COURT FILE NO.: CR-16-0029-BR DATE: 2016-08-31

Ontario

Superior Court of Justice

B E T W E E N:

Her Majesty The Queen, Robert Kozak, for the Crown

• and -

Martin Robert Yorki a.k.a. Martin Kelly, Christopher Watkins, for the Accused Accused

HEARD: July 14, 2016, at Thunder Bay, Ontario Regional Senior Justice D. C. Shaw

Decision On Bail Review Hearing

[1] This is an application by the Crown, pursuant to s. 521 of the Criminal Code, for a review of the order made by Justice of the Peace, A. Gibbon, on May 31, 2016, wherein the accused, Martin Yorki, also known as Martin Kelly, was released on a recognizance with conditions and a surety. The surety was required to deposit $5,000.

[2] The Crown seeks an order to vacate the order of release and to detain the accused.

[3] In its application, the Crown asserts that the detention of the accused is justified on the secondary ground, namely that detention is necessary for the protection or safety of the public, and on the tertiary ground, namely that detention is necessary to maintain confidence in the administration of justice. On the bail review hearing, the Crown touched briefly on the secondary ground. However, the Crown focused on the tertiary ground, which it submits is the strongest of the two grounds.

[4] The Crown submits that the application is warranted because:

(a) the Justice of the Peace made an error in law; and (b) the decision of the Justice of the Peace was clearly inappropriate.

Background

[5] The charges against the accused relate to an incident in the late evening of March 7, 2016. The accused’s girlfriend, Jennifer Hogan, had broken off her relationship with the accused that day. She drove to the home where the accused was living with his mother and his aunt, to retrieve her personal belongings. She was accompanied by Michael Ranger. Mr. Ranger remained in the vehicle while Ms. Hogan went to the house. At one point, Ms. Hogan saw the accused on the porch with a ski mask over his face. He said to her “You know what I have in my hand”, which she took to mean a long gun. The accused suffers from bipolar disorder. Ms. Hogan feared for her safety. Not wanting to set the accused off, she made her way back to the car.

[6] The accused is alleged to have broken the front window of the house and fired at Ms. Hogan with a rifle. Three shots were heard. The second gunshot hit the back passenger side of the vehicle. The third gunshot just missed the head of Mr. Ranger. There were no injuries to either Ms. Hogan or Mr. Ranger. Ms. Hogan drove off while Mr. Ranger called 911.

[7] Ms. Hogan told police that she started dating the accused in August 2015. She said that the accused was nice at first but became violent and unpredictable as time went on. She related his conduct to his bipolar disorder. Ms. Hogan said that about two weeks before the March 2, 2016 incident, the accused had dragged her down the stairs by the hair and told her that he was going to kill her buy cutting her into pieces with a saw. She also told police that the accused had been very controlling, that he had been emotionally and sexually abusive and that he had threatened her and her son if she went to the police. She said that the accused consumed drugs and alcohol on a daily basis.

[8] Following the March 7, 2016 incident, the accused was charged with the following offences under the Criminal Code:

• assault with a weapon – s. 267(a);
• pointing a firearm – s. 87;
• possession of a weapon for purpose danger to the public – s. 88;
• attempt murder – s. 239(1)(a);
• assault with a weapon – s. 267(a);
• discharge a firearm – s. 244.2;
• careless storage of a firearm – s. 86(1);
• possess a firearm without a licence – s. 91(1); and
• possess a firearm without a licence – s. 91(2).

[9] The accused has a criminal record:

1991 – drive while impaired, attempt to obstruct justice x 2, possession of a credit card obtained by crime, fail to attend court x 2, possession of property under $1,000 obtained by crime. 1993 - fail to appear. 1994 - assault, assault causing bodily harm, mischief under $1,000. 1995 - cultivation of a narcotic. 2005 - assault, fail to attend court. 2006 - fail to appear x 2, possession of a Schedule I substance, fail to comply with a probation order.

Surety – Mary Burrows

[10] At the bail hearing, the accused put forward his aunt, Mary Burrows, as a surety.

[11] Ms. Burrows divides her residence between the home on Pruden Street, in Thunder Bay, in which she, the accused and his mother were living at the time of the incident, and an apartment in Sioux Lookout, where she stays while attending her doctors’ appointments in that town. She divides her time between Thunder Bay and Sioux Lookout on a roughly 2/3 –1/3 basis.

[12] Ms. Burrows is retired. She receives an Old Age Security pension. She had worked in a variety of jobs, including a job as an assistant in a law firm for 1 ½ to 2 years in the 1990’s. She did not, herself, at the time of the bail hearing, have the financial resources to post cash bail.

