R. v Valade, 2016 ONSC 2477
Court File and Parties
COURT FILE NO.: 16-23 DATE: 2016/04/13 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – Malcolm Valade Defendent
Counsel: Andre White, Counsel for the Crown Solomon Friedman, Counsel for the Defendent
HEARD: March 29, 2016 BEFORE: Leroy, J.
REASONS FOR JUDGMENT on bail review
Introduction
[1] Mr. Valade applied for bail review heard March 29, 2016. He was arrested on October 25, 2015 and charged with the following Criminal Code offences:
- Attempted murder, s. 239(1)(A.1) times 2;
- Utter death threat, s. 264.1(1)(a);
- Possession of a weapon for purpose of committing an offence, s. 88;
- Careless storage of a firearm, s. 86(2) times 3;
- Careless use of a firearm, s. 86(1).
[2] The Crown will be or has added a charge under s. 244(1), namely that of discharging a firearm with intent.
[3] Mr. Valade does not have a criminal record. He was a crucial operative in the family excavation business through his adult life. He is partner with Christine in a 20-year relationship, eight years married without children. The home in which they resided shares the same land as the family business.
[4] Mr. Valade was ordered detained by Justice of the Peace Desjardins on December 23, 2015. The charges before the Court are such that the burden of showing cause why Mr. Valade’s detention in custody is not justified rested with him. The Justice of the Peace detained Mr. Valade on the basis of the secondary ground in s. 515(10) of the Criminal Code. That ruling entailed a determination that detention in custody was necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused would, if released from custody, commit a criminal offence or interfere with the administration of justice.
[5] Mr. Valade accepts the correctness of the ruling. He seeks a bail review based on material change in circumstances. He submits that the plan promoted on March 29, 2016 constitutes a material change in circumstances that addresses and ameliorates the plan deficiencies identified by the Justice of the Peace at the interim release hearing.
The Incident
[6] This was a family dispute over succession planning and implementation in respect to the family business. Melvin Valade and his son, the accused, Malcolm Valade were the operating minds. Melvin founded the business with his father and achieved success. Malcolm worked with his father for 20 years progressing from a skilled operator to manager and estimator. Melvin Valade’s health began to fail in 2015 so Malcolm assumed more and more of the managerial function.
[7] The evidence suggests that Malcolm has for several years dating back to 2006 struggled with the impression that his father disrespects him. He chafed over the business ownership structure. The evidence also suggests that Malcolm suffered from mental health issues over those years in the form of suicidal indicators and a recent request of his father to shoot him. Community resource counseling lacked efficacy.
[8] Malcolm and his spouse Christine were eager to implement ownership change in Malcolm’s favour. Melvin was ambivalent about relinquishing control of his life’s work. He did not discern urgency. In the interview with police, Melvin acknowledged that Malcolm was integral to the success of the business and that they would not be where they were financially without Malcolm’s efforts.
[9] There was a meeting involving Malcolm, his spouse Christine, Melvin and his spouse, Diane at the accused’s residence around the noon hour on October 25, 2015. The subject for discussion was the matter of ownership transfer. Emotions became heated and unpleasant. The evidence is that Christine spoke for Malcolm.
[10] It is alleged that Malcolm said he would shoot Melvin’s brains out of his head. Malcolm instructed Melvin to leave and he did. Diane left the house but returned and re-entered for a moment. After she left the house for the last time and entered the car, Melvin said she instructed him to drive away quickly because Malcolm was going to shoot him.
[11] The video recording shows that as Melvin’s Tahoe departed, Malcolm ran out of the house and shot at the departing vehicle with an unrestricted long gun, namely a 410 shotgun. The bullet struck the tailgate inches from its top.
[12] Mr. Valade was arrested quietly approximately four hours after. The guns had been removed.
[13] The threshold issue is whether the amended plan constitutes a material change. If not, that ends the bail review. If yes, then the amended plan has to be scrutinized in the context of the three grounds for detention in s. 515(10) of the Criminal Code.
