ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Spence, 2015 ONSC 1692
COURT FILE NO.: CR-15-0014
DATE: 2015-03-17
B E T W E E N:
Her Majesty The Queen,
David MacKenzie, for the Crown
- and -
Monica Spence,
Christopher Watkins, for the Accused
Accused
HEARD: February 23 and 24, 2015,
at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Reasons For Bail Hearing
[1] This is an application by the accused, Monica Spence, for a bail hearing under s. 522 of the Criminal Code. Ms. Spence is charged with second degree murder in the death of Richard Spence on December 21, 2014. Ms. Spence has been detained in custody since December 21, 2014, pursuant to s. 515 of the Criminal Code.
[2] The onus is on Ms. Spence to show cause why her detention is not “justified” within the meaning of s. 515(10).
[3] The Crown opposes the release of Ms. Spence on the secondary ground, namely, that her detention is necessary for the protection or safety of the public, and on the tertiary ground, namely, that her detention is necessary to maintain confidence in the administration of justice.
[4] The Crown acknowledges that there is no basis to detain Ms. Spence on the primary ground, namely, to ensure her attendance in court.
Background of the Offence
[5] The deceased was found in the early hours of December 21, 2014, lying on the floor of a home at 49 Secord Street, Thunder Bay, in a pool of blood, halfway into a bedroom. He had suffered injuries to his head. The cause of death was said to be positional asphyxiation from blood.
[6] Police spoke to one Donald Churchill. Mr. Churchill said that the accused had told him that on December 20, she had been at the deceased’s residence, drinking. She was sleeping or passed out when she was awakened by Mr. Spence trying to take off her clothes and rape her. Mr. Churchill said that Ms. Spence told him that she ended up stomping on Mr. Spence’s head and kicking him, but that he had got up and she had run from the home, naked.
[7] Police arrested Ms. Spence on December 21, 2014, at an apartment at 633 Simpson Street, Thunder Bay. At the bail hearing, the arresting officer, Detective Constable West, testified that following her arrest, Ms. Spence made utterances to the effect that “he raped me” and “what if he raped me”.
[8] In discussions with other individuals, the police received information that after the incident, Ms. Spence ran from 49 Secord Street to a home at 219 Secord Street, where her boyfriend, Daniel Debassige resided.
[9] Police then spoke to Diane Hanson, a resident of 219 Secord Street, who told them that on December 20, 2014, Mr. Debassige and Ms. Spence had come to 219 Secord Street. Mr. Debassige was drunk and hyperactive. Ms. Hanson told police that Mr. Debassige said that he had “killed a rapist” and that “fucking Richard won’t rape anyone again”. She said that Mr. Debassige had a swollen hand.
[10] Ms. Hanson told the police that Mr. Debassige was upstairs in his room. Police went to the room and knocked on the door. There was no answer. Police observed blood on the door handle. They obtained a key to the room from the landlord and entered the room. Mr. Debassige was not there. There were several kitchen knives visible. Ms. Hanson then told police to check a small room off her bedroom. Police found Mr. Debassige in the room, trying to hide. He had an injury to his hand. He was arrested and charged with second degree murder.
[11] During a subsequent video statement to police, Ms. Hanson elaborated on her statement that Mr. Debassige said to her that he had killed a rapist. She said that after he said that, Ms. Spence stated, “No Babe, I did”.
[12] Detective Constable West testified that Ms. Spence has a history of numerous contacts with the police. Between 1997 and 2014, she was charged with 38 incidents of being intoxicated in a public place. Detective Constable West said that there were other incidents related to Ms. Spence’s drinking and criminal offences, but her only convictions were on January 7, 1998 for theft over $5000, impaired driving and failing to comply with a recognizance.
[13] Detective Constable West testified that there was one instance of an assault complaint against Mr. Spence. On June 8, 2007, Mr. Spence was convicted of sexually assaulting Ms. Spence.
[14] Mr. Debassige has a criminal record, going back to 1992 when he was a young offender. His record as a young offender includes assault, assault causing bodily harm and assault with a weapon in 1994. As an adult, he has three convictions for assault and one for assault causing bodily harm, together with convictions for possession of property obtained by crime under $5000, failing to comply with a recognizance and failing to appear.
Evidence of Monica Spence
[15] Ms. Spence testified at the bail hearing.
[16] She is 45 years of age. She is aboriginal, a member of Constance Lake First Nation. Her parents attended residential school. Growing up, she was one of ten living in a three bedroom home in Constance Lake. The family lived on social assistance. There was violence in the home. Her parents were alcoholics.
