the Criminal Code. By virtue of ss. 469 and 522 of the Code initial applications for bail for this offence are within the jurisdiction of the Superior Court. Pursuant to s. 522 the onus rests on the applicant to show why his detention is not justified under the primary, secondary or tertiary grounds for detention that are described in ss. 515(10)(a) to (c) of the Criminal Code.
[2] It is a somewhat unusual feature of this case that the Crown concedes that the applicant has shown cause for his release under the primary and secondary grounds, but submits the applicant should be detained solely on the tertiary ground. The tertiary ground is described as follows in s. 515(10)(c) of the Criminal Code:
(10) 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.
The Murder in Question
[3] Macdermid Ermacora is charged with murdering his spouse, Raquel Junio, on or about August 18, 2011. At the time of the alleged murder Mr. Ermacora and Ms. Junio were living separate and apart within the same home, which was also occupied by Mr. Ermacora’s mother. Mr. Ermacora and Mr. Murray were friends at that time.
[4] It is alleged that on the evening of August 17, 2011, Mr. Ermacora told his mother to take his daughter and leave the house because he was going to tell Ms. Junio it was time for her to find another place to live. It is alleged that Mr. Ermacora accosted Ms. Junio and applied duct tape to her face and head. He then dragged her to his truck and sent a text message to the applicant asking for his assistance.
[5] John White and his girlfriend, Erin Rankin, arrived at the Ermacora residence as Mr. Ermacora was about to leave in his truck. Mr. White got into the truck and saw Ms. Junio pop up in the back of the cab. Mr. Ermacora struck her knocking her back down. Ms. Rankin then entered the truck through the rear door. Ms. Junio was wearing pyjama bottoms, was naked from the waist up, and had her face, including her eyes, covered in duct tape. Her hands were not bound. Ms. Junio was frantic and disoriented and making muffled screams. She managed to get out of the truck and grabbed Mr. White’s leg. Mr. Ermacora grabbed Ms. Junio, threw her into the back portion of the truck cab and drove off.
[6] Unfortunately, Mr. White and Ms. Rankin delayed in calling the police. They had arrived and confronted Mr. Ermacora at approximately 1:10 a.m. on August 18, 2011. The first 911 call was made at 1:32 a.m.
[7] The post-mortem examination revealed that Ms. Junio suffocated due to obstruction of her nose and mouth. There were fractures of her larynx from neck compression that may have occurred at the time of her death.
[8] Dr. Pollanen, a pathologist who performed the post-mortem examination, has opined that when Mr. White and Ms. Rankin saw Ms. Junio at approximately 1:10 a.m. she was suffering from hypoxia and exhibiting “air hunger”. In his opinion she died well before 1:30 a.m. That was before the applicant began to assist Mr. Ermacora.
[9] Dr. Pollanen did not find any evidence of drowning. This is significant as Ms. Junio’s body was eventually recovered in six feet of water in a pond in the Palgrave area.
The Allegations Against the Applicant
[10] Mr. Ermacora sent the applicant a text message at 12:36 a.m. on August 18 saying, “Neednow911”.
[11] After leaving Mr. White and Ms. Rankin, Mr. Ermacora drove to the applicant’s home. Video surveillance from a business located close to the applicant’s residence shows Mr. Ermacora’s truck arriving at 1:26 a.m. At 1:33 a.m. the truck pulled out and headed northbound. It returned to the applicant’s residence at 5:58 a.m.
[12] It is alleged that Mr. Ermacora and Mr. Murray drove north to the Palgrave area. Mr. Murray became aware of Ms. Junio’s body in the rear cab of the truck shortly after he entered it. In his initial statement to the police Mr. Murray said she was still moving. In a later statement the applicant said he was 97% sure she was dead when he saw her in the truck. As already mentioned, the pathologist’s evidence is that she was certainly dead by 1:30 a.m. Mr. Murray spotted a pond and pointed it out to Mr. Ermacora as a good place to dispose of Ms. Junio.
[13] Ms. Junio’s body was taken from the truck and for some considerable distance down a path. She was then submerged in approximately six feet of water near a bridge. When she was found her hands were also duct taped. They had not been taped when Mr. White and Ms. Rankin saw her at 1:10 a.m.
