R. v. Thomas, 2019 ONSC 5926

COURT FILE NO.: CR-19-75

DATE: 2019/10/11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Beverly Thomas

Counsel: Matthew Collins and Michael Purcell, Counsel for the Crown Jeffrey Langevin, Counsel for the accused

HEARD: September 4, 5 and 6, 2019

Reasons on judicial intermim release application

leroy, j.

Introduction

1Beverly Thomas, age 59, is charged with the first-degree murder of her common law spouse, Robert Allen by stabbing. She applies under s. 522 of the Criminal Code for judicial interim release. Subsection 522(2) provides in these circumstances that an accused shall be detained in custody unless she shows cause why, on a balance of probabilities, that detention is not justified on the grounds depicted in s. 515(10).

2They resided in a single-family dwelling located in a rural setting with neighbors nearby in the Township of South Dundas in the United Counties of Stormont Dundas and Glengarry. Mr. Allen succumbed to the effects of a knife wound to his chest during the evening of February 6, 2016. The two were home alone. Ms. Thomas called 911 to report the injury. Mr. Allen died shortly after EMT arrival.

3Ms. Thomas was arrested in Digby, Nova Scotia on September 24, 2018.

4Ms. Thomas depicted their domestic relationship as healthy and happy.

5Beginning with the 911 operator, continuing with police investigators, acquaintances, family and extended family, she offered a range of exculpatory explanations regarding the cause of death including suicide by pill-related overdose, by self-inflicted sword or knife wound; death by heart attack or cancer; homicide by person or persons unknown, or by known third-party suspects such as the Hell’s Angels.

6Ms. Thomas informed the 911 operator that the knife was lodged in Mr. Allen’s chest during the call. The operator instructed Ms. Thomas to leave it there. When the authorities arrived, the knife was in the kitchen sink.

Ms. Thomas’ circumstances

7Ms. Thomas was born and raised in a family with siblings in Digby, Nova Scotia. She enlisted in the Armed Forces after completing grade 11. She served for nineteen years without disciplinary blemish. She was posted to various bases in Canada including Edmonton, Ottawa and Petawawa. She retired in June 1999 holding the rank of Master Corporal. She met and began the relationship with Mr. Allen during the posting to Petawawa.

8The deceased was Ms. Thomas’ connection to this community. The impression is that Ms. Thomas was convivial and the life of parties, but in the few weeks before February 6, 2016 she appeared withdrawn and seemed to look through people. She was loyal to the deceased while he recovered from cancer. Although she became friends with the deceased’s friends and family, he was the social nexus so when he died in such circumstances, her connection to this community dissolved. It was apparent from her testimony she did not form lasting connections in Edmonton, Petawawa or Ottawa.

9Ms. Thomas moved from the house into an apartment in nearby Iroquois. She moved on notice to the investigating officer to her home town of Digby in 2017 where she has family and other ties.

10The OPP initiated a covert operation in Digby that culminated with a confession, a demonstration of the dynamics of the stabbing and disclosures that dispelled the image of a happy and healthy domestic relationship in February 2016. The officers discerned Ms. Thomas abusing opiates for back pain and resorting to street suppliers when prescribed quantities exhausted. Ms. Thomas acknowledged abusing Oxys before and after Mr. Allen’s death and resort to street suppliers.

11Ms. Thomas said her back pain is adequately managed in the detention center with Tylenol 3’s morning and night and Robaxacet. She receives medication for depression associated with her present circumstances.

The Bail Plan

12The bail plan involves residence in the Elizabeth Fry Society residence on Russell Road in Ottawa, enrolment in the John Howard Bail Verification and Supervision Program, compliance with the rules of the house and program and contract with Recovery Science Corporation in its compliance monitoring program. The evidence is that her monthly income of approximately $1,800 would fund these programs.

13Ms. Thomas commits to adherence to all bail conditions that might be imposed.

14Diane Serre is the manager of the Elizabeth Fry Society of Ottawa Residential Bail Program. The program provides safe and supportive housing for up to twelve adult women currently on bail under the Bail Verification and Supervision Program supported by the John Howard society. There are presently five women resident in the home, most of whom are on bail for serious charges, one of whom is facing a first-degree murder charge.

