SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CR-14-12
DATE: 2014-06-16
RE: Regina v. Jeremy Trodd
BEFORE: E.J. Koke
COUNSEL:
W.D. Beatty, Counsel, for the Crown
M. Haraschuk, Counsel, for the applicant, Jeremy Trodd
HEARD: May 29, 2014
ENDORSEMENT
The Application
[1] Jeremy Trodd brings this application for a review of his detention order, pursuant to s. 520 of the Criminal Code. In support of the application he submits:
(a) that the Justice of the Peace erred in her application of R. v. Gladue 1999 679 (SCC), [1999] 1 S.C.R. 688 (“Gladue”); and
(b) that he has a new and more secure plan to present to this court which is sufficient to overcome concerns expressed by the Justice of the Peace in rejecting his bail application on the secondary ground.
Background
[2] Jeremy Trodd is 31 years old. He has an extensive criminal record going back to the age of 17, when he was involved in an offence in which a police officer died. He has been in and out of custody on a regular basis for the last fourteen years.
[3] On November 6, 2013 the Anishinabek Police Service laid a 15 count information against Mr. Trodd. The charges included two counts of break and enter, one count of assault, one count of aggravated assault, one count of threatening death, two counts of unlawful confinement, four counts of breaching a recognizance and four counts of breaching probation.
[4] On the same day, Mr. Trodd was charged by the Ontario Provincial Police with two counts of mischief, two counts of breaching his probation and one count of breaching a recognizance.
[5] On November 18, 2013 Mr. Trodd’s application for bail was refused, and he has been detained in custody since that time.
[6] The incidents giving rise to these charges occurred on the evening of November 4, 2013 and the morning and early afternoon of November 5, 2013.
[7] The victims in the alleged assaults and one of the break and enters were Logan Hanna and Victoria Ashawasagai. Mr. Hanna and Ms. Ashawasagai informed the police that at approximately 3 a.m. on the morning of November 5, 2013 they were asleep in their bedroom in their home on the Magnetewan First Nation when they heard a noise in the living room. Mr. Hanna went to investigate. He encountered the defendant, who he knew and who was also a resident of the First Nation in the living room. He spoke to Mr. Trodd and asked him to leave, but Mr. Trodd refused. He returned to the bedroom and closed the door. A short time later Mr. Trodd kicked the door in and started assaulting Mr. Hanna by punching him in the head. He then turned his attention to Ms. Ashawasagai and Mr. Hanna was able to escape out of a window.
[8] Mr. Trodd left the room briefly and then returned with a 20 centimeter serrated knife. He held this towards Ms. Ashawasagai’s throat and he told her that he did not want to return to jail and that she would not be responsible for sending him there, and furthermore, that he would kill her if she did call the police. Mr. Trodd eventually left and Ms. Ashawasagai called the police.
[9] Mr. Hanna, who was 17 years old at the time of the alleged assault, received three fractures and a break to his jaw, a two inch cut over his left eye, a loose molar at the rear of the left side of his jaw and scratches along his neck and shoulders. Ms. Ashawasagai received a bruise on her right inner forearm.
[10] The second count of break and enter pertained to an incident which is alleged to have occurred at approximately 9:00 the previous evening. Mr. Frank Noganosh, who was also a resident of the Magnetewan First Nation, reported that Mr. Trodd and two other males entered his residence by kicking in the front door. Once inside, Mr. Trodd grabbed a full case of 24 beers and then exited the residence.
[11] Mr. Trodd was arrested on the morning of November 5, 2013 and the mischief charges arose out of his conduct while in the OPP holding facility. While in Cell No. 1, it is alleged that he began yelling and acting in a belligerent manner. He began spitting in the cell and on the walls outside of the cell. He also threw water on the floor and the wall, and put a wet paper towel over the cell camera. He was removed from the cell and placed in Cell No. 2 so that cell No. 1 could be cleaned up. Mr. Trodd began throwing water in this cell and again covered the cell camera with a wet paper towel, and when the towels were removed he spit on the camera lens. He reminded the police that a Sergeant MacDonald of the Sudbury Police Services had been killed during the commission of one of his earlier offences and he let them know that he had the initials “C K” tattooed on the back of his neck, designating him as a “Cop Killer”.