[17] At three years of age, Ms. Spence was apprehended by child welfare authorities. She was placed with a French speaking family in Mattice, Ontario. She did not speak French. At age six or seven, after her father quit drinking, she returned to her home in Constance Lake. Her mother continued to drink and came and went from the home. She lived with her father and six other children in Constance Lake. Her father occupied one bedroom, the girls had one bedroom and the boys had the other bedroom.
[18] Ms. Spence started drinking at age 14. She said that all the children in Constance Lake drank. Parents in the community set no rules.
[19] Ms. Spence had her first child at age 17, fathered by Anthony Eachum. One year later she was pregnant with her second child. Timmy Wesley was the father of that child. At age 19 she was sexually assaulted in Constance Lake by a gang of men.
[20] Ms. Spence’s mother, who was continuing to drink, kicked Ms. Spence and her two children out of the home. Ms. Spence stayed with the family of Timmy Wesley. There were four adults and six children in this two bedroom house in Constance Lake. There was extensive drinking in that home. She and Timmy Wesley began to fight. He became physically abusive, hitting and punching her and breaking her nose.
[21] Ms. Spence left with her children for Thunder Bay. By this time she had four children. She had plans to train as a hairdresser, but because the program was not a community college course, she received no funding from her Band. Without funds and on social assistance, she did not pursue her plans.
[22] She rented a home on Limbrick in Thunder Bay. Her father, with whom she remained close, kept in touch through visits to Thunder Bay. When Ms. Spence was 23, her father passed away. She testified that she felt empty and lost and dealt with the loss by drinking. Her children were apprehended by Dilico Family Services. At about that time, Ms. Spence’s mother, who had stopped drinking, passed away.
[23] Ms. Spence said that all she did then was drink. She lived on the streets of Thunder Bay with a group of individuals who hung around and drank daily. She said drinking would numb her emotions.
[24] In 2007, while Ms. Spence was in a room at a motel in Thunder Bay, Mr. Spence came by and they started drinking. Ms. Spence passed out. When she woke up, Mr. Spence was fondling her. She threw him off the bed, kicked him out of the room and called police.
[25] Mr. Spence was convicted of sexual assault relating to this incident. Nevertheless, Ms. Spence said that she forgave him and they continued to have a relationship as friends.
[26] As of the date of the bail hearing, Ms. Spence had been in custody for approximately two months. She said that she has stopped drinking. She has been involved in aboriginal smudging ceremonies which she says take out the negative feelings that she has, gives them to the Creator, and calms her. She attends meetings of Alcoholics Anonymous and speaks with the prison chaplain.
[27] Ms. Spence testified that if she was released, she would go to Hamilton to reside with her sister, Evon Spence. Ms. Spence said that she loves, respects and trusts Evon. Ms. Spence said that she would attend counselling and Alcoholics Anonymous meetings in Hamilton.
[28] In cross-examination, Ms. Spence said that she has been for alcohol treatment five times and that it did not work. She agreed that her two months of sobriety while in custody has been the longest period of sobriety since she was 14 years of age and that she is currently doing as well as she ever has because of the structure of the Correctional Centre where she is in custody.
Evidence of Evon Spence
[29] Evon Spence testified at the bail hearing.
[30] She is 49 years of age. She resides at 145 Erie Avenue, Hamilton, Ontario, in a home which she owns. She values the home at $188,000. She estimates her equity in the home at $38,000. She has no criminal record.
[31] Evon has been employed with the Toronto Transit Commission for approximately 20 years. She holds the position of a Yard Control Dispatcher in the Operations Group. She described this as a position with a lot of responsibility. She directs subway yard operations, breaking up and putting trains together and getting them ready to go out for service. She was paid $75,495 in 2014.
[32] She said that she socialized with Monica by Facebook and talked to her once in a while on the phone. She said that she is aware of the depth of Monica’s alcoholism. Monica stayed with her in 2009, to act as a chaperone for another sister who was undergoing chemotherapy. She said that that visit went well.
[33] Evon left Constance Lake at age 13 to reside with her sister, Rose, in Thunder Bay. She stated that the residential school experience of her parents affected all the members of her family. She said that she spent five years in counselling to deal with her personal issues.
[34] Evon is prepared to have Monica reside with her in Hamilton. She is prepared to act as a surety and, as surety, to pledge the equity in her house.