[14] Mr. Murray maintained to the police that he stayed in the truck and did not assist directly in the disposal of Ms. Junio’s body in the pond. According to him, his role was limited to pointing out the pond location and later driving the truck back to Brampton. The only conflicting information comes from a one-party consent intercept of statements made by Mr. Ermacora while in custody. Mr. Ermacora was overheard saying that Mr. Murray was actively involved in assisting him in removing Ms. Junio’s body from the truck, taping her hands and placing her in the pond. Mr. Ermacora said she was still breathing at that time. This last point is inconsistent with Dr. Pollanen’s findings. I am advised that at the time these statements were recorded Mr. Ermacora was upset with Mr. Murray for speaking to the police. Mr. Ermacora has subsequently been charged with conspiracy to murder the applicant.
[15] While the applicant lied to the police initially, he eventually provided information that assisted the police. He accompanied the police and directed them to the location where the body was found.
[16] Mr. Murray provided a DNA sample on consent. No forensic evidence has been developed which suggests that Mr. Murray was more involved than he ultimately admitted.
Particulars of the Applicant and Plan of Release
[17] Gary Murray is 44 years of age. He has no criminal record. He is a Canadian citizen. He has lived in Brampton most of his adult life. He has held steady employment as a “lead hand” in a warehouse business in Brampton for six years.
[18] Mr. Murray’s mother used to live in Brampton but now lives in the Ottawa area. She proposes that the applicant reside with her. She is retired and can provide virtually constant supervision. She is prepared to pledge her life savings of $25,000 in support of her suretyship.
[19] One of the applicant’s aunts also lives in the Ottawa area approximately ten minutes away from the applicant’s mother. She is also prepared to be a surety in the amount of $25,000 and is willing to assist in supervising the applicant.
[20] Another aunt, who resides in British Columbia, has provided an affidavit, as has her husband. They are willing to act as sureties in the amount of $200,000 which represents the total value of the equity in their home. They recognize that they would have a limited role in supervision given their distance from Ottawa, but they swear they would make efforts to keep in touch with the applicant and the other proposed sureties who reside in Ottawa and to monitor the situation in that way.
[21] The plan proposed is one of house arrest with the applicant permitted to leave his mother’s residence only when accompanied by one of his sureties.
Analysis
[22] The right to bail pending trial has constitutional protection. Section 11(e) of the Charter of Rights provides that a person charged with a criminal offence is “not to be denied reasonable bail without just cause”. Our system of justice, and our bail system in particular, generally favour release prior to trial in recognition of the principle that accused persons are presumed innocent until proven guilty at trial. Nonetheless, the law recognizes that the denial of bail is appropriate in a relatively narrow set of circumstances where necessary to ensure the proper functioning of our system of bail: to ensure the attendance of accused persons before the court; to protect the public from any substantial likelihood that further offences will be committed and to maintain confidence in the administration of justice: R. v. Morales, [1992] 3 S.C.R. 711; R. v. Pearson, [1992] 3 S.C.R. 665.
[23] Public confidence may be undermined should an accused person be released for a heinous crime in the face of overwhelming evidence: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309. The tertiary ground formulated in s. 515(10)(c) of the Criminal Code closely tracks the language used in Hall where the court described the analysis which should be undertaken to ensure that considerations of detention to maintain confidence in the administration of justice remain within constitutional bounds.
[24] It has also been recognized that “the import of the Supreme Court of Canada’s decision in Hall is that s. 515(10)(c) can only be used sparingly to deny bail” and that “[w]here … the Crown places no reliance on ss. 515 (10)(a) and (b) of the Code to oppose bail, the detention of an accused under s. 515(10)(c) will be justified only in rare cases: R. v. LaFramboise (2005), C.C.C. (3d) 492 (Ont. C.A.), at para. 30. That is the situation here.
[25] Against this framework I turn to a consideration of all of the circumstances and in particular to the four areas of consideration specified in s. 515(10)(c).
[26] First, the strength of the Crown’s case. Based on the evidence, I conclude the Crown’s case is relatively strong. However, I observe that the strength of the case depends to a considerable extent on the admissibility of the accused’s statements to the police. A basis exists to challenge the admissibility of those statements, although I do not have enough information to predict the likely success of such a challenge.
[27] It appears that in the early stages of the interview process the applicant was offered the opportunity to make a statement on the promise it would not be used against him. The police took that approach as they were trying to locate Ms. Junio. A potential issue arises as to whether that initial approach may have tainted what came later in the interview process. For this reason I am unable to say the Crown has an overwhelming case.
