COURT FILE NO.: CR-18-7000006900BR
DATE: 20180509
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY
– and –
TERRY GRAHAM
Accused
Stephanie Henderson, for the Crown
Elliott Willschick, for the Accused
HEARD: April 2, 2017
B.A. ALLEN J.
REASONS FOR DECISION ON BAIL
EVIDENTIARY BACKGROUND
[1] The accused, Terry Graham, stands charged with common assault, possessing an incendiary device, arson and four counts of attempted murder.
[2] These charges arise from a dispute Mr. Graham had with Lee Gordon at a home where they both resided. Mr. Gordon was involved in a relationship with Mr. Graham’s sister, Tammy Graham. Mr. Graham occupied a room in the basement of that home and Mr. Gordon and Ms. Graham shared another room in the basement of the home. There were two other tenants, Robert Faulkner and Nancy Sinclair, living in the home on an upper floor.
[3] At the time, Mr. Graham was working in the renovation business with Mr. Gordon. Sometime after midnight on October 7, 2017 a dispute broke out in Mr. Gordon’s room between Mr. Graham and Mr. Gordon over money Mr. Gordon apparently owed Mr. Graham. Mr. Graham left the room and shortly afterwards returned to Mr. Gordon’s room and kicked the door in. Mr. Graham fled the home after Mr. Gordon attempted to restrain him. Ms. Graham alleges she heard a grinding noise on a pipe outside the home and smelled the odour of gas. She did not see anything that indicated a gas line had been cut. Mr. Graham left the area in a van.
[4] About an hour later, the accused returned to the home. The accused entered the basement through the back door carrying what was believed to be a gas can and a torch. He approached Mr. Gordon’s and Ms. Graham’s room and poured gasoline on the door and lit it. To escape Mr. Gordon broke through the drywall separating his room from Mr. Graham’s and ended up in Mr. Graham’s room where he tried to crawl through the window. Mr. Graham entered the room and threw gas at Mr. Gordon. Mr. Gordon moved away as Mr. Graham threw gas at the window and lit it with a torch. Mr. Gordon pushed an air conditioner out of the window and was able to escape the home.
[5] Mr. Gordon went to his bedroom window which had debris stacked in front of it and pulled Ms. Graham out the window. She suffered a cut to her right forearm which required six stitches. The two other tenants were still upstairs sleeping. Mr. Gordon broke down the front door of the home and assisted the female tenant out and the male jumped out the window.
[6] The emergency 911 call was not made until 4:45 a.m. The house was engulfed in flames when the fire department arrived. During the search of the premises they found Mr. Gordon’s Rottweiler had died in the fire. The damage to the home was estimated to be $200,000.00.
[7] On October 8, 2017, Mr. Graham attended a police division and turned himself in.
[8] Mr. Graham has a minor dated criminal record, a 1993 conviction for theft under $5,000.00 and a breach of recognizance conviction in 2011 where he received a sentence of 15 days’ pre-sentence custody.
THE SHOW CAUSE HEARING
[9] The bail hearing was conducted on December 22, 2017 before a judge of the Ontario Court of Justice. Mr. Graham’s then counsel, Ms. Izadi, advised the judge that Mr. Graham had been approved for the Bail Program which required Mr. Graham to advise the Program of his address within 24 hours. The conditions were that Mr. Graham was required to attend counselling. His counsel was to seek arrangements for treatment of his Hepatitis C condition which treatment he had been having difficulty receiving while in custody. Mr. Graham was in receipt of ODSP benefits and was living in the shelter system at the time of the bail hearing.
[10] The bail judge denied bail on primary, secondary and tertiary grounds. He found Mr. Graham could be a flight risk. In denying bail he found it was not sufficient as a plan of supervision for the Bail Program to be relied upon to monitor Mr. Graham’s progress while he was in the homeless shelter system. The bail judge considered the seriousness of the charges which include four counts of attempted murder and arson which, if Mr. Graham is convicted, will result in a lengthy jail sentence. The judge emphasized the calculated and callous nature of the crime.
GROUNDS FOR THE REVIEW APPLICATION
[11] This is a Crown onus case. The burden is on the Crown to prove that Mr. Graham ought not to be released into the community on bail. The primary ground is not at issue for the Crown. The Crown opposes release on the secondary and tertiary grounds. The defence submits there is a material change of circumstances which supports release.
[12] The defence proposes a plan of supervision involving two sureties - two close family friends. The arrangement is that Mr. Graham is to live in the home of Joy Peterson and her son, Christopher Peterson.
THE PLAN OF SUPERVISION
[13] St-Cloud set down three circumstances where a bail review can vary an order:
a) where the justice has erred in law;
b) where the impugned decision was clearly inappropriate; or
c) where there is a material change in circumstances;
[St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, para. 121, (S.C.C.)]