[12] Mr. Trodd was bound by two probation orders at the time. He had been placed on 2 years of probation after being convicted of two counts of mischief, one count of uttering threats and one breach of probation. He had been placed on a further 2 years of probation in relation to a conviction for assaulting his girlfriend in London, Ontario, in May, 2013. These probation orders required him to keep the peace and be of good behavior.
[13] Mr. Trodd was also bound by a recognizance order at the time, which was issued on October 24, 2012, in relation to charges of break and enter in Sudbury, Ontario. Mr. Trodd’s mother, Nancy Noganosh was a surety in the sum of $5000 in relation to this recognizance.
[14] Mr. Trodd’s bail hearing took place on November 12, 13, and 15, 2013. The plan presented to the court was that Mr. Trodd would return to the Magnetewan reserve and live with his mother, who would ensure that he receive counselling, continue to follow a methadone treatment program and enroll in a Partner Assault Response program (“Pars”).
[15] On November 18, 2013 the Justice of the Peace denied Mr. Trodd’s application for bail, finding that he did not meet the secondary grounds of the test, and expressing “grave concerns” that Mr. Trodd would commit further offences, “involving in this case the complainant”.
Did the Justice of the Peace err in her application of Gladue?
[16] The Justice of the Peace referenced the Gladue decision in her reasons in the following words:
I have considered R. v. Gladue and section 719.2 of the Criminal Code. Gladue provides direction to sentencing judges to undertake the process of sentencing aboriginal offenders differently. The case suggests that it will generally be the case that as a practical matter, particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders. What section 718.2 does is alter the method of analysis which must be used in determining the nature of a fit sentence for an aboriginal offender. I have tried to do that in this bail case.
[17] The defendant submits that notwithstanding her stated intention to apply the Gladue analysis, there is no evidence that she did so.
[18] A review of her decision reveals that the Justice of the Peace did not specifically articulate the various steps she took in her application of the Gladue analysis. However, in my view, although it may be preferable to explain how Gladue has been applied to a case, it is not always necessary to do so. I note that at paragraph 85 of the Gladue decision, Supreme Court Justices Cory and Iacobucci stated:
… In the same vein, it should be noted that, although s. 718.2(e) does not impose a statutory duty upon the sentencing judge to provide reasons, it will be much easier for a reviewing court to determine whether and how attention was paid to the circumstances of the offender as an aboriginal person if at least brief reasons are given.
[19] At par. 83 of Gladue the court stated that the manner in which a judge applies Gladue may vary, and it stated that the duty imposed on the sentencing judge is to take judicial notice of the systemic or background factors and the approach to sentencing which is relevant to aboriginal offenders and to attempt to adduce some evidence to assist him or her in applying the analysis. In the words of the court:
83…However, for each particular offence and offender it may be that some evidence will be required in order to assist the sentencing judge in arriving at a fit sentence. Where a particular offender does not wish such evidence to be adduced, the right to have particular attention paid to his or her circumstances as an aboriginal offender may be waived. Where there is no such waiver, it will be extremely helpful to the sentencing judge for counsel on both sides to adduce relevant evidence. Indeed, it is to be expected that counsel will fulfil their role and assist the sentencing judge in this way.
84 However, even where counsel do not adduce this evidence, where for example the offender is unrepresented, it is incumbent upon the sentencing judge to attempt to acquire information regarding the circumstances of the offender as an aboriginal person. Whether the offender resides in a rural area, on a reserve or in an urban centre the sentencing judge must be made aware of alternatives to incarceration that exist whether inside or outside the aboriginal community of the particular offender. The alternatives existing in metropolitan areas must, as a matter of course, also be explored. Clearly the presence of an aboriginal offender will require special attention in pre-sentence reports. Beyond the use of the pre-sentence report, the sentencing judge may and should in appropriate circumstances and where practicable request that witnesses be called who may testify as to reasonable alternatives.