15The E. Fry Society mission is to offer women a second chance. The strength and deficiencies in the E. Fry Program derive from government mandate and funding and staffing. It would be a stretch to think that employees and volunteers in the program have pristine records. I suspect the opposite and therein lies the basis for reliance on the discretion exercised by program management. Who better to know the importance of second chances and release condition compliance?

16The Crown alerted the Court to Ms. Serre’s criminal record. It is public record. If anything, that foray validated the value added to the program by a person with Ms. Serre’s life experiences.

17Ms. Serre was unaware of any relevant connection between the incumbent residents and Ms. Thomas, nor was she cognizant of the Oxy abuse history Ms. Thomas presents. Ms. Thomas acknowledged having encountered two of the residents while placed at the OCDC and were she to share space with them would tend to vacate the area.

18The residence is secure and managed full time. The program cannot act as surety. When a resident is away from the house, she is largely unsupervised. Ms. Serre confirmed the program does not have the resources to escort residents on excursions from the house. Residents are required to sign out with explanation when they have appointments either with the E. Fry activity center, the John Howard Bail Program or attendance to personal matters such as groceries, health care needs and religious fulfilment. In situations when management observes that a resident does not follow the scheduled itinerary, they investigate. In situations where the deviation constitutes a breach of house rules, appropriate discretionary consequence is applied. If the deviation constitutes a breach of release condition the resident is breached.

19The bail plan includes an electronic monitoring program. Mr. Marshall testified for the Recovery Science Corporation. He confirmed that monitoring ought not to be relied on if the objective is prevention rather than risk management. Its value as a risk management tool derives from the deterrent effect resulting from the accused knowing she is being monitored and breach of conditions will be detected and reported and consequenced faster than with an accused who is not monitored.

20Ms. Thomas offered pledge of bond in an unstated amount. Her finances are constrained. LAO, the E. Fry society and the electronic monitoring administration agree to discount their regular fare so the bail plan can survive financially. If she pledges a bond and breaches, the consequence will be a binding obligation to pay and the monthly deposits to her credit would be attachable. While she remains in detention or if she is returned to detention following a breach, her disposable income after the contribution to LAO is in the range of $800 per month.

Applicable principles

21Placing the burden on the accused does not mean she is disentitled to release. The basic philosophy is that those persons who do not constitute a danger to the public and who will attend for trial ought not to be detained in custody.

22Justice Trotter in “The Law of Bail – 3rd Edition page 5-24.4 notes that uneasiness about releasing persons accused of murder probably stems from public interest concerns and notes there is no evidence to suggest accused persons charged with murder are at greater risk of flight or further offending.

23I will canvass the pertinent aspects of the three grounds for detention, identify the risks before the Court and how the bail plan mitigates those risks.

Primary Ground

Nature of the offence and the potential penalty

24An accused person charged with murder will generally find themselves at the upper end of the Antic ladder. That said, since abolition of the death penalty, the rationale for detention based on severity of penalty and motivation to flee remains a factor but is less rigidly applied.

The strength of the evidence against the accused

25The rationale is it may be inferred the accused is more likely to avoid attending trial if she is aware the case against her is a strong one and the probability for conviction is high. Justice Trotter stresses that despite the inherent logic, the Court is to approach this consideration with care.

26The apparent strength of the evidence is a factor in relation to the first ground, but is not determinative. The case law recognizes concern for situations where the Crown case appears at the summary preliminary stage to be overwhelming only to have it unravel during trial.

27The summary provided by the Crown into the circumstances of the case suggest a high probability of conviction of the accused, whether it be for manslaughter, 1st or 2nd degree murder.

28The Crown offers summary evidence to show that the Applicant:

• Had the exclusive opportunity to cause Mr. Allen’s death;

• Stabbed him in a manner that is consistent with the angle and direction of his wound, confirmed by the pathologist report and 3D laser reconstruction;

• Removed the knife from his body or, in the alternative, misled the 911 operator when she called to report the stabbing;

• Had animus towards the deceased resulting from financial stress, drug use, being a primary caregiver, and verbal/emotional abuse;

29The Crown recorded audio-video evidence on September 20, 2018 wherein Ms. Thomas admits killing Mr. Allen to two undercover officers. She described how she killed him and re-enacted the method. She confirmed the truth of the admissions to one of the undercover officers later when she explained their unfortunate lifestyle circumstances.

