Her Majesty the Queen v. William Savage, 2018 ONSC 2261

PETERBOROUGH COURT FILE NO.: CR-16-1232-00BR

DATE: 20180409

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Respondent

– and –

William Savage Applicant

COUNSEL:

Rebecca Griffin, for the Crown

Christopher Assie, for the Applicant

HEARD: March 29, 2018

REASONS FOR RULING

SALMERS J.:

[1] Mr. Savage is charged with the first degree murder of David Palmer. Mr. Palmer was last seen on October 2, 2015. His vehicle was found on October 10, 2015 in Haliburton. On May 6, 2016, the remains of Mr. Palmer’s body were found in Haliburton, near where his vehicle had been found in October 2015. On October 26, 2016, Mr. Savage was arrested and charged with the murder of Mr. Palmer. Mr. Savage has been in custody since then.

[2] Mr. Savage has now applied to be released from custody. Mr. Savage’s proposed release plan is that he be released on a recognizance with two sureties. The proposed sureties are his brother, Brian Savage, who will pledge $311,000, and his mother, Ann Savage, who will pledge $340,000. The sureties are pledging the entire equity in each of their homes. As a term of his release, Mr. Savage will live with his brother, Brian Savage in Oshawa, subject to house arrest terms, including surety supervision. Mr. Savage will not leave his brother’s home except in the company of a surety. Further, Mr. Savage will wear an ankle bracelet and be subject to electronic monitoring.

[3] With respect to the proposed sureties, I recognize that both sureties are very well-intentioned. But, neither is a perfect surety. Neither surety has spent much time with the accused for quite a few years prior to his arrest. The proposed release plan relies on the accused’s mother, Ann Savage, being the primary supervisor while the accused’s brother, Brian Savage, is working. Ann Savage has taken a very hands-off attitude towards her adult children, not wishing or feeling entitled to meddle in their lives. I have concerns about whether she would insist on the accused’s compliance with the terms of a release order. However, that concern is lessened by the fact that if the accused breaches his release order, both of the proposed sureties would lose most of what they have worked for in their lives. That is significant incentive for them to report any non-compliance of the accused.

[4] The Crown’s case against Mr. Savage is based on a great deal of circumstantial evidence together with a confession that he allegedly made to Sophie Kinney, his former common-law spouse. Without the confession, the Crown’s case is not strong. However, the confession confirms many of the inferences against Mr. Savage that could be drawn from the circumstantial evidence. As long as Ms. Kinney does not recant or if the jury hears her statement about the confession, the Crown’s case against Mr. Savage is quite strong.

[5] The onus is on Mr. Savage to show cause on a balance of probabilities that his detention is not justified on any of the three grounds contained in s. 515(a) – (c) of the Criminal Code, commonly referred to as the primary, secondary, and tertiary grounds. Counsel for Mr. Savage submits that based on his proposed release plan, Mr. Savage has shown cause on each of the three grounds and, accordingly, he should be released. The Crown submits that Mr. Savage has not shown cause and that he must continue to be detained.

[6] The primary ground is that detention of an accused is justified where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law. For the following reasons, Mr. Savage has discharged his onus on this ground.

[7] Given my comments of the strength of the Crown’s case, Mr. Savage faces a significant prospect of life imprisonment. The incentive to flee is a consideration with respect to the primary ground.

[8] The Crown submits that the recently-acquired wealth of Mr. Savage’s girlfriend would provide ample money for them if they chose to leave the jurisdiction.

[9] However, there are other factors that alleviate primary ground concerns.

[10] Mr. Savage is now 49 years old. He has no criminal record. He has a long work history and was employed until shortly before his arrest on these charges. He has lived in the Victoria County/Kawartha Lakes area all of his life. His family resides in or adjacent to that same area. His current girlfriend and his son live in the area. His lifelong roots are in the area.

[11] If released, Mr. Savage will be in the direct supervision of two sureties who stand to lose everything they have worked for in their lives if Mr. Savage were to fail to attend court.

[12] Mr. Savage was not arrested for over a year after the alleged murder. Before his arrest, he was interviewed multiple times about Mr. Palmer’s disappearance and death. He would have known that he was a suspect. He lost his job in March 2016. Despite his unemployment and knowing that he was a suspect, Mr. Savage did not flee the jurisdiction in the year before his arrest.