[35] She testified that she has researched First Nations based resources available to Monica in Hamilton. She said that she has visited the Health Centre and the Friendship Centre in Hamilton, which have drug and alcohol counsellors, offer Alcoholics Anonymous programs and have smudging ceremonies. She said that those centres also have resources to find services elsewhere for Monica.
[36] Evon testified that there is no alcohol in her home and there are no weapons in her home.
[37] If Monica were released to reside with her, Evon’s rules would require that Monica would only leave the home for counselling and related appointments and do so only in her company or in the company of other siblings who would come to Hamilton to assist.
[38] Evon works in Toronto, from 8:00 am to 4:00 pm. It is approximately a 50 minute commute by bus each way. She said that she has four vacation weeks left this year. If Monica were to be released into her care, she would take this vacation time to set up Monica in her home and introduce her to the Health Centre or Friendship Centre.
[39] She said that she would purchase a cell phone for Monica, with an application that allowed it to be traced. She would also telephone Monica on the home phone every one or two hours. She said that she would call the police if she so much as suspected that Monica was drinking.
Evidence of Rose Yesno
[40] Rose Yesno is Monica’s oldest sister. She testified at the bail hearing.
[41] Rose is the Bachelor of Education Co-ordinator for Northern Nishnawbe Education Counsel in Sioux Lookout. This is a program run in conjunction with Brock University. There are 42 students under her supervision in the program. She was a teacher in northern communities for 12 years and was a principal for 10 years.
[42] She said that she left home in Constance Lake at age 15 after experiencing many of the same difficulties as Monica.
[43] Rose is entitled to take two months time off from her employment. If Monica is released, Rose is prepared to stay with Monica at Evon’s home for up to two months. She is aware of First Nations counselling services and treatment facilities that would be available to Monica in Hamilton.
[44] Rose acknowledged in cross-examination that she has previously tried to get Monica into treatment. She said that Monica did attend alcohol treatment with Dilico, but it did not work for her.
Evidence of June Spence
[45] June Spence is a sister of Monica. She testified at the bail hearing.
[46] She resides in Longlac with her husband who works at the Longlac sawmill. She has three adult children.
[47] June went through alcohol treatment in London, Ontario. She gave up alcohol about six or seven months ago and no longer drinks. She said that she has had no relapses. She attends Alcoholics Anonymous meetings.
[48] She is not employed but was recently working as a chambermaid at a camp near Kapuskasing. She is receiving employment insurance benefits, which run until September. She has had no criminal record for 20 years.
[49] If Monica is released, June plans to reside with her in Hamilton. She said that she would be prepared to stay with Monica until trial, even if it took two to three years. She is prepared to monitor Monica every day. She is willing to attend meetings with Monica to deal with Monica’s alcohol addiction. She said that through her own attendance at Alcoholics Anonymous meetings, she would have contacts for Alcoholics Anonymous in Hamilton. She said that based on her own recovery from alcohol, she would be a mentor to Monica. She testified that if Monica did drink, she would report her to Evon.
[50] In cross-examination, June said that the assets that she and her husband have are all in her husband’s name. She has $900 in savings which she is prepared to pledge as a surety.
[51] She said that she had previously tried to get Monica to go for treatment for her alcoholism.
[52] She said that if she needed money while living with Monica and Evon, she could rely on her husband. She said that she could also find a job as a chambermaid in Hamilton during the hours that Evon did not work.
Submissions
(a) Defence
[53] The defence submits that under the proposed plan of release, Ms. Spence would be far away from Thunder Bay where the events leading to the offence charged occurred, distancing her from the street life she has lived and the individuals with whom she has associated. She would not be in proximity to any witnesses.
[54] The defence submits that Ms. Spence’s addiction to alcohol is linked to her life on her First Nations community and the historical and systemic factors of residential school, poverty, violence and overcrowded housing.
[55] The defence submits that the principles of R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, apply to the bail process. The defence refers to R. v. Silversmith, 2008 60168 (ONSCJ) in support of this submission.
[56] The defence submits that although Ms. Spence was addicted to alcohol, that did not necessarily mean that she was violent. The defence points to Ms. Spence’s record where she has no convictions for crimes of violence during the past 20 years.
[57] The defence submits that if the evidence that the police received from Mr. Churchill is accepted, she was being sexually victimized during the incident in question.
[58] The defence proposes that Ms. Spence be released under a form of house arrest, to be in the presence of a surety or surety-designate, 24 hours per day. This would ensure that if Ms. Spence drank, it would be quickly caught.
