ONTARIO
SUPERIOR COURT OF JUSTICE
OTTAWA COURT FILE: 14-A12433 and 14-R2132
DATE: 2015/09/23
B E T W E E N:
HER MAJESTY THE QUEEN,
Respondent
Robert Thomson, for the Crown
- and -
LAURA BRAHANEY
Applicant
Michael Smith, for the Accused
HEARD: September 2, 2015
at Ottawa, Ontario
Madam Justice Bonnie R. Warkentin
Decision On Application For Bail Review
[1] On September 2, 2015 I heard an application brought by the accused, Laura Brahaney for her release pending her trial. A trial date has not yet been scheduled.
[2] Ms. Brahaney faces a number of charges alleged to have occurred from September 4th through the 12th, 2014. These offences relate to three separate incidents and individuals. The charges include extortion, robbery, unlawful entry, possession of a weapon, forcible confinement, aggravated assault, assault causing bodily harm, uttering a threat to cause bodily harm, uttering a threat to cause death, kidnapping and conspiracy to commit an indictable offence as well as failure to comply with a condition of an undertaking.
[3] At the time of these alleged offences, Ms. Brahaney was on recognizance for fraud allegations. Those allegations have now been resolved; however, she still faces a breach of recognizance charge.
[4] On December 19, 2014 after a show cause hearing, Justice of the Peace Pearson granted interim release with conditions. Ms. Brahaney’s father was accepted as her surety and there were other conditions imposed on her release.
[5] Ms. Brahaney was not immediately released because some of the offences related to allegations in another region. Ms. Brahaney remained in custody until after a show cause hearing on the other offences. She was released at that show cause hearing on the same terms as before JP Pearson.
[6] The Crown then brought an application for bail review of the decision of the Justice of the Peace pursuant to s. 521(3) of the Criminal Code and sought to have Ms. Brahaney detained pending her trial. This proceeding took place on April 9, 2010 before Justice Ratushny.
[7] In that proceeding, it was the Crown’s position that the Justice of the Peace had erred by considering only the protection of the public and failing to properly consider the tertiary ground.
[8] Justice Ratushny agreed with the Crown’s submissions and detained Ms. Brahaney on the tertiary grounds. Justice Ratushny specifically found the Justice of the Peace erred by rejecting the applicability of the tertiary ground without providing sufficient reasons for doing so. Justice Ratushny also found that the Justice of the Peace erred by “the erroneous equating of public safety concerns with the public confidence concerns”. Of this error, Justice Ratushny made the following comments:
If the justice of the peace was concluding that the tertiary ground was not engaged because the public confidence concerns was able to be dealt with by the proposed bail plan, that is a clear error as the court stated in M. (E.W.). The tertiary ground was and is strongly engaged by the grave circumstances of the four separate sets of allegations as I have briefly described them to be.[^1]
[9] With respect to the tertiary ground, Justice Ratushny made the following finding:
I conclude … that the tertiary ground for detention is strongly engaged and requires Ms. Brahaney be detained until the completion of her trial. The justice’s decision that the tertiary ground was not engaged and that Ms. Brahaney could be released in all of the circumstances of her offences, was a decision, if upheld, and in my view would cause the public to lose confidence in the administration of justice. I conclude that for confidence to be maintained in the administration of justice in the grave circumstances of Ms. Brahaney’s offences and given the apparent strength of the Crown’s case and the potential for significant penitentiary term of incarceration, Ms. Brahaney must be detained.[^2]
[10] Counsel for the Applicant, Ms. Brahaney and the Crown agreed that in this hearing before me, the Applicant must establish an error in principle in the reasoning of Justice Ratushny and/or a material change in circumstances.
Facts as alleged by the Crown:
[11] There are three separate complainants and incidents that have resulted in the charges against Ms. Brahaney. The Crown alleges that she engaged in predatory and violent criminal behavior against these complainants who were all relative strangers to her.
[12] The Crown also alleges that Ms. Brahaney was the ringleader of a group of three or four other individuals and that it was Ms. Brahaney who planned and participated in extreme violence against these three members of the public who appear to have been randomly chosen.