30That said, the summary is just that. Summaries involve conclusions and perceptions that may be flawed. Mr. Langevin suggested there may be deficits in the grounds relied on for the communication interception authorizations that may affect the admissibility of intercepted communications. The strength of the case against Ms. Thomas may be overstated.

Ties to the Community

The rationale is a person with ties to the community is more likely to attend her trial than a person with fewer ties or is more mobile. Residence under the auspices of the E. Fry Society or with family would fairly mitigate this factor. The evidence is that Ms. Thomas adjusts to ambient circumstances. For the moment, family is resident in Digby, Nova Scotia

Accused Person’s criminal record and compliance with previous Court orders

31If good character in the past is a predictor of future characteristic, this mitigates the concern for flight in the face of strong case and possibility of lengthy sentence. Ms. Thomas has not experienced the criminal justice system before this. As noted, she 59, retired after serving just short of twenty years in the Armed Forces without disciplinary blemish.

The accused person’s behavior prior to apprehension: flight or surrender

32Ms. Thomas honours her personal undertakings.

33Ms. Thomas called 911 and exhorted the operator to effect immediate attendance. Ms. Thomas did not know at the time just how close Mr. Allen was to death. She did not know how long it would take the paramedics to arrive.

34While Ms. Thomas advanced exculpatory narratives and explanations for the injuries to Mr. Allen, she did not take flight. She stayed in the area settling her financial issues. She made herself available to the investigation into Mr. Allen’s death. When she realized or decided that her meaningful ties lay in Digby, she decided to move home. She gave the IO notice and contact particulars. That she moved to another residence in Digby without notice is of minimal moment. Digby is a village. She was not hiding from anyone.

35Notwithstanding the advice from UCO#3 to ignore the scheduled polygraph without notice, she could not do that. She felt compelled to contact the IO to notify of request for postponement.

Conclusion

36The charges are serious, the Crown case seems strong at this stage for a conviction relating to Mr. Allen’s decease and the potential for lengthy sentence of imprisonment is real. Those are motive to take flight.

37That said, Ms. Thomas has nowhere but the Digby area to go. She does not have a criminal record. She demonstrated commitment to undertakings she provided in the course of the investigation. She suffers from a bad back and is excluded from labour generic employment. Her livelihood is based on a federal government pension so that a pledge would be easily enforced. That offers the pull of bail.

38The bail plan is as good as can be offered in her present circumstances. It does not offer a surety who could be with her in the community. There is a level of supervision offered by the home policies and practices and the electronic monitoring.

39Over all, I am satisfied that the bail plan, with a meaningful pledge, the practical constraints on her mobility including ties to community within the E. Fry Home, her understanding of the importance of honouring undertakings, her age and dearth of criminal record and the financial pull of a bond pledge in her very tightly defined financial circumstances reduces the risk of flight to an acceptable level for release.

The Secondary Ground

40The secondary ground focuses on concern for the protection or safety of the public having regard to all the circumstances including any substantial likelihood the accused person will if released from custody commit a criminal offence or interfere with the administration of justice.

41The Crown referenced the following considerations under this ground:

i. The criminal record of the accused and compliance with Court orders;

ii. The accused is already on bail or recognizance;

iii. The nature of the offence and strength of the evidence; and

iv. The stability of the accused.

42The Crown noted that the first two considerations are not indicators of detention on this ground. It is more than that. Ms. Thomas can be contrasted to an accused entrenched in criminal lifestyle. The only evidence before the Court is that until the incident before the Court Ms. Thomas maintained a pro-social lifestyle that mitigates concern for another criminal offence if released.

43That said, as Justice Trotter notes at page 3-21 the Quebec Court of Appeal in R. v. Rondeau (1996), 1996 6516 (QC CA), 108 C.C.C. (3d) 474 links the nature of the offence and strength of the prosecution case to the secondary ground. Equating the risk of offending while on bail in the present based on the individual’s past without factoring in the circumstances of the incident that interrupted the unblemished past was rejected. The allegations respecting the offence charged is relevant to the accused person’s future dangerousness. The strength of the Crown’s case determines the weight that may be attributed to the offence in this assessment. Although the accused person is presumed innocent, this cannot prevent a Court from considering the nature of the offence and the degree to which the evidence foreshadows the future determination of culpability.

