COURT FILE NO.: CR(P) 15-999-00BR
DATE: 20151022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
B. McGuire and E. Taylor, for the Crown
Respondent
- and -
MELISSA MERRITT
D. Berg and J. Hector, for the Applicant
Applicant
HEARD: September 28-30, October 1, 2015, in Brampton
APPLICATION FOR BAIL
(These reasons are subject to a non-publication order pursuant to the provisions of s. 517(1) of the Criminal Code.)
André J.
[1] Melissa Merritt (“Ms. Merritt”), who is charged, along with her boyfriend, Christopher Fattore (“Mr. Fattore”), with murdering her former husband and his parents, brings an application for judicial interim release. She asserts that there is no evidence linking her to the murders and that furthermore, she has an excellent plan of supervision, if released. The Crown vigorously opposes the application on the grounds that Ms. Merritt constitutes a flight risk, and that her release would not only pose a threat to the administration of justice, it would also undermine the public’s confidence in the administration of justice. I must therefore decide, whether, pursuant to s. 515(10) of the Criminal Code (“the Code”), Ms. Merritt has shown cause why she should be granted judicial interim release.
CHRONOLOGY OF EVENTS
[2] Ms. Merritt met her future husband, Caleb Harrison, in early 2000.
[3] They purchased a home in December of that year.
[4] Their first son, M.1, was born on […], 2001.
[5] They were married on October 13, 2002.
[6] Their daughter, M.2, was born on […], 2003.
[7] On June 6, 2005, Caleb Harrison was arrested and charged with assaulting Ms. Merritt. He ultimately pleaded guilty to the charges.
[8] Ms. Merritt and Mr. Harrison separated on June 7, 2005. Following separation, M.1 and M.2 remained with Ms. Merritt.
[9] Ms. Merritt met Mr. Fattore on January 26, 2006. They have four children of their own.
[10] Following separation, Ms. Merritt denied Caleb Harrison access to the children. He subsequently petitioned the Superior Court of Justice for access to them. On October 20, 2005, Justice Coats granted Caleb joint custody of the children.
[11] On June 19, 2006, Ms. Merritt made unsubstantiated claims to the Peel Police that Caleb had assaulted their son, M.1. The Peel Police did not lay any charges.
[12] On November 27, 2006, Ms. Merritt made unsubstantiated claims to the Peel Regional Police that Caleb had sexually assaulted M.2. The Peel Police did not lay any charges.
[13] On January 2, 2007, Ms. Merritt made unsubstantiated claims to the Peel Children’s Aid Society that Caleb had sexually assaulted M.2. The Peel Police did not lay any charges.
[14] On April 29, 2007, Ms. Merritt made unsubstantiated claims to the Peel Police that Caleb had assaulted M.1. They did not lay any charges.
[15] On April 25, 2008, May 11, 2008, May 19, 2008, and July 24, 2008, Ms. Merritt wrote to Bill and Bridget Harrison reproaching them for failing to take care of the children and for alienating them against her.
[16] On October 27, 2008, Ms. Merritt contacted the Peel Police and alleged that Caleb and Bridget Harrison had assaulted M.1 and M.2. The Peel Police concluded that the children had been coached by Ms. Merritt and consequently, declined to lay any charges.
[17] On October 28, 2008, November 25, 2008, and November 27, 2008, Ms. Merritt wrote to Bill, Bridget and Caleb Harrison, accusing them of maligning her and Mr. Fattore and accusing Bridget of assaulting M.1.
[18] On December 4, 2008, and again on December 9, 2008, Ms. Merritt wrote the Harrisons advising them that she was denying them access to the children.
[19] On December 18, 2008, Justice Quigley ordered the Halton and Peel Police to apprehend the children if Ms. Merritt refused to obey court orders regarding their residential arrangements.
[20] In March 2009, Caleb was incarcerated for impaired driving causing death.
[21] On March 18, 2009, Justice Gray granted Bill and Bridget Harrison co-parenting rights to M.1 and M.2.
[22] On April 16, 2009, Bill Harrison was found dead in his residence. The coroner’s office did not consider the death suspicious. A pathologist, Dr. Timothy Feltis, attributed the death to “acute cardiac arrhythmia”. Dr. Feltis observed a recent fracture to Bill’s sternum and a large bruise on his scalp.
[23] On the day when Bill Harrison was found dead, Ms. Merritt abducted M.1 and M.2 and fled to Nova Scotia via Manitoba. The Nova Scotia police arrested her on November 27, 2009, and returned her to Peel Region.
[24] At the time of the abduction, Ms. Merritt and Mr. Fattore owned a home in Mississauga which had a mortgage of approximately $225,000. Ms. Merritt’s father, a retired police officer, was a co-guarantor of the mortgage. He had no knowledge of his daughter’s whereabouts after she fled with the children to Nova Scotia. He eventually managed to locate his daughter and succeeded in getting Mr. Fattore to sign a Power of Attorney, giving him the authority to sell the home which had been abandoned by his daughter.
[25] On April 23, 2009, Justice Snowie granted Bridget Harrison sole interim custody of M.1 and M.2.
[26] After the police authorities returned Ms. Merritt from Nova Scotia in November 2009, her brother, Michael Merritt, who is a police officer, posted bail on a recognizance in the amount of $30,000, $10,000 of which was a cash deposit.
[27] On April 10, 2010, the Peel Police arrested Ms. Merritt for breaching her recognizance by attending the Harrison residence in Mississauga and having contact with M.1, M.2 and Caleb Harrison.
[28] On April 21, 2010, Bridget Harrison was found dead at the bottom of the stairs in her home. Mr. Fattore later confessed to the Peel Police in January 2014 that he had murdered her by entering the home on a pretext and then strangling her. Ms. Bridget Harrison was killed the day before Ms. Merritt was scheduled to plead guilty to child abduction.
[29] Prior to his death on August 23, 2013, Caleb had agreed to a week about access schedule with Ms. Merritt. In late August 2013, this arrangement was coming to an end. Ms. Merritt wanted the arrangement to continue. Caleb Harrison did not.
[30] Caleb Harrison was found dead in his bed on August 23, 2013, the very day Ms. Merritt was supposed to have returned M.1 and M.2 to him. A subsequent autopsy indicated that his death was a homicide. The cause of death was compression of the neck. Mr. Fattore’s DNA was subsequently found under Caleb’s fingernails.
[31] In September 2013, following Caleb’s death, Ms. Merritt moved to Nova Scotia along with M.1, M.2 and Mr. Fattore.
INVESTIGATION OF MS. MERRITT AND MR. FATTORE
[32] The Peel Police commenced a criminal investigation into Ms. Merritt and Mr. Fattore following Caleb’s death.
