R. v. Ball, 2015 ONSC 7646
CITATION: R. v. Ball, 2015 ONSC 7646
COURT FILE NO.: BR8578
DATE: 2015-12-08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Michael John Ball
COUNSEL:
Kevin Gowdey, for the Crown
Brennan Smart and Andrew Bond, for the Defendant
HEARD: October 14, 15 and 16, 2015
Judgment
Introduction
[1] Michael Ball is charged with the first degree murder of Erin Howlett and indecently interfering with her remains on June 27, 2013 in the City of Kitchener. He brought an application for judicial interim release. I heard evidence from 2 investigating officers, Stephen Tan who is the Director of Operations of Recovery Science Corporation which provides electronic monitoring of an accused released on bail by way of an electronic ankle bracelet, Sergeant E. J. Millet of the Maplehurst Correctional Complex and Rosemary Ball, the mother of the accused who is the proposed surety. I gave oral reasons for his release after I heard evidence at the bail hearing, and reserved my right to provide further written reasons. These are my reasons.
Background
[2] The police arrested the accused on November 20, 2013. He has been in custody either at the detention centre in Stratford or at the Maplehurst Detention Centre in Milton since he was arrested. He was committed for trial after a preliminary hearing. The trial is set to commence on November 2, 2015. He has not previously applied for bail.
The Maplehurst Detention Centre
[3] Conditions at the Maplehurst Detention Centre are oppressive. The jail authorities frequently have not been able to provide Mr. Ball with the means to maintain his personal hygiene. Counsel has experienced difficulty in getting access to him. The inmates are frequently locked in their cells. When this happens counsel can only access their clients in the public visitation area. They speak to the client by a phone through a glass. Milton is about 30 miles from Kitchener where the accused’s lawyers Andrew Bond and Brennan Smart practice. He has been assaulted by other inmates. During the preliminary hearing the police were late in delivering him to court from Maplehurst because of procedures related to security.
The Facts Alleged
[4] Erin Howlett worked as a waitress in Elmira. She was known to be addicted to cocaine. She did not have money to purchase cocaine. She is believed to have traded sexual favors to drug dealers for cocaine. There is evidence that Michael Ball provided cocaine to Erin Howlett for sexual favors. Erin Howlett disappeared on June 27, 2013. Her body was found in the Grand River in the City of Kitchener in a World Famous duffel bag on July 6, 2013.
[5] Michael Ball lived at 50 Chestnut Street in the City of Kitchener. It is the theory of the crown that he killed Erin Howlett on June 27, 2013 in his residence. He placed her body in the duffel bag, weighted it down with rocks found at the site where the body was placed in the river and dumped it into the Grand River close to where it was found. There is evidence that she was involved sexually with other men. The accused believed that Erin was stealing drugs from him. The motive was jealously and anger over her theft of drugs from him. There are text messages from Michael Ball to Cody Cook on June 4, 2013 in which he expresses his anger that Erin is cheating on him. He states that he contemplated tying her up, putting her in a duffle bag and dropping her off.
[6] Daniel Warwick is an important witness for the crown. He supplied Michael Ball with both drugs and customers. He gave several statements to the police. On October 13, 2013 he stated that the accused picked him up from his home on June 27, 2013. They went to a strip club. The accused said nothing about Erin. On November 6, 2013 he said that the accused picked him up on June 27, 2013. They met with friends. The accused told him that he had discovered a picture of a man’s penis on Erin’s cell phone and that he was angry with her for stealing drugs from him. Later on the same day he told the police that about 1 month after Erin’s body was found the accused told him that he had choked Erin to death and knelt on her chest to push the air out. Erin had urinated and defecated herself.
