ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-0053-BR
DATE: 2015-09-15
B E T W E E N:
Her Majesty The Queen,
Robert Kozak, for the Crown
- and -
Jeffrey Achneepineskum,
Gilbert Labine, for the Accused
Accused
HEARD: September 10, 2015, at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons For Bail Hearing
Introduction
[1] This is an application by the accused, Jeffrey Achneepineskum, for a bail hearing under s. 522 of the Criminal Code. Mr. Achneepineskum is charged with second-degree murder in the death of Rene Sortolovo on October 18, 2014. Mr. Achneepineskum has been detained in custody since late October 2014 pursuant to s. 515 of the Criminal Code. He is also charged with breach of probation and resisting arrest.
[2] The onus is on Mr. Achneepineskum to show cause why his detention is not "justified" within the meaning of s. 510(10).
[3] The Crown opposes the release of Mr. Achneepineskum on the secondary ground, that his detention is necessary for the protection or safety of the public, and on the tertiary ground, that his detention is necessary to maintain confidence in the administration of justice.
Background of the Offence
[4] The deceased was found in his home beaten to death. The cause of death was multiple blunt trauma to the head resulting in depressed skull fracture and damage to the brain. According to the pathologist, the deceased received at least 13 blows to the head from an unknown instrument.
[5] A cell phone found at the scene belonged to S.F., a young person pursuant to the YCJA. S.F. was detained and arrested for second-degree murder. She was interviewed by the police and advised that she convinced her boyfriend, Mr. Achneepineskum, to help her rob Mr. Sortolovo.
[6] She told the police that she arrived at Mr. Sortolovo's residence and then later opened the door for Mr. Achneepineskum. Mr. Sortolovo attempted to prevent Mr. Achneepineskum's entry but Mr. Achneepineskum punched Mr. Sortolovo and forced his entry into the home. While Mr. Achneepineskum continued to assault Mr. Sortolovo, S.F. looked for items to steal.
[7] DNA forensic analysis of footwear seized from Mr. Achneepineskum confirmed the presence of the victim's blood on Mr. Achneepineskum left shoe.
Evidence of Jeffrey Achneepineskum
[8] Mr. Achneepineskum did not testify at the bail hearing. His affidavit sworn August 20, 2015 formed part of the Bail Hearing Record.
[9] Mr. Achneepineskum is 23 and has not graduated from grade 10. He deposed that he was attending upgrading at an adult education program in Thunder Bay prior to his arrest.
[10] He further deposed that he lived in foster care from a very young age. His medical issues include hepatitis C, ADHD, and FASD. He has had to deal with alcohol and drug addiction issues. He has been on a methadone program for the last two years.
[11] Mr. Achneepineskum deposed that he intends to plead not guilty to these charges and that, although he has a "bad" criminal record, he will abide by bail conditions if released. The release plan includes residing with his maternal grandmother, Maria Baxter, who lives in a Ogoki Post and is a member of the Martin Falls First Nation Band. His grandmother will be his Surety.
[12] Mr. Achneepineskum's criminal record was also filed. The records confirm 12 convictions for violence between 2008 and July 2014:
• Assault Peace Officer (2 counts) – 30 Jul 2008
• Uttering Threats – 30 Jul 2008
• Sexual Assault – 5 Nov 2008
• Uttering Threats (2 counts) – 5 Nov 2008
• Assault – 5 Nov 2008
• Uttering Threats – 5 Nov 2008
• Assault – 30 Sep 2011
• Assault – 27 Feb 2013 (offence 28 Jan 2013)
• Assault – 27 Feb 2013 (offence 12 Feb 2013)
• Assault – 24 July 2014 (offence 9 Jun 2014)
[13] The records also confirm that Mr. Achneepineskum's history of noncompliance with orders of the court resulting in 12 convictions between 2007 and July 2014:
• Breach of Undertaking (2 counts) – 9 Nov 2007
• Breach of Officer in Charge Undertaking – 9 Nov 2007
• Breach Officer in Charge Undertaking – 5 Nov 2008
• Breach Probation – 5 Nov 2008
• Breach Recognizance – 6 May 2011
• Breach Recognizance – 16 Dec 2011
• Breach Recognizance – 23 Apr 2012 (offence 5 Jan 2012)
• Breach Recognizance – 23 Apr 2012 (offence 10 Feb 2012)
• Breach Probation – 21 Feb 2014 (offence 14 Jul 2013)
• Breach Probation – 21 Feb 2014 (offence 11 Dec 2013)
• Breach Probation – 24 Jul 2014
[14] Mr. Achneepineskum was on probation for assault at the time of this murder. The probation order issued July 24, 2014 included programming for substance abuse, alcohol abuse, anger management, and trauma. He failed to report for probation.