[59] The defence proposes that Evon and June act as sureties, in amounts that keep them mindful of their responsibilities.
(b) Crown
[60] The Crown emphasizes that the onus is on Ms. Spence to satisfy the court on the balance of probabilities that she should be released.
[61] The Crown takes the position that because the death of Mr. Spence was an act of extreme violence, committed under the influence of alcohol by a person with a long history of alcohol abuse there are real concerns about the protection of the public and the ability of Ms. Spence to address her alcohol problems if released.
[62] The Crown points to the fact that Hamilton is a long way from Thunder Bay and that Thunder Bay’s problems should not be visited on Hamilton. The Crown submits that s. 515(2)(c) of the Criminal Code requires Ms. Spence not to be released unless she deposits money or other valuable security, because Hamilton, where it is proposed she be released, is more than 200 kilometres from the place where the offence was committed.
[63] The Crown submits that the proposed plan of 24 hour supervision is not feasible because Evon is away from her home at least 10 hours per day.
[64] The Crown submits that the Gladue factors affecting Ms. Spence are shared with her sisters, who have succeeded where she has not. The Crown also submits that generally the more violent the offence, imprisonment will be the same for aboriginals and non-aboriginals.
[65] The Crown also submits that the tertiary ground is applicable because of the apparent strength of the Crown’s case found in admissions made by Ms. Spence to Mr. Churchill and Ms. Hanson.
[66] The Crown also points to the gravity of the offence, that Ms. Spence was a guest of Mr. Spence and that if found guilty, she faces a minimum of 10 years imprisonment.
Discussion
[67] Section 522 of the Criminal Code provides that only a superior court judge may order the release of an accused charged with murder. Section 522(2) places the onus on the accused to show cause why his or her detention in custody is not justified with the meaning of s. 515(10).
[68] Section 515(10) provides:
(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:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(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.
[69] The Gladue principles apply to bail hearings. In R. v. Robinson 2009 ONCA 205, at para. 13, Winkler C.J.O. stated:
[13] It is common ground that principles enunciated in the decision of the Supreme Court of Canada in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, [1999] S.C.J. No. 19 have application to the question of bail. However, the application judge cannot apply such principles in a vacuum. Application of the Gladue principles would involve consideration of the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts. The exercise would involve consideration of the types of release plans, enforcement or control procedures and sanctions that would, because of his or her particular Aboriginal heritage or connections, be appropriate in the circumstances of the offender and would satisfy the primary, secondary and tertiary grounds for release.
[70] The classic Gladue factors are present in this case: Ms. Spence’s parents were placed in residential school, thereby losing the experience of themselves having been parented; Ms. Spence`s parents become severe alcoholics; the family resided in poverty and substandard, severely overcrowded housing; Ms. Spence was removed from her family at a young age and placed with a foster family whose language she did not speak; she was sexually assaulted as a young woman by a gang; she had her first child at age 17, quickly followed by another child; she was a victim of physical violence at the hands of the father of one of her children; she was a single mother of four in a strange, large community; she has had no employment; her children were apprehended by family services; she descended into chronic alcoholism; she has lived as a street person; she was sexually assaulted seven years ago by the man whose murder she is now charged with.
[71] That Ms. Spence’s sisters were able to rise above their common family background is remarkable. However, it does not diminish the role that the Gladue factors played in derailing Ms. Spence’s life. Gladue recognizes the overwhelming odds against emerging whole from such a background.
[72] As stated by Sharpe J.A., for the court in United States of America v. Leonard, 2012 ONCA 622, at para. 60:
… Gladue stands for the proposition that insisting that Aboriginal defendants be treated as if they were exactly the same as non-Aboriginal defendants will only perpetuate the historical patterns of discrimination and neglect that have produced the crisis of criminality and over-representation of Aboriginals in our prisons. … [t]he Supreme Court in both Gladue and Ipeelee, … emphasize that consideration of the systemic wrongs inflicted on Aboriginals does not amount to discrimination in their favour or guarantee them an automatic reduction in sentence. Instead, Gladue factors must be considered in order to avoid the discrimination to which Aboriginal offenders are too often subjected and that so often flows from the failure of the justice system to address their special circumstances.
[73] The sad circumstances of Ms. Spence’s background that brought her to this point in her life, circumstances which are unique to her as an aboriginal defendant, provide the necessary context in determining of what the appropriate outcome of this bail hearing should be.