[13] Also, the electronic GPS monitoring would very quickly alert police if Mr. Savage were to remove the ankle bracelet or attempt to flee the jurisdiction.

[14] Balancing all of these factors, I am satisfied and Mr. Savage has discharged his onus on the primary ground.

[15] The secondary ground is that detention is justified when necessary for the protection or safety of the public, including any victim of or witness to the offence, having regard to all the circumstances including any substantial likelihood that the accused will, if released, commit a criminal offence or interfere with the administration of justice.

[16] There is considerable evidence that Mr. Savage has been a drug dealer for many years. There is also evidence that, while in custody, he may have breached a non-communication order by using speaker phone on a telephone call in order to speak with his son. There are also concerns that some of his friends and associates, including his son, may be involved in criminal activity.

[17] However, Mr. Savage does not have a criminal record. He was not arrested for any offences in the year following Mr. Palmer’s disappearance.

[18] Also, house arrest, surety supervision, and other release terms will assist in preventing communication for criminal purposes.

[19] Accordingly, Mr. Savage has satisfied me that he may be released without a substantial likelihood of him committing further offences.

[20] The bigger concern with respect to the secondary ground is that Mr. Savage might attempt to interfere with Sophie Kinney, his ex-girlfriend to whom he confessed killing Mr. Palmer. However, considering that:

1. Ms. Kinney lives at least 30 minutes from the residence of Brian Savage;

2. the electronic monitoring company will be given advance notice whenever the accused proposes to leave the residence; and

3. the monitoring company will very quickly become aware of whenever the accused leaves the residence without notice or if the ankle bracelet is tampered with;

I am satisfied the Mr. Savage may be released on terms without there being a substantial likelihood that he would be able to interfere with Ms. Kinney.

[21] For those reasons, Mr. Savage has shown cause on the secondary ground.

[22] The tertiary ground states that after considering all of the circumstances, detention is justified if it is necessary to maintain confidence in the administration of justice.

[23] In this case, the most serious of offences is alleged, first degree murder. If convicted Mr. Savage faces life imprisonment. Further, a firearm was utilized in the commission of the offence.

[24] The evidence is wholly circumstantial. Without the confession, the Crown’s case is not strong. As discussed above, the Crown’s case becomes quite strong provided that Ms. Kinney does not recant or her statement about the confession is heard and believed by the jury.

[25] However, there are potential frailties with respect to Ms. Kinney’s anticipated evidence.

[26] It is unknowable how Ms. Kinney might testify at trial. As with any witness, I must consider the possibility that she may recant her previous statements about the confession and other information implicating Mr. Savage. If she does recant, there is insufficient evidence before me to enable me to have an informed view about the possible admissibility of her previous statements about the confession and other information implicating Mr. Savage.

[27] If Ms. Kinney were to testify about the confession and other evidence implicating Mr. Savage, some other potential frailties exist. She was the former common-law spouse of Mr. Savage. She gave multiple statements to the police prior to her statement in which she disclosed the existence of the confession. In her prior statements, Ms. Kinney provided no information that implicated Mr. Savage in the killing and she said that she had no knowledge of evidence implicating him. Also, it was not until she separated from Mr. Savage that she disclosed the existence of the confession and other information that implicated him. Her credibility and the reliability of her evidence would be an issue at trial.

[28] The essence of the tertiary ground is whether detention is required to maintain public confidence in the justice system. In assessing public confidence, the court must consider how a reasonable member of the community would regard the release or detention of the accused. A reasonable member of the community is the person who is probably informed about the philosophy of the legislative provisions about bail and detention, Charter values, and the circumstances of the actual case. This knowledge includes: the importance of the presumption of innocence; the constitutional guarantee of a right to bail; that bail is available for all offences, including murder; and the strength and frailties of the case against the accused.

[29] In this case, as stated earlier, without Ms. Kinney’s evidence implicating Mr. Savage, including her evidence about his confession, the Crown’s case is not strong. As I have just stated above, there are unknown and triable issues with respect to Ms. Kinney’s evidence. In all of the circumstances, I am satisfied that a fair and reasonable person, aware of: 1) the presumption of innocence and the right to bail; 2) the strengths and potential difficulties with the Crown’s case; and 3) the terms of the proposed release order; would not lose confidence in the administration of justice if Mr. Savage were to be released until his trial. Accordingly, Mr. Savage has shown cause on the tertiary ground, namely that his detention is not required to maintain public confidence in the administration of justice.

