Court File and Parties
COURT FILE NO.: 11478 DATE: 2016/10/18
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen – and – Brennan Nicholas Defendant
COUNSEL: James Spangenberg, for the Crown Brian Eberdt, for the Defendant
HEARD: September 13, 14 and 21, 2016
rady j.
Reasons for Judgment
[1] Mr. Nicholas is charged with first degree murder. The issue presented in this case had to do with a non-communication order and Mr. Nicholas’ application to change its terms. I heard initial submissions on September 13, 2016. Those submissions centred on the mechanism for reviewing such orders. On the following day, as a result of questions raised with counsel, the matter was adjourned. On September 21, 2016, additional submissions from counsel were made respecting the court’s power to review a non-communication order made by a justice of the peace. I provided my ruling orally and reserved the right to augment my reasons in writing.
[2] As originally framed, Mr. Nicholas had applied for an order changing the terms of an order dated October 23, 2015 made by Justice of the Peace Ziegler, said to be made pursuant to s. 516 of the Criminal Code of Canada prohibiting him from communicating with certain family members, including his father and mother, two brothers, a sister and two cousins. The order was made before the case was adjourned and Mr. Nicholas was remanded in custody.
[3] The order was subsequently amended on consent to remove some but not all of those individuals covered by the order. The accused subsequently brought this application.
[4] At the outset of the hearing, I was advised that the Crown consented to an alteration respecting the siblings and cousins – in other words removing that part of the non-communication order affecting them. However, the Crown maintained its position respecting Mr. Nicholas’ mother, Denise Desormeaux.
[5] The Crown took the position that there is a risk Ms. Desormeaux will interfere with the administration of justice given certain past events – her lack of cooperation on a 911 call; her interference when police came to arrest her son on a robbery charge; and her exaggeration of his mental health issues to health care providers said to be designed to assist him in avoiding trial on the robbery charge.
[6] Counsel for Mr. Nicholas emphasized his client’s close and supportive relationship with his mother, his youth, his vulnerability given his mental health issues, the difficult situation in which he finds himself, both in terms of the serious charge against him but also his confinement at Elgin Middlesex Detention Centre, as well as his aboriginal heritage status as a member of the Oneida Nation of the Thames.
[7] Mr. Nicholas is charged with the first degree murder of Carson Ireland, which is alleged to have occurred on December 21, 2014.
[8] Ms. Desmoreaux and her son had not spoken since his arrest in October 2015. She is First Nations woman also living on the Oneida First Nation. She was born in Canada and has no criminal record. Indeed, I understand that she has never been charged with an offence.
[9] She is an educated woman with a master’s degree in social work and she works as a community development specialist with a neighbouring First Nation.
[10] Ms. Desormeaux swore an affidavit in support of this application. Paras. 7 and 8 are of particular importance. She deposed:
In First Nations culture, family comes first and is always there in times of need. I love my son. Our forced separation is a spiritually painful and harmful experience for me. I am sure that it is the same for him. Like all First Nations people, I have a spiritual bond with my children and now am physically separated from Brennan and cannot see him or talk to him at the most vulnerable time in his life. He has not seen or spoken to me for more than nine months. I have only seen him through a video screen for fleeting moments at his video court appearances but he cannot see me.
Brennan is separated from his family and community. He is only allowed to see and talk to two members of his immediate family [as the order, as amended originally stipulated]. This is not right. I need to be there for him and he needs to know this. His court proceedings must be a long and difficult process for him. He needs my support to keep him strong. He needs me as his mother, to visit him, to talk with him, to tell him stories and to be the loving mother I am. He needs to have the same contact with other family members.
[11] Part of the evidence included a copy of the Gladue report filed in connection with Mr. Nicholas’ sentencing hearing following his conviction on the robbery charge. I will return to it later.
[12] The Crown filed a synopsis respecting the murder investigation; an excerpt from an officer’s duty book notes regarding Mr. Nicholas’ arrest on the robbery charge; a transcript of a 911 call initiated by Mr. Nicholas about the robbery and his mother’s subsequent discussion with the operator; and an excerpt of a voir dire conducted during the trial of the robbery charge by Justice Morissette.
[13] The notes and two transcripts were said to support the Crown’s contention that Ms. Desmormeaux is hostile to police; she exaggerates her son’s mental health challenges to shield him from the court process; and interferes with the legal process. The Crown was candid to say that she is most unlikely to be a prosecution witness at trial.