[28] Second, the gravity of the offence. The underlying crime of murder is obviously very grave. Given what I know about how it was carried out it is fair to say it was heinous and shocking. It is aggravating that it took place in domestic circumstances.
[29] The applicant is, however, not charged with the murder itself but with helping a friend who sought him out after the murder. I recognize that the offence of accessory after the fact has been described, for sentencing purposes, as striking at the administration of justice because it involves assisting a guilty person to escape or evade prosecution: R. v. Wisdom, [1992] O.J. No. 3110 (Ont. Ct. (Gen. Div.)) per Watt J. (as he then was). I do note, however, that the evidence suggests the applicant did not play a highly active role in assisting Mr. Ermacora and he did eventually offer assistance to the police. In my view, this crime is a serious example of the offence charged, but while well up the notional scale of seriousness it is not at the top end of that scale.
[30] Third, I must consider the circumstances surrounding the commission of the offence and whether a firearm was used. No firearm was involved. I have already commented on the circumstances surrounding the commission of the murder and described those as shocking. However, there is no evidence that the applicant was aware of all of those details. Clearly he was aware that Ms. Junio was killed by her husband and he could see that she was partially naked and that her face was taped. I would point out that the applicant was not initially aware of why Mr. Ermacora wanted his assistance. Mr. Ermacora went to the applicant’s residence after sending him a text expressing the need for help. The two were friends. There is no evidence I am aware of that the applicant was aware of what had happened until after he was inside the truck and was being driven away from his residence by Mr. Ermacora. There is little evidence that is likely to be called that the applicant was more involved than he has admitted, and the evidence that exists is suspect. I am referring to the intercepted statements of Mr. Ermacora.
[31] Fourth, I must consider the potential for a lengthy term of imprisonment. I have evidence that the Crown at one point offered a joint submission of five years on a guilty plea. Based on the cases I have been referred to it seems to me that the applicant is facing a penitentiary sentence in the three to six year range upon conviction. While not insignificant by any means, this is not a particularly lengthy term of imprisonment.
[32] I also note that the applicant has been in custody since August 19, 2011. He has no criminal record and is likely a good candidate to receive credit for presentence custody at a ratio of 1.5 days for each day so spent. This means that he has already served the equivalent of 2 1/3 years without being convicted.
[33] In addition, I observe that Mr. Ermacora has not yet even had a preliminary inquiry and that the applicant’s trial is scheduled for January, 2015. While there has been a change of counsel for the applicant which has contributed to that delay, I am advised that change was approved by Legal Aid Ontario, which will normally only do so when there is good reason for the change.
[34] Pulling all of the foregoing together, I conclude the balancing of relevant factors favours release, particularly when there is a good plan backed up by suitable sureties. An important consideration is that if the accused is not released he will almost certainly end up serving most of any sentence he might receive upon conviction, prior to his trial.
[35] The determination of whether the release of an accused person on suitable bail would undermine confidence in the administration of justice must be judged from the perspective of a reasonable member of the community who is properly informed about the purposes of the bail system, Charter values and the actual circumstances of the case: R. v. B.(A.) (2006), 204 C.C.C. (3d) 490 (Ont. S.C.). Applying that standard and approach to all of the circumstances of this case leads me to my conclusion that the applicant has discharged his onus on the tertiary ground.
Conclusion
[36] The applicant will be released on a recognizance in the amount of $150,000 without deposit, with four sureties and with conditions.
[37] The sureties and the amount of their liability will be as follows:
(1) Heather Mary Murray (the applicant’s mother) in the amount of $25,000;
(2) Dorothea Regina Knowlton, in the amount of $25,000;
(3) Margaret Rose Knowlton, in the amount of $50,000;
(4) Leon Daniel Knowlton, in the amount of $50,000.
[38] The conditions will include a term that the applicant is to reside at his mother’s address and to remain on the property of that residence unless accompanied by one of his sureties. Any change in the mother’s address is to be reported to the Peel Regional Police in writing at least three days in advance.
[39] I will adjourn to allow counsel to confer and draft a suitable set of conditions for my approval. In addition to the house arrest term I contemplate other reasonable restrictions consistent with those proposed by the applicant being included in my final order.
F. Dawson J.
Released: December 20, 2013
COURT FILE NO.: CR 253/12
DATE: 2013 12 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
GARY MURRAY
Applicant
REASONS FOR JUDGMENT
(B A I L)
Non Publication Order Pursuant to s. 517(1) of the Criminal Code
F. Dawson J.
Released: December 20, 2013