R. v. McRae, 2017 ONSC 7145
CITATION: R. v. McRae, 2017 ONSC 7145
COURT FILE NO.: 15-M7871
DATE: 2017/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JOHN MCRAE
Applicant
COUNSEL:
M. Dufour, for the Respondent
J. Addelman, for the Applicant
HEARD: November 15, 2017
BAIL REVIEW DECISION
Kane J.
[1] Mr. McRae requests he be released from custody on bail pursuant to s. 520 on terms of recognizance previously ordered by this court.
[2] Mr. McRae is charged with second-degree murder pursuant to s. 235(1) of the Criminal Code, RSC 1985, Chap. C-46. The offence is alleged to have occurred on July 7, 2015. The victim is Mr. McRae’s son.
[3] The preliminary inquiry was held on April 3 – 6 and April 10 and 11, 2017 and resulted in committal to stand trial in Superior Court. The trial before a judge and jury is scheduled commence on May 7, 2018.
Background
[4] Mr. McRae is 73 years of age. His son at the time of death was 50 years old.
[5] The requirement to prove identity and actus reus in a charge of second-degree murder are not in issue in this case.
[6] On the date in question, there were threats, violence and drinking by the accused and his son. The son died after being stabbed and having his throat cut with a knife while asleep.
[7] Mr. McRae and his son at the relevant time were alcoholics. Mr. McRae had a prior lengthy period of sobriety which ended a few months before the stabbing. There is evidence that Mr. McRae was very drunk on the day and at the time of the stabbing.
[8] The defence of Mr. McRae includes intoxication and provocation relating to whether there existed the specific intent requirement for murder.
Prior Bail
[9] Following the stabbing, Mr. McRae had the police summoned, waited at the scene until they arrived and provided a statement. Mr. McRae was arrested on July 7, 2015 and detained in custody.
[10] Mr. McRae brought an application for bail which was argued in September, 2015. The Crown opposed bail being granted on all grounds, but particularly as to the secondary and tertiary grounds.
[11] Mr. McRae was released by this court on a recognizance of bail with sureties, bonds and conditions including house arrest on October 19, 2015.
[12] The October 2015 terms of bail recognizance included the conditions that:
a) Mr. McRae enter into a bond of $10,000, that his daughter T. McRae as surety provide a bond of $300,000, and that his granddaughter, M. Frank as surety provide a bond of $100,000;
b) he attend and complete the six month Ottawa Mission Stabilization and LifeHouse sobriety programs;
c) upon successful completion of the above programs, that he reside with his daughter surety T. McRae and not leave her residence; except in the company of that daughter surety or his granddaughter surety, or by prior court authorization, or to attend court as to this proceeding, or to meet with counsel, or for medical emergencies;
d) he abstain from the consumption of any alcohol, non-medically prescribed drugs; from possession of weapons as defined by the Code and knives other than for the preparation or the eating of food;
e) the Ottawa Police were given the right to attend the residence of Ms. McRae to determine the presence of Mr. McRae.
[13] The above bail terms were amended on November 5, 2015 to include a prohibition that Mr. McRae not communicate directly or indirectly with nor attend at the place of residence or work of 10 named individuals, nor attend within the 500 meters of 6632 Notre Dame Street, Ottawa.
[14] The Crown on January 26, 2016 sought leave pursuant to s. 680 of the Code from the Court of Appeal to appeal the October 19, 2015 decision granting bail on the tertiary ground. That Court on February 2, 2016 denied leave to appeal the decision granting bail and held that:
a) the alleged errors of law;
(i) that this court had underestimated the strength of the Crown’s case by overstating the viability of Mr. McRae’s defences;
(ii) that Mr. McRae’s stated defences, if applicable, would only reduce second-degree murder to manslaughter and this court had failed to consider that a lengthy term of imprisonment was inevitable; and
(iii) that this court had erred in applying a “rareness” precondition to detention, despite the Supreme Court’s directive to the contrary in its decision in St. Cloud;
lacked validity and were not viable errors of law;
b) while the killing was horrific; the full circumstances involving Mr. McRae and his son presented a more nuanced picture including an elderly parent living with a violent, abusive and addicted son; a long and dysfunctional father/son relationship characterized by abuse, intoxication and violence; an accused with significant health and addiction challenges, but making real progress addressing his addiction while on bail; the absence of recent criminal activity, except when involving the victim; a strong pro-plan of release; a probable delay of at least three years until trial, meaning that if not released an elderly accused would spend three years in a provincial remand facility awaiting trial; and
c) the bail decision sought to be appealed appeared to be reasonable, a proper exercise of discretion and one a panel of the Court of Appeal would be unlikely to decide differently.