[33] On October 2, 2013, the Peel Police seized a laptop belonging to Ms. Merritt and Mr. Fattore, from their former residence. They determined that there were a number of Google searches two weeks before Bill Harrison’s death and two weeks before Bridget’s death. The following searches were retrieved from the laptop:
(a) What if a grandparent has legal custody and die
(b) Legal custody and they die
(c) How long after a death does it take to claim life insurance
(d) How long does it take to claim inheritance
[34] There was also a February 11, 2010, search related to buying and selling items for babies, newborns and children for an expectant mother. Ms. Merritt was believed to have been pregnant at the time of the search.
[35] At 5:34 p.m. a Google search was made: “Legal custody and they die”.
[36] At 5:37 p.m. a Gmail account was logged into a web address. The display name of this address was “Melissa”.
[37] At 5:54 p.m. a Google search was made on the laptop: “if a grandparent has custody of children and they die which of the parents get the kids”.
[38] There were also internet searches for “bump” keys and a PDF file for a “Mortise lock”. Mr. Caleb Harrison’s home had such a lock on the front door.
[39] The following searches were also found on the laptop found located in the residence of Ms. Merritt and Mr. Fattore:
(a) “using a non cut key to open a door”
(b) YouTube – “key bumping”
(c) YouTube – How to pick a lock
(d) YouTube – How to make a real masterlock master key
(e) YouTube – Magic key opens most locks! Lock picking trick lockpicking lockbumping bumping how to bump locks
[40] There was no evidence of forced entry into the Harrison residence at the time of the death of Bill, Bridget and Caleb Harrison.
[41] The Peel Police also found the following searches and answers on Ms. Merritt and Mr. Fattore’s laptop from April 1, 2010, a few weeks prior to Bridget Harrison’s death:
(a) How long does it take to die from choking
(b) On average, how long does it take for a person being strangled to pass out
(c) If a person who was being strangled had just died at the moment someone came to the rescue and fought off the killer, would it be possible to revive him with CPR, or would there most likely be a hidden damage that would prevent it?
[42] The police also found the following searches on Ms. Merritt and Mr. Fattore’s computer:
(a) Easy ways to kill and get away with it
(b) Excesable [sic] poison
(c) Easy way to find poison
[43] Other searches made on Ms. Merritt and Mr. Fattore’s laptop on April 26, 2010, included:
(a) How long after a death does it take to claim life insurance
(b) How long does it take to claim inheritance
(c) Why would they keep someone’s spine after otopsy [sic]
(d) Ligature marks
[44] Another search on April 15, 2011, was titled: “how to get rid of searches addresses on my computer”.
ADDITIONAL EVIDENCE
[45] A pair of black latex gloves and “Athletic Works” running shoes found in Ms. Merritt and Mr. Fattore’s garbage on August 29, 2013, had a DNA profile. Caleb Harrison could not be excluded as a source of this profile.
INTERCEPTED COMMUNICATION
[46] The police intercepted communications between Ms. Merritt and Mr. Fattore on a number of occasions. One of these was on January 31, 2014, while the two were waiting to be returned to Ontario following their arrests in Nova Scotia.
FATTORE: To you accessory after the fact I told them
MERRITT: (unintelligible)
FATTORE: I told you after
Page 10
FATTORE: I said … I did all the net searches I’m sure if you look through your audiotapes from your bugs you’ll hear Melissa…
Page 116
MERRITT: the audio tapes would’ve fucked us anyways
[47] In a conversation between Ms. Merritt and Mr. Fattore on January 27, 2014, Ms. Merritt told Mr. Fattore that he should advise the police:
And being a family man whose kids come first and go no no no okay look I did do it but Melissa doesn’t know anything about it I never told her I didn’t do it she doesn’t have anything to do with it she didn’t plan it I did all on my own please don’t take her down that’s because she didn’t do it
[48] On January 28, 2014, Mr. Fattore confessed to murdering Bridget and Caleb Harrison but advised the police that Ms. Merritt had nothing to do with the murders.
MS. MERRITT’S CRIMINAL RECORD
[49] Ms. Merritt’s criminal record is as follows:
- April 1, 2013 Theft Under (x2) } Suspended
Fraud } sentence and
Fail to Comply with Recognizance } 1 yr probation
- July 2013 Abduction } Conditional
Breach of Recognizance } sentence and 18
} months
} probation
PLAN OF SUPERVISION
[50] The proposed plan of supervision involves five potential sureties, who, collectively, are prepared to pledge approximately $175,000, to secure Ms. Merritt’s release.
[51] The plan involves Ms. Merritt residing with her cousins, Keith and Sigrid Gallagher, in a basement apartment in their Kitchener residence. Mr. Gallagher is semi-retired and drives a school bus in his area. He works four hours each day. His wife is a bank employee who works eight hours daily, five days a week.
[52] The couple plan to rely on two pieces of equipment to assist in their supervision of Ms. Merritt. They plan to install a surveillance camera within their home the images of which can be monitored by cellphones. Mr. Gallagher has a friend who is a private investigator. The latter has advised Mr. Gallagher about the best type of camera that would be suited for this purpose.
[53] Second, the Gallaghers have signed a contract with a company, Recovery Science Corporation (“RSC”), which is prepared, if Ms. Merritt is released, to place an electronic bracelet on her ankle which would monitor her every move. The bracelet generates a radio frequency which creates a perimeter within which Ms. Merritt would have to remain. If the sureties take Ms. Merritt anywhere outside the perimeter, they would have to alert RSC before doing so.
[54] The third member of the supervision team is Sue-Anne Gallagher, who is Keith Gallagher’s sister. Ms. Gallagher also resides in Kitchener. She works full-time but has her supervisor’s permission to leave work at any time as may be required to supervise Ms. Merritt. She is prepared to pledge $25,000 to secure Ms. Merritt’s release. Like Keith and Sigrid Gallagher, she is aware of the duties of a surety and is ready, willing and able, if required by the court, to supervise Ms. Merritt.
[55] Mr. Donald “Barry” Groves and his wife, Tanya, have also offered themselves as prospective sureties on behalf of Ms. Merritt. Mr. Groves owns a transportation/supply chain recruiting company. He works out of his home. His wife does not work.
[56] Mr. Groves has known Ms. Merritt since she was approximately fifteen or sixteen years of age. She dated his son for approximately five years but the relationship ended on or about 2000-2001. Mr. Groves has had limited contact with Ms. Merritt between 2001 and 2015.
[57] Mr. Groves heard about Ms. Merritt’s alleged involvement in the murders when he saw media reports of her arrest. He did not believe that she was part of the murders. He based that belief on his knowledge of Ms. Merritt when she dated his son.