[13] Ms. Burrows testified that she was aware that when the accused resided in Western Canada he had used heroin. She had never seen him use heroin while he lived in the home on Pruden Street, Thunder Bay. She was aware that the accused is on a methadone program in Thunder Bay.

[14] Ms. Burrows was not aware that there were guns in the home on Pruden Street. She was not present in Thunder Bay when the incident occurred.

[15] Ms. Burrows testified at the bail hearing that she was prepared to have the accused be in her presence at all times. This would include taking him with her to Sioux Lookout. She testified that if the accused failed to follow any conditions of release imposed by the court she would have no hesitation to inform the police. She said she knew that would mean that the accused would return to jail.

Mother of the Accused – Lois McVey

[16] The mother of the accused, Lois MacVey, testified at the bail hearing. She confirmed that the accused suffered from bipolar disorder. She also testified that he had been addicted to heroin and was now on a methadone program.

[17] She believed that the gun in question must have belonged to Reg Toser, the father of her youngest son. She said that after Mr. Toser died, Mr. Toser’s possessions had been stored by her youngest son at the Pruden Street home.

[18] Ms. MacVey has a criminal conviction in 2007 for possession of cocaine for the purpose of trafficking. She is on a methadone program because of an addiction to oxycodone which had been prescribed by her doctor.

[19] Ms. MacVey was not put forward as a surety.

Submissions Made At Bail Hearing

[20] Following the evidence of Ms. MacVey and Ms. Burrows, the Crown and defence made submissions.

[21] Because the onus was on the Crown, the Crown proceeded first in submissions.

[22] The Crown noted that there was a strong case against the accused. The police officers who arrived at the scene saw Ms. Hogan’s vehicle with two gunshot holes in it.

[23] The Crown referred to the accused’s history of bipolar disorder, his violent relationship with Ms. Hogan, his history of drug addiction and his criminal record.

[24] The Crown noted that Ms. MacVey and Ms. Burrows were unaware of the gun being stored at the home where they and the accused were living.

[25] The Crown submitted that the Justice of the Peace should have no confidence in the ability of Ms. Burrows or Ms. MacVey to supervise the accused because they were not aware of what was going on in the house on Pruden Street and because they were unsure as to the details of how long the accused had suffered from bipolar disorder, how long he had been addicted to heroin and when he had started methadone treatment.

[26] The defence submitted that although Ms. MacVey and Ms. Burrows could not provide precise details of the accused’s criminal record and how long he had been addicted to heroin and on methadone, this was because the accused had been living in Western Canada when those issues arose. The defence submitted that the witnesses were, however, quite aware that the accused had a criminal record, had been addicted to heroin and was currently on a methadone program.

[27] The defence noted that the accused’s criminal record was dated, with a gap of 10 years since his most recent prior convictions.

[28] The defence pointed to Ms. Burrow’s experience working in a law office. The defence submitted that Ms. Burrows had met with the accused in jail, discussed with him what was happening, set down the rules if he were to be released into her custody and made clear her willingness to have the accused return to jail if he broke those rules.

Reasons of the Justice of the Peace

[29] The Justice of the Peace gave oral reasons for her decision.

[30] She observed that she was required to balance the accused’s freedom with the safety of the community.

[31] She expressly addressed the primary, secondary and tertiary grounds.

[32] As to the primary grounds, she referred to the fact that the accused had lived in Western Canada and had convictions for failing to attend court.

[33] With respect to the secondary grounds, the Justice of the Peace referred to the accused’s criminal record, including convictions for assault and assault causing bodily harm. She noted, however, the gaps in the accused’s record, from 1995 to 2005, and from 2006 until the present charges.

[34] With respect to the tertiary ground, the Justice of the Peace referred to the apparent strength of the Crown’s case in that the police had seen the bullet holes in the vehicle in which Ms. Hogan and Mr. Ranger were driving. She described the offences as very serious. She described the circumstances surrounding the offences, namely, the personal relationship between the accused and Ms. Hogan, the violence and the fact that a firearm was used, as quite serious. She addressed the issue of what sentence would be imposed if the accused were convicted of the offences but said it was difficult for her to determine the length of the sentence. She did note that the charge of attempted murder, on its own was a very significant offence.

[35] The Justice of the Peace first determined that the Crown had not met its onus on the primary ground. She referred to the fact that the accused had been a resident of Thunder Bay for a significant period of time, that he had doctor’s appointments in Thunder Bay for his mental health issues, was on a methadone program and lived with his mother and his aunt.