[15] The terms of bail were further amended on September 19, 2016 with the consent of the Crown to permit Mr. McRae to attend all scheduled medical appointments at the Ottawa General Hospital and at the office of Dr. Zakeriya, unaccompanied by one of his sureties.
[16] Mr. McRae at his request was remanded back into custody pursuant to s. 516 on January 31, 2017. The evidence is there were no concerns at that time regarding his compliance with the terms of bail or concern or unwillingness of the sureties to continue to act in that capacity.
[17] Mr. McRae on January 31, 2017 elected to serve more pre-trial custody given his then concern about possibly being sentenced to jail after trial. As a result of this decision and his return into custody on January 31, 2017, T. McRae thereupon revoked her surety.
[18] Mr. McRae’s health problems involving a heart condition, diabetes and gallstones continued to deteriorate since his return into custody, including breaking his arm from falling from his bunk and the resulting impairment in the use of that arm.
Present Bail Application
[19] Mr. McRae now seeks to be released on bail recognizance with the same two sureties and with the same terms of bonds and conditions as before, pursuant to s. 515 (2)(c) of the Code. According to his daughter, his hope if released on bail is to spend some time now with his grandchildren before trial, rather than hoping to be able to do that if he is convicted at trial and after any resulting period of incarceration.
[20] The Crown now for the third time renews its opposition to Mr. McRae being granted bail relying again on the secondary and tertiary grounds in s. 515 (10).
Analysis
[21] This Court incorporates by reference in this decision and relies upon its analysis, decision and reasons in granting bail on October 19, 2015.
[22] The Crown is in error that bail should now be denied because T. McRae revoked her surety in January 2016. That revocation only occurred upon and because of Mr. McRae’s unilateral decision to return into pre-trial custody.
[23] While Ms. McRae has had health issues, the court has no reason to doubt her current testimony that she is now under the care of a mental health professional and has no current health issues which would impair her ability to perform her responsibilities as surety or limit her undertaking to immediately notify police in the event Mr. McRae breaches the proposed terms of recognizance.
[24] Ms. McRae acknowledged that she was convicted in January 2017 for impaired driving. There is no evidence of any other criminal record. She attributes her drinking and driving on this occasion to the stress she has been under. She was charged with drinking and driving shortly after the anniversary date of her brother’s death. The source of her stress includes the loss of her brother, her father’s pending trial for second-degree murder and her recent divorce.
[25] T. McRae testified that her consumption of alcohol currently is greatly reduced and limited to special occasions. She stated her motor vehicle is now equipped with a device to detect alcohol and thereupon halt engine ignition. She is agreeable to a condition that there be no alcohol in her residence.
[26] Ms. Frank was present in the vehicle when her mother was charged with impaired driving on this location. She explained that they attended and bought some wine at the L.C.B.O., drank some of it and then drove to a nearby country road where Ms. Frank attempted to learn how to drive and then returned the driving to her mother.
[27] The Crown in argument acknowledges the issue on this application is not Ms. McRae’s impaired driving on this occasion.
[28] T. McRae pointed to the fact that her father stopped consuming alcohol for 10 or 11 years prior to his relapse a few months before the death of her brother in July 2015. She points to her father’s compliance with all bail recognizance conditions after his release on bail in October 2015.
[29] The court recognizes the risk that alcohol represents if present in the residence of the daughter, including times when a surety is not present. That risk can be can eliminated with:
a) a condition prohibiting the presence of alcohol in Ms. McRae’s residence; and
b) a condition that the sureties prevent Mr. McRae attending events at which alcohol is being consumed.
[30] T. McRae remains financially capable to honor her $300,000 bond, including her ownership of her residence.
[31] Ms. Frank is now married and no longer lives with Ms. McRae. Ms. Frank and her spouse live within a 10 minute drive from her mother’s residence.
[32] Ms. Frank affirmed that Mr. McRae to her knowledge previously complied with all conditions in the original bail order.
[33] Ms. Frank is willing to resume her obligations as surety including committing to a $100,000 bond and her undertaking to report to police any failure by her grandfather to comply with a bail condition. She undertakes to visit regularly with her grandfather if he is released on bail.
[34] The Crown submits that the strength of the original bail plan with the initial six month treatment program and the presence in the residence of the daughter and grandmother is materially reduced, because:
a) the granddaughter no longer lives with the mother; and
b) Ms. McRae cannot adequately supervise her father if she is struggling with alcohol.