[7] On November 13, 2013 following his arrest for possession for the purpose of trafficking of drugs including 2 ounces of cocaine, 1½ grams of methamphetamine, 18 grams of marijuana and a prohibited weapon, namely, a butterfly knife Mr. Warwick told the police that the accused told him that he had disposed of all the evidence in his residence of Erin’s death in garbage bags. He also said that on June 27, 2013 the accused had picked him up at his home and asked him to dispose of an iphone. He did so by dropping it in a sewer in front of the Wild Wings plaza on Fischer Hallman Drive. The police did find an iphone there on November 14, 2013 with identifying marks which linked it to Erin. When he was arrested he was charged jointly with his girlfriend. She was released on bail. He was held until the next day when he was released on bail. He denies that there was a deal between him and the police that he and his girlfriend would be released on bail in return for information on the Howlett homicide. The defence is highly skeptical of this.
[8] At the preliminary hearing he stated the accused picked him up at his home on June 27, 2013. He took him to 50 Chestnut. Erin’s body was lying on a mattress. The 2 of them placed the body in a duffel bag. They loaded the duffel bag containing the body into the car of the accused’s uncle. They took it to the Grand River, put rocks in the bag and dumped it into the river. They then did a drug deal at the gas station at the corner of Lancaster and Victoria Streets. They then went back to 50 Chestnut, cut up the mattress on which Erin’s body had been lying, placed parts of the mattress in garbage bags and put out the bags for garbage collection.
[9] He testified at the preliminary hearing that the reason the he did not tell the police about his role in the disposal of the body of Erin Howlett was that he did not want to get in trouble. He had obtained legal advice. He is, of course, protected by s. 13 of the Charter from having this evidence used against him on a criminal charge.
[10] The defence asserts that James Baechlor murdered Erin. He had been involved in a sexual relationship with her at different times since 2010. From early 2013 following the ending of a sexual relationship with another woman he was involved in a relationship with Erin in which they had sex and consumed drugs. He described their relationship as being one of “friends with benefits”. They spent the weekends of June 15, 2013 and June 21, 2013 together. On the weekend of June 21 they were involved in sexual activity with Chris Smith. James Baechlor frequently picked up Erin from the accused’s residence where she went to get drugs. They then shared the drugs and had sex. There are a plethora of suspicious circumstances which the defence asserts link James Baechlor to Erin Howlett in a way that makes him a suspect in her death. Jealousy also could be a motive for him killing Erin.
[11] One piece of evidence is recovered text messages from his cell phone in which he sends to an unknown party on July 9, 2013 the following:
I fuckin called it, in a river I said. I’m going for help
Last time me n u were talking about her I said just hope we don’t find her in a river someday. She was found so close to my house I can’t take it.
The defence will assert at trial that he was more than prescient. He knew that she would be found in the river because he put her there.
[12] The defence also asserts that Erin could have died by accident from a drug overdose in which James Baechlor and Christopher Smith were involved. The pathologist was unable to identify a cause of death. The crown asserts that the accused strangled her to death. However there is no evidence of petechiae which is associated with this cause of death. The pathologist found no broken bones in her neck.
[13] Erin Howlett in the weeks before her death was clearly consuming a substantial quantity of drugs and leading a high risk lifestyle. The search of the car driven by the accused, the search of his apartment and the search of his computer yielded no evidence to corroborate the evidence given by Daniel Warwick at the preliminary hearing.
Drug and Firearm Charges
[14] Although Mr. Ball does not have a criminal record it is clear that he has been involved in the trafficking of drugs and firearms. He is charged with 7 counts of trafficking in controlled substances contrary to the CDSA including multiple transactions in heroin, cocaine, methamphetamine (aka crystal meth), marihuana, psilocybin (aka magic mushrooms) and Methlenedioxymethamphetamine (aka ecstasy) and LSD. He is also charged with 7 counts of trafficking in firearms contrary to the Criminal Code including multiple transactions in prohibited weapons, restricted firearms, non-restricted firearms, tasers, batons, brass knuckles and prohibited knives. The evidence on these charges consists of weapons and drugs seized in his home when he was arrested, intercepted communications pursuant to wiretaps and communications on social media. One of the persons with whom he was involved in trafficking in drugs is his brother Kevin who has pleaded guilty to a trafficking charge and received a conditional discharge of 9 months. The drug and firearms charges will be tried after the murder charges.
