COURT FILE AND PARTIES

COURT FILE NO.: CR 15-0016-00BR

DATE: 2015-08-14

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Tammy Trudeau

Applicant

Stacy Haner, for the Crown

Robert J. Beckett, for the Applicant

HEARD in Gore Bay: July 20, 2015

DECISION ON BAIL APPLICATION

Hennessy J.:

[1] Tammy Trudeau applied for release on terms following her arrest for first degree murder of Percy Simon. Byron Kagige and Travis Wemigwans were also charged with first degree murder arising from the same incident. They are still in custody.

[2] On July 22, 2015, I ordered that Tammy Trudeau be released on terms. These are my reasons for that decision.

[3] Persons charged with first degree murder are automatically detained in custody unless and until there is an order of the Superior Court to release them. The onus is on the person charged on a balance of probabilities to establish that the release order is appropriate having regard to the three grounds for detention in s. 515(10) of the Criminal Code of Canada.

[4] This bail hearing takes place before the investigation or disclosure is completed and before the Crown’s evidence or theories have been tested. The bail hearing is not the place or time to determine the guilt of the accused person.

The Facts as presented by the Crown

[5] The Crown presented its evidence through the transcripts of interviews with two witnesses who were able to view the altercation between the three accused and the deceased Percy Simon. This altercation took place around 6:30 a.m. on May 18, 2015, on the Wikwemikong Unceded Indian Reserve (“WUIR”) across the road from the residence of the two witnesses who had risen early that morning with their two young children. The fighting was taking place outside of the apartments at 79 Andrew Crescent. The witnesses called 911 and reported what they were seeing. They spoke to police who arrived at the scene and they both gave video statements in the hours afterward.

[6] The male witness had gone outside to retrieve his thermos from his truck. He noticed arguing going on outside Tammy Trudeau’s apartment. He recognized Travis Wemigwans and Percy Simon fighting, and then saw a beer bottle fall to the ground and break. He saw the two men trading punches, first standing then on the ground. He thought they were drunk. The male witness then saw Byron Kagige and Tammy Trudeau start charging Percy Simon. Percy Simon was able to get Byron Kagige down and then Percy Simon started walking away.

[7] At some point, the witness saw Tammy Trudeau grab Percy Simon by his coat, and Percy Simon was able to get out of his coat. Percy Simon began throwing rocks or boulders at Tammy Trudeau and Byron Kagige. Around this time, the male witness told his partner to call 911 again to say that someone was hitting a woman. Tammy Trudeau and Byron Kagige tried to stop Percy Simon and Tammy Trudeau was able to trip or get Percy Simon down. Byron Kagige jumped on Percy Simon and started hitting him. The witness claims that Tammy Trudeau then jumped up and stomped on Percy Simon’s head and kicked him hard a couple of times. It seems that Travis Wemigwans joined the fracas at this point and reached for something in his pants. It is now believed that he reached for a knife. The witness stated that Byron Kagige got on top of Percy Simon and started hitting him. Travis Wemigwans started stabbing Percy Simon. Byron Kagige got up and pushed Percy Simon into the ditch.

[8] During the final phase of the fight, while Byron Kagige was on top of the deceased and Travis Wemigwans was stabbing, the witness claims that Tammy Trudeau was standing by and watching.

[9] The three accused then walked back towards the apartments.

[10] The male witness went over to see Percy Simon and heard him coughing or gasping for air.

[11] At some point, the female witness joined the male witness outside. Their accounts were similar.

[12] One witness saw one of the male accused persons go back to the apartment and start drinking again. Tammy Trudeau came over to where Percy Simon lay and said aloud: “Who did this to him?”

[13] One witness saw Byron Kagige go over to a truck and change his clothes.

[14] The witness also saw Tammy Trudeau emerge from the apartment in different clothes. At some point, Tammy Trudeau was heard yelling at the others: “You didn’t have to use a weapon.”

[15] There is no further evidence yet about the origins of the fight, how long this group had been together, if they had, their levels of alcohol consumption or their relationships. From the evidence it appears that they had emerged together from the apartment.

[16] All three accused were taken into custody at the scene.

[17] At this stage, the evidence appears very strong, if not overwhelming that Tammy Trudeau was involved in a violent assault on Percy Simon with the other two accused and that while she stood and watched, Percy Simon was stabbed while he was being held down. It appears that Percy Simon was an active participant in the fight at least in the initial stages.

Tammy Trudeau

[18] Tammy Trudeau is a 42 year old aboriginal woman who lives on the WUIR. She has no criminal record. Prior to this incident she was employed with the Wikwemikong Board of Education in the department providing services to post-secondary students. She has a college diploma and has been steadily employed for over 20 years. She has two adult children. She is single. From age 18 until two years ago, Ms. Trudeau lived in Hamilton. That is where her children were born, where she went to college and where she was employed until she returned to Wikwemikong in 2013 to assist her mother Shirley Trudeau.

