CITATION: R. v. Meekis, 2017 ONSC 4644
COURT FILE NO.: CR-17-71-BR
DATE: 2017-07-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. McKay, for the Crown (Respondent)
- and -
PRESTON MEEKIS
S. McDunnough, for the Accused (Applicant)
Accused (Applicant)
HEARD: July 25, 2017, at Kenora, Ontario
Mr. Justice F.B. Fitzpatrick
Judgment on Bail Review
[1] The applicant, Preston Meekis, seeks to vacate the Detention Order made by Justice of the Peace R. McCraw Jr. on June 26, 2017.
[2] Mr. Meekis currently faces a number of charges relating to two separate incidents. The first incident allegedly occurred on April 26, 2017 and involved an alleged domestic assault against Lynette Fiddler. The second incident allegedly occurred on or about May 30, 2017 and involved an alleged assault cause bodily harm to Lynette Fiddler, failure to comply with recognizance and uttering threats to Anton Fiddler. The second incident allegedly occurred while Mr. Meekis was on bail. As at the date of this decision, there has been no trial date set for these matters although I am advised that there are court dates available on September 11, 2017 and October 24, 2017 in the Ontario Court of Justice at Sandy Lake.
[3] Counsel for Mr. Meekis, Ms. McDunnough, argued that the Justice of the Peace made an error of law in deciding to order his continued detention pending trial. Further, Ms. McDunnough argued that the decision to detain was clearly inappropriate for four separate reasons. Those reasons are:
the Justice of the Peace gave excessive weight to the allegation of the use of alcohol being involved in the May 30, 2017 charges;
the Justice of the Peace failed to give sufficient weight to the fact that Mr. Meekis has no proven history of breaching release conditions, probation conditions or conditional sentence orders;
the Justice of the Peace failed to give sufficient weight to the fact that the alleged offending behaviour was targeted primarily towards one individual and therefore there is no broad public safety concern; and
the Justice of the Peace failed to give sufficient weight to the fact the release plan proposed by Mr. Meekis would place Mr. Meekis a significant distance away from the community where Ms. Fiddler resides.
[4] Counsel for Mr. Meekis attempted to place before the court two other transcripts of bail decisions by Justice of the Peace R. McCraw Jr. that just happened to occur in March 2017. They were in respect of completely unrelated matters. Counsel for Mr. Meekis attempted to submit that these other decisions would “show a pattern” of the conduct of Justice of the Peace R. McCraw that would be of probative value to the proceeding before the court.
[5] The Crown objected to the introduction of this evidence. I declined to accept this evidence in to the record. To do so in my view would have been inappropriate. It was not relevant to this proceeding. The decision of a judicial officer in an unrelated matter has no probative value for the consideration of their reasoning in a particular case at bar. Counsel could provide no authority supporting this type of argument. I was not surprised. I had not reviewed these transcripts prior to the commencement of argument. This was fortunate as this particular aspect of Mr. Meekis’ application accordingly did not take up a great deal of the court’s time. Counsel may want to reconsider raising such arguments or attempting to place such evidence before the court on bail reviews in the future.
[6] The Crown resists Mr. Meekis’ application. The Crown submits the decision of the Justice of the Peace contains no errors of law, and the decision to detain was not clearly inappropriate.
[7] The grounds for detention are set out in section 515(10) of the Criminal Code. At the hearing before the Justice of the Peace, Mr. Meekis was entitled to a presumption of innocence of all charges before the Court. However, as the bail hearing arose as the result of an alleged breach of an earlier judicial interim release, s. 524 of the Criminal Code provided that Mr. Meekis bore the onus at the hearing to show cause why his detention was no longer justified. Justice of the Peace R. McCraw Jr. ordered Mr. Meekis’ continued detention on the basis of the secondary grounds; that is, he found there was a substantial likelihood that Mr. Meekis would reoffend or interfere with the administration of justice.