[58] Mr. Groves’ understanding of the plan of supervision is that Ms. Merritt, if released, would be confined to the Gallaghers’ home where a camera would be installed within it. She would only be allowed outside the residence when in the company of her sureties or with three designated individuals. Mr. Groves would be able to access the camera on his cellphone. Mr. Groves, who lives an hour’s drive from Kitchener, would essentially have to rely on the images of the camera and the electronic bracelet with which Ms. Merritt would be fitted, to supervise Ms. Merritt.
[59] Mr. Groves testified that he would be available, on occasion, to transport Ms. Merritt to court. He would also be prepared to give her a job doing research which she could do at her home.
[60] Like her husband, Tanya Groves has had little contact with Ms. Merritt over the last fourteen years and has only seen her on three separate occasions during this period. Ms. Merritt wrote a letter to her husband and herself asking them to contact her lawyer. They did as instructed and decided to offer themselves as sureties after discussing the matter with each other.
[61] Ms. Groves testified that her decision to offer herself as a surety was based on the Melissa Merritt she knew when Ms. Merritt was her son’s girlfriend. She stated that she did not believe that the person she knew then was capable of committing the crimes she is accused of. She reiterated in cross-examination that her faith in Ms. Merritt was based on her knowledge of Ms. Merritt when the latter was a teenaged girl.
[62] Mr. Stephen Tan heads the RSC. The company’s electronic surveillance system is based on radio frequency monitoring which has three monitoring components; an ankle bracelet fitted on a subject, a beacon positioned within the home and a monitor which receives signals or alerts when the subject either removes the bracelet or moves beyond the perimeter established by RSC.
[63] When a person is fitted with a bracelet, an electronic perimeter is established. If the wearer of the bracelet ventures beyond the perimeter, an alert signal is generated. The monitoring device is immediately contacted. The technician monitoring the bracelet treats every alert as a violation. RSC typically contacts the police within 10-30 minutes of an alert although the average period for doing so is 10-12 minutes.
[64] Mr. Tan further testified that the bracelet and beacon send four signals per minute to each other, confirming that the two are within the prescribed distance of each other.
[65] Mr. Tan conceded that RSC has no control over the speed with which the police authorities respond to any alert they receive from RSC. He also conceded that compliance with the electronic monitoring is dependent on the person being monitored and his or her willingness to comply with the monitoring.
MS. MERRITT’S POSITION
[66] Mr. Berg, Ms. Merritt’s counsel, submits that the fundamental weakness of the Crown’s case impacts all three grounds set out in s. 515(10) of the Code. The weakness of the Crown’s case, he submits, is evidenced by the following:
The computer on which the searches were made was used by both Ms. Merritt and Mr. Fattore and accordingly, any searches made on it cannot be attributed to Ms. Merritt.
The intercepted communications from November 14, 2013, do not amount to a “smoking gun” which inextricably links Ms. Merritt to the offences. There is no evidence that Ms. Merritt knew at the time that Mr. Fattore had gone into Walmart to purchase shoes before he murdered Caleb Harrison. Furthermore, the intercepted communications between Ms. Merritt and Mr. Fattore about going to jail and Ms. Merritt’s comments that “we are fucked” may merely apply to a charge of accessory after the fact rather than first degree murder.
[67] Mr. Berg also submits that the court should have no concerns on the primary ground set out in s. 515(10)(a) for the following reasons:
Ms. Merritt does not pose a flight risk. Following Mr. Caleb’s murder, she told the Peel Police that she was going to Nova Scotia. She also reported to the Probation Services in that province.
Her six children are presently in Ontario with her parents. She therefore has no motive to flee the jurisdiction.
The plan of supervision provides sufficient assurances that Ms. Merritt will attend court as required. The combination of electronic monitoring, confinement in the Gallagher’s home and the supervision of five persons, three of whom would be minutes away from Ms. Merritt, provides a degree of supervision which eliminates any possibility that Ms. Merritt will flee the jurisdiction, if released.
Ms. Merritt’s breaches of court orders do not constitute a bar to her release. These breaches occurred within the context of a custody struggle for the children. Ms. Merritt is no longer involved in such a conflict. Therefore, there is little or no risk that she will breach a court order, if released.
[68] Mr. Berg also submits that the court should have no concerns on the secondary grounds pursuant to s. 515(10)(b) for the following reasons:
Ms. Merritt has a minor criminal record. There is therefore little risk of reoffending or interfering with the administration of justice.
The strength of the Crown’s case or the lack thereof is such that the likelihood of Ms. Merritt reoffending if released, is virtually non-existent.
The Crown has overstated the significance of the intercepted conversations about Ms. Merritt’s verbal interactions with M.1. She never told M.1 that he should lie to the police. The conversations merely indicate that Ms. Merritt was cautioning M.1 to be clear and precise about what he said to the police, and to avoid being twisted and manipulated by them. This is a far cry from telling M.1 to lie to the police or telling him what to say to them. Mr. Berg further submits that there is no evidence that as a result of these conversations, M.1s memory was tainted to such an extent that his credibility as a potential witness was severely compromised.
[69] Mr. Berg further submits that the court should have little or no concerns on the tertiary grounds pursuant to s. 515(10)(c) of the Code for the following reasons
The strength of the Crown case, a central consideration for the release or detention of an accused, pursuant to s. 515(10)(c)(i), is conspicuously lacking in this case.
Detention of Ms. Merritt is not necessary to maintain confidence in the administration of justice given the tenuous nature of the Crown’s case against Ms. Merritt, the twenty months she has already spent in pre-trial custody and the elaborate plan of supervision which has been established in the event that the court releases her.
THE CROWN’S POSITION
[70] The Crown submits that it has a strong circumstantial case against Ms. Merritt. Mr. McGuire asserts that the murders of Bill, Bridget and Caleb Harrison was a joint enterprise between Ms. Merritt and Mr. Fattore. He emphasizes that Ms. Merritt, in conjunction with Mr. Fattore, had unmitigated hostility towards the Harrisons, and the means, motive, modus operandi and opportunity to commit the murders.
[71] The Crown submits that evidence of the following inexorably supports a conclusion that Ms. Merritt was an inextricable part of the murder of the three members of the Harrison family:
Motive to kill.
Pre-offence conduct.
Post-offence conduct.
Utterances of Ms. Merritt.
[72] This evidence, the Crown submits, constitutes evidence of consciousness of guilt not merely to the offence of accessory after the fact, but to first degree murder.
LEGAL PRINCIPLES
[73] Section 11(d) of the Canadian Charter of Rights and Freedoms (“the Charter”) provides that an accused person has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
[74] Section 11(e) of the Charter gives every person charged with a criminal offence the right not to be denied reasonable bail without just cause.
[75] Section 7 of the Charter grants an accused person the right not to be deprived of her liberty or security except in accordance with the principles of fundamental justice.