[14] Under s. 515(10)(b), bail can be denied “for the protection or safety of the public including any ‘substantial likelihood’ that the accused will commit a criminal offence or interfere with the administration of justice.” The defence has put forward a plan of supervision that in the defence’s estimation, will negate the substantial likelihood that Mr. Graham will re-offend. In the defence’s view the plan is based on a material change in Mr. Graham’s circumstances from those he faced when bail was denied on December 22, 2017.
[15] The plan is for Mr. Graham to have supervision seven days a week, 24 hours a day. He would reside with his sureties at 3474 Oakdale Crescent, Mississauga, Ontario.
[16] Mr. Graham, age 50, swore an affidavit. He stated his agreement with a seven-day, 24-hour house arrest at the Petersen household. He agreed to be with one of his sureties at all times when outside the home. He agreed not to contact any of the victims and not to possess any weapons, incendiary devices or illegal substances.
[17] Both Ms. Petersen and Mr. Petersen swore affidavits and testified at the hearing.
[18] Ms. Petersen, age 55, and her son Christopher, age 36, attested to the fact that they have known Mr. Graham for 30 years. He is like close family and had previously been in a romantic relationship with Ms. Petersen. Ms. Petersen testified that over the years she has assisted Mr. Peterson with his health problems, which she knew included Hepatitis C and other disabling physical conditions, by taking him to medical appointments.
[19] Ms. Petersen’s works as an armed security guard from 10:00 p.m. to 6: a.m. She testified her work place is very close to her home. It takes her minutes to get to and from work. Mr. Petersen works as a contractor during the hours of 9:00 a.m. to 5:00 p.m. Ms. Petersen testified that her sleeping hours are flexible. She said she does not go to sleep until Mr. Petersen arrives home from work. Mr. Graham will be supervised every day, all day.
[20] Ms. Petersen is willing to pledge her $10,000.00 RRSP which is a great deal of money to her. Mr. Petersen is willing to pledge the $2,000.00 he has in his bank account. This is all he has.
[21] At first both Ms. Petersen and Mr. Petersen testified they were not aware of Mr. Graham’s conviction for breach of recognizance. Once it was explained that if non-compliance of this sort is found to have occurred the result is a criminal conviction, they both indicated they understood Mr. Graham’s past breach.
[22] Both Ms. Petersen and Mr. Petersen had previously been sureties, Ms. Petersen for her daughter under house arrest, and Mr. Petersen for his sister. Neither situation resulted in a breach by the persons under their charge. They both attested to their understanding of their serious responsibilities as sureties. They stated their willingness to abide by any conditions the court imposes. They testified they are aware of their obligations to call the police and pull bail if Mr. Graham breaches the conditions the court orders.
[23] Ms. Petersen testified that the vehicle Mr. Graham used the night of the fire is no longer on the road and available to Mr. Graham. She indicated that his physical impairments, which have required the use of a cane and wheel chair, present obstacles to his mobility.
THE TERTIARY GROUNDS
[24] The court is required to consider the factors set down by the Supreme Court of Canada in R. v. St-Cloud. Section s. 515(10) (c) of the Criminal Code requires the court in deciding pre-trial detention to consider whether the detention of the accused “is necessary to maintain confidence in the administration of justice.”
[25] In making this determination the court must first consider the following four circumstances that are expressly referred to in s. 515(10) (c):
(a) the apparent strength of the prosecution’s case;
(b) the objective gravity of the offence in comparison with the other offences in the Criminal Code;
(c) the circumstances surrounding the commission of the offence, whether a firearm was used; and
(d) whether the accused is liable for a potentially lengthy term of imprisonment.
[R. v. St-Cloud]
[26] St-Cloud held that the court is required to consider all the circumstances of each case with particular attention to the four enumerated factors. No single circumstance is dispositive. The court must consider together the combined effect of all the circumstances of each case to determine whether detention is justified. There must be a balancing of all the relevant circumstances. The ultimate question to be asked by the court after the balancing exercise is whether detention is necessary to maintain confidence in the administration of justice.
CONCLUSION
[27] I find the plan of supervision represents a marked change in circumstances. Mr. Graham was homeless living in the shelter system when he stood before the judge at the show cause hearing. His home had been destroyed by a fire it is alleged was caused by his own hand. He faces very serious charges including attempted murder and arson. It is reasonable that the judge on bail would not be comfortable with him being supervised by the Bail Program while he was in the shelter system where there would be no ability to monitor his movements throughout any day.
[28] The proposed plan provides for 24/7 monitoring and control of his movements by sureties who have known him for decades, persons who have experience with being sureties. I find Ms. Petersen`s experience in security work will support her ability to control and supervise Mr. Graham. The plan places Mr. Graham in the confined space of a home with people who can closely oversee his conduct. The sureties expressed a clear understanding of their obligations – their responsibility to call the police and withdraw as sureties if Mr. Graham breaches.