The Bail Hearing Plan
[14] The December bail plan included:
Cash deposit by the accused - $10,000 Two sureties: Sister-in-law Dianne Lamarche and father-in-law Peter Labelle, each committing the sum of $10,000. Dianne Lamarche was proposed as primary; Residence with Dianne Lamarche on terms that he remain in the residence except for medical emergencies, employment during daylight hours or in the presence of a surety; Contact prohibitions involving Melvin Valade, Diane Arnold-Burd, Claude Constantineau, Christine Valade and Chris Sorenson; Travel restrictions including a commitment to stay out of St. Andrews; Firearms Prohibition; That Malcolm Valade return to employment in the family business in a non-managerial role; and Ongoing counselling.
The reasons for detention
[15] The release plan was insufficient to assuage the substantial likelihood that Mr. Valade would, if released from custody, commit a criminal offence or interfere with the administration of justice. The Justice of the Peace identified the following deficiencies:
i. That the release plan relied too heavily on supervision by Dianne Lamarche – page 66. He noted that she was having difficulties in her work-life that weakened her efficacy in the role of primary surety. ii. The plan would have returned the applicant to the same problematic work environment with his father. The plan meant that the Applicant would be unsupervised through the workday. iii. The plan did not adequately address the Applicant’s mental health issues. The counseling that Malcolm was engaged in over the months preceding October 25, 2015 did not help where he needed it most.
The Bail review Plan
[16] The accused’s position is that the review release plan specifically redresses those flaws, it constitutes a material change in circumstances and it merits release. The Crown position is that the review release plan does not achieve a material change in circumstances and if it does, it does not assuage the concerns inherent in the secondary and tertiary grounds for detention.
[17] Christine Valade is proposed as an additional surety. Instead of continued employment with the family business, Mr. Valade will work for another independent excavation business in the capacity of operating engineer, estimator and lead hand. The mental health treatment proposal is more intensive and particularized, including a referral to the Royal Ottawa Integrated Forensic Program together with dedicated weekly private counseling with Benoit Veilleux.
[18] Melvin Valade, by letter dated February 19, 2016 pleads for Malcolm’s release from pre-trial detention and iterated that the events of October 25, 2015 were exceptional and uncharacteristic, that he is confident in Malcolm’s ability to abide release conditions within the law and that he has no fear or concern for his safety in the event of release. Melvin Valade accepts the merit of mental health counseling. He prefers that Malcolm return to work in the family business as soon as possible.
Material change in circumstances
[19] The threshold issue is whether it is appropriate to exercise this Court’s power of review on the basis of admissible new evidence that is asserted to demonstrate a material and relevant change in the circumstances of the case. The context for this issue is that, as the reviewing justice, I do not have the power to interfere with the decision of the Justice of the Peace just because I would have weighed the relevant factors differently. Correct judgments are intended to be final.
[20] Although the Supreme Court in R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 confirmed that the four criteria from Palmer v. The Queen, [1980] 1 S.C.R. 759 are relevant with necessary modifications to the determination of what constitutes new evidence for the purposes of the review provided for in ss. 520 and 521 of the Criminal Code, application has to be flexible given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused and that the release hearing takes place at the very start of the criminal proceedings and not at the end like the sentence appeal. In St. Cloud the Supreme Court rejected the Crown’s submission for a narrow view regarding new evidence. At paragraph 131 Justice Wagner wrote that “A generous and liberal interpretation of the meaning of “new evidence” in the context of ss. 520 and 521 Cr. C. is thus quite consistent with the principles developed by this court”. At paragraph 130 Justice Wagner notes “that the pre-trial detention of accused persons – like their release – is by its nature very often interim and not final.”
What is admissible as new evidence?