[36] With respect to the secondary and tertiary grounds, the Justice of the Peace expressed concerns that Ms. MacVey and Ms. Burrows, while well-meaning and caring, had superficial knowledge of the background of the accused’s prior convictions and of how the gun in question came to be in the house. The Justice of the Peace said that there was a strong case for the Crown on both the secondary and tertiary grounds. The Justice of the Peace referred to the accused’s plan that would have Ms. Burrows act as the accused’s surety, with the accused under her care and supervision, including taking the accused to Sioux Lookout when she needed to attend medical appointments.

[37] The Justice of the Peace then asked the accused questions as to whether the accused’s psychiatrist was in town and how long the accused had been in Thunder Bay. She also asked whether the accused had a doctor and was on the methadone program, to which the accused responded in the affirmative.

[38] The Justice of the Peace then observed that Ms. Burrows had no assets of her own. The Justice of the Peace stated that the inability to bind Ms. Burrows’ assets was “… one of the biggest challenges in terms of the plan today.” She observed that she could not bind someone else’s property. She then asked “So in good faith, how do I bind someone to an amount of money they don’t have access to? Mr. Watkins?” (Mr. Watkins was defence counsel.)

[39] Defence counsel responded to the question. Whether the question was rhetorical or directed at counsel is not clear in the transcript. Defence counsel stated that the Justice of the Peace could ask for a cash deposit and Ms. Burrows would then have to come up with a cash deposit, or she could name a surety and have that surety bound.

[40] The Justice of the Peace observed that if another surety was to be put forward, the Crown may have an interest in examining that proposed surety.

[41] The Crown responded that it was being put at a disadvantage on how the bail hearing was being conducted. The Crown submitted that it was not appropriate to have a “sight unseen surety.” The Crown objected that, “We are changing things while Your Honour (sic) is giving a ruling.”

[42] Defence counsel then invited the Justice of the Peace to name Ms. Burrows as a surety, as proposed, but with a cash deposit that Ms. Burrows would be responsible for obtaining.

[43] The Justice of the Peace then asked herself whether there were factors present that could provide the community with assurance that it was going to be safe while the accused exercised his right to be free pending trial.

[44] The Justice of the Peace stated that although Ms. MacVey and Ms. Burrows may have had a superficial relationship with the accused, she was satisfied that Ms. Burrows understood, in particular from her experience in a law office, what it meant to be a surety, and the gravity of the responsibilities she was taking on. The Justice of the Peace said she was satisfied that Ms. Burrows would take her responsibilities very seriously. She referred to Ms. Burrows’ evidence that she would have no qualms in phoning the police.

[45] The Justice of the Peace ordered the release of the accused on a recognizance, naming Ms. Burrows as a surety with a requirement that $5,000 cash be deposited. She required that the accused reside with and be in the presence of Ms. Burrows at all times, 24 hours a day. She prohibited the accused from having any contact, directly or indirectly with Ms. Hogan and Mr. Ranger and prohibited the accused from possessing any weapon. The accused was also prohibited from possession or consumption of alcohol or drugs other than drugs obtained with a valid prescription. His home was made subject to a search, without warrant, for weapons.

Crown’s Submissions on Bail Review Hearing

[46] The Crown submits that the Justice of the Peace erred in law in the manner in which she fashioned her decision, namely that as she rendered her decision there was an inappropriate intervention by counsel for the accused. The Crown submits that when the Justice of the Peace referred in her ruling to the fact that Ms. Burrows had no assets, she erred in allowing defence counsel to present evidence and to change the proposed release plan.

[47] The Crown also submits that the Justice of the Peace erred in failing to address s. 515(1) of the Criminal Code and to put on the record whether detention was necessary to maintain confidence in the administration of justice. In the alternative, the Crown submits that the decision to release the accused was inappropriate because the evidence supports a finding that detention of the accused was necessary on the tertiary ground.

Discussion

[48] As observed by Wagner J. in R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 6, because a decision whether to order the pre-trial release of an accused involves a delicate balancing of all the circumstances, the power of a judge reviewing that decision under s. 520 or s. 521 of the Criminal Code is not open ended. Exercising that power will be justified in only three situations:

(1) where there is admissible new evidence; (2) where the impugned decision contains an error in law; or (3) where the decision is clearly inappropriate.

[49] With respect to the tertiary ground, s. 515(10)(c) of the Criminal Code refers to four circumstances that must be considered by a justice in determining whether the detention of the accused is necessary to maintain confidence in the administration of justice. The justice must assess and balance each of those circumstances:

(1) the apparent strength of the prosecution’s case; (2) the gravity of the offence; (3) the circumstances surrounding the commission of the offence, including whether a firearm was used; and (4) the fact that the accused is liable for a potentially lengthy period of imprisonment.