[8] The jurisdiction for this Court to review the detention order at issue is contained in section 520 of the Criminal Code. The test for successfully entertaining such an application was thoroughly and succinctly set out by the Supreme Court of Canada in the decision R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328. At paragraph 92, Wagner J. stated:
For the reasons that follow, I am of the opinion that ss. 520 and 521 Cr. C do not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning the detention or release of the accused. Nonetheless, they establish a hybrid remedy and therefore provide greater scope than an appeal for varying the initial order.
[9] This Court may exercise its power to review in three situations. As Wagner J. set out at paragraph 121:
121 It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10)(c) Cr. C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr. C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.
[10] The defence did not argue that the decision of the Justice of the Peace offended the third branch of the test; that is, new evidence was submitted on the review hearing that showed a material or relevant change in the circumstances of the case.
[11] I will address first the issue of whether or not the decision of the Justice of the Peace was based on an error of law.
[12] In this matter, the reasons for decision of the Justice of the Peace were not particularly lengthy. Counsel for Mr. Meekis has focused on several comments to argue that the Justice of the Peace erred in law by in effect finding Mr. Meekis guilty of the breach offences that were before him before moving on to an assessment of whether or not he had satisfied the Court that his detention was not justified. In particular, Ms. McDunnough pointed to the following passages in the transcript of the bail hearing that was provided to the Court:
-Page 22- The individual has - had his opportunity. The surety has done their job, everybody has tried to help him and it is too - in too close proximity and the concerns the Court had - has is, though the offering of the Northland Supportive Housing has been offered outside of the community, and - however, when counsel indicated in her submissions that this - he has never breached or he has never indicated that there is no, no evidence, on record, that he
- Page 23 – would repeat or not listen to what was going to happen if he did not abide by the conditions. Well, he did not listen. He had a surety and the surety was the one that had to call that he was drinking and while that was all happening, he had breached the issues that are before the Court. So that argument of he would listen, whether it be Northland, he would not listen when he was with surety, I don’t believe he would listen when he is at the Northland and he will be remanded in custody based on that information in regards to Morales, the evidence that was given to this Court – not Morales, Antic, the accused is presumed innocent, yes, well agree to that. However, there comes a point in time when the individual just does not want to listen and I feel that the Court, after the release to a surety, whether it be in his community, outside of the community, he still, in a short proximity of time, breached those same conditions again. Nothing was indicated to this Court about alcohol
- was involved - alleged in both instances and there is nothing before the Court other than you cannot drink at Northland Supportive Housing. (Transcript of hearing pages 22 – 23 emphasis added)
[13] With respect to the first quote, (“well he did not listen…he had breached the issues that are before the Court”) I am of the view that the words used do not indicate that the Justice of the Peace had decided that Mr. Meekis was guilty of the breaches at issue. In my view had the Justice of the Peace simply used the words “allegedly” to modify the words “he had breached,” there would be no issue. I believe the context in which the words were spoken is important to understand exactly what was meant.
[14] At page 20 lines 11 through 17 the Justice of the Peace does use the phrase “allegedly” when referring to the victim and the allegations against Mr. Meekis. Also the Justice of the Peace did clearly acknowledge the presumption of innocence in his reasons, at Page 23 lines 13 and 14 quoted above. I do not accept the submission that he was merely “paying lip service” to the principle as suggested by counsel for Mr. Meekis.
[15] As recognized by the Supreme Court in the St-Cloud decision, supra, at paragraph 127, the bail process is conducted in a very summary, expeditious fashion. Justices of the Peace hearing these matters do not have the luxury of sitting back and carefully crafting written judgments when faced with the large case load that greets them every day.
[16] It would be quite an exceptional thing for a person in the position of a Justice of the Peace to set aside the very fundamental presumption of innocence in the context of a bail application. I am sure it can happen. I just do not think it happened in this case.