[21] Is the insertion of Christine Valade into the surety deck admissible credible new evidence? The concern is over the efficacy of surety shuffling that would not have affected the result in the first instance. In this case, the Justice of the Peace accepted the good character of the two sureties, but that in the context of the accused’s mental health concerns, the proposal to return the accused to the same workplace with the complainant, as well as Ms. Lamarche’s workplace stressors, he concluded she did not have the requisite capacity to manage the accused.
[22] The accused spoke highly of his spouse at the hearing. Their relationship spans twenty years. She is well educated and has a responsible position with border services. She assists with the excavation business in an administrative role. Melvin Valade trusts her in that capacity. She honored the contact prohibition with the accused. She knows Malcolm as well as anyone. Dianne Lamarche is her sister and Jean-Pierre Labelle is her father. The evidence depicts a close family.
[23] Christine Valade was available as surety in December 2015. The defence explanation for not including her as surety then is that at the time she was potentially a pivotal witness for the Crown and the Court could not fully appreciate her high level of integrity and reliability. A Court could not appreciate the merit of an order restricting topics of discussion with the accused.
[24] Christine Valade is not a pivotal witness to the essential elements of the offences before the Court. She has the benefit of independent legal advice. She states she will exercise her privilege under subsection 4(3) of the Evidence Act. Inter-spousal communications that might relate to intention are unavailable to the Crown case. To the extent there are issues with the perception, memory, narrative and sincerity of Melvin Valade or Diane Burd, Christine Valade’s perception, memory and narrative will be corroborative. Further, in all the circumstances, the Court can rely on Ms. Valade to honour communication restrictions.
[25] All that said, notwithstanding her qualities as surety, by itself had she offered as surety at the first hearing, I doubt it would have been enough to affect the outcome at the time. Detention was based on the secondary ground. Her intimate involvement in the lead up to the incident failed to deflect Mr. Valade.
[26] Next, neither of the independent employment or the particularized mental health treatment plan had crystallized in December 2015. I accept that due diligence would not have accrued these parts of the plan at the time. While Mr. Valade’s vocational skill set is in demand in the excavation workplace, finding a reliable right fit having regard to the outstanding charges took time. Mental health services are stretched and the wait lists are long. As Malcolm Valade lamented at the release hearing, the counseling provided through community service lacked efficacy.
[27] The mental health counseling offered in December was so lacking in specificity that it could not be seen as a credible or reliable protection against recurrence. The review plan offers as much as it can. The Royal Ottawa Integrated Forensic Program requires physician referral, an outstanding charge and pre-trial release. He has been referred by Dr. Tremblay. Mr. Veilleux’s record of achievement suggests he has the skillset to assist effectively. He commits to weekly counseling focused on Malcolm’s mental health issues.
[28] The offer of third party employment is a significant change. The proposal for return to work with the family business was misguided and had to be rejected by the Justice of the Peace. Had this evidence of independent employment been on the table in December, together with the added surety and the more focused and relevant counseling, it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the result.
[29] For those reasons, I conclude that the insertion of Christine Valade as surety, the third party employment and specific focused mental health treatment qualify as new reliable evidence that constitute a material and relevant change in circumstances requiring a fresh assessment relative to S. 515(10) of the Criminal Code grounds for detention.
Bail Review Release Proposal
[30] As noted this is a reverse onus situation.
Issue 1
[31] I conclude that detention is unnecessary to ensure that Mr. Valade will attend court as required to be dealt with according to law? As with the secondary ground, this analysis involves risk prediction.
[32] A strong case is a relevant consideration but is not determinative of bail. The Crown has a strong case for conviction of a Criminal Code offence. However; the Crown case will always appear strong at the early stages. Section 11(e) of the Charter prohibits the inference at the bail hearing to the point that the accused is probably guilty so there is no great hardship to detention.
[33] Although every person charged with a serious criminal offence is a prospect for running, the circumstances here are not indicative of a person who will not attend court as required to be dealt with according to law.
[34] As noted above, Mr. Valade is pro-social. He does not have a criminal record. He has never breached a Court order or missed a court date. He surrendered peacefully. He is connected to family, the community and the financial pull of bail is personally meaningful. The sureties are fully integrated into community, family and can be relied on to ensure that Mr. Valade’s commitment will not waiver.