[13] Two of the three complainants were kidnapped, and all were seriously injured in an attempt to extort money from them. One of the complainants in particular, an individual who is developmentally challenged, was robbed at knife point of all of his possessions including most of the contents of his home, beaten, threatened and then kidnapped and taken to Ms. Brahaney’s home where he was kept in a dog cage, bound and blindfolded for close to two days. While in the dog cage Ms. Brahaney is alleged to have first scrubbed his back with a wire brush and then rubbed it with a cloth soaked with gasoline. He was then removed from the cage and driven to a wooded area near Gananoque where he was choked by one of the others accused of participating in this assault, until he lost consciousness. When he woke up, wearing only boxer shorts and a t-shirt, this complainant managed to wander out of the woods and find assistance. This incident took place on September 4 to 6, 2014.
[14] Ms. Brahaney and the others accused with these crimes then drove to Mississauga where they sold all of this first complainant’s belongings at a flea market for $300.00.
[15] On September 7, 2014, while in Mississauga, Ms. Brahaney is alleged to have contacted the second complainant, a man she had met on-line, and they agreed to meet in a motel in the York Region. Once inside the motel, Ms. Brahaney opened the door to permit the others involved in these incidents to enter whereupon they beat and stabbed this complainant, breaking his ankle among other injuries. While her compatriots were beating this complainant, Ms. Brahaney drove to the home of this complainant’s ex-wife and demanded his belongings. When that proved fruitless, she returned to the motel and the group left the complainant beaten and traumatized.
[16] The third incident occurred on September 12, 2014, in Ottawa. In this incident the third complainant met Ms. Brahaney and the other accused outside a Tim Horton’s. They robbed this complainant of his wallet and cell phone and then drove him to a secluded area where he was repeatedly punched in the face. He was then driven to a TD Bank and forced to remove money and then driven to another wooded area, punched in the back and left. This complainant managed to find his way home and call police. He required surgery to repair injuries to his back and face.
[17] On May 7, 2015, one of the others accused of participating in these offences entered a guilty plea that included an agreed statement of fact. It is anticipated that there will be at least one other guilty plea from another of the accused.
Grounds for this Bail Review
[18] At the hearing before me, Counsel for Ms. Brahaney submitted that there had been a material change in circumstances since the original show cause hearing before the Justice of the Peace. In support of this position, counsel for Ms. Brahaney proposed two additional sureties so that Ms. Brahaney’s release plan would involve monitoring 24 hours a day by one or more of the three proposed sureties. In addition, the sureties proposed to deposit as much as $20,000.00 in cash with additional bonds totaling approximately $100,000.00 between them.
[19] Defence Counsel argued that with this strengthened plan for release together with the evidence that during the period of about three months when Ms. Brahaney was on bail between January and April 2015 she did not violate any of her conditions, the court could find that her release pending trial would satisfy the requirements of the tertiary ground by maintaining the public’s confidence in the administration of justice.
The Law on Bail Review and the Tertiary Ground
[20] The Supreme Court of Canada, in the recent case of R. v. St-Cloud,[^3] clarified the scope and nature of review hearings. At paragraphs 120 and 121 of the decision, the Court stated that sections 520 or 521 of the Criminal Code do not confer on the reviewing judge an open-ended power to review the initial order with respect to the detention or the interim release of the accused. The Court determined that exercising this power is appropriate in only three situations:
(1) where the justice erred in law;
(2) where the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another; and
(3) where new evidence is submitted by the accused or the prosecutor as permitted by sections 520 and 521 of the Criminal Code, the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.
[21] In the hearing before Justice Ratushny, she determined that on her review of the evidence in the first hearing, that the Justice of the Peace committed two legal errors; one of them being that she gave excessive weight to one relevant factor, being the secondary ground and insufficient weight to the tertiary ground.
[22] In circumstances where it is alleged that there has been a material change in circumstances since the detention order and where new evidence is submitted by an accused or prosecutor as permitted by sections 520 and 521 of the Criminal Code, a reviewing judge may vary a detention order if the new evidence shows that a material and relevant change in circumstances has occurred.