[76] Bail can only be denied in a narrow set of circumstances where denial is necessary to promote the proper functioning of the bail system. Consequently, section 11(e) makes it clear that pre-trial detention is an extraordinary measure in our criminal justice system: see R. v. Pearson (1992), 1992 CanLII 52 (SCC), 77 C.C.C. (3d) 124 (S.C.C.); R. v. Bray (1983), 1983 CanLII 1981 (ON CA), 2 C.C.C. (3d) 325 (Ont. C.A.).
[77] There are no categories of offences for which bail is not available: see R. v. Blind (1999), 1999 CanLII 12305 (SK CA), 139 C.C.C. (3d) 87 (Sask. C.A.); R. v. LaFramboise, 2005 CanLII 63758 (ON CA), [2005] O.J. No. 5785 (C.A.).
[78] In R. v. Thomson (2004), 2004 CanLII 17255 (ON SC), 21 C.R. (6th) 209 (Ont. S.C.), the court noted at paragraph 54 that:
When there is a breach of release conditions, the court should not automatically conclude that tighter conditions are required. The court should look anew at the entire circumstances of the case and the accused, and then devise the least restrictive conditions consistent with the goals of interim release. The object of interim release is not to establish a regime of ever tightening restraint on liberty designed to set the accused up to fail.
[79] In R. v. Ljeskovica, [2007] O.J. No. 5227 (S.C.), the court noted at paragraph 22 that:
[N]ot every breach of a recognizance should result in a detention order; but a serious breach, left unexplained, generally should.
[80] Section 515(10) of the Code provides as follows:
(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.
[81] The factors to be considered in justifying the detention of an accused on the primary ground under s. 515(10)(a) include:
The strength of the Crown’s case.
The accused ties to the community.
The accused’s record of compliance with previous court orders.
Gary Trotter, The Law of Bail in Canada, (Toronto: Thomson Reuters, 2010), at pp. 3-4 and 3-12.
[82] Detention on the secondary ground, pursuant to s. 515(10)(b) is justified only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice and only where this “substantial likelihood” endangers “the protection or safety of the public”: see R. v. Morales, [1992] 3 S.C.R. 71.
[83] While there will always be a risk that an accused person will attempt to interfere with the administration of justice if released, s. 515(10)(b) justifies a “substantial likelihood” of such interference: R. v. Baltovich (1991), 1991 CanLII 7308 (ON CA), 6 OR (3d) 11; (C.A.).
[84] In R. v. St. Cloud, 2015 SCC 27, at para. 87, the Supreme Court of Canada listed the following principles that should guide justices in applying s. 515(10)(c) of the Criminal Code:
• Section 515(10)(c) Cr.C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.
• Section 515(10)(c) Cr.C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.
• The four circumstances listed in s. 515(10)(c) Cr.C. are not exhaustive.
• A court must not order detention automatically even where the four listed circumstances support such a result.
• The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.
• The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.
• No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.
• This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).
• To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.
• This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.
Analysis
[85] Ms. Merritt faces three counts of first degree murder. She bears the onus of proving on a balance of probabilities why she should be released. Despite the seriousness of the charges, there is no presumption that Ms. Merritt should be denied bail. On the contrary, she is entitled to an equal consideration for bail as anyone else. Similarly, she enjoys the rights enshrined in s. 11(e) of the Charter just as any other accused. The principles set out s. 515(10) apply to her with equal force as they would to any other person who seeks judicial interim release.
[86] The jurisprudence on bail has clearly established that the strength of the Crown’s case is applicable to the three grounds enumerated in s. 515(10) of the Code. This factor, along with others, may play a significant role in deciding whether Ms. Merritt has met the onus of proving that she should be released. Counsel for Ms. Merritt claims that Ms. Merritt has met this onus while the Crown asserts, with a great deal of conviction, that she has not.
[87] The Supreme Court of Canada’s decision in St. Cloud makes it clear that in considering whether or not a person’s release is justified, pursuant to s. 515(10)(c) of the Code, “the justice must determine the apparent strength of the prosecution’s case” (at para. 58). The court noted that “the justice who presides at that hearing must consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his or her balancing exercise”. The court made it clear, at paragraph 59, that if the accused raises a defence, the justice must take this into account in analyzing the apparent strength of the prosecution’s case. I must therefore assess the strength of the Crown’s case as a prelude to assessing whether or not Ms. Merritt should be released on any of the three grounds enumerated in s. 515(10) of the Code.
[88] There are pitfalls in getting a true measure of the Crown’s case at this juncture. As the Supreme Court of Canada cautioned in St. Cloud, “the justice must be careful not to play the role of trial judge or jury: matters such as the credibility of witnesses and the reliability of scientific evidence must be analyzed at trial, not at the release hearing” (at para. 58).
[89] Justice Trotter also cautioned in R. v. Wiltshire, that at the stage of the bail hearing, “gauging the strength of the Crown’s case at this stage can sometimes be precarious”: see R. v. Wiltshire, 2015 ONSC 3371, at para. 35. Winkler C.J.O. noted in R. v. B.S., 2007 ONCA 560, [2007] O.J. No. 3046 (C.A.), at para. 12, that further developments after a bail hearing “may strengthen or weaken the Crown’s case…”. Furthermore in R. v. Dang, 2015 ONSC 4254, at para. 55, Trotter J. cautioned that: “No matter how serious the allegations, and notwithstanding the potential penalty that an accused may face, detention based on a weak case tends to undermine confidence in the administration of justice, not maintain it”.
STRENGTH OF THE CROWN’S CASE
[90] Ms. Merritt’s counsel submits that the Crown’s evidence implicates Mr. Fattore, rather than Ms. Merritt. He relies on the case of R. v. A.A.C., 2015 ONCA 483, for the proposition that the weakness of the Crown’s case is a factor that can lead to the granting of judicial interim release even of someone charged with murder.
[91] The case of R. v. A.A.C. however, is distinguishable from this case. The police charged A.A.C. with second degree murder after he was alleged to have deliberately driven over the victim who had been beaten.
[92] The Crown’s case however, took a dramatic turn at the preliminary inquiry, unlike this case. Initially, the Crown’s main witness gave a police statement that the occupants of the vehicle told A.A.C. “don’t do it” (at para. 76). She also stated that the vehicle’s passengers pleaded with A.A.C. to stop the vehicle but he failed to do so.
[93] At the preliminary inquiry however, the witness testified that she said no such thing. She denied that the vehicle’s occupants said anything before the vehicle ran over the victim. She also denied that anyone told A.A.C. to stop and go back to the victim. As Cronk J.A. concluded at paragraph 78, the witness’ evidence “significantly undercut this plank in the Crown’s case for second degree murder”.
[94] That is not the case here. The Crown submits that Ms. Merritt’s antipathy towards the Harrisons, the internet searches made on a laptop she jointly used with Mr. Fattore, the downloads on her cellphone and the intercepted conversations, collectively establish that the murders were a joint enterprise between Ms. Merritt and Mr. Fattore.