[20] I turn now to a review and discussion of the evidence which was presented to the Justice of the Peace for her consideration.
[21] The evidence at the detention hearing included the evidence of William Diabo, the chief of the Magnetewan First Nation. Chief Diabo testified that members of the community had expressed concerns about Mr. Trodd coming back to the First Nation if released. Significantly, Chief Diabo made it clear that he was looking to the judicial system to protect the community…he did not propose that the community had the means to do so. He stated: “We want to be assured that there are safeguards that are going to be put in place to look after the safety of the members of our community based on the concerns that they have, and community property…”
[22] Mr. Trodd testified at the hearing about the counselling he had received from Rebecca White in London, Ontario. Ms. White is a counsellor in private practice representing First Nations and Inuit Health branch of Health Canada. A letter from Ms. White was filed with the court in which Ms. White outlined some of the difficult stages in Mr. Trodd’s life, and how Mr. Trodd was bullied in school because he was “whiter” than other aboriginal children on the reserve.
[23] Mr. Trodd’s mother, Nancy Noganosh testified about how she had trained and progressed through the various steps to where she has now been recognized by the Supreme Court of Ontario as having attained the status of Traditional Grandmother to the Magnetewan First Nation. As a traditional grandmother she has become involved with many different groups, including dance groups and traditional sweat lodge ceremonial groups. She also testified about how she learned to harvest medicines from her uncle, Roger Jones, who is a native elder and the founder of the Shawanaga Healing Center. She has been a band council member for a number of years and an alcohol and drug counsellor on the reserve. Although she has diplomas in business administration and social work, her primary focus is health and healing.
[24] Nancy Noganosh also testified at about how she had seen improvement in Jeremy in months leading up to these charges, and explained how she could be a support for Jeremy if he came back and lived with her on the reserve.
[25] The court also heard from Mr. Trodd’s sister, Dawn Trodd, who lived with her mother on the reserve, and heard how she helped her brother to implement strategies for his methadone program.
[26] In my view, the Justice of Peace met the duty of ensuring that there was sufficient evidence before her with respect to Mr. Trodd’s circumstances as an aboriginal.
[27] Ultimately, the Justice of the Peace decided to detain Mr. Trodd on the secondary grounds. In coming to this decision, she referred to Nancy Noganosh and Dawn Trodd as well-meaning people. However she stated that she could not share Nancy Noganosh’s optimism that if Mr. Trodd were released things would be different this time. She referred to Mr. Trodd’s statement to the police that he was a “Cop Killer” when he was in custody, a term she stated she found so repulsive she stated that she could not even include it in her notes. She also referred to the fact that Mr. Trodd had a 17 year long criminal record which contained 53 convictions, including 9 convictions for breaching a recognizance release, 9 convictions for breaching a probation release and 1 fail to appear, and citing the fact that he was only 30 years old. She also referred to the fact that Chief Diabo was looking to the court system to protect the native community. Specifically, in relation to Gladue, she referred to the fact that the case suggests that violent and serious offences will result in imprisonment for aboriginal offenders, which was ultimately what she decided to do with respect to Mr. Trodd.
[28] I agree with the approach to applying Gladue set out in R. v. Brant, an unreported decision of Justice Parfait of this court on a detention review hearing held June 3, 2008. In her reasons orally given, she stated at par. 75:
What the principles in Gladue do is alter the method of analysis which the justice must use in determining whether detention is justified. Specifically, the court must look at whether the sureties offered, in the context of the aboriginal culture, can control behavior. 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 protection 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.