[17] I am persuaded by the argument of the Crown that what the Justice of the Peace was doing was not pronouncing guilt, or even giving his views on that precise issue, but rather setting out the factual matrix which presented itself on the application for bail. I have considered the reasons in their entirety. In my view, the Justice of the Peace was simply setting out the basis for the Crown opposition to bail rather than his own assessment of the guilt or innocence of Mr. Meekis. That matter was not before him. In order for such a finding to be made on a bail review, I am of the view that more clear words would have been required to have been pronounced for me to accept the submission of the defence that Justice of the Peace R. McCraw Jr. committed an error of law by putting aside the presumption of innocence in favour of Mr. Meekis while considering his application for bail.
[18] With respect to the second quote, (“he still in short proximity, breached those conditions again”) I find that these words also represented something more in the nature of a recitation of the factual matrix that was presenting itself about events that led Mr. Meekis to be before the Court. This is to be contrasted to a finding of guilt, which would represent an error of law. However, overall, I find that the reasoning of the Justice of the Peace does not reveal he committed an error of law in the treatment of the presumption of innocence of Mr. Meekis.
[19] I turn now to a discussion of the submissions by Mr. Meekis that the decision to order detention pending trial was clearly inappropriate. With respect to the defence’s first point, that of the reference to alcohol being involved in the May 30 alleged incident, I accept Mr. Meekis’ argument that Justice of the Peace R. McCraw Jr. was clearly in error to draw any inference from the fact that alcohol was involved in the alleged second set of circumstances. Mr. Meekis was not prohibited from consuming alcohol by the terms of his initial release. Even if proven he was consuming alcohol at the time of the alleged breach of recognizance, that fact is no basis for any adverse finding against Mr. Meekis relative to his original bail conditions.
[20] With respect to the second point on the “clearly inappropriate issue” raised by Mr. Meekis, there is also no question Mr. Meekis has no proven history of breaching release conditions, probation conditions or conditional sentence orders. This in my view does strengthen the argument of Mr. Meekis that he can rely on his presumed innocence to mitigate against any argument that there is a substantial likelihood he would reoffend if released pursuant to his new plan to spend his pre-trial time living at Northland Supportive Housing in Kenora.
[21] With regard to the third point, I am not prepared to accept that the allegations against Mr. Meekis do not raise some concerns about public safety and particularly the safety of the alleged victim to both offences. The allegations of the circumstances of breach are specific to the victim of the alleged first offence. Considerations of the safety of the victim is expressly contained in section 515(10)(b), the secondary grounds upon which Justice of the Peace R. McCraw JR. decided to order pre-trial detention on June 26, 2017.
[22] In my view, Mr. Meekis’ best argument concerning the propriety of the decision of the Justice of the Peace comes from his fourth point. The proposal for Mr. Meekis to live at Northland Supportive Housing does place him a significant, and in my view, appropriate distance from the place where the second set of offences are alleged to have occurred and where the victim currently resides. This situation is somewhat unique to our region, when compared to the more densely populated urban regions of Canada. Sandy Lake is fly-in only at this time of the year. It seems to me likely the trial will occur at least by October, well before the winter roads are constructed. In my view, if released as he proposes, Mr. Meekis would have a very difficult time getting access to Sandy Lake pending trial if somehow he decided to breach.
[23] I am mindful of the very clear directions regarding bail articulated recently by the Supreme Court of Canada in R v. Antic, 2017 SCC 27, [2017] S.C.J. No 27 at paragraph 66. R. Wagner J wrote:
[66] It is time to ensure that the bail provisions are applied consistently and fairly. The stakes are too high for anything less. Pre-trial custody “affects the mental, social, and physical life of the accused and his family” and may also have a “substantial impact on the result of the trial itself”: Friedland, Detention before Trial, at p. 172, quoted in Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857, at para. 24; see also Hall, at para. 59. An accused is presumed innocent and must not find it necessary to plead guilty solely to secure his or her release, nor must an accused needlessly suffer on being released: CCLA Report, at p. 3. Courts must respect the presumption of innocence, “a hallowed principle lying at the very heart of criminal law. . . [that] confirms our faith in humankind”: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at pp. 119-20.