Issue 2
[35] I conclude that detention is unnecessary for the protection or safety of the public including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused would, if released from custody, commit a criminal offence or interfere with the administration of justice?
[36] The secondary ground achieved Charter compliance based on the following evaluation from R. v. Morales (1992), 77 C.C.C.(3rd) 91 – per Lamer C.J.C. - page 107
‘Bail is denied 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. Moreover detention is justified only when it is necessary for public safety. It is not justified where detention would merely be convenient or advantageous.”
[37] Justice of the Peace Desjardins properly detained Mr. Valade on this ground. The plan then was deficient. Allowing Mr. Valade to return to the family business would expose the same tensions that prompted this incident. The mental health treatment regimen lacked efficacy. At its essence, the Justice of the Peace considered that Mr. Valade’s long-term mental health issues significantly raised the stakes. The sister-in-law, compromised as she was by workplace stressors, could not overcome those deficiencies in the role of primary surety.
[38] The secondary ground analysis involves a consideration of the accused’s criminal record, nature of the offence and strength of case, stability of the accused and all the circumstances. As with the primary ground, the strength of the release plan is pivotal.
[39] The evidence is that Malcolm has been struggling with depression for ten years. He requires third party assistance with issues of maturity, perspective and possible organic mental health issues. Notwithstanding, he performed at work, in the community and the family. He is a reliable diligent worker and, having regard to the perspectives of his spouse, father and extended family, is a decent family man. From time to time, it got the better of him and his capacity to camouflage its effects vitiated. It boiled over on October 25, 2015.
[40] The relationship with his father is advanced as the lightning rod.
[41] The review plan removes the lightning rod from the mix. The pay scale with the third party employer, even at 40 hours weekly, will constitute a significant pay raise that recognizes the market value of Malcolm’s skill set. He will be an employee freed from the burdens of business management and administration. He will not cross paths with his father in the workplace or elsewhere.
[42] The counseling program offered during the review has the potential to redress lingering untreated mental health issues. There are no guarantees; however, the impression is that treatment in the past was superficial. When the patient is able to perform as effectively as did Malcolm in the workplace, community and family, it was easy to underestimate the full magnitude of his condition. That reality has changed.
[43] Lastly Christine Valade is offered as surety along with her sister and father. She is likely the strongest of the three. She knows Malcolm the best. She is viewed in the family as intelligent, capable and versed with law enforcement expectations. Her total annual income is in the range of $60,000.00. Malcolm depends on and is responsive to her direction and advice.
Christine Valade as surety
[44] Christine Valade was involved in the discussion/argument that preceded the discharge and will be a witness at trial. Although uncommon, witness status does not exclude her as surety.
[45] Mr. White urged the Court to reject Christine Valade as unsuitable for the role of surety. Accomplices, persons with a previous conviction for a serious offence, counsel for the accused, a person who has been indemnified in respect to the bail or who has received a promise of consideration, a person in custody or on bail awaiting trial on a criminal offence, an infant, a person who is already a surety for another person or a non-resident of the province are recognized in the jurisprudence as unsuitable sureties. Historically, married women who were without their own estate were unsuitable in the context that having sufficient means relative to the amount of the recognizance is an important consideration for surety suitability.
[46] The jurisprudence does not exclude potential witnesses as a stand-alone ground for exclusion as surety.
[47] The role of surety is to provide a measure of supervision over the accused’s daily activities. The powers of sureties at common law include some measure of physical control of the accused and the right to resign.
[48] The assessment of surety suitability includes whether the proposed surety can realistically discharge the obligations and willingly exercise her powers. The following are recognized surety qualities:
i. a person of good character to whom the duties of a surety may be entrusted; ii. a person with meaningful links to the accused; and iii. a person with the ability and authority to discharge the obligations and exercise the powers of a surety.