[30] For all of these reasons, Mr. Savage has shown cause on each of the primary, secondary, and tertiary grounds. Accordingly, he may be released from custody pending his trial.

[31] Mr. Savage shall be released on a recognizance with the following terms:

• He shall keep the peace and be of good behaviour and attend court as required;

• There shall be two sureties, namely, Brian Savage, who shall pledge $311,000 and Ann Savage who shall pledge $340,000, both without deposit;

• He shall reside with his brother, Brian Savage, at 187 Nassau St., Oshawa, and abide by the routine and house rules of his brother;

• Except as permitted by these terms, at all times he shall remain in that residence under the direct supervision of a surety who is present in the residence;

• He shall not leave the residence except for court appearances, meetings with counsel, medical appointments, and 2 hours (from 11:30 a.m. – 1:30 p.m.) every Saturday for personal purposes.

• He shall not leave the residence except when in the presence of a surety;

• When he is to be in the residence, he shall attend at the front door of the residence within five minutes of any peace officer’s request;

• When he leaves the residence on Saturdays, he shall remain in the City of Oshawa;

• Except for communications with counsel, all other communications of any type shall be monitored by and in the direct presence and supervision of a surety. This incudes but is not restricted to any telephone, text or instant messaging, Skype, FaceTime, email, or any other means of communication, electronic or otherwise;

• All travel documents shall be delivered to the officer in charge of the investigation by 12 noon, April 10, 2018, and Mr. Savage shall not apply for any travel documents;

• He shall consume no alcohol, marijuana, or non-prescribed drugs;

• There shall be no marijuana or non-prescribed drugs in the residence;

• Unless otherwise restricted by these terms, except for blood relatives and persons to whom he is related by marriage, he shall have no more than one guest at any time. A guest may visit for no more than two hours per day;

• He shall have his release order with him at all times;

• He shall not associate, be in contact with, or have any communication with, direct or indirect, or be within 500 meters of any person listed on the October 27, 2016 non-communication order except for Brian Savage:

• He shall not possess any weapons as defined by the Criminal Code;

• He shall not possess or apply for a firearm acquisition certificate;

• At his expense, he shall enter into an electronic GPS monitoring agreement with Recovery Science Corporation (RSC) which agreement shall include:

  a. Mr. Savage shall enter into RSC’s participant agreement and comply with its terms;

  b. Mr. Savage shall wear a GPS ankle bracelet at all times;

  c. The terms of the agreement shall be in accordance with and for the purposes of monitoring Mr. Savage’s location as ordered in these reasons;

  d. Mr. Savage shall permit RSC to install supplementary equipment to inspect, replace, and maintain equipment as it deems necessary;

  e. Mr. Savage shall comply with RSC leave notification and battery charging requirements;

  f. Mr. Savage shall consent to all RSC leave notification to be emailed directly to the OPP;

  g. Mr. Savage shall cooperate fully with RSC staff;

  h. Mr. Savage shall consent to login credentials to be provided to the OPP by RSC for the purposes of obtaining current historical and GPS location information at any time;

  i. Mr. Savage shall consent to RSC providing information to sureties upon request by sureties for purposes of current location and location history;

  j. His surety shall advise Recovery Science Corporation (RSC) at least 30 minutes in advance of anytime that Mr. Savage will be leaving the residence and shall advise RSC of where he shall be going, for what purpose, and how long it is estimated that he will be out of the residence; and

  k. Any time that RSC is notified of Mr. Savage’s intention to leave the residence or RSC becomes aware of a breach of the terms of this or der or of the electronic GPS monitoring agreement, RSC shall immediately notify the Lindsay OPP homicide squad and Sophie Kinney by email, text message and voice telephone call at addresses and numbers to be provided to RSC by the OPP and Sophie Kinney.

[32] Those are the terms of Mr. Savage’s release order. If necessary, counsel and Mr. Savage can appear before me for clarification of anything ordered herein.

Order to go accordingly.

Justice D. Salmers