[35] The evidence since the original grant of bail on October19, 2015 is that;
a) the original six month Ottawa Mission treatment program was successful;
b) Mr. McRae since completion of the above program in April 2016 has abstained from consuming alcohol;
c) according to his sureties, Mr. McRae complied with all terms and conditions, including house arrest contained in the October 19, 2015 bail recognizance, as amended between October 2015 and January 2017 when he unilaterally elected to re-enter custody;
d) each surety is willing to resume their obligations in that capacity if their father or grandfather is released under the same terms and conditions, including their bonds of $300,000 and $100,000 respectively, without deposit of money or security, pursuant to s. 515 (2)(c); and
e) the original restrictive bail conditions, as amended, were operating as designed and effectively addressed the balancing of interests including the presumption of innocence, the otherwise constitutional right of an accused to bail on reasonable terms and whether detention of this accused was justified under s. 515 (10)(a)(b) or (c).
[36] There was no requirement under the original bail conditions requiring one of the sureties to remain with Mr. McRae at all times in the daughter’s residence.
[37] There were regular periods of time due to work and/or school when neither surety was present with Mr. McRae in the residence between April 2016 and January 31, 2017. There is no reported breach of bail conditions, including his consumption of alcohol, throughout that period or during the previous six month treatment program.
[38] Those original bail conditions did not prevent the presence of alcohol in the residence where Mr. McRae was under house arrest.
[39] There is evidence of a prior 10 to 11 year period of alcohol abstinence by Mr. McRae.
[40] The above two additional conditions would directly address the risk of alcohol consumption by prohibiting its presence in Ms. McRae’s residence and outside that residence in the presence of a surety.
[41] Ms. Frank’s move to her residence can be offset with a condition that she visit with her grandfather on a scheduled basis.
[42] There is no material change since the original bail order as to the sureties, combined, providing ongoing daily presence and supervision of Mr. McRae, as to their financial capacity in support of their bond or in the undertaking of his daughter and granddaughter to report any breaches of bail conditions by Mr. McRae to police.
[43] The Crown is merely speculating in suggesting that Mr. McRae, despite his abstinence since July 2015, now needs further alcohol abuse counseling and this release plan is deficient in that respect.
[44] Mr. McRae due to this charge has the onus on this application under s. 520. That onus does not however;
a) eliminate the presumption of innocence;
b) eliminate an accused’s otherwise constitutional right to reasonable bail;
c) change the clear direction of the Supreme Court of Canada in R. v. St. Cloud, 2015 SCC 27 and R. v. Antic. 2017 SCC 27, that:
(i) denial of bail has increased dramatically despite the Charter s. 11(e) guarantee of the right not to be denied bail without just cause and the right to bail on reasonable terms: Antic, para 64;
(ii) the release of the accused person is the cardinal rule while detention is the exception under Canadian law: St. Cloud, para 70; and
(iii) a recognizance with sureties is one of the most onerous forms of release: Antic, para 67 (g).
[45] There is no evidentiary basis to support detention is appropriate on the secondary ground in this case or pursuant to s. 515 (10)(b).
[46] As to the tertiary ground under s. 515 (10) (c):
a) the Crown currently appears to have a strong case towards obtaining a conviction for some offence;
b) the offence alleged is very serious and if convicted, even with manslaughter, Mr. McRae faces a lengthy period of incarceration;
c) the circumstances surrounding the death of the son, including the defences of provocation and intoxication, as well as what expert evidence will be led as to the accused’s mental state at the time are relevant circumstances the court must consider pursuant to s. 515(10)(c) and also remain to be determined: St. Cloud Para. 71. These are also relevant factors a judge must take into account in analyzing the apparent strength of the Crown’s case: St. Cloud, paragraph 59.
[47] A reasonable person properly informed of the facts in this case, including the previous successful period of bail recognizance, the principles underlying the Code bail provisions and Charter values would not have their confidence in the administration of justice undermined by the grant of bail with the proposed conditions in the circumstances of this case: St. Cloud para. 87 (i) and (j).
[48] The opposition by the Crown on this application is a collateral attack of the original decision granting bail, which the Crown was denied leave to appeal. This is another case of the Crown’s preference for detention rather than bail.
[49] For the above reasons including this court’s original reasons in granting bail, Mr. McRae is granted bail with all of the conditions in the original bail order, as amended, and the addition of the following conditions:
a) prohibiting the presence of alcohol in the residence of Ms. McRae during her father’s residency there;
b) requiring each surety, if present, to prevent Mr. McRae’s attendance at events where alcohol is consumed; and
c) requiring Ms. Frank to meet with Mr. McRae a minimum three times per week.
Mr. Justice Paul Kane
Released: 2017/12/01
CITATION: R. v. McRae, 2017 ONSC 7145
COURT FILE NO.: 15-M7871
DATE: 2017/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
JOHN MCRAE
Applicant
BAIL REVIEW DECISION
Kane J.
Released: 2017/12/01