44The factors identified by the Court of Appeal concerning the likelihood of dangerousness include:

i. Nature of the offence;

ii. The relevant circumstances of the offence;

iii. The likelihood of a conviction;

iv. The degree of the participation of the accused;

v. The relationship between the accused and the victim;

vi. The accused person’s profile – occupation, lifestyle, criminal record, family situation and mental state;

vii. Conduct prior to commission of the alleged offence; and

viii. The danger which the interim release of the accused represents to the community specifically affected by the matter.

45The burden on the accused to show cause why detention in custody is unnecessary notwithstanding the behavior at bar increases as evidence of planning, deliberation and brutality are factored in. In Rondeau, there was overwhelming evidence of planned, deliberate and brutal conduct.

46Mr. Langevin characterized the nature of the alleged homicide and Ms. Thomas’ participation as mid-spectrum. There are triable issues regarding planning and deliberation. Dreaming is not the same as planning and deliberation and is of a different band-width from the facts in Rondeau.

47Subject to the reservations expressed under the “strength of case” subsection as factor in the Primary Ground for Detention, the likelihood for conviction for an offence arising from this death is a high one. The evidence summarized by the Crown suggests that Ms. Thomas stabbed the victim in the chest one time from behind. She had exclusive opportunity and there is a confession.

48The same pro-social characteristics noted in discussion of the primary ground for detention apply so her profile favours release. It is correct that she was likely addicted to opioid pain medication. That is not enough in and of itself to signify a precarious mental and social state. If the class actions and settlements against Purdue Pharma are an indicator, she was not alone. Such addictions afflicted a significant percentage of law-abiding consumers. In testimony, she confirmed that since the arrest, her opioid consumption has stopped, and her back pain is managed with other non-addictive medications.

49Theirs was a long-term domestic relationship. The evidence summary suggests that Ms. Thomas faithfully ministered to Mr. Allen’s needs while he convalesced from symptoms of cancer and treatments. He was apparently in remission when he died. They may have been confederates in consumption of crack cocaine and cocaine.

50Ms. Thomas presents little danger to the community specifically affected by the matter. She was arrested approximately two years following Mr. Allen’s decease. She returned to her birth community, near to family and friends, living independently together with a new partner. Her circumstances were as stable as her circumstances allowed. Other than procurement of street sourced Oxycontin, she was offence free.

51In my view, Ms. Thomas does not pose a substantial likelihood of committing an offence or interfering with the administration of justice if released. To the extent this might be a risk, the programs and services offered by the E. Fry and John Howard Societies and the deterrent effect inherent in electronic monitoring mitigate it to a point well within the judicial interim release framework. Even though the offence and circumstances alluded to above are serious and place such an offender near or at the top of the Antic ladder, in all the circumstances of the accused, the requirement of a surety to address concerns inherent in the second ground for detention is more than needed.

52The bail plan offered satisfies me that, notwithstanding homicide in a domestic context, and the strength of the Crown case for a homicide conviction, concern for further offence while on release pending trial is satisfactorily mitigated by the release plan offered.

Tertiary Ground

53As counsel submitted, this bail application turns on the third ground for detention.

54This ground focusses on whether detention is necessary to maintain confidence in the administration of justice having regard to all the circumstances. The target audience is thoughtful, not prone to emotional reaction, whose knowledge of the circumstances of the case is inaccurate or who disagrees with our society’s basic values. He or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences available to accused persons - R. v. St. Cloud 2015 321 C.C.C. (3d) 397 at p. 337.

55The question is would the sensibilities of the community be so affected that to have the accused person returned to the community, notwithstanding the presumption of innocence, lead to real harm to the administration of justice.

56Factors for consideration include:

i. The apparent strength of the prosecution case

Subject to the reservations noted about the strength of the Crown case articulated in respect to the first two grounds for detention, the Crown summary evinces a strong case for conviction for an offence arising from wrongful death. The fact summary does not raise triable self-defence or provocation defences as in R. v. Wright, 2013 CarswellOnt 18593;

ii. Gravity of the offence and circumstances surrounding the commission of the offence, including whether a firearm was used.

