Reasons for Decision on Bail Review Application

[1] On Friday, September 1, 2017 I heard an application brought by the accused, Mr. Wanakamik (the “Applicant”) for his release pending his trial. On September 8, 2017 in an oral decision, I released the Applicant with these written reasons to follow.

[2] The charges that bring this Applicant before the court stem from an incident on July 14, 2017. The Applicant is accused of committing the offences of possession of a weapon for a dangerous purpose contrary to s. 88 of the Criminal Code and reckless discharge of a firearm contrary to s. 244.2(1)(a) of the Criminal Code.

[3] The Applicant appeared at a bail hearing on July 25, 2017 before Justice of the Peace J. Guthrie and was detained under s. 515(10)(c), the tertiary ground.

[4] The Applicant seeks a review of the detention order on the basis that the Justice of the Peace erred in law when concluding the Applicant should be detained. The application is made pursuant to s. 520 of the Criminal Code.

[5] The Applicant alleges that the Justice of the Peace erred by:

a) failing to justify the Applicant’s detention under any of the three grounds set out under s. 515(10) (the primary, secondary or tertiary);

b) failing to adequately provide an analysis of the facts of the incident that led to the Applicant’s arrest and how they related to the principles under s. 515(10);

c) basing his decision to detain on the safety of the public under s. 515(13), when that issue, the secondary ground, was not raised by the Crown under s. 515(10)(b);

d) failing to explain why the proposed terms of release would not ameliorate his concern about the Applicant posing a danger to the public;

e) placing too high an evidentiary burden on the Applicant to justify why interim release ought to be granted; and

f) not considering the mental health and family support systems that were already in place for the Applicant, that would help to ensure public safety.

Crown’s Summary of Facts

[6] The Applicant is a member of the Pays Plat First Nation, a community of approximately 200 members, of which approximately 100 live on the reserve. He resides with his wife and their young child.

[7] The Applicant is employed in the community as the Water Treatment Plant Operator. He has held this position since 1997.

[8] The Applicant has struggled with addiction and mental health issues, primarily depression. However, for the 2.5 years prior to this incident, the Applicant had been maintaining his sobriety after attending an addiction treatment program in Thunder Bay and with the assistance of AA meetings, an addiction counsellor and his family doctor.

[9] In May 2017 the Applicant became depressed due to the anniversary of his father’s death that had occurred in May some years previously, and he began consuming alcohol.

[10] On or about July 11, 2017 the Applicant, at his request, was admitted to the Nipigon District Memorial Hospital seeking assistance with withdrawal symptoms as he tried to stop drinking. His wife Kimberly Gallerno brought him to the hospital. He then asked to be discharged the next day over the objections of Ms. Gallerno.

[11] Ms. Gallerno attempted to prevent his discharge from the hospital on mental health grounds. She informed the staff that the Applicant was posting statements on his Facebook account that indicated he might harm himself, such as “I hate my life” and “everything’s coming to an end”. She was informed that the hospital was not able to keep him against his will and he was discharged.

[12] On July 14, 2017 the Applicant, after having consumed a large quantity of alcohol, called 911 and told the operator that he was going to shoot himself. He explained that he had a loaded .22 calibre gun with him and that he had been drinking and having a bad week. He also told the operator that he would fire at the police officers who responded to the call in an attempt to get them to shoot him.

[13] The Applicant then fired four shots, one of the shots to the east of his residence where the community and the police were located and the other three shots in various other directions.

[14] Ms. Gallerno is also reported to have contacted 911 at about the same time and expressed her concerns about the Applicant’s mental health and informed the operator that he had a number of weapons inside the home. She was told to take their child and leave the home.

[15] The Applicant was apprehended without further incident and taken into custody under the Mental Health Act. He was transported first to the Nipigon District Memorial Hospital for assessment and then to the Thunder Bay Regional Health Sciences Centre for treatment. He was discharged to the Thunder Bay District Jail where he remained until his release on September 8, 2017.

[16] A search warrant of the Applicant’s residence resulted in the seizure of a number of firearms and other weapons and ammunition. Some of these belonged to the Applicant, others to Ms. Gallerno and a number to a friend who had asked the Applicant to store them for him.

The July 25, 2017 Bail Hearing

[17] At the bail hearing on July 25, 2017 the Crown sought detention under the tertiary ground as set out in s. 515(10)(c).

[18] The Crown’s position regarding the tertiary ground was that:

a) the proposed surety, the spouse of the Applicant, would also be a witness at trial and was therefore in a conflict of interest position;

b) the Applicant’s 2 year old child was in the home at the time of the incident and was potentially endangered;

c) there was a large number of firearms and ammunition in the home at the time of the incident; and

d) members of the public were put at risk.

[19] The Justice of the Peace confirmed there was a reverse onus on the Applicant under ss. 244 and 244.2 of the Code because a firearm was involved in the offences charged. In very brief reasons, the Justice of the Peace denied bail, citing the tertiary ground.

[20] The Justice of the Peace did not give effect to the Crown’s first concern that the proposed surety was the Applicant’s spouse. He found that she would be a good surety.

[21] In denying bail, the Justice of the Peace found that the proposed plan lacked necessary specifics regarding the intervention of medical professionals whom he found to be a necessary part of the release plan. He commented at para. 5 that “What I am concerned about is the fact that the plan presented does not actually present to the court anything more than words, having the support of the counsellor from Dilico… The concerns of the court are certainly about the danger to the public under 515(13), whereby I have to consider the safety of people like your two year old daughter; people like the others in the community of Pays Plat; people like the police officers that came to potentially be put in harm’s way…”

[22] Because the Justice of the Peace determined that the proposed plan did not address those concerns, he could not release the Applicant.