[95] The Crown’s case can be assessed by examining the following categories of evidence:
Motive.
Time of deaths.
Modus operandi.
Timing and content of internet searches.
Cellphone downloads.
Intercepted communication.
MOTIVE
[96] The three persons with whom Ms. Merritt fought a bitter and protracted legal battle for custody and access of her children ended up dead in their home between 2009 and 2013. The initial autopsy of Bill Harrison did not reveal any violence. However, a subsequent forensic examination of the medical evidence by Dr. Michael Pollanen, the Chief Pathologist of Ontario, revealed that Mr. Harrison was “assaulted at the point of death”. He concluded that he could not rule out “neck compression” as a possible cause of death.
TIMING OF DEATHS
[97] Bill, Bridget and Caleb Harrison died at a time when the conflicts between Ms. Merritt and the Harrisons had significantly escalated and had reached crisis proportions. Mr. Bill Harrison died on April 9, 2009, on the very day that Ms. Merritt abducted M.1 and M.2 and fled to Nova Scotia before being apprehended in November of the same year.
[98] Mr. Fattore murdered Bridget Harrison on April 21, 2010, after she had gained custody of the children following her husband’s death. On April 1, 2010, Ms. Merritt was arrested for breaching her recognizance of bail by visiting the Harrison residence and having contact with M.1, M.2 and Caleb. One week prior to her death, Bridget advised the police that Ms. Merritt had breached her court condition not to have any contact with Caleb Harrison, M.1 and M.2. Mr. Fattore murdered Bridget Harrison the day before she was scheduled to read a victim impact statement at a court hearing when Ms. Merritt was scheduled to be sentenced on the charge of abducting her children.
[99] Mr. Fattore murdered Caleb Harrison on August 23, 2013, after a court had granted Mr. Harrison sole custody of M.1 and M.2. He was the subject of a number of complaints of assaultive behaviour towards M.1 and M.2 which were reported to the Peel Regional Police. Before his death, he had arranged an access schedule with Ms. Merritt in regards to the children. Mr. Fattore murdered him on the day that Ms. Merritt was scheduled to return the children to him.
MODUS OPERANDI
[100] There are similarities between all three deaths. These are:
All three victims had bruisings and abrasions on the anterior neck.
Bridget and Caleb had neck muscle bruising and laryngeal fractures.
All three suffered some trauma to the rest of the body.
All three were killed in their own home.
All three victims were left in positions designed to mask the fact that they had been murdered. Bill Harrison was left in a bathroom with the door locked from the inside. Bridget was left at the foot of her stairs in a manner suggesting a fall. Caleb was left lying in his bed on his back with the bed sheet covered to his neck and a night mask covering his eyes.
INTERNET SEARCHES
[101] The Peel Police succeeded in reconstructing the internet history from a laptop computer belonging to Ms. Merritt and Mr. Fattore, which they obtained from the couple’s former residence on October 2, 2013. The history revealed that during the eight week period prior to Bridget Harrison’s murder, the following internet searches were made:
(a) What if a grandparent has legal custody and they die
(b) Legal custody and they die
(c) If a grandparent has custody of the children and they die which of the parents get the kids
(d) How long after a death does it take to claim life insurance
(e) How long does it take to claim inheritance
(f) Can one will supersede another
[102] On April 1, 2010, the following searches were made on the laptop computer belonging to Ms. Merritt and Mr. Fattore:
(a) How long does it take to die from choking
(b) How long does it take to die from being choked
(c) A website query response was viewed at Answerbog.com for the question: If a person who was being strangled had just died at the moment someone came to the rescue and fought off the killer, would it be possible to revive him with CPR, or would there most likely be “hidden” damage that would prevent it
[103] On January 10, 2011, the following Google searches were made on the laptop computer:
(a) What can a spine show after autopsy
(b) Keep the spine after autopsy
(c) Where can I see a will
(d) Am I entitled to an inheritance received during separation
(e) Why would they keep a person’s spine after otopsy [sic]
[104] On July 22, 2011, a Google search was made of the following:
(a) Easy ways to kill and get away with it
(b) Exsesable [sic] poison
(c) Easy to find poison
[105] The door to the residence of Bill and Caleb Harrison was locked prior to the discovery of their bodies. With respect to Caleb Harrison, there were no signs of forced entry found in the home. The front door of the home, at the time of Caleb’s murder, had been fitted with a special lock, called a “Mortise” lock.
CELLPHONE DOWNLOADS
[106] The Peel Police seized a phone from Ms. Merritt on August 25, 2013. The police located a downloaded PDF file for a “Mortise” lock on the phone. The manufacturer of the lock, EMTEKS PRODUCTS INC., indicated that the file could provide assistance in opening a “Mortise” lock. The document was last accessed on July 10, 2013.
[107] Internet searches on the laptop of Ms. Merritt and Mr. Fattore reveal the following searches on April 3, 2011:
(a) Using a non cut key to open a door
(b) Key bumping
(c) Homemade bump key
(d) How to hack a lock using a soda can!
(e) How to pick a lock
(f) How to make a real masterlock, “master key”
(g) Poor man’s bump key and bump hammer
(h) Magic key open most locks! Lock picking trick lockpicking lockbumping bumping how to bump locks
DIRECT EVIDENCE LINKING MR. FATTORE TO THE MURDER OF CALEB HARRISON
[108] This evidence includes the following:
A DNA profile retrieved from the underside of the fingernail clippings from Caleb Harrison’s right hand matched the DNA of Mr. Fattore.
A pair of black latex gloves retrieved from Ms. Merritt’s and Mr. Fattore’s garbage on August 29, 2013 contained a DNA profile. Caleb Harrison could not be excluded as being the source of the profile.
A pair of “Athletic Works” running shoes in the same garbage contained a DNA profile. Caleb Harrison could not be excluded as being the source of the profile.
Dog hair found on the running shoes located in Ms. Merritt’s and Mr. Fattore’s garbage was similar to that found in Caleb Harrison’s bedroom.
INTERCEPTED COMMUNICATIONS
[109] The Nova Scotia police arrested Ms. Merritt and Mr. Fattore on January 28, 2014. The police recorded conversations between Ms. Merritt and Mr. Fattore while the two waited at the Halifax airport on January 31, 2014, to be returned to Ontario. Mr. Fattore had by then confessed to killing Bridget and Caleb Harrison.
[110] At one point in the taped conversation, Ms. Merritt twice asked Mr. Fattore: “Why’d you admit to Bridget”. She twice told him: “They had nothing on her.” Ms. Merritt repeatedly stated to Mr. Fattore that: “You shouldn’t have said anything”. As one point she whispered: “the audio tapes would’ve fucked us anyways.”