[50] These listed circumstances are not exhaustive. They are the main factors to be balanced by the justice, together with any other relevant factors, in determining whether a reasonable member of the community would be satisfied that detention is necessary to maintain confidence in the administration of justice.

[51] Wagner J. noted, at para. 70, that it is important not to overlook the fact that in Canadian law the release of the accused person is the cardinal rule and detention the exception.

[52] I am satisfied that the Justice of the Peace was aware of the principles of law that she had to consider in determining whether the accused should be released or detained.

[53] She spoke of the need to balance the relevant circumstances. She expressly referred to the four circumstances set out in s. 515(10)(c) of the Criminal Code. She referred to evidence with respect to each of those circumstances. There can be no question that she was alive to the issue of the tertiary ground and the governing principles. Similarly, she expressly referred to the factors relating to the secondary ground and the evidence in that regard. In fact, she expressed the view that the Crown had a strong case on each of those two grounds.

[54] With the guiding principles on the tertiary and secondary grounds, and the evidence that applied, clearly within her consideration, the Justice of the Peace nevertheless concluded that the release plan that she crafted would satisfy those principles.

[55] I cannot say that there was an error in law arising from a failure to appreciate the guiding principles or a failure to consider them. The Justice of the Peace gave express regard to the relevant circumstances that she was required to address.

[56] The Crown’s focus on the bail review hearing was that an error in law arose when the Justice of the Peace permitted defence counsel to submit, during the course of the Justice of the Peace’s ruling, that Ms. Burrows post a cash deposit. As noted above, the Justice of the Peace had been concerned that she could not effectively bind Ms. Burrows as a surety because she did not have assets.

[57] I do not find that this was an error in law that would permit me to set aside the decision of the Justice of the Peace. The submission of defence counsel was not an inappropriate interruption of the ruling of the Justice of the Peace. It was in answer to a question posed by the Justice of the Peace – “So in good faith, how do I bind someone to an amount of money they don’t have access to?” The concern of the Justice of the Peace was that to bind Ms. Burrows to an asset was meaningless because she had no assets.

[58] Defence counsel suggested in response to the question that the Justice of the Peace could require Ms. Burrows to come up with a cash deposit, or she could also name another person, with assets, as a surety.

[59] The Crown, quite understandably, objected at this juncture of proceedings to the naming of another surety when they had had no opportunity to cross-examine a new surety. As the Crown stated, “We don’t know who they are, what they’re, what they’re about, what controls, etcetera.”

[60] However, requiring Ms. Burrows to post $5,000 cash was not substituting or adding a new surety. Ms. Burrows had been cross-examined, at length by the Crown at the bail hearing. The addition of a cash deposit did not change the essential qualities of Ms. Burrows as a surety. The Justice of the Peace, who had the advantage of seeing Ms. Burrows under examination and cross-examination, expressed herself satisfied that Ms. Burrows understood her role as a surety and would act responsibly. There is nothing in the record that would allow me to substitute my view as to her suitability as a surety.

[61] The suggestion by defence counsel of a deposit was not introduction of new evidence. It was giving the Justice of the Peace a path to resolving what she had identified as an issue that concerned her. It was open to the Crown, during its objection, to say why a deposit was not a reasonable answer to the question of the Justice of the Peace. I accept that it would have been an entirely different matter, and prejudicial to the Crown, if at that stage new evidence or a new surety had been introduced.

[62] Was the decision “clearly inappropriate?” In my view, that test has not been met.

[63] It is not my role to substitute my assessment of the evidence for the assessment of the Justice of the Peace. The release plan is strong. The accused must be in the company of Ms. Burrows, whom the Justice of the Peace found to be a knowledgeable, responsible surety, 24 hours a day and amenable to her rules in addition to complying with the conditions imposed by the court. The potential financial penalty of $5,000 is significant in light of this family’s limited financial circumstances.

[64] The accused suffers from bipolar disorder. He is on medication. Ms. Burrows is in a good position to ensure that the accused takes his medication. Ms. Hogan attributed the accused’s violent behaviour to his bipolar disorder. As noted by defence counsel, the accused’s compliance with his course of medication is probably better monitored by Ms. Burrows, who is with him 24 hours a day, than it would be in the District Jail.

Conclusion

[65] For the reasons given, the Crown’s application is dismissed.

_________ ”original signed by”_ ___ Regional Senior Justice D. C. Shaw

Released: August 31, 2016

COURT FILE NO.: CR-16-0029-BR DATE: 2016-08-31 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty The Queen, - and - Martin Robert Yorki a.k.a. Martin Kelly, Accused DECISION ON BAIL HEARING REVIEW Shaw R.S.J. Released: August 31, 2016 /mls