[74] I am satisfied that the plan presented, of house arrest in Evon’s home in Hamilton, monitored 24 hours a day by a combination of Evon, June and Rose, or other family members designated by Evon, backed by the severe financial burden that Evon will be assuming through the pledge of the equity in her home, supplemented by June’s financial pledge, with an absolute prohibition on the consumption of alcohol and attendance at alcohol counselling through aboriginal agencies, will act as a check on Ms. Spence’s behaviour to secure the protection or safety of the public.
[75] I am persuaded that, as sureties, Evon and June, can be expected to understand their obligations to supervise Monica and to take the necessary actions if Monica fails to live up to the conditions of her release. The commitment of Evon, June and Rose is quite extraordinary and, I believe, sincere. As sisters, they have meaningful links to Monica. I believe that Monica respects her sisters and recognizes the financial risks they are undertaking on her behalf. This, too, will act as a check on her behaviour.
[76] There is, of course, no guarantee, given the nature of Monica’s chronic alcoholism, that she will be able to continue the abstinence enforced on her during the past three months while in custody. She could be awaiting trial over a long time. However, if she cannot refrain from alcohol, I am satisfied that her sureties will quickly be aware of any breach and will report it. I cannot envision that a stronger plan of release could be crafted for Ms. Spence.
[77] It is important to be mindful that the secondary ground of s. 515(10)(b) provides that detention is justified if it is “necessary” for the protection or safety of the public, and that the court must have regard to all the circumstances including not just the likelihood but the “substantial” likelihood that the accused will, if released from custody, commit a criminal offence. I do not find that the detention of Ms. Spence is “necessary” or that there is a “substantial likelihood” that she will commit a criminal offence in the circumstances of the proposed plan of release.
[78] Ms. Spence has no criminal record for violence, and indeed has no criminal record apart from her convictions for three non-violent offences 17 years ago. Her extensive record of public intoxication offences, in the absence of an accompanying criminal record for violent behaviour, likely indicates someone who during the past 20 years as a street person has been more at risk to herself than a risk to others.
[79] If Ms. Spence is required to remain under house arrest in Evon’s home in Hamilton, she will be far removed from the group with whom she has associated on the street over the past many years. There will be no realistic possibility of her interfering with witnesses in the case.
[80] She is prepared to undergo counselling, in an aboriginal context, to deal with her alcohol addiction. Evon has researched the facilities available in Hamilton. She and June are committed to taking Monica to these programs.
[81] Ms. Spence has been amenable to dealing with her alcohol addiction while in custody at the Correctional Centre. She has participated in aboriginal smudging ceremonies which she has found helpful. She has attended Alcoholics Anonymous. She has spoken to the prison chaplain about her issues.
[82] Although I take the Crown’s point that Ms. Spence has done better in addressing her addiction while she has been in custody than she did out of custody, in my view, it would be an error to deprive Ms. Spence of her liberty on the grounds that she should be imprisoned to deal with her addiction rather than addressing it under restrictive conditions of bail, supported by her sureties.
[83] With respect to the tertiary ground, s. 515(10(c) sets out specific factors under which bail can be denied on the basis of maintaining confidence in the administration of justice – the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for lengthy imprisonment.
[84] As stated by McLachlin C.J. in R. v. Hall, 2002 SCC 63, [2002] S.C.J. No. 64, at para. 41, in finding that the present criteria were constitutional, Parliament has hedged this provision for bail with important safeguards:
… 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 CanLII 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). For these reasons, the provision does not authorize a “standardless sweep” nor confer open-ended judicial discretion. Rather, it strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community. In sum, it is not overbroad.
[85] In one respect, the Crown’s case is strong, based on Ms. Spence’s admissions to Mr. Churchill and Ms. Hanson. On the other hand, those admissions were also made in conjunction with her statement that she was being sexually assaulted at the time by the deceased, and that she fled naked from the home. There is also the role of Mr. Debassige, who has implicated himself, to be considered.
[86] There can be no question that the offence charged is grave and that the accused, if convicted, is liable for a potentially lengthy term of imprisonment. However, the opportunity for bail is not necessarily denied to those charged with murder. All the circumstances must be looked at. The majority of the Supreme Court of Canada in Hall held that cases where detention would be justified under the tertiary ground were not likely to raise frequently.
[87] In this case, it appears that both the deceased and the accused were drinking heavily. Ms. Spence said she had passed out and awoke to find Mr. Spence removing her clothing. Police said that Mr. Spence was found with a high level of intoxication. Mr. Spence had been convicted in 2007 of sexually assaulting Ms. Spence.