CONVERSATION ON JANUARY 27, 2014
[111] Ms. Merritt told Mr. Fattore that the police would tell him that they knew he killed Caleb and that Ms. Merritt helped him plan the murder. She stated that if he did, both of them would lose their children who would then be taken by child services and he would never see them again.
[112] Ms. Merritt then stated to Mr. Fattore:
And being a family man whose kids come first and go no no no no okay look I did do it but Melissa doesn’t know anything about it I never told her I didn’t do it she doesn’t have anything to do with it she didn’t plan it I did it all on my own please don’t take her down that’s because she didn’t do it.
[113] Mr. Fattore was arrested the following day. He told the police that Ms. Merritt had nothing to do with the murders.
ANALYSIS OF CROWN’S EVIDENCE
[114] I am mindful of the Supreme Court of Canada’s admonition in St. Cloud, at paragraph 58, that circumstantial evidence may not be as strong as direct evidence. I am also mindful of the court’s observation in B.S. that the Crown’s evidence at a bail hearing may become stronger or weaker at the trial.
[115] In my view however, the constellation of circumstantial evidence in the Crown’s possession at this juncture has caught Ms. Merritt in a dragnet of inferences which a reasonable jury, properly instructed, may well return a finding of guilty. A jury may find that the deaths of three members of the Harrison family may not merely be the result of a bizarre set of coincidences or the motiveless malignity of Mr. Fattore but a diabolical plan by Ms. Merritt and Mr. Fattore to ensure that Ms. Merritt achieved what she could not achieve through the courts; obtain sole unfettered custody of M.1 and M.2.
[116] In my view, the evidence in this bail hearing does not support Mr. Berg’s contention that the Crown’s case against Ms. Merritt, on the charges of first degree murder, is weak or non-existent. While the Crown ultimately bears the burden of proving Ms. Merritt’s guilt on the charges beyond a reasonable doubt, it does not have to do at this juncture.
[117] The evidence called in this bail hearing establishes that the Crown’s case against Ms. Merritt is a strong case particularly with respect to the murders of Bridget and Caleb Harrison. It is now necessary for me to decide whether Ms. Merritt’s detention is justified on any of the grounds enumerated in section 515(10) of the Code.
PRIMARY GROUND
[118] The critical question in this line of inquiry is whether Ms. Merritt will attend court if released. In assessing this ground, I must examine her criminal antecedents, her roots in the community and the strength of the Crown’s case, among other factors.
[119] Mr. Berg submits that his client does not pose a flight risk given that before she moved to Nova Scotia in September 2013, following Caleb’s death, she advised the Peel Police about her travel plans and contacted the Nova Scotia probation services upon her arrival in that province.
[120] Clearly however, Ms. Merritt advised the police about their travel plans because she did not believe, at that point, that she was a person of interest or suspect in Caleb Harrison’s murder. Indeed, once she became aware that the police suspected their involvement in the murders, she initiated a plan of action to shift responsibility away from herself. This included suggesting to Mr. Fattore that she only found out about the murders after Mr. Fattore had committed the crimes.
[121] More significantly, Ms. Merritt has an unfortunate history of violating court orders. When she abducted her two children on the date that Bill Harrison died, she violated three family court orders. Second, she left the jurisdiction and her father, a retired police officer, in a financial lurch by leaving him responsible for the $225,000 mortgage on her house. Third, Ms. Merritt breached a condition of a probation order which I imposed upon her in 2010 when she pled guilty to abducting her two children. The inescapable conclusion from this evidence is that Ms. Merritt has shown a wanton disregard for court orders and has historically viewed them as irritants or inconveniences to be ignored or discarded when the need arose.
[122] Regarding her roots in the community, Ms. Merritt has her parents and a brother, in addition to a few friends and cousin, who have stepped forward to offer themselves as sureties on her behalf.
[123] In the first place, Ms. Merritt showed, when she abducted her children and fled the province in April 2009, that she had little regard for her father who she left with the responsibility of paying off her mortgage. Second, the proposed plan of supervision does not allay the court’s fears and concerns on the primary grounds. All the prospective sureties are honest and well intentioned. The Gallaghers are motivated by their faith and family ties to Ms. Merritt in offering themselves as sureties to secure her release. The Groves, who live an hour’s drive away from Ms. Merritt’s intended place of residence, are motivated by the innocence of a teenaged Ms. Merritt who dated their son approximately twenty years ago. They had little or no contact with her for fifteen years. They do not believe that Ms. Merritt was involved in the murders because the teenaged girl they knew was the very antithesis of someone who could be involved in them.
[124] There are other concerns with the plan of supervision as it relates to the Gallaghers. The plan calls for Ms. Merritt being in the Gallaghers’ home on her own for four hours daily during the work week. Mr. Gallagher and his sister would be a short distance away but Ms. Merritt would still be left to her devices for half of each work day.
[125] The Gallaghers plan to install a camera within the home to monitor Ms. Merritt’s movements. However, this camera would not be able to prevent anyone from visiting Ms. Merritt, unbeknownst to her sureties, within the four hours when she is alone at the Gallagher home. Neither would it be able to show who visited Ms. Merritt while she is at the home. Second, I am mindful, as Nordheimer J. noted in R. v. Pierre Ellis, 2014 ONSC 4190, at para. 19, that electronic monitoring is effective at monitoring a person’s location and is capable of alerting the authorities if Ms. Merritt ventures outside of the area that she is permitted to be in.
[126] However, the electronic surveillance will not prevent her from absconding; it will merely alert the authorities that Ms. Merritt has breached the electronic perimeter within which she must remain. Even if the police authorities are contacted, on average, within ten to twelve minutes of an electronic alert, there is no guarantee that the police will respond to the alert with great urgency.
[127] Worse, Mr. Gallagher admitted that Ms. Merritt has shown that she is deceptive, has blatantly disregarded court orders and has manipulated vulnerable persons. To the extent that she could callously leave her father with the responsibility of paying her mortgage, it stands to reason that she is capable of taking advantage of her second cousin.
[128] Additionally, Sigrid Gallagher, while decent and law abiding, would not be able to supervise Ms. Merritt, despite the fact that she works within ten minutes of her home. A banker by profession, Mrs. Gallagher admitted under oath, after being apprised of Ms. Merritt’s numerous breaches of court orders, that Ms. Merritt is a bad risk.
[129] The plan of supervision therefore gives me little faith or comfort that Ms. Merritt will attend court as required, if she is released.
[130] Accordingly, she has failed to show cause, on the primary ground, why she should be released.
SECONDARY GROUND
[131] Is there a substantial risk of reoffending or interference with the administration of justice if Ms. Merritt is released?
[132] Mr. Berg, on Ms. Merritt’s behalf, submits that there is not. He submits that the following factors mitigate against the detention of Ms. Merritt on the secondary grounds:
Ms. Merritt has a relatively minor criminal record.
