Court File and Parties
Court File No.: 17-9122-BR Date: 2017/03/23 Superior Court of Justice - Ontario
Re: Her Majesty the Queen v. Dylen Meulmeester
Before: Justice Robert J. Smith
Counsel: Ms. Schriek, for the Crown Ms. Robinson, for the Accused
Heard: March 6, 2017
Endorsement – Bail Review
[1] The accused has brought an application to review the decision of the Justice of the Peace refusing to grant him bail based on a material change in circumstances.
[2] At his initial bail hearing, the applicant had proposed his girlfriend as a surety. His surety testified that the applicant had an alcohol problem but as far as she knew, he did not have a drug problem.
Justice of the Peace’s Decision
[3] The Justice of the Peace detained the applicant on both the secondary and tertiary grounds but offered limited analysis with respect to the tertiary ground. The Justice of the Peace stated that you would have to believe in fictional characters like the Easter Bunny or Santa Claus to release the accused based on the plan he presented. I infer from her reasons that she found that the plan proposed by the accused was unbelievable and as a result detained him on both the secondary and tertiary grounds.
Material Change of Circumstances
[4] The accused has presented a different plan from that offered at this initial bail hearing, namely, that he be released to Harvest House, which is a substance abuse treatment centre.
[5] The first issue to decide is whether there has been a material change in circumstances for the accused.
[6] In R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the Supreme Court of Canada stated that the four (4) criteria from Palmer v. The Queen, [1980] 1 S.C.R. 759, for admitting new evidence on appeal should be applied to determine if there has been a material change in circumstances.
[7] The Crown agrees that the proposed plan meets the first two, namely, that it could not have been adduced at the bail hearing and it is relevant. The Crown argues that the proposed plan fails to meet criteria number 3 and 4.
Criteria #3: Is the evidence credible?
[8] I am satisfied that the plan and the fact that the accused has an addiction to alcohol is reasonably capable of belief for the following reasons:
a) The accused has advised the intake officer that he was addicted to alcohol when he filled in the intake form. In addition, he also stated that he consumed cocaine and speed, one to five times per week, and party drugs, one to three times per month; b) The accused’s girlfriend testified at the bail hearing that the accused had a problem with alcohol; and c) A court in Gatineau recently ordered his release on a condition that he attend addictions counselling.
[9] This case in distinguishable from R. v. Toussaint (15 February 2017), Ottawa 17-1815 (Ont. S.C.), where the accused led evidence at his bail hearing that he had no addiction issues, and then claimed to have addiction issues at the bail review hearing. In this case, the evidence of Mr. Meulmeester’s proposed surety is that he had a problem with alcohol.
Criteria #4: Would the new evidence have affected the result?
[10] In para. 137 of St. Cloud, the Supreme Court of Canada stated the fourth criteria as follows:
…is it reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing excuse engaged in by the Justice under s. 515(10)(c). The new evidence must be significant.
[11] The proposed new evidence is that the accused has been accepted into the Harvest House addiction treatment centre. At this centre, residents receive treatment for their addiction for one year and are monitored on a 24/7 basis by staff. If they leave the residence, the police are notified immediately.
[12] The proposed plan provides constant monitoring of the accused by independent staff in addition to the treatment program. This is significant as it meets the secondary ground as it removes the risk that the accused will reoffend while released.
Disposition of Change of Circumstances
[13] I am satisfied that this new evidence is significant and would have affected the balancing exercise. For the above reasons, I find that there is a material change in circumstances in the plan now presented by the accused.
Secondary Ground
[14] I am satisfied that notwithstanding the accused’s lengthy criminal record, including crimes of dishonesty, serious criminal offences, and approximately 8 breaches of probation, recognizances, or undertakings that the release to Harvest House with 24/7 monitoring by independent employees, that his detention is not necessary for the protection or safety of the public. I also find that with this level of supervision, there is not a substantial likelihood that the accused will reoffend or interfere with the administration of justice if he is released to the Harvest House treatment centre.
Tertiary Ground
[15] The Justice of the Peace previously detained the accused on the secondary ground; she also detained him on the tertiary ground. The tertiary ground requires the consideration of the following factors:
a) Strength of the prosecution’s case; b) Gravity of the offence; c) Circumstances and whether a firearm was used; and d) The fact that the accused is liable for a lengthy period of incarceration if convicted.
[16] In this case, the Crown has a relatively strong case, but identity is an arguable issue for trial. The offence is serious and involved the use of a firearm and the accused is liable for a lengthy period of incarceration if convicted.
[17] As quoted in para. 68 of St. Cloud, the Chief Justice at para. 41 of R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, said:
At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice.
Maintaining Confidence of Public in Administration of Justice
[18] I am satisfied that in all the circumstances of this case, the confidence of the public in the administration of justice would be maintained by granting the accused bail on the condition that he remain at the Harvest House treatment center for the following reasons:
a) The accused will be monitored by independent employees on a 24/7 basis; b) The police will be immediately informed of any breach of Harvest House’s rules and he will be rearrested; c) He has admitted that he has an addiction problem with alcohol and he will be able to obtain treatment; d) He is a young man of 23-24 years of age and this is his first attempt at treatment; e) Only 25% of the residents successfully complete the one year program at Harvest House, and as a result, there is a substantial chance that the treatment program may not be successful. However, there is a 25% chance, which is substantial, that the treatment program may be successful for this accused. If successful, this would be a great benefit to the accused and to the security and safety of the public.
[19] When balancing all of the factors, I find that public confidence in the administration of justice would be maintained and enhanced by granting bail to allow the accused to live at, be monitored, and obtain treatment for his addiction issues at Harvest House.
Conditions
a) To remain at Harvest House; b) No consumption of alcohol; c) Not to contact individuals identified by the Crown; d) $1500 recognizance bond
Justice Robert J. Smith Date: March 23, 2017