[29] I find the proposed plan is a fit plan that meets the requirements of s. 512 (1)(b). I find there will be no substantial likelihood that Mr. Graham will re-offend.
[30] I find the tertiary grounds are also satisfied.
[31] On the strength of the Crown’s case, on first blush, it may appear that the Crown’s case is very strong. There are two witnesses, Mr. Gordon and Ms. Graham, who allege they witnessed Mr. Graham light the fires. However, they may have an interest in blaming Mr. Graham based on problems in their relationship with him.
[32] As well, Ms. Petersen testified about serious issues Ms. Graham has with crack addiction. Ms. Petersen testified that Mr. Gordon has problems with Ms. Graham living at the home. He had asked Ms. Graham to leave the home because things would go missing when she lived there. Since the fire, Mr. Gordon has not been involved in a relationship with Ms. Graham.
[33] There is also no evidence that the gas can or torch was found. In addition, there is the fact that 911 was not called for some four hours after the fire was set. This casts a question over the fire, the question of why the victims of the fire would take so long to call the fire department in the face of such a serious fire.
[34] The various types of conflicts among the residents of the home and the delay by the victims in calling the fire department raise some questions about the strength of the Crown’s case.
[35] On the seriousness of the crime, there is no question that arson that risked four people’s lives and attempted murder charges are among the most serious crimes under the Criminal Code. Added to this the manner in which it is alleged the fires were started – the callous, calculated and determined way the perpetrator proceeded to light fires to prevent the occupants from leaving the premises.
[36] This factor considered alone points away from release.
[37] On the circumstances surrounding the commission of the crimes, this factor cuts both ways. The issues around the conflict between Mr. Gordon and Mr. Graham and Ms. Graham and Ms. Graham’s conduct in relation to the home and the late call for emergency services could tend to point one way, away from guilt. Mr. Graham’s problems with his sister and Mr. Gordon and the callous and calculated conduct of the perpetrator seem to point the other way. It is for the trial judge to sort out the meaning, if any, to accord this evidence. I find the circumstances surrounding the commission of the offences do not immediately disfavour release.
[38] Regarding the length of the sentence, if found guilty, Mr. Graham will face a lengthy sentence. This factor if considered alone would disfavour release.
[39] I must consider together the combined effect of all the circumstances of each case to determine whether detention is justified. I must balance all the relevant circumstances. I find in balancing the four factors together with the strength of my findings on the secondary grounds that release is justified. A strong plan of supervision is a factor that must be considered in assessing whether detention is necessary to maintain confidence in the administration of justice. It is more so with serious offences.
[40] I also take into account that Mr. Graham does not have a lengthy or recent criminal record and that his past offences have nothing in common with the charges he currently faces. Not to minimize the seriousness of the alleged offences but rather to make a point on the probability of re-offence, the crimes before the court are personal, specifically directed at his sister and her partner. A supervision plan that prohibits Mr. Graham from any type of contact with the two complainants and the other two victims will minimize the risk of him re-offending.
[41] The Supreme Court of Canada in R. v. Antic provides some guidance to judges deciding bail. The Court must presume that an accused should be released on the least restrictive release which is an undertaking without any conditions attached. A release that is more restrictive must be justified by showing that less restrictive forms of release should not be ordered. The burden to establish this falls to the Crown: [R v Antic, 2017 SCC 27 (S.C.C.)].
[42] I find in the circumstances detention “is not necessary to maintain confidence in the administration of justice”.
DISPOSITION
[43] I grant release on the following conditions:
- Mr. Graham shall be under house arrest at the sureties’ residence at 3474 Oakglade Crescent, Mississauga, Ontario under the supervision of his sureties seven days a week, 24 hours a day;
- Mr. Graham shall not be outside the sureties’ residence without being accompanied by one of his sureties;
- Mr. Graham shall not be in possession of any weapons or incendiary devices;
- Mr. Graham shall not be in possession of any illegal substances;
- Mr. Graham shall not have any direct or indirect contact with the victims;
- Mr. Graham shall not be within 100 metres of any place where the victims Lee Gordon, Tammy Graham, Robert Faulkner and Nancy Sinclair reside, attend school, or work;
- Joy Petersen shall pledge $10,000.00; and
- Christopher Petersen shall pledge $2,000.00.
B.A. ALLEN J.
Released: May 9, 2018
COURT FILE NO.: CR-18-7000006900BR
DATE: 20180509
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY
– and –
TERRY GRAHAM
Accused
REASONS FOR DECISION ON BAIL
B.A. ALLEN J.
Released: May 9, 2018