CITATION: R. v. Gammie, 2017 ONSC 7376
COURT FILE NO.: CR17-109-00BR
DATE: 20171208
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CRAIG GAMMIE
P. Leger, for the Crown
S. Arnold, for the Defendant
HEARD: November 16, 17 and December 7, 2017
REASONS FOR DECISION
McSweeney J.
[1] This is a bail variation application brought by Mr. Craig Gammie pursuant to s. 520 of the Criminal Code.
[2] Mr. Gammie was elected in 2014 as one of five councillors in the Town of South Bruce Peninsula (“TSBP”).
[3] On September 5, 2017 Mr. Gammie was charged with an assault on the Town of South Bruce Peninsula Deputy Mayor Jay Kirkland, contrary to s. 266 of the Criminal Code.
[4] Mr. Gammie was released on bail on his own undertaking by JP Stafford on September 8, 2017 with the following conditions:
Do not contact or communicate in any way either directly or indirectly, by any physical, electronic or other means, with the following: Jay Kirkland, Janice Jackson, Andrew Sprunt and Angie Cathrae
Do not attend at any place where you know any of the person(s) named above to live, work, go to school, frequent or any place you know the person(s) to be EXCEPT for required court appearances
Do not attend at 315 George Street, South Bruce Peninsula, ON (Wiarton)
Do not possess
- any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).
[5] JP Stafford was aware that Mr. Gammie wanted to attend the TSBP council meetings while on bail and gave the following reasons for denying his request:
….and I understand that by denying you the right to attend the council meetings and take part in the – in that that I’m depriving the people that voted for you of that right, but I have to balance things. There’s allegations before the Court of a criminal offence; an offence of assault against another person.
And when the Crown read in the – the facts as she has and the allegations at least, it appears that there’s a bunch of dissention and unhappy people in this – in the municipal government at South Bruce Peninsula. It’s – the police investigated this and there’s a list of people came to them that didn’t’ want communication with you. So I think considering everything, it’s just better for the time being that you not attend your functions as a Councillor and that’s why the order is the way it is. It’s not that I don’t understand what I’m doing. I’m doing what I’m doing because I feel it’s in the interest of the rest of the people involved.
[6] On this application before me, Mr. Gammie seeks to vary the terms of his release to permit him to attend the TSBP town council meetings. The TSBP town council meets approximately twice each month throughout the year. In addition, special meetings are held from time to time.
[7] The trial date has now been set. Mr. Gammie will be tried on the assault charge on August 20 & 21, 2018.
[8] It is agreed that if Mr. Gammie cannot attend council meetings until August, he will not be able to represent the interests of the members of the community who elected him.
[9] Specifically, in the circumstances of Mr. Gammie being an elected councillor, if he cannot go to town council meetings until August, 2018, he may lose his seat on town council as there is statutory provision for removal of councillors who fail to attend meetings for “three successive months”. Specifically, s. 259(1)(c) of the Municipal Act states:
The office of a member of council of a municipality becomes vacant if the member is absent from the meetings of council for three successive months without being authorized to do so by a resolution of council…
[10] Assistant Crown Attorney P. Leger conceded at the outset of the application that the length of time until trial gives rise to what can be considered a “material change” such that I may consider a variation application pursuant to ss. 515 and 520 of the Criminal Code on a de novo basis.
[11] The Crown argues that it continues to be necessary to prevent Mr. Gammie from attending meetings on the “secondary ground”. Specifically, he points out that those who are required to attend meetings include the victim Deputy Mayor Kirkland, as well as TBSP staff and witnesses to the alleged assault including the Mayor, Janice Jackson, who chairs the meetings. Pursuant to s. 515(4.2) of the Criminal Code I am specifically required to consider the safety and security of those individuals.
[12] Janice Jackson, the Town of South Bruce Peninsula Mayor (“the Mayor”), testified as to Mr. Gammie’s behaviours in dealings with the TSBP staff and at past TSBP council meetings. Her testimony in this regard was not seriously challenged on cross-examination. Behaviours she described, which pre-date the alleged assault, included, yelling, taunting, prolonged staring, name calling, spitting, and uttering insults. I accept this evidence.
[13] Mr. Gammie testified as to efforts he might consider making to improve his ability to control himself in situations of stress and disagreement at council meetings, stating as follows:
I think it would be a good opportunity for me to take some training or counselling on dispute management resolution, management. How to handle difficult situations. In fact, I’ve, my wife is a, a human resources professional and she’s already started to look up avenues for that. Also, I think that it would a good time for me to do something that I’ve always wanted to do, and that’s take, get some training in one of the martial arts, one of the martial arts that’s, that’s focussed as much on self-defence, as much on, as much on control of situations and defusing situations, as it is on self-defence. And I have a brother who’s, who’s very experienced, very senior in one of, one of the martial arts who could guide me on that, get me going on that.