[29] The reasons of the Justice of the Peace confirm that she looked at the sureties and found she could not share their optimism that things would be different this time if Mr. Trodd was released. She looked at the plan put forward, and decided that Mr. Trodd’s history of violence was such that he was a threat to the community. She looked at the community, and observed that although the community would not take steps to prevent Mr. Trodd from returning to the First Nations reserve, and felt an obligation to assist him, it certainly did not embrace the release of Mr. Trodd back into the community, and was looking to the justice system to protect it.
[30] In conclusion, it is my view that the Justice of the Peace ensured that she had ample evidence before her to assist her in applying the Gladue analysis to Mr. Trodd’s circumstances, and in deciding to detain him on the secondary grounds she was in a position to consider all reasonable alternatives. As such, I am satisfied that there was no error in the application of the Gladue principles.
Does Mr. Trodd have a new and more secure plan to present to this court which is sufficient to overcome concerns expressed by the Justice of the Peace in rejecting his bail application on the secondary ground?
[31] The plan put forward at the bail review hearing purports to improve on the previous plan in two ways.
[32] Firstly, it includes a more extensive and detailed schedule of activities. From Monday to Friday, Mr. Trodd is scheduled to attend a medical clinic and receive his methadone treatment from 8 a.m. to 10 a.m.; then from 10 a.m. to 5 p.m. he is scheduled to attend medical and physiotherapy appointments, and participate is some form of skill development, and in the evenings he is scheduled to participate in group activities including Alcoholics Anonymous, sports, cultural gatherings, exercise and home theatre. On weekends he will participate in family activities, including shopping, trips in the country, exercise activities such as biking and hiking and family visits.
[33] Secondly, in addition to Mr. Trodd’s mother, Nancy Noganosh and his sister Dawn Trodd, it includes two additional sureties. These two new sureties include his uncle, Gerald Noganosh and his cousin, Dawn Gagne. An apartment is to be built in the basement of Nancy Noganosh’s home, and Mr. Noganosh and Ms. Gagne will move into this apartment, presumably so they can maintain a closer watch over Mr. Trodd and be more involved in his life.
[34] The plan is not without merit. Mr. Trodd will benefit from engaging in cultural, community and family activities. He is thirty one years old and has spent a considerable amount of his relatively brief life in custody…he will also benefit from being kept busy.
[35] I have two concerns about the plan.
[36] Firstly, the plan includes many community activities and therefore assumes that the community endorses and supports the plan. However, no one from the community attended at court and spoke in favour of this new plan. At the first hearing, Chief Diabo testified that although the band had decided not to pass a resolution excluding Mr. Trodd from the Magnetewan First Nation, the community did have concerns for its safety and well-being. The charges of break and enter and assault which Mr. Trodd is now facing involve members of this community and it would have been helpful if there was evidence of community support. In my view, the plan as presented to the court will have a much greater chance of succeeding if it has the active support and endorsement of the First Nation community.
[37] Secondly, I am not confident that the sureties are the right people to carry out this plan. They continually make excuses for Mr. Trodd and they exhibit a willful blindness with respect to the role he has played in the commission of his offences. In doing so, they play the role of enablers.
[38] In her decision, the Justice of the Peace referred to one theme which continued throughout the stories which Mr. Trodd relayed to his counselor Ms. White… “it was always someone else’s fault”. Mr. Trodd described being bullied in school, assaulted in jail, harassed and followed by police, and of violence against him by prison guards. The report indicates that Mr. Trodd views himself as a victim.
[39] The evidence of Nancy Noganosh at the first hearing and now at this second hearing is replete with examples, some of which are quite shocking of how she remains in denial of her son’s criminal conduct, and how she also sees him as a victim. At the first hearing, she was asked about a previous conviction of threatening which was issued against Mr. Trodd and a subsequent probation order not to associate with certain individual. She explained that she recalled that the circumstances were such that her son had cut his hand and he was trying to get help and nobody would help him so he kicked the door, yelled at the complainants and threatened them to help him. When Nancy Noganosh was cross examined about Mr. Trodd’s seven previous convictions for assault, and in particular one assault with a weapon, she replied as follows:
Well, you’d have to provide some specifics of – of that assault before I would be able to remember. Like, assault with a weapon could be many things. I know he’s been - they attempted to convict him of - of possession of a weapon and it was a little knife about that long. So – and it was thrown out.