[24] The Antic decision reaffirmed that the statutory right to bail is a constitutional right. While the Antic decision was focused mainly on the practice of requiring a cash bail, it did emphasize the importance of the so-called “ladder principle” in the bail process. At paragraphs 29 and 30, R. Wagner J. stated:
[29] The Bail Reform Act also codified what is now known as the “ladder principle”. This Act set out possible forms of release, which were ordered from the least to the most onerous. The ladder principle generally requires that a justice not order a more onerous form of release unless the Crown shows why a less onerous form is inappropriate. In other words, the ladder principle means “that release is favoured at the earliest reasonable opportunity and. . . on the least onerous grounds”: R. v. Anoussis, 2008 QCCQ 8100, 242 C.C.C. (3d) 113, at para. 23, per Healy J.C.Q. (as he then was).
[30] The ladder principle and the authorized forms of release remain a central part of the Canadian law of bail and are now enumerated in s. 515(1) to (3) of the Code. In the Code, the possibility of requiring a cash deposit is limited to the two most onerous forms of release: s. 515(2)(d) and (e).
[25] Mr. Meekis’ case presents a “ladder” that is somewhat unique. In my view, his plan to stay out of Sandy Lake and reside in a facility with strict rules in Kenora clearly recognizes the secondary ground concerns of reoffending which motivated the Justice of the Peace to order continued detention. Mr. Meekis will be out of his home community in a place which restricts his freedom to a degree. Mr. Meekis’ plan therefore benefits from the fact that access to Mr. Meekis’ home community is complicated by the necessity of air travel at all times of the year save the winter. In my view, the option presented by him is another “rung up the ladder” from the original bail conditions imposed, but is “one rung down the ladder” from actual detention in a provincial penal facility.
[26] It seems to me the tenor of the decision of Antic presents a very strong message in favour of granting bail. I appreciate the circumstances of this case are somewhat modified as there is a reverse onus on Mr. Meekis. However, I find that the proposal he put forward to reside in the Northland Supportive Housing was sufficient to satisfy the concerns presented by the allegations of breach and yet at the same time were a legitimate and less onerous vehicle by which his constitutional right to be granted interim release could be balanced against society’s legitimate public safety interest. I therefore find that the Justice of the Peace gave insufficient weight to this relevant factor.
[27] In my view, the decision to detain was therefore clearly inappropriate. Accordingly I have the authority to vacate the order of Justice of the Peace R. McCraw Jr. and impose such terms as I consider are warranted.
[28] While I prepared to accept in the main the proposal put forward by Mr. Meekis on this review, I am not prepared to provide that he may travel outside the city of Kenora for any reason pending trial except to attend court. This is in the interests of public safety. Further, given the allegations of the role alcohol may have played in the commission of the second offence, I find it is appropriate that Mr. Meekis not consume alcohol while on bail. Accordingly, this application is therefore granted to the extent Mr. Meekis is to be released today on the following conditons:
He is to reside at Northland Supportive Housing pending trial;
He is to obey the rules of Northland Supportive Housing while residing there;
He shall maintain a curfew of 10 p.m. to 6 a.m. and remain within the city limits of the town of Kenora except:
i. Medical emergencies involving himself;
ii. Travelling to, from and at scheduled medical treatment for himself;
iii. While travelling to, from and while at work;
Not to attend Sandy Lake except for court purposes;
To attend any and all court appearances at the times scheduled;
Not to contact Lynette Fiddler or Anton Fiddler;
Not to come within 50 metres of Lynette Fiddler or Anton Fiddler except for court purposes;
Not to consume alcohol or be at a commercial premises where the service of alcohol is the primary purpose of the establishment;
Not to possess any weapons as defined by the Criminal Code.
Order to go accordingly.
The Hon. Mr. Justice F.B. Fitzpatrick
Released: July 31, 2017
CITATION: R. v. Meekis, 2017 ONSC 4644
COURT FILE NO.: CR-17-71-BR
DATE: 2017-07-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
PRESTON MEEKIS
Accused (Applicant)
JUDGMENT ON BAIL REVIEW
Fitzpatrick J.
Released: July 31, 2017
/sab