[23] Sections 520(7) and 521(8) of the Criminal Code set out what is required for the tendering of new evidence or exhibits. Section 520(7) reads as follows:
Evidence and powers of judge on review
- (7) On the hearing of an application under this section, the judge may consider
(a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice,
(b) the exhibits, if any, filed in the proceedings before the justice, and
(c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor.
[24] The Applicant submits that the new sureties that have come forward with guarantees to control and monitor the activities of the Applicant together with the additional substantial financial bond constitute new evidence and represent a material change in circumstances. For the reasons that follow, I do not agree.
[25] The Applicant also submits that this new plan would enhance the public’s confidence in the administration of justice and as such the tertiary ground should no longer be engaged.
The Tertiary Ground:
[13] Criminal Code section 515(10)(c) reads: “... the detention of an accused is justified ... on any just cause being shown and without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding it’s commission and the potential for a lengthy term of imprisonment”.
[14] These four factors are not exhaustive. However the court must pay particular attention to these four listed circumstances.[^4] The Court in St. Cloud concluded:
[I]f the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered. (at para 88).
[15] The rights of the accused must be balanced against the intention expressed by the legislature in this section. The accused has a right to bail guaranteed by the Canadian Charter of Rights and Freedoms and the Criminal Code and is presumed innocent.
[16] Nonetheless, these are offences that approach the extreme end of the criminal law spectrum in that they possess all of the following factors:
• serious injury to the complainants,
• the presence of weapons and violence,
• likelihood upon conviction of a substantial jail term, and
• the Crown’s case is strong.
[17] The tertiary ground provides for a distinct basis of pre-trial detention, and a court should not interpret it narrowly, apply it sparingly, or apply it only in rare cases.[^5]
[18] At the show cause hearing before the Justice of the Peace in November, 2014, Ms. Brahaney was released on the basis of her release plan under the secondary ground; the protection of the public. As noted, Justice Ratushny found that the Justice had erred by failing to properly consider the tertiary ground and she determined that the tertiary ground was met in all four factors set out above.
[19] While the new evidence presented at this hearing would certainly strengthen the secondary ground, I disagree with counsel for the defence that it satisfies the tertiary ground. If anything, the Crown’s case is stronger today than it was at the hearing before Justice Ratushny because of at least one guilty plea of one of the individuals who has admitted to his role in these attacks and also described Ms. Brahaney’s role in a fashion that corresponds to the facts as alleged by the Crown.
[20] Additionally, since Justice Ratushny’s decision in early April of this year, the Supreme Court of Canada released the decision cited above in the St. Cloud case. That decision as set out above, clarified the circumstances where a reviewing court should reconsider a prior decision on a show cause hearing.
[21] I do not find that any of the three elements set out in St. Cloud are met on this review. I do not find that Justice Ratushny committed an error of law or that her decision was inappropriate; nor do I find that the new evidence submitted by Ms. Brahaney is sufficient to show a material and relevant change in the circumstances of the case.
[22] This is a case where the detention of Ms. Brahaney continues to be justified on the tertiary ground. To release Ms. Brahaney into the community, even in circumstances as proposed by her sureties, would nevertheless, undermine the public’s confidence in the administration of justice. I agree with Justice Ratushny that this is a situation where a reasonable individual, armed with the facts, would agree that Ms. Brahaney must not be released.
Madam Justice Bonnie R. Warkentin
Released: September 23, 2015
OTTAWA COURT FILE: 14-A12433 and 14-R2132
DATE: 2015/09/23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN,
Respondent
- and –
LAURA BRAHANEY
Applicant
DECISION ON APPLICATION
FOR BAIL REVIEW
Madam Justice Bonnie Warkentin
Released: September 23, 2015
[^1]: Transcript of April 9, 2015 decision, p 64 lines 1-2.
[^2]: Transcript of April 9, 2015 decision, p 65 lines 5-21.
[^3]: 2015 SCC 27, [2015] S.C.J. No. 27
[^4]: R v St Cloud, 2015 SCC 27 at para 87
[^5]: R v St Cloud, 2015 SCC 27 at para 87