The Plan
[15] Michael Ball proposes that he be monitored by an electronic ankle bracelet which will be supplied by Recovery Services Corporation. If he strays more than 50 feet outside of the boundary set by the court or removes the bracelet an alarm will register at the office of the corporation. It may take their staff 10 to 30 minutes for them to react to it and report to the police. The device may also be connected to the police in which case the police would immediately detect a violation.
[16] Michael Ball proposes that he be released to live at the home of his parents with them at 112 Meadow Park Place in the City of Kitchener. He proposes his mother Rosemary Ball as a surety. She is the sole owner of the house. His father Jason Ball is a successful house contractor. He and Rosemary Ball live in the house. The house is free of liens and has an estimated value of $800,000. Rosemary Ball also has $100,000 in RRSP’s. She is fully aware of the evidence in support of the charges. She is very disappointed in the lifestyle that her son has adopted. She is not at all naïve. In a sensitive and thorough cross examination of her by Mr. Gowdie she testified that she had maintained regular contact with Mr. Ball since he had left home several years ago. She agreed that he lacked self-discipline, that he had not pursued an education and that he would appear to have been living off revenue that he had generated from the drug trade and the illegal sale of firearms. She agreed that his personality reflected a propensity for instant gratification rather than long term planning. She testified in re-examination by Mr. Smart that she would withdraw as a surety if Mr. Ball did not comply with the terms of his release. She is not employed. She is available to attend court with Mr. Ball and to supervise him continuously.
[17] Michael Ball was born on August 16, 1991. He is 24. He has always resided in the City of Kitchener. He has a brother named Kevin Ball born August 24, 1992, age 23 and a sister named Heather Ball born March 20, 1994, age 21. He completed high school. He has worked in his father’s construction business.
Analysis
[18] The onus is on the accused on a charge of murder to show cause as to why he should be released having regard to the factors in s. 515(10) of the Criminal Code which are as follows:
(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.
The Primary and Secondary Grounds
[19] Mr. Ball knew that he was under investigation for the murder of Erin Howlett from August, 2013 until he was arrested on November 20, 2013. The police had him under surveillance. They were intercepting his telephone calls and they had a probe in his residence and the residence of his parents. There is no evidence that he gave any consideration to fleeing. There is no evidence of his having any substantial connections with anyone outside of Kitchener. If he did abscond the police would have notification of it within 30 minutes as a result of the electronic monitoring.
[20] Section 515(6)(d) of the Criminal Code places an onus on the accused to show cause why his detention in custody is not justified when he is charged with trafficking in drugs. In R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665 the Supreme Court of Canada in the judgment of Chief Justice Lamer held that this section did not violate the Charter. In his judgment he commented on the nature of drug trafficking. He noted that drug trafficking is usually associated with organized crime. This would often give an accused access to money and international connections which would facilitate his absconding. He also noted that drug trafficking was a way of life which an accused released on bail would have difficulty abandoning. Further he observed that absconding and remaining a fugitive from justice would be difficult.
[21] There is substantial evidence that the accused as a mid-level drug trafficker was deeply involved in both the trafficking of highly addictive drugs and the illegal sale of firearms. These activities are often connected as one supports the other. It must be noted that although the accused is charged with trafficking in drugs and firearms these charges are not before the court. It must also be noted that there is no evidence that the accused was part of a criminal organization in pursuing these activities.
The Tertiary Ground
[22] Regarding the tertiary ground the Supreme Court of Canada in R. v. St. Cloud, [2015] SCC 27 in the judgment Justice Wagner stated the following:
50 Furthermore, I agree with the appellant that detention may be justified only in rare cases, but that this is simply a consequence of the application of s. 515(10)(c) and not a precondition to its application, a criterion a court must consider in its analysis or the purpose of the provision.