The strength of the Crown’s case is such that it cannot justify the detention of Ms. Merritt on the secondary ground.
The Crown has grossly overstated its case that Ms. Merritt cynically tried to coach or taunt M.1 to ensure that he does not say anything incriminating to the police. At worst, all that can be concluded from the conversations which Ms. Merritt had in the presence of M.1 is that she was scrupulously cautioning him to be precise in whatever he said to the police.
[133] Mr. Berg is correct that, other than the abduction conviction, Ms. Merritt has a minor criminal record. However, I am entitled to look at all evidence presented during the course of this bail hearing to determine whether or not there is a substantial likelihood of reoffending, if Ms. Merritt is released, or of interference with the administration of justice.
[134] The record includes offences of dishonesty and one count of breach of probation. In addition, Ms. Merritt breached three court orders when she abducted her children in 2009. She surreptitiously left the province and lived in Manitoba and Nova Scotia for several months during which the Peel Police issued a Canada-wide warrant for her arrest. She did not surrender to the authorities; rather, she was arrested and returned to Ontario in November 2009. Even after being placed on a recognizance, Ms. Merritt breached the conditions of her bail by going to the residence of Caleb Harrison and speaking to him and to her children.
[135] It may be cynically suggested that, with the subjects of her hostility all dead and the fact that her parents now have custody of M.1 and M.2, there is little chance that Ms. Merritt will reoffend, if released.
[136] It may be difficult to predict the likelihood that Ms. Merritt will reoffend if released. However, I am not required to do so. As the Supreme Court of Canada cautioned in Morales:
While it is undoubtedly the case that it is impossible to make exact predictions about recidivism and future dangerousness, exact predictability of future dangerousness is not constitutionally mandated.
[137] The current charges are alleged to have occurred between 2009 and 2013 following repeated breaches of court orders by Ms. Merritt. I have already concluded that despite the resort to electronic monitoring, the plan of supervision is woefully deficient. To that extent, it does not allay the court’s fears that if released, Ms. Merritt poses a substantial risk of reoffending.
[138] More than this however, I am concerned that there is a substantial likelihood that Ms. Merritt will interfere with the administration of justice if released.
[139] Mr. Berg’s categorized Ms. Merritt’s conversations with M.1 as maternal musings designed to impress upon him the importance of speaking clearly and truthfully to the police.
[140] Alas, they are much more. Many of the intercepted conversations reveal that Ms. Merritt was engaged in a cynical attempt to ensure that if interviewed by the police, M.1 would not incriminate her or Mr. Fattore in the Harrison murders.
[141] First, in a conversation on December 30, 2013, Ms. Merritt is overheard telling Mr. Fattore that he could send the police investigators a message “saying that you believe you bought a pair of shoes to cut the lawn in”. She said so despite knowing that Mr. Fattore had purchased the shoes at Walmart and had worn them when he murdered Caleb Harrison.
[142] Second, in a conversation on January 23, 2014, Ms. Merritt states, while M.1 and M.2 are in the kitchen with her and Mr. Fattore, that if, in response to a question from the authorities, they say:
I’m not sure I don’t know, I can’t recall or I don’t remember they turn that statement into a yes unless you confidently say no saying the word no is the only way they turn it into a no answer anything else you say is yes… [Emphasis added]
[143] Third, in another conversation on January 9, 2014, Ms. Merritt tells M.1 that the police found a dog hair on the running shoes which Mr. Fattore had purchased from Walmart on August 22, 2013. Despite knowing this, Ms. Merritt stated in the presence of M.1 that:
If you want I’ll send a message back and go you think we’re that goddamn stupid to throw out shoes that he wore murdering someone two (2) days after he got murdered put them in the garbage think we’re that stupid.
[144] Fourth, in a December 11, 2013, conversation, Ms. Merritt, who knew that Mr. Fattore had killed Caleb Harrison, tried to convince M.1 that he hadn’t done so by stating that:
[T]hey found one (1) of daddy’s [i.e. Mr. Fattore] hair around him [i.e. Caleb Harrison] they could just be like okay well now we’ve got his DNA on the scene so he’s a suspect which doesn’t make sense his hair could have been attached to you who goes into that bed every night you could have left a hair in that bed or in his room or wherever anywhere around they picked it up and found it cross-reference it to daddy doesn’t mean daddy was there you know what I mean.
[145] Fifth, in another conversation on December 11, 2013, Ms. Merritt talks to M.1 about a scratch on Mr. Fattore’s hand which the latter had sustained during the murder of Caleb Harrison. Ms. Merritt stated that the police found a lot of DNA under Caleb Harrison’s fingernails. She nevertheless stated to M.1:
Remember shortly after he died we got a trampoline from my parents’ house and you and daddy were putting it together and you and daddy both had cuts on your hands from it.
[146] She later stated:
The day after you had put the trampoline down when daddy went in to do his statement daddy had a big scratch on his hands from the trampoline they asked daddy what’s this from and they took pictures of his hands so because Peel’s so smart they didn’t realize that this Harrison had died four (4) days prior to the time daddy talked to them and that was obviously a fresh wound twelve (12) hours prior.
[147] Finally, during a conversation on December 12, 2013, Ms. Merritt and Mr. Fattore engaged in conversation in the presence of M.1 in which they suggested that Mr. Fattore was in Manitoba when Bill Harrison died, despite the fact that he had been killed before they left the province of Ontario. Ms. Merritt noted sarcastically: “You also killed him a day or two (2) after we left for Alberta.”
[148] M.1 later commented, after listening to Ms. Merritt and Mr. Fattore: “Well yeah so anyways dad killed Bill while he wasn’t even there.”
[149] Ms. Merritt then stated moments later:
I know you did it I know how you did it ‘cause you left in the middle of the night just like you walked in in the middle of the night when (beeps) Manitoba and then you drove from Manitoba back and killed him and then you drove back to (unintelligible) and cuddled back into bed and I never noticed
[150] Furthermore, Ms. Merritt noted the following in front of M.1, despite knowing that Mr. Fattore had killed Bridget Harrison:
And then I think when you killed Bridget you were (beeps) at my grandma’s house at the time.
[151] She later added:
Yeah when you were gone for like an hour and a half and in that time you went to Sobey’s bought steak called me and I yelled at you ‘cause you paid the wrong price for steak you returned the steak re-bought the steak went to my grandma’s house dropped some stuff and came back.
[152] In these conversations, Ms. Merritt is sowing the seeds of false information in M.1 concerning any possible suggestions by the police that Mr. Fattore murdered the three members of the Harrison family.
[153] Ms. Merritt’s actions are significant for two reasons. M.1 discovered the body of Bridget Harrison after she was murdered. To that extent, he is a potential witness in the trial. Second, one of the issues in the trial would be how Mr. Fattore gained entry into the Harrison residence with no visible signs of forced entry. M.1 may also be called upon to testify whether or not Mr. Fattore had access to the keys of the Harrison residence.