[49] Christine Valade is not unsuitable as surety for any of those reasons. There are no evidentiary issues with respect to her character. She tried to reach out to the complainants in a loving context after the incident. Malcolm clearly respects her views and direction. She has the financial context to fully appreciate the “financial pull of bail.”
[50] Paragraph 515(4.2) of the Criminal Code obliges the Court to consider whether it is desirable, in the interests of the safety and security of any person, particularly a victim or witness to the offence, to include as a condition of the order that the accused abstain from communicating with any victim, witness or other person identified in the order.
[51] The object of a non-communication provision regarding a witness is to prevent an accused person from pressuring a witness to alter his/her testimony.
[52] As Justice Trotter observes at page 6-30 of the Law of Bail in Canada, 3rd Edition
“Non-communication conditions may disrupt relationships that are important to an accused person. It is not difficult to imagine numerous situations in which the victim is a member of the accused’s immediate family. The temporary termination of contact with family members may well be perceived as punishment by the accused. As with the imposition of all other conditions, there must be a legitimate basis for restricting the accused person’s association and activities prior to trial.”
[53] There is no evidentiary basis for concluding that Christine Valade’s safety and security interests would be compromised by ongoing communication and contact with her long-term partner. I accept she is not vulnerable to influence from the accused and that they will honour a court order restricting discussion of the events of October 25, 2015. She has declared, with the benefit of independent legal advice, that she will not waive the Evidence Act inter-spousal communication prophylactic. Her evidence in respect to what she observed in the lead-up to the firearm discharge is not pivotal to the Crown case.
[54] The same analysis applies to Chris Sorenson.
Issue 3
[55] I conclude that detention is unnecessary 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 would be liable on conviction for a potentially lengthy period 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.
[56] These circumstances are not exhaustive. No single circumstance is determinative. The process involves balancing of all relevant circumstances of each case to decide whether detention is justified. At the end of the balancing exercise, the ultimate question is whether detention is necessary to maintain confidence in the administration of justice.
[57] Accordingly, a Court must not order detention automatically even where the four listed circumstances support such a result. Other circumstances that might be relevant are the personal circumstances of the accused (age, criminal record, physical or mental condition), status of the victim and the fact that the trial of the accused will be held at a much later date. The aggravating and mitigating factors that are considered by Courts for sentencing purposes can be relevant.
[58] This balancing is done from 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. This will be a thoughtful person who will not be prone to emotional reaction, whose knowledge of the circumstances of the case is inaccurate or who disagrees with our society’s fundamental values.
[59] A reasonable person’s confidence in the administration of justice may be undermined not only if the Court declines to order detention when it is justified having regard to all the circumstances of the case, but also when detention is ordered when it is not justified.
[60] I discussed the strength of the prosecution case and the implications earlier in these reasons. Mr. Valade committed a criminal offence when he discharged the long gun toward his father’s vehicle.
[61] The objective gravity of the offence is significant. It is measured by comparison with the other offences in the Criminal Code and is assessed on the basis of the maximum sentence and the minimum sentence if any. The minimum sentence for a conviction under s. 244 is four years. The minimum/maximum sentence for attempted murder where a firearm is used is four years and imprisonment for life.
[62] The firearm discharge pointed toward Melvin Valade’s departing vehicle transcends threatening and improper storage of firearms. It is the use of the firearm that elevates the gravity of Mr. Valade’s actions.
[63] The potential for a lengthy period of imprisonment is real. Again, the firearm aspect exacerbates.
Mitigating Factors
[64] This is unfamiliar territory for the Valade family. They exude pro-social proclivity. The offending conduct was situational and anomalous. As a collective, adversity strengthens their formidable resolve. This situation qualifies as one of their most challenging. The release plan relies on the character of its participants, quality of treatment and the external employment.
[65] The financial pull of bail in this case is significant. Every surety has worked and does work hard to pay their way. The sureties are collectively reliable and trustworthy. In their living and working orbit, their observations and opinions are valued. They know Malcolm better than anyone in the system can and have enough trust in his good character to risk their personal wealth. Their opinions are valuable and offer reliable direction.