[14] As I have said, the application was framed as an application to vary the non-communication order said to be made under s. 516(2). The section provides as follows:
(1) A justice may, before or at any time during the course of any proceedings under section 515, on application by the prosecutor or the accused, adjourn the proceedings and remand the accused to custody in prison by warrant in Form 19, but no adjournment shall be for more than three clear days except with the consent of the accused.
(2) A justice who remands an accused to custody under subsection (1) or subsection 515(11) may order that the accused abstain from communicating directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with any conditions specified in the order that the justice considers necessary.
[15] As originally argued, the issue was the mechanism to review such an order. Either s. 520 or s. 521 provides for a review of orders made only under s. 515(1) (2) (5) (6) (7) (8) or (12).
[16] Section 515(4)(d) (conditions imposed under s. 515(2)) and s. 515(12) provide for non-communication orders to be made when an accused either is released or detained following a bail hearing. Both review sections provide that the provisions of s. 517, 518 and 519 also apply with appropriate modifications. Section 516 pertains to proceedings that are underway pursuant to s. 515 and the power to adjourn the hearing.
[17] There appears to be no explicit review mechanism for orders made under s. 516. That being so, Mr. Eberdt submitted that the application was in the nature of certiorari or habeas corpus.
[18] It appeared to me that counsel overlooked a relevant section of the Code. Section 515(11) and (12) provide as follows:
(11) Where an accused who is charged with an offence mentioned in section 469 is taken before a justice, the justice shall order that the accused be detained in custody until he is dealt with according to law and shall issue a warrant in Form 8 for the committal of the accused.
(12) A justice who orders that an accused be detained in custody under this section may include in the order a direction that the accused abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, except in accordance with such conditions specified in the order as the justice considers necessary.
[19] First degree murder is an offence under s. 469. Any non-communication order must be made under s. 515(12), which as already noted, is explicitly subject to review. The lack of review mechanism for a s. 516 order is likely explained by the fact that the power to detain under this section is very brief and any order made thereunder is overtaken by the subsequent hearing under the relevant subsection of s. 515.
[20] In my view, the type of order sought by the Crown at first instance was mischaracterized – an error not discerned by counsel (not Mr. Spangenberg or Mr. Eberdt) or the court at that time. It was not an order under s. 516(2). Given the charge, any order would have to be made under s. 515(12). It follows that the order of the Justice of the Peace was made without jurisdiction.
[21] Jurisdiction in this court having now been established, I turn to the merits of what is now the Crown’s application. In my view, there is no compelling or persuasive reason why Mr. Nicolas should not be permitted to communicate with his mother. I am not persuaded that Ms. Desormeaux poses a risk of interference with the court process or its proper administration. It is true that she did not wish police to come to her home in response to the 911 call. I cannot read any improper or sinister motivation in that. Her mistrust of police is something to which I return later.
[22] She did interfere with the police when they came to arrest her son. She was arrested but never charged, suggesting to me that her intervention was not viewed as either criminal or serious enough to warrant a charge. Moreover, given the background outlined in the Gladue report, her son’s mental health problems, his youth, his vulnerability – her reaction is perhaps understandable.
[23] I am not certain it is fair to characterize her description of her son’s mental health concerns to doctors were deliberately exaggerated for a sinister reason and it appears to me that she was advocating for him to ensure he received the care he needed. Context is important and a review of the entire transcript of the voir dire supports that conclusion.
[24] Even assuming that Ms. Desormeaux bears hostile feelings toward police; acted protectively but inappropriately of her son; sought to shield him from police questioning; or even exaggerated her son’s mental health problems, I do not agree that this means she would or would likely or would possibly interfere with the proceedings currently before the court.
[25] Some explanation for her feelings of mistrust of police are gleaned from the material filed by the Crown and addressed more directly in the Gladue report. And I have already discussed the other issues. As already noted, context is important.
[26] One can readily understand Ms. Desormeaux’s desire to protect the Gladue report where Ms. Desormeaux is described as “particularly” loving and caring. She described the conflicts and tensions in their community. She also described Mr. Nicolas’ mental health problems, which in my view, are significant. His circumstances at EMDC are outlined. All of this provides insight into her motivation, which does not logically lead to the conclusion that the Crown suggests.
[27] In summary, I see no rational basis on which the non-communication order is justified. Mr. Nicholas needs the support of his mother and the ability to communicate with her as he faces this very serious charge and the lengthy legal process that lies ahead.
Justice H. A. Rady
Released: October 18, 2016