Review of the July 25, 2017 Bail Hearing and Reasons for Detention

[23] In this bail review, defence counsel alleges the Justice of the Peace erred as set out in para. 5 above. She alleges the Justice of the Peace erred in law in his evaluation of the tertiary ground under s. 515(1)(c).

[24] Defence counsel is not seeking a review based upon a material change in circumstances; however, she did bolster the evidence that was before the Justice of the Peace with letters from members of the Applicant’s family, medical professionals and the community to support the plan that was initially proposed.

[25] Section 515(10)(c) of the Criminal Code reads: “... the detention of an accused is justified ... on any just cause being shown and without limiting the generality of the foregoing, where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances, including the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding it’s commission and the potential for a lengthy term of imprisonment”.

[26] An accused has a right to bail guaranteed by the Canadian Charter of Rights and Freedoms and the Criminal Code and is presumed innocent. Therefore, the rights of the accused must be balanced against the intention expressed by the legislature in s. 515(1)(c).

[27] The Supreme Court of Canada case of R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 at paras. 57 through 71 sets out guiding principles for determining whether or not interim release is appropriate. The four factors set out in s. 515(10)(c) are not exhaustive and require a measure of balancing in order to determine whether the detention of the Applicant is necessary to maintain the public’s confidence in the administration of justice (St-Cloud, at para. 69).

[28] In considering the four factors under the tertiary ground, I note that the offences charged involved firearms including the unlawful discharge of a firearm. These are therefore serious offences. Parliament has taken care to stress the seriousness of the use of firearms in the commission of certain offences by the imposition of minimum sentences. Thus the potential for a long sentence on these charges, should they be proven, is relevant.

[29] In considering the circumstances surrounding the commission of the offences, the evidence was that there were loaded firearms in the home, one of which was fired indiscriminately without apparent consideration for the safety of the child in the home or the public and the police. This too is significant.

[30] However, I must not overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception. The cornerstone of Canadian Criminal law is the presumption of innocence guaranteed by s. 11(d) of the Charter (St-Cloud, at para. 70).

[31] While not mentioned by either the Crown or the defence in either the July 25 or the September 1, 2017 hearings, it is compulsory that the Justice consider the over-incarceration of Indigenous offenders by applying the Gladue considerations in every stage of a proceeding when the accused is of Indigenous heritage. This includes the initial decision affecting interim release of an accused.

[32] Winkler C.J.O. (as he then was), in R. v. Robinson, 2009 ONCA 205, 95 O.R. (3d) 309, described at para. 13 the application of Gladue to an interim release hearing:

Application of the Gladue principles would involve consideration of the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts. The exercise would involve consideration of the types of release plans, enforcement or control procedures and sanctions that would, because of his or her particular aboriginal heritage or connections, be appropriate in the circumstances of the offender and would satisfy the primary, secondary and tertiary grounds for release.

[33] I find that the Justice of the Peace failed to properly consider the circumstances surrounding the commission of the offence. No consideration was given to the Gladue factors and insufficient consideration was given to the Applicant’s personal circumstances notwithstanding that there was ample evidence of those personal circumstances before the Justice of the Peace. As a result, the Justice of the Peace erred at law in detaining the Applicant and the decision to detain the Applicant was clearly inappropriate.

[34] A full consideration of the Applicant’s personal circumstances in balancing the factors under s. 515(10)(c) demonstrates that the plan proposed would not undermine the public’s confidence in the administration of justice.

[35] The incident occurred when the Applicant was severely intoxicated. He has demonstrated from his past that he is able to maintain his sobriety if he utilizes the supports available to him. There was no suggestion by either the Crown or the Justice of the Peace that the Applicant poses a danger to the public when sober.

[36] The plan of release requires the Applicant to abstain from the consumption of alcohol and continue with medical treatment for substance abuse and depression. The record before the Justice of the Peace that was amplified before me, demonstrated that these supports are in place and the Applicant was prepared and ready to reengage with these services. The Justice of the Peace found that the Applicant’s spouse would be an appropriate surety, and I agree.

[37] It was also apparent from the evidence that the Applicant would be welcomed in the community. The Chief of Pays Plat First Nation supports his release and stated that the Applicant is needed in the community to return to his employment as the Water Maintenance Worker and Band Membership Clerk.

[38] Similarly, the release plan requires that the Applicant not possess or reside in a home where there are firearms or other weapons or ammunition. Ms. Gallerno, the proposed surety confirmed that all weapons were removed from the home by the police and that none will be permitted inside the home. There was no evidence to contradict this.

[39] I therefore find that interim detention is not justified on the tertiary grounds having regard to all of the relevant circumstances of this case at this time. The Applicant shall be released pending his trial upon the terms proposed together with any other reasonable terms the Crown may recommend.

”original signed by RSJ B. R. Warkentin”_

Madam Justice B. R. Warkentin, R.S.J.

Released: November 02, 2017

CITATION: R. v. Rene Wanakamik, 2017 ONSC 6567

COURT FILE NO.: CR-17-0051-BR

DATE: 2017-11-02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

RENE WANAKAMIK

Applicant

and –

HER MAJESTY THE QUEEN

Respondent

REASONS FOR DECISION

Warkentin R.S.J.

Released: November 02, 2017

R. v. Rene Wanakamik, 2017 ONSC 6567

Case Summary

Reasons for Decision on Bail Review Application

Crown’s Summary of Facts

The July 25, 2017 Bail Hearing

Review of the July 25, 2017 Bail Hearing and Reasons for Detention

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 2