[19] Ms. Tammy Trudeau still has friends in Hamilton, but her life is in Wikwemikong. She has a very close bond with her sister Karen Trudeau and with her mother Shirley Trudeau. She has had a close friendship with her step-sister Angel Manitowabi since she was a child. Her brothers, aunts and uncles are all in Wikwemikong.

[20] Tammy Trudeau is prepared to enter into a recognizance in the amount of $5,000.

The Proposed Plan for Release

[21] The plan for release would see Tammy Trudeau reside with her mother on the WUIR. The applicant proposed three sureties; her mother Shirley Trudeau, her sister Karen Trudeau and her half-sister Angel Manitowabi. Shirley Trudeau works 4:30 to 9:30 p.m., Monday to Friday. Karen Trudeau lives in an apartment in Manitowaning, about a ten minute drive away from her mother’s residence. She works Monday to Friday until 4:00 p.m., after which she would go to her mother’s on her way home and check in on her sister.

[22] Angel Manitowabi lives in Kaboni, on the WUIR, about ten minutes away from her mother’s residence. She is also employed during the day Monday to Friday. She is prepared to assist and relieve Shirley Trudeau and Karen Trudeau as required.

[23] The plan for release evolved during the course of the hearing, partly as a result of the changing circumstances. Originally it was contemplated that Tammy Trudeau might be able to return to her employment with the Wikwemikong Board of Education upon release. That employment now appears to be unavailable to her. The applicant no longer proposes that Tammy. Trudeau be absent from her mother’s residence for the purpose of attending work. She now proposes that she be subject to house arrest provisions, only leaving for specified absences in the presence of one of her three sureties. The applicant proposes other conditions with respect to the consumption of alcohol and non-prescription drugs and no contact or communication with witnesses and the family of the deceased.

[24] I have also considered the fact that many members of the community actively participate in social media. The news of this incident and a full discussion of it was played out on Facebook starting immediately. The applicant would have a virtual visibility in the community should she continue to engage on social media. When I raised this issue, counsel for the applicant advised the court that they would also propose that the applicant be prohibited from engaging on any social media should she be released.

Discussion on the Primary and Secondary Grounds for Release

[25] In this case, I am considering a release order upon certain strict conditions. The onus is on the applicant to satisfy the court on a balance of probabilities that detention is not necessary on all of the grounds.

[26] The primary ground involves an assessment of whether detention is necessary to ensure the attendance of the applicant in court and whether Tammy. Trudeau is likely to abscond.

[27] The Crown identified a concern that Tammy Trudeau still had connections to Hamilton where she had lived for approximately 20 years. There was no evidence that Tammy Trudeau has any money available to her to travel, nor that she either owns or has access to a vehicle. Her family, her job and her roots are now in Wikwemikong. Although Tammy Trudeau has friends in Hamilton, there was no evidence that she has ever been back there since her move to Wikwemikong in 2013. Shirley Trudeau and Karen Trudeau both testified that they would bring Tammy Trudeau to court as necessary. They both had vehicles and could accommodate their work schedules around any court appearances.

[28] Tammy Trudeau did not flee from the scene nor is there any evidence of any attempt to leave the scene or the community following the incident.

[29] On the primary ground, detention is not necessary to ensure that Tammy Trudeau attend court as required.

[30] On the secondary ground, the court must consider whether detention in necessary for the protection or safety of the public, including the family of the victim and the witnesses to the offence. The question is whether there is a substantial likelihood that the accused will, if released, commit a criminal offence or interfere with the administration of justice.

[31] There was no concern expressed that there are any risk of acts of criminality or violence or risk to public safety. The Crown expressed a concern that it would be difficult for the accused to avoid contact or communication with witnesses or the family of Percy Simon.

[32] Wikwemikong is a small community. The main amenities including the only grocery store are in the village. If one were free to shop, socialize and visit, it would be hard to avoid others. However, the proposed plan would have Tammy Trudeau remain at her mother’s residence but for specific purposes. Those purposes do not include doing personal errands. Pursuant to the plan, Tammy Trudeau would be permitted to leave her mother’s residence, with one of her sureties to attend court, medical appointments and emergencies, church and to see her lawyer.

[33] The sureties either know the witnesses and the family of the deceased or they will undertake to find out who they are and where they live. I am satisfied that there is very little risk in Tammy Trudeau making contact with either the other co-accused, the witnesses or the family of Percy Simon or in any way interfering with the administration of justice.

[34] I do not find that detention is justified under the secondary ground.

... (continues verbatim exactly as provided through paragraph 81 and the bail conditions) ...

The Honourable Madam Justice Patricia C. Hennessy

Released: August 14, 2015