There is no evidence of a firearm having been used so that is not a factor in the calculus.

Ms. Thomas called 911 for assistance.

Homicide is at the distal end of gravity of offence. Some homicides are worse than others. The same can be said for other offences. Release in the less serious cases will not always harm respect for the administration of justice while the opposite may be true in the more serious cases. Violence at some level is inherent to homicide and so cannot be determinative against release. Pertinent considerations are whether the violence occurred in circumstances of malevolent rather than foolish or spontaneous intent or whether the accused person is a person prone to violence or cruelty or whether she became caught up in circumstances where awful outcomes sometimes result.

In the context noted at para 88 in St. Cloud namely that if the crime is serious – it is, or very violent – mid range, if there is overwhelming evidence against the accused – as it seems to be vis a vis homicide and if the victim was vulnerable, pre-trial detention will usually be ordered. The evidence in the case at bar is less violent than the facts in St. Cloud and more spontaneous and closer to impetuous emotional outbreak than in R. v. Stevenson, 2007 ONCA 378, 2007 ONCA378 where by comparison the court concluded there was a planned and cold-blooded killing by a separated husband on probation at the time after a prior threatening of the victim conviction

While Ms. Thomas is not prone to violence generally, the Crown theory is that her animus towards the deceased based on her own utterances was driven by financial stresses consequent to the deceased’s substance abuse, the tasks of being his primary caregiver and verbal/emotional abuse.

iii. The fact that the accused person is liable on conviction for a potentially lengthy term of imprisonment.

A homicide conviction potentially exposes Ms. Thomas to a lengthy term of imprisonment.

Mitigating factors include that Ms. Thomas is a pro-social first offender with an extended productive vocational record, she called 911 and exhorted timely service and the file is at the nascent stage relative to trial.

iv. Finally, I need to be satisfied whether the bail plan conditions sufficiently address concerns under s. 515(10)(c). Justice Trotter notes that the accused person’s release plan is relevant to whether the public confidence in the administration of justice is capable of being maintained. A reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with little supervision compared to a situation where a strict plan has been crafted.

The apparent agenda in the time after February 6, 2016 of dissembling intended to deflect attention away from her tends to qualitatively undermine the confidence and trust the reasonable and informed person might otherwise attribute to a person with her background in life.

57While in all the circumstances, for the reasons stated, I am satisfied the bail plan offered by Ms. Thomas satisfactorily addresses the concerns involved in the first and second grounds for detention in s. 515(10), I am not persuaded it addresses the concern for maintaining confidence in the administration of justice.

58I have to agree with the Crown submission as to the supervision and pledge deficits in the plan. The strength of the Crown case, the prospect for a lengthy term of imprisonment and the dissembling are aggravating factors in relation to concern for confidence in the administration of justice. The circumstances are distinguishable from those in Wright where there were serious triable issues such as self-defence and whether the death could be contextualized as planned and deliberate and where there was a reliable surety and bond pledge.

59The reasonable and knowledgeable member of the community would be distressed to learn that Ms. Thomas was released into a situation where chunks of her days were unsupervised in the community. The offering from the Elizabeth Fry Society is valuable as far as it goes. I am confident in the reliability of management and administration of the society program. Budgetary limitation precludes a surety feature to the plan. These facts place Ms. Thomas near or at the top of the Antic ladder and call out for reliable surety and bond pledge. The fact is and the jurisprudence is consistent in the conclusion that electronic monitoring marginally mitigates concern for confidence in the administration of justice.

60Ms. Thomas is a candidate for bail with a strict plan; one that includes residence, a reliable surety and pledge and strict supervision. I am alert to her family and social circumstances and appreciate the logistical obstacles. Someone needs to step up.

61In conclusion, the instant application for judicial interim release is dismissed because Ms. Thomas has not shown cause why, on the balance of probabilities, based on the plan offered in all the circumstances, that her detention in custody is not justified within the meaning of s. 515(10)(c). I am prepared to remain seized of this matter, in the context of an amended application for judicial interim release based on an upgraded bail plan.

The Honourable Justice Rick Leroy