[40] When Nancy Noganosh was asked whether she had ever sat down with her son and had a conversation such as “Look Jeremy, you can’t keep going on assaulting people like this” she replied that “the last time I talked to him in regards to his assault situations was when I told him that you can’t keep admitting guilt for something you didn’t do.” Later, she explained that she had not had this Mother and son conversation because “he carried years of abusive situations and he needs to get rid of all that stuff first.” When asked about the C K tattoo on her son’s neck Nancy Noganosh explained that her son “keeps getting charged or he keeps getting beat up.” The tattoo was a “tool that he has to help him survive in there”. With respect to the incident in which a police officer was killed during a vehicle chase involving her son, Nancy Noganosh referred to it as “his accident”. Her son’s transfer from Juvenile to a Federal Penitentiary resulted in her son being placed “amongst criminals that could have caused him to be one horrible person” and “while incarcerated all of those things that those people did to him, has caused him to feel like he’s got to keep punishing himself”.
[41] Nancy Noganosh appears desperate in her attempts to absolve her son from responsibility in relation to his previous crimes. In the accident in which the police officer was killed, Mr. Trodd’s friend who was a passenger in his vehicle was also killed but according to Ms. Noganosh he died because “he did not receive medical attention”.
[42] At the hearing before me, Nancy Noganosh was asked about the time Mr. Trodd was charged in London, Ontario in 2013, for breaching the terms of his recognizance and she explained that this was due to a misunderstanding as to the length of time his curfew was to be in effect. At the time, she was acting as his surety. She was also acting as his surety on the night the most recent incidents occurred, and one of the conditions was that he had to be inside at 9 p.m. Ms. Noganosh explained that she went to bed that night at 9:15 p.m. and her son was at home. Mr. Frank Noganosh had informed police that Jeremy and two friends had broken into his house at 9 p.m. that evening and Nancy Noganosh explained that Mr. Noganosh must have been mistaken about the time and that this was the first time her son had breached his curfew.
[43] To her credit, Nancy Noganosh called the police at about 2 a m. on the morning on Nov. 5, 2013. She reported that she heard someone yelling and swearing outside her home and she recognized the voice as that of her son Jeremy. She checked his room, found he was not there. She testified that fearing she would lose the money she had put up for bail she reported to the police that Mr. Trodd was apparently breaching his bail conditions.
[44] Mr. Trodd’s sister Dawn Trodd, who is being put forward as one of Mr. Trodd’s sureties appears to be similarly inclined to defend her brother’s criminal activities. She did not testify in court before me but at the original hearing, when she was asked whether she had ever confronted her brother about his assaultive behavior and breaking into other people’s homes she replied that these most recent break and enter charges were the first break and enter her brother had been involved in, to her knowledge. When asked about a conviction for break and enter in Parry Sound in March, 2012 she replied that she did speak to him about that one and that on that occasion she had asked her brother to “please, stop pleading guilty to things that you do not do”.
[45] Dawn Marie Gagne is Mr. Trodd’s cousin. She is 54 years old. She is an elder within the Magnetewan First Nation and proposes to live in a basement apartment in Nancy Noganosh’s house on Magnetewan First Nation reserve. She is unemployed right now but is prepared to pledge the sum of $500.
[46] In her affidavit filed with the court Ms. Gagne indicated that she was aware of the charges against Mr. Trodd. In her examination she admitted that she was not aware of the facts and circumstances which comprised the charges before the court and when she was provided with this information she maintained that she was still prepared to be a surety.