Evidence of Maria Baxter
[15] Mrs. Baxter testified and also swore an affidavit dated July 23, 2015.
[16] She is Mr. Achneepineskum's maternal grandmother. She is 59 and a member of Martin Falls First Nation. She resides in Ogoki Post which is a remote first nation community about 550 miles northeast of Thunder Bay. There is no road access to the community except by winter road. The community consists of about 200 people.
[17] At present, she is retired. She has a degree from Ryerson University in Public Administration and Governance. For about 10 years she was the band social worker and administered programs including Ontario Works. Thereafter she was the education director for the community for about 10 years. For the last three years she has worked, on a part-time basis, as the community's communication liaison with mining companies.
[18] She is a residential school survivor. She was abused while attending residential school. Her mother was also a residential school survivor as was her husband. She and her husband had six children. The eldest, Karen, is Mr. Achneepineskum's mother.
[19] Karen was raped by her father when she was 11 or 12. Mrs. Baxter then separated from her husband and raised her six children on her own. Mrs. Baxter said that Karen never recovered from the trauma of that event and that she and her daughter had a difficult relationship from that point. Mrs. Baxter said that her daughter was abusing alcohol and drugs prior to and after Mr. Achneepineskum's birth. Mr. Achneepineskum went in to foster care when he was four years old. According to Mrs. Baxter, he was in many different foster homes including homes in Dryden and Kenora. She said that Mr. Achneepineskum was abused while in foster care. At times he was starved and locked in a barn for up to three days at a time. She testified that, as a result, he is "very angry" and has lots of anger towards his mother. She is aware of Mr. Achneepineskum's issues with drugs and alcohol.
[20] Mrs. Baxter says that her relationship with her grandson is good. Since his incarceration she has visited Mr. Achneepineskum when she can and spoken to him by telephone about three times per month. In the past, he has spent time with her but never more than a month or two at a time.
[21] She testified that, if released, Mr. Achneepineskum would reside with her in her three bedroom home. Her plan includes taking her grandson to a remote cabin about 35 miles upriver from the community to spend time together and to heal. She said that her grandson would help her gather firewood and harvest traditional foods. She testified that her brother organizes sweat lodges in the community and that her brother is willing to have Mr. Achneepineskum assist with the sweat lodge.
[22] Although she has never acted as a surety before, she testified that she understands the obligations of a surety and is prepared to pledge $10,000. The police detachment is about 10 minutes by car from her home. She testified that she would report her grandson to the police if she knew that he was going to get into trouble.
[23] She said that she does not believe that Mr. Achneepineskum would harm anyone while he is under her care.
[24] In cross-examination she confirmed that, before this arrest, Mr. Achneepineskum was often angry and that he did not always listen to the guidance she offered when he was younger.
Submissions
Defence
[25] The defence argues that Mr. Achneepineskum's criminal past is linked to his life as a First Nations person and the historical and systemic influences of residential school, poverty, violence, and foster care. The defence submits that the principles of R. v. Gladue, 1999 679 (SCC), [1999] 1 S. C. R. 688, apply to bail and that Mr. Achneepineskum's circumstances must be considered when deciding whether to grant release. The defence notes that Mr. Achneepineskum has never committed any criminal acts while staying with his grandmother in Ogoki Post.
Crown
[26] The Crown does not dispute Mrs. Baxter's fitness to stand as Surety. Similarly, the Crown does not dispute that Gladue factors are present and that Gladue principles apply.
[27] The Crown argues that Mr. Achneepineskum has not met the onus upon him to show why his continued detention in custody is not justified. Given the record of violent criminal acts, many of which were committed while Mr. Achneepineskum was bound to comply with court orders, and history of noncompliance with court orders, the Crown submits that there is a substantial likelihood that Mr. Achneepineskum would commit a criminal offence if released.