54 In conclusion, the application of s. 515(10)(c) is not limited to exceptional circumstances, to "unexplainable" crimes or to certain types of crimes such as murder. The Crown can rely on s. 515(10)(c) for any type of crime, but it must prove -- except in the cases provided for in s. 515(6) -- that the detention of the accused is justified to maintain confidence in the administration of justice. (See also the decision of the Court of Appeal in the judgment of Justice Cronk in R. v. A.A.C. 2015 ONCA 483, [2015] O.J. No. 3450 at paras. 47, 48).
87 I would summarize the essential principles that must guide justices in applying s. 515(10)(c) Cr.C. as follows:
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.
[23] In another context the Supreme Court of Canada in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R.326 in the judgment of Justice Sopinka stated the following:
17 ... The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted. …
[24] The crown has presented a line of cases to me in which the electronic monitoring of an accused by Recovery Services Corporation was considered in applications for bail. In some of these cases electronic monitoring was found to be insufficient to secure his release where he was facing serious charges. It is clear that electronic monitoring by means of an ankle bracelet although it is a substantial deterrent is not a complete answer to the risk of noncompliance by an accused with bail terms. The outcome in all these cases is dependent on the application of the principles to the particular facts of the case.
[25] In R. v. Dang, 2015 ONSC 4254, [2015] O.J. No. 3552 Justice Trotter emphasized that the release of an accused on bail who is charged with a serious offence is not an all or nothing proposition. He stated the following:
58 An accused person's release plan may be relevant to whether public confidence in the administration of justice is capable of being maintained: see R v. B.(A.) (2006), 2006 CanLII 2765 (ON SC), 204 C.C.C. (3d) 490 (Ont. S.C.J.), at p. 501. This is explicitly recognized in the newly enacted amendment (S.C. 2012, c. 1) to s. 29(2)(c) of the YCJA. A reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused. The plan goes to the core of s. 515(10)(b), but it may also impact on the application of s. 515(10)(c). The bail decision does not involve a stark choice between absolute freedom on one hand, and detention on the other. Realistically, it is a choice between release on conditions and detention. I see nothing wrong with this reality being reflected ins. 515(10)(c).
Assessment of Mr. Ball’s Plan
[26] I am impressed with the plan put forward by Mr. Smart and Mr. Bond on behalf of the accused. I am impressed with the sincerity and realistic approach of Rosemary Ball. She is fully apprised of the allegations. She has no illusions about the risk and responsibility of what she is taking on. Any plan has flaws. No plan can guarantee that the accused will not commit offences when he is released from jail. I am going to place the home of Rosemary and Jason Ball in jeopardy if Michael Ball breaches the terms of his bail.
[27] I am confident that the accused will comply with the terms of his release. He has not previously been in jail. However he has now been in jail for almost 2 years. Clearly he has found this to be a very unpleasant experience. I would not think that he would want to risk his re-incarceration at Maplehurst Detention Centre by breaching the terms of his bail. I also believe that he would not want to place in jeopardy his parents’ residence. I find Rosemary Ball to be credible. I am confident that she will report Michael Ball to the police and take steps to revoke as a surety if he does not comply with the terms of his release. Mr. Smart pointed out in submissions that Mrs. Ball will now have a tool available to her to control Mr. Ball that she did not have when he was residing in the family home as a teenager – namely the power to revoke his bail and send him back to jail.