[66] But for these events, Malcolm is a reliable diligent trustworthy man. He requires mental health treatment. He was law abiding. He commits to the terms of the release plan and offers significant financial commitment. He has good friends. He, his father and Christine operated a successful small business for twenty years. Malcolm’s work hours were formidable. His father trusted Malcolm in all aspects of the business operation. The McCrae excavation business will reap a windfall if Malcolm is released and allowed to work for their operation.
[67] The reasonable member of the community recognizes the merit of a safe, therapeutic plan for a person who struggled with depression while functioning pro-socially at such a high level.
[68] Melvin Valade is a dedicated successful entrepreneur. He is the sort of person others go to for advice. He stated and states that this incident was exceptional and out of character. He is not afraid for his safety should Malcolm be released. He does not anticipate recurrence. He trusts his son and the release plan. As noted, Melvin Valade aspires for an early resumption of work partnering.
[69] Malcolm’s mental health can only improve with dedicated counseling. He is fundamentally a good person who did something really senseless. He has a loyal following, willing to help recapture his mental health. That process can’t begin while imprisoned at the provincial pre-trial detention center.
[70] A reasonable person would assess the risk of recurrence in the face of the release plan, trust the sureties and the treatment plan, value the offer of employment and conclude that having regard to Charter values and the legislative philosophy behind the interim release part of the Criminal Code, a reasonable person’s confidence in the administration of justice would be undermined by a detention order. It balances the aggravating factors inherent in the factors enumerated in s. 515(10)(c) of the Criminal Code. The learned Justice of the Peace was on the fence after hearing the first release plan. I am confident he would have released the accused if he had the benefit of the plan before this Court.
Final Order
[71] Accordingly, Malcolm Valade can be released pending trial on the following terms and conditions:
a) That he enter into a recognizance in the amount of $20,000 without cash deposit; b) That this recognizance include three sureties, each with a bond, without cash deposit - namely, Christine Valade ($20,000), Dianne Lamarche ($20,000) and Jean-Pierre Labelle ($10,000). c) That he resides at 917 Laflin Street, Cornwall, ON, with surety Dianne Lamarche and her husband Stephen Lamarche and abide by the rules of that residence. d) That he remains in that residence, subject to the following exceptions: i) In the company of a surety ii) For the purposes of employment, provided that a surety is aware of his employment schedule iii) For the purposes of counselling, provided that a surety is aware of his counselling schedule iv) For the purposes of conferring with counsel, provided that a surety is aware of his meeting with counsel e) That he remain in Ontario except for work purposes. That he stay out the village of St. Andrews, except in transit via Highway 138. That he not enter the area of Valade Road except for work purposes and in the company of one of his sureties. That he not attend at 16936 Valade Road or 17246 County Road 18, both in South Stormont. That he deposit his passport with D/Cst. Daniel Roy of the OPP. f) That he attend for counselling as directed by Benoit Veilleux, RSW. g) That he attend the General Forensic Consultation Clinic at the Royal Ottawa Hospital, pursuant to the referral he has received and follow up as required by the hospital h) That he not contact or communicate in any way directly or indirectly by any physical, electronic or other means with Melvin Valade, Diane Arnold-Burd or Claude Constantineau. i) That he refrain from any form of discussion with either Christine Valade or Chris Sorensen regarding any trial-related issues. j) That he not possess a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance, or all those things until dealt with according to law or any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person or any imitation of above. If he now possesses any weapon(s) as defined in the Criminal Code he must deposit them, along with every authorization, licence and registration certificate relating to any of these items, to the police within 48 hours of release from custody. That he not apply for an authorization, licence or registration certificate for any weapon as defined by the Criminal Code. k) That he appear personally, and on time, for all subsequent court appearances, or by designation of counsel.
Justice Rick Leroy Released: April 13, 2016