[14] Mr. Gammie admitted on his cross-examination on November 16, 2017 that he had not at that time pursued either the counselling or the martial arts training he suggested. No evidence was led on December 7, 2017 to indicate that such steps had been taken.
[15] I find on the evidence that the Crown has established that Mr. Gammie’s attendance at the TSBP premises and in-person participation at council meetings continues to pose an unacceptable risk to those who work at TBSP premises and are required to attend council meetings, specifically to the witnesses and victim of the alleged assault.
[16] However, it would be unfortunate if the consequence of that restriction were to cost Mr. Gammie his seat on council. I emphasize that he is presumed innocent, and has not been convicted of any offence at this time. The law is clear that bail conditions must be as non-restrictive as possible [see R v. Antic, 2017 SCC 27].
[17] The Mayor testified that effective January 1, 2018, amendments to the Municipal Act will empower municipalities and towns to permit remote attendance by councillors at council meetings. If Mr. Gammie were able to participate in the TSBP council meetings by telephone or other remote means, I believe the concerns raised by the Crown would be substantially addressed.
[18] If not for the fact referenced below, I would have dismissed this application and left the parties to arrange remote attendance after January 1, 2018.
[19] At the hearing on December 7, 2017, the Mayor testified that earlier this week, on December 5, TBSP council refused to consider a motion to authorize Mr. Gammie’s continuing absence. As a result his seat will become vacant if he “is absent from the meetings of council for three successive months”. The Mayor takes the position that Mr. Gammie’s seat became vacant on December 5, 2017, and he is not welcome back at council meetings as he is no longer a councillor.
[20] Mr. Gammie disputes this interpretation and offers that “three successive months” means three full months of non-attendance or alternatively, three months from the first missed meeting, which was September 19, 2017. On his first interpretation, his seat would become vacant January 1, 2018. On the second, the vacancy would occur unless he attends a meeting on or by December 19, 2017. December 19, 2017 is the date of the next scheduled TBSP council meeting.
[21] Neither party provided authority or argument as to the meaning of “three successive months”. Any of the three interpretations is therefore possible at this time, and may be resolved between TBSP and Mr. Gammie in the appropriate forum. However, if Mr. Gammie’s alternate interpretation is ultimately preferred, he will still be a councillor who can then arrange to attend meetings by telephone, effective January 1, 2018, providing he attends the next meeting on December 19, 2017. Such attendance would interrupt his “three successive months”. Because TSBP council has not passed a resolution permitting Mr. Gammie’s continued absence, it is therefore necessary for me to consider whether there is a manner in which, having regard to the facts as I have found them, including the protection of the public, victim and witnesses, Mr. Gammie can attend a meeting in December and thereby “re-start the clock” on his absences.
[22] One of the proposals made by Mr. Gammie was that he could attend a meeting for the sole purpose of registering his attendance. He also offered, as part of a proposal to enable him to attend at 315 George Street, to “seek the presence of a police officer for the duration of his attendance, at his own expense”.
[23] This proposal for limited escorted attendance would in my view enable Mr. Gammie to register his attendance on December 19, 2017 while ensuring the safety of the victim and witnesses of the alleged assault. I am satisfied that the limited extent to which I am varying the bail conditions appropriately takes into account the concerns raised by the Crown on the secondary ground.
[24] I therefore order as follows:
a. The application is granted on a very limited basis.
b. Specifically, terms 1, 2 and 3 of the release entered into by Mr. Gammie on September 8, 2017 by way of undertaking are varied solely as follows:
i. Mr. Gammie may attend the TSBP council meeting scheduled for December 19, 2017 only. His attendance shall commence no earlier than 15 minutes prior to the scheduled start time of the meeting and shall last only as long as is required for the Chair to confirm that his attendance is registered for the purpose of the minutes.
ii. Mr. Gammie shall arrange to be accompanied by a police officer at his own expense for the duration of his presence on the premises of 315 George Street, South Bruce Peninsula.
c. All other terms set out in his release of September 8, 2017 remain the same.
McSweeney J.
Released: December 8, 2017
CITATION: R. v. Gammie, 2017 ONSC 7376
COURT FILE NO.: CR17-109-00BR
DATE: 20171208
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CRAIG GAMMIE
REASONS FOR DECISION
McSweeney J.
Released: December 8, 2017