[28] The Crown relied on the following statement from R. v. Brant, [2008]O.J. No. 5375:
What the principles in Gladue do alter is the method of analysis which the justice must use in determining whether detention is justified. Specifically, the Court must look at whether the sureties offered, in the content of the Aboriginal culture, can control the accused’s behavior. The Court must also look at whether the detention of the Aboriginal accused has a disproportionately negative impact on the accused, and whether that impact could be alleviated by strict bail conditions. Finally, the Court must look at whether Aboriginal law and customs provide the assurance of attendance in court and protection of the public that are required for release. Each case will be dependent on its specific facts, but a broader analysis is required where the accused is an Aboriginal.
[29] The Crown also relied on the following statement from R. v. Robinson, 2009 ONCA 205:
It is common ground that principles enunciated in the Supreme Court of Canada in R. v. Gladue have application to the question of bail. However the application judge cannot apply such principles in a vacuum. Application of Gladue principles would involve consideration of the unique systemic or background factors which may have played a part in the 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.
[30] The Crown notes that Mr. Achneepineskum is, as his grandmother testified, an angry young man and that there is no evidence that this anger has been dealt with. Indeed, while this offence was committed he was bound by a probation order which required him to attend rehabilitation for issues including anger management. Mr. Achneepineskum did not report for probation.
Discussion
[31] 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 the detention in custody is not justified within the meaning of s. 515(10).
Section 515(10) provides:
(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.
[32] Like the Crown, I do not take issue with Mrs. Baxter as a Surety. She is woman of particularly strong and good character. I have no doubt that she would report her grandson to the police if he did not abide with the conditions of his release. The issue is not one of reporting crime, but preventing crime and, in particular, violent crime.
[33] I agree with both counsel for the defence and for the Crown that Gladue factors and principles apply. As stated by Winkler J.A. in Robinson, application of the Gladue principles 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."
[34] No issue was raised with respect to the primary ground.
[35] The secondary ground is focused on the likelihood of further offences being committed by the accused while on bail. Having regard to the criminal record of the accused, the fact that the accused was already on probation at the time of the offence and the nature of the offence and strength of the evidence for that offence I conclude that detention on the secondary ground is warranted. In coming to this conclusion I note the significant Gladue factors.
[36] For a young man, Mr. Achneepineskum has an extensive criminal record. As noted, he has 12 convictions for violence or threatening violence in the last six years.
[37] In the last seven years Mr. Achneepineskum has 12 convictions for breach of court orders including probation. As emphasized by the Crown, Mr. Achneepineskum was bound by a probation order issued on July 24, 2014 which required him to keep the peace and be of good behavior for 12 months and which ordered rehabilitation including anger management. Mr. Achneepineskum did not report for probation.
[38] "A number of breaches of undertakings, recognizance and other court orders may be helpful in predicting future criminal behavior while on bail." See Trotter, The Law of Bail in Canada, loose-leaf, 3rd ed. (Carswell, 2015) at 3-17 and R. v. Geesic ONSC 7438, at para. 21. As is often said, nothing predicts behaviour like behaviour.
[39] I acknowledge that Mr. Achneepineskum is entitled to the presumption of innocence. However, "allegations respecting the index offence are relevant to assessing the accused person's future dangerousness" and the "strength of the Crown's case determines the weight that may be attributed to the index offence in this assessment." See Trotter, The Law of Bail in Canada, loose-leaf, 3rd ed. (Carswell, 2015) at 3-21.
[40] The offence is one of extreme violence in which the deceased was struck on the head with an object at least 13 times with sufficient force to fracture his skull, injure his brain and, cause his death. A statement from a witness identifies Mr. Achneepineskum as the assailant. Blood from the deceased was found on Mr. Achneepineskum's shoe. These are factors to consider in assessing "future dangerousness".
[41] The proposed release plan does not address Mr. Achneepineskum’s addiction or anger issues. And, based on past behavior, I cannot share Mrs. Baxter's belief that Mr. Achneepineskum will not harm others while in her care. Considering all the circumstances I conclude that detention is necessary for the protection or safety of the public.
Conclusion
[42] For the reasons given, Mr. Achneepineskum's application for judicial interim release is denied.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: September 15, 2015
COURT FILE NO.: CR-15-0053-BR
DATE: 2015-09-15
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
- and -
Jeffrey Achneepineskum,
Accused
REASONS FOR JUDGMENT
Newton J.
Released: September 15, 2015
/cs