[88] I am of the view that it is not necessary, in light of the philosophy of the legislative provisions, Charter values, the circumstances of the case and the proposed strict conditions of Ms. Spence’s release, that the detention of Ms. Spence is necessary to maintain confidence in the administration of justice.
[89] Finally, I do not agree with the Crown’s submission that s. 515(2)(e) prohibits the release of Ms. Spence unless she deposits money or other valuable security.
[90] Section 515(2)(e) provides:
(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released
(e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such an amount and with such conditions, if any, as the justice directs, and upon his depositing with the justice such sum of money or other valuable security as the justice directs.
[91] Ms. Spence is ordinarily resident in Ontario where she is in custody and she ordinarily resides within 200 kilometres of the place (Thunder Bay) in which she is in custody. In my view, she therefore does not meet the criteria set out in the section so as to require her to post cash bail. The fact that as a condition of her release she would reside in Hamilton, which is more than 200 kilometres from Thunder Bay, does not, in my opinion, then bring s. 515(2)(e) into play.
Conclusion
[92] Ms. Spence’s application for judicial interim release is granted. She shall be released from custody on a recognizance subject to the following requirements:
(1) Evon Spence and June Spence shall agree to act as sureties for Monica Spence. Evon Spence shall pledge $38,000 and June Spence shall pledge $1,000, both without deposit of money or other valuable security;
(2) Monica Spence shall:
(a) forthwith depart Thunder Bay for Hamilton, Ontario, and at all times remain within the home of Evon Spence at 145 Erie Avenue, Hamilton, except for:
(i) travel between Hamilton and Thunder Bay for court;
(ii) attendance at counselling or appointments for assessment or for meetings of Alcoholics Anonymous;
(iii) attendance at smudging or other aboriginal programs for the purpose of addressing alcohol abuse;
(iv) medical or dental appointments.
(b) at all times, whether inside or outside the home of Evon Spence, be in the presence of one or more of Evon Spence, June Spence, Rose Yesno or another family member designated in advance in writing by Evon Spence;
(c) present herself at the door of her residence when required to do so by police for purposes of bail compliance checks;
(d) advise Hamilton Police Service and Thunder Bay Police Service in advance of all plans for travel between Thunder Bay and Hamilton;
(e) report to Hamilton Police Service Bail Compliance Unit, 155 King William Street, Hamilton, every Monday and Thursday and report to Thunder Bay Police Services by telephone every Tuesday and Friday;
(f) not attend in Thunder Bay except for court or medical purposes or to meet with her lawyer;
(g) abstain absolutely from the possession or use of any drugs or substances prohibited by the Controlled Drugs and Substances Act, except as prescribed to her by a medical doctor, and abstain absolutely from the purchase, possession or use of alcohol;
(h) not be in possession of any weapons as defined in the Criminal Code or be on premises where weapons are known to be located;
(i) not apply for nor possess a firearms acquisition certificate or other form of gun licence;
(j) be amenable to the rules of her sureties, including reporting by telephone to Evon Spence as required by Evon Spence and seeking and maintaining any counselling for alcohol abuse as may be required by her sureties;
(k) keep the peace and be of good behaviour;
(l) attend court in Thunder Bay as required;
(m) invite no person to the residence of Evon Spence except as approved in advance by Evon Spence;
(n) not enter any premises licensed to serve alcohol;
(o) abstain from contacting or communicating directly or indirectly with the following persons or going anywhere they are known to be, other than going to required court attendances;
Daniel DEBASSIGE
Diane HANSON
Joseph WESLEY
Daisy WESLEY
Donald CHURCHILL
Christine CHURCHILL
Louis WESLEY
Shirley VANDINE
Mervin SPENCE
Edward FINLAYSON
Ellen MARROTT
Roger SPENCE
Larry SPENCE
Beverly SPENCE and
Adam SNIDER.
(p) not attend at or be within 100 metres of the following Thunder Bay addresses:
181 Secord Street
219 Secord Street
633 Simpson Street
210 Victoria Avenue
413 York Street
308 Ogden Street
134 Mission Road and
1017 Huron Road.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: March 17, 2015
CITATION: R. v. Spence, 2015 ONSC 1692
COURT FILE NO.: CR-15-0014
DATE: 2015-03-17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
and –
Monica Spence,
Accused
REASONS ON BAIL HEARING
Shaw R.S.J.
Released: March 17, 2015
/mls