[154] There is a significant risk that if released, Ms. Merritt would be in contact with her children, particularly M.1. Her history has shown that she would resort to extreme lengths to be with them. Her father, Michael, has custody of the children but based on the past, I cannot take comfort in the fact that as a former police officer, he would refrain from facilitating contact between Ms. Merritt and M.1. Indeed in her April 26, 2010, endorsement, Justice Miller denied the request of Ms. Merritt’s parents to supervise their daughter’s access to M.1 and M.2 and noted that:
I am not prepared to accede to this request, principally because there is evidence before me that Michael Merritt, a retired police officer, knew, in May 2009 where his daughter was and did nothing to facilitate the ongoing investigation with respect to their whereabouts. A Power of Attorney provided to him at that time was executed in Edmonton, Alberta, and contains the address of his daughter. It is clear Mr. Merritt was aware of the order granting custody to Bridget Harrison that was in effect at that time.
[155] Furthermore, Ms. Merritt stated several times during her conversations with Mr. Fattore, that her father had cautioned her about what to say or what not to say to the police authorities.
[156] For the above reasons, I conclude that there is a substantial likelihood that Ms. Merritt will interfere with the administration of justice if released.
TERTIARY GROUND
[157] An assessment of this ground involves a consideration of the following factors, pursuant to s. 515(10)(c) of the Code:
The apparent strength of the Crown’s case.
The gravity of the offence.
Circumstances surrounding the commission of the offence, including whether a firearm was used.
The fact that the accused is liable for a potentially lengthy term of imprisonment.
APPARENT STRENGTH OF THE PROSECUTION’S CASE
[158] I have already referred to the Supreme Court of Canada’s observation in St. Cloud, in paragraph 58, that circumstantial evidence may be less reliable than direct evidence. I am also mindful of the Saskatchewan Court of Appeal’s decision in R. v. Blind, at para. 15, that: “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.”
[159] Despite these observations, the Crown’s circumstantial case is relatively strong.
THE GRAVITY OF THE OFFENCE
[160] The offences are very serious.
CIRCUMSTANCES SURROUNDING THE COMMISSION OF THE OFFENCE INCLUDING WHETHER A FIREARM WAS USED
[161] In St. Cloud, the Supreme Court of Canada indicated, at paragraph 61, that the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization or that the victim was a vulnerable person, may be considered as part of the circumstances surrounding the commission of the offence. The court also stated that the aggravating or mitigating factors that courts typically consider for sentencing purposes can also be taken into account.
[162] The circumstances of this case are very grave. The murders occurred within the context of a struggle for the custody of and access to two children. At the time of their untimely deaths, Bill, Bridget and Caleb Harrison had all been given legal custody of the children. Bill was in his mid-sixties and was found in circumstances which initially led to a conclusion that his death did not involve foul play.
[163] Bridget was a retired senior school superintendent at the time of her murder. Before her death, she was debilitated by arthritis. She did not stand a chance against the 6’4”, 300 pound behemoth who strangled her and unceremoniously left her lifeless body at the foot of the stairs. Her grandson would eventually discover her body.
[164] Caleb Harrison died three years after his mother, at the hands of the same man who murdered his mother. During the three years, Mr. Fattore had obviously not benefited from sober reflection or calm introspection. He had not been consumed with remorse following the killing of a defenceless, elderly woman. On the contrary, he was likely encouraged to kill again because his actions had gone undetected.
[165] Mr. Fattore murdered Caleb Harrison in his home on August 23, 2013. His body had numerous injuries. Mr. Fattore strangled him to death and then laid him down on his bed in an apparent attempt to mask the fact that he had been murdered.
[166] Added to these factors is evidence of Ms. Merritt’s wanton disregard for court orders and the unprovoked nature of the deadly assaults. With the exception of her conviction for abduction, Ms. Merritt has a minor record. However, the circumstances surrounding the commission of the alleged offences are not only serious; they are particularly egregious.
FACTS THAT THE ACCUSED IS LIABLE FOR A POTENTIALLY LENGTHY TERM OF IMPRISONMENT
[167] If convicted of first degree murder, Ms. Merritt faces life imprisonment with no possibility for parole for at least twenty-five years. There is no question that this circumstance has been satisfied, based on the evidence in this hearing.
OTHER CONSIDERATIONS
[168] The satisfaction of the four circumstances enumerated in s. 515(10)(c) does not lead to the automatic detention of Ms. Merritt: see St. Cloud, at para. 69. Detention is only necessary to maintain the public’s confidence in the administration of justice having regard to all the circumstances of the case. The Court also pointed out that public fear and concern about safety, although relevant, are not the exclusive considerations in assessing the public’s confidence in the administration of justice: see St. Cloud, at para. 73.
[169] In determining the meaning of the word “public” in requiring that the court consider the public’s confidence in the administration of justice, when deciding whether an accused shall be detained pending trial, the Supreme Court noted in St. Cloud, at para. 80, that:
In short, the person in question in s. 515(10)(c) Cr.C. is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society’s fundamental values. But he or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences that are available to accused persons.
[170] How would a thoughtful person, who is reasonable and well informed, react to the release of Ms. Merritt, given the circumstances of this case? Three persons from the same family, two of them elderly, were discovered dead in their home. Mr. Fattore has confessed to two of the murders. The reason for the murders likely related to access and custody of two children who were in the custody of the deceased.
[171] Ms. Merritt is presumed to be innocent, regardless of the gravity of the offences, the strength of the case or the possibility of a lengthy term of imprisonment. She has not been found guilty of any of the three deaths. However, she has repeatedly violated court orders and has pled guilty to abducting two children despite three court orders specifically restricting her access to the children. She violated another court order prohibiting her from having contact with the children and a probation order to the same effect.
[172] In my view, a reasonably thoughtful and well informed person would view Ms. Merritt’s release, in the circumstances of this case, with great shock and indignation. Such a person would be rather flabbergasted that the court would release an individual in these circumstances under a plan of supervision in which she will be alone in a home for four hours with only an indoor camera and an electronic bracelet to alert her five sureties that she is within the prescribed boundaries of her residence.
[173] It is therefore my view that there is a substantial likelihood that Ms. Merritt’s release will undermine the public’s confidence in the administration of justice.
[174] Ms. Merritt has not shown cause why she should be released on any of the grounds enumerated in s. 515(10) of the Code.
DISPOSITION
[175] Accordingly, the bail application is dismissed.
André J.
Released: October 22, 2015
COURT FILE NO.: CR(P) 15-999-00BR
DATE: 20151022
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
MELISSA MERRITT
Applicant
REASONS FOR JUDGMENT
André J.
Released: October 22, 2015