[47] Significantly, Ms. Gagne referred to the incident in which the police officer was killed as an accident. When asked about the tattoo on Mr. Trodd’s neck she stated that she was aware of the tattoo but that she was not prepared to assume that this referred to her cousin as being a “cop killer”. She stated that Mr. Trodd needed a chance to move on and she wished to help him with that, although she did not know what he needed help with.
[48] Mr. Gerald Noganosh is 55 years old and is Nancy Noganosh’s brother. He proposes to live in the basement apartment with Ms. Gagne.
[49] Mr. Noganosh is trained as a carpenter and is willing to pledge the sum of $2500 as security. Although he maintained that he had a close relationship with Mr. Trodd it was apparent that he and Mr. Trodd had almost always lived a considerable distance from each other and he had never spent much time with his nephew.
[50] When questioned about the charges before the court, Mr. Noganosh admitted that he had not made himself aware of the facts and circumstances which comprised the charges. Notwithstanding this fact, Mr. Noganosh stated that it was his belief that his nephew was “charged with a lot of charges he never did”, thereby continuing the same theme as that of the other sureties, namely that Mr. Trodd was a victim.
[51] What also concerned me about Mr. Noganosh’s evidence was that although he purported to pledge $2500 as security, he has outstanding fines in relation to criminal offences going back to 1994 which he has made no attempt to pay. In 1994 he was convicted of driving with a blood alcohol level over the legal limit and fined $500 and in 2004 he was convicted of driving with an open container of alcohol in his vehicle and fined $212. He testified that he had not paid the $500 because he was waiting for the court to advise him where it had to be paid and with respect to the $212 he testified that he had misplaced the ticket and did not know where to pay it. Clearly, with respect to his own offences he has demonstrated a disregard for the law.
Decision
[52] As I have already indicated, the plan put forward has merit and sets out laudable objectives. Mr. Trodd is 31 years old and has been in and out of custody for 17 of these years. Custodial sentences have not had any rehabilitative effect on him, and I expect that further time in custody will just make him increasingly angry, violent and anti-social. Clearly, Mr. Trodd’s case is the type of case which the Supreme Court attempted to address in the Gladue decision. In my view he can only benefit by being embraced by a supportive community of family of friends, and having positive role models in his life.
[53] Unfortunately, I have come to the conclusion that the plan presented to the court is not appropriate in the circumstances. Mr. Trodd has a 17 year criminal history of serious offences. The victims of many of these offences have been persons such as Logan Hanna and Victoria Ashawasagai who are members of his own community. If the plan is to be successful, community support is imperative and sadly there is no evidence that it exists. Furthermore, although the sureties are well meaning, they are clearly in denial of the extent of Mr. Trodd’s criminal behaviour and his violent tendencies. As such I do not have the assurance that they will hold him accountable for his actions should he breach the conditions of his release. I note for example that Mr. Trodd’s mother admitted that almost all of her son’s offences were committed at times that he was living with her. On the occasion of the offences before the court, he was living with his mother pursuant to a recognizance which was issued in relation to other charges. Living with his mother has therefore not been an effective deterrent to criminal activity. Simply adding additional sureties does not give me the assurance that the public will be adequately protected. In the circumstances, I find I have no alternative but to deny the application on secondary grounds.
[54] I have used the word “unfortunately” in relation to my decision because in my view my decision reflects a number of failures. It reflects the failure of the aboriginal community and Mr. Trodd’s family to exert a more positive influence on him. It also reflects the apparent failure of the Canadian Penal system to achieve its objective of rehabilitating Mr. Trodd in even a small way. Above all, it reflects the failure of Mr. Trodd to change his own behaviour, and his continuing commitment to a criminal lifestyle. Until such time as he accepts responsibility for his actions, and makes a concerted effort to change his behaviour, the efforts of his family, his community and the penal system will be in vain and Mr. Trodd will remain a threat to society.
[55] Mr. Trodd is to be returned to custody and any conditions set out by the justice of the peace are to remain in place pending trial.
E.J. Koke SCJ
Date: June 16, 2014