[28] There are 2 factors that I consider tip the balance in favour of release. One is the challenge that Mr. Smart has so eloquently and thoroughly presented to the strength of the crown’s case. A great deal of the burden of the crown’s case rests with Daniel Warwick. Obviously the credibility and reliability of his evidence is open to serious challenge. In R. v. Blind, [1999] S.C.J. 597 the Saskatchewan Court of Appeal in the judgment of Justice Jackson stated the following:
15 In considering all of the relevant circumstances, the hearing judge must not become so focused on the gravity of the offence and the strength of the Crown's case as to overlook that there are no categories of offences for which bail is not a possibility. There are few crimes of violence or of murder where one could not say that the gravity of the offence, considered on its own, without regard for the purpose of bail, justifies detention. 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. It is also dangerous to place too much emphasis on the possibility of a lengthy prison term as all serious crimes carry the possibility of such. Giving undue weight to this factor becomes a means to start punishment before conviction.
I do not think that it is helpful to describe the crown’s case as being strong or weak. It was best described by Mr. Gowdie as having triable issues.
[29] The second factor is the right of the accused to make full answer and defence. The accused will be in a much better position to make full answer and defence out of custody in the home of his parents where counsel will have ready access to him when he should be in a frame of mind properly to give his lawyers instructions. This concept was well articulated by the Supreme Court of Canada in the dissenting judgment of Justice Iacobucci in R.. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 as follows:
59 Although it is generally accepted and acknowledged that the denial of bail has a detrimental effect on the presumption of innocence and liberty rights of the accused, it is less often recognized that pre-trial detention can also have serious practical effects on the accused's ability to raise a defence, and can thereby have a second, more indirect, prejudicial [page339] effect on the accused's liberty rights and the criminal justice system as a whole. H. L. Packer, in his classic work on the subject, The Limits of the Criminal Sanction (1968), points out some of the difficulties faced by an accused who is detained before trial (at pp. 214-15):
- An accused person who is confined pending trial is greatly impeded in the preparation of his defense. He needs to be able to confer on a free and unrestricted basis with his attorney, something that is notoriously hard to do in custody. …
[30] The right of the accused to make full answer and defence is a factor that is not only important for the accused but it is also important for the community. Who brutally murdered Erin Howlett if she was murdered and who subjected her body to great indignity? It is important that the community have an answer to this question. The trial in this case may not answer the question. However the trial of this case conducted by skillful and well prepared counsel properly instructed within our adversary a system should permit a jury to determine beyond a reasonable doubt whether Michael Ball is responsible. In R. v. Ross, [1997] O.J. No. 4427 Justice Salhany said the following:
71 Although the purpose of a trial is the search for the truth, that search must be conducted within the framework of the common law trial process, the adversary system. Crucial to the determination of truth in the adversary system is the role of cross-examination. Professor Wigmore described cross-examination as "beyond any doubt the greatest engine for the discovery of truth": Wigmore, Evidence, 3rd ed., Vol. 5, paragraph 1367.
A lawyer can only properly cross examine if he is properly instructed. Michael Ball will be in a much better position to instruct his lawyers out of custody in the home of his parents than he would be in the Maplehurst Detention Centre.
Result
[31] I find that the accused has met the onus on him to show cause why he should be released on all 3 grounds in s. 515(10) of the Criminal Code.
[32] The accused will be released with one surety being his mother Rosemary Ball in the amount of $600,000 without deposit on the terms set out in para. 16 of her affidavit, namely the following:
That he remain in his residence at 112 Meadow Park Place at all times except while traveling with Rosemary Ball directly to or from court or while at the courthouse at 85 Frederick Street for his trial and except for medical emergencies or attendance at scheduled medical or dental appointments in the presence of Rosemary Ball.
That he abstain from the possession or consumption of any drugs under the CDSA.
That he does not possess any weapons.
That he does not possess any electronic communication device unless in the direct presence of Rosemary Ball.
That he does not access the internet unless in the presence of Rosemary Ball, Brennan Smart or Andrew Bond.
That he be compliant with the conditions of the electronic monitoring program.
Any other terms on which counsel agree and the court approves.
P. B. Hambly J.
Released: December 8, 2015
CITATION: R. v. Ball, 2015 ONSC 7646
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Michael John Ball
REASONS FOR JUDGMENT
P. B. Hambly J.
Released: December 8, 2015