COURT FILE NO.: CR-19-0151-00BR

DATE: 2019-10-28

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

S. Frenette, for the Crown

• and -

Jeffrey Miller

G. Joseph, for the Accused

Accused

HEARD: October 16 & 17, 2019, at Thunder Bay, Ontario

WARNING

A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING

UNDER S. 517 OF THE CRIMINAL CODE OF CANADA

517 (1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

Failure to comply

(2) Every person who fails, without lawful excuse, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

Mr. Justice W. D. Newton

Reasons on Application for Bail Review

Overview

1This is an application brought on behalf of Jeffrey Miller for an order granting him judicial interim release in respect to the charge of second-degree murder, contrary to s. 235(1) of the Criminal Code.

2Mr. Miller was arrested on March 29, 2019. Section 522(1) of the Criminal Code provides that where the accused is charged with murder, the bail hearing must be before a Superior Court Justice. Section 522(2) provides that a person charged with murder must be detained in custody unless that person shows cause why their detention in custody is not justified within the meaning of s. 515(10).

3On consent, the Crown provided a summary of the allegations against Mr. Miller based on the police investigation to date. Affidavits were filed from Mr. Miller and the two proposed sureties, his father and his sister. The sureties also testified.

Summary of the Allegations

4At about 12:45 in the afternoon on March 29, 2019 a motorist discovered a male lying on the shoulder of a rural roadway within the City of Thunder Bay. The male was obviously injured and covered with blood. The male was not wearing shoes or socks.

5In response to a 911call, the police arrived.

6The male, who was later identified as Robenson Saint-Jean from Ottawa, was transported via police car and then ambulance to the Thunder Bay Regional Health Sciences Centre where he was pronounced dead. Postmortem examination identified several stab wounds. The most significant was a stab/slash wound to the neck. The pathologist determined that the cause of death was a combination of blood loss and suffocation due to blood in the lungs.

7Scene investigation discovered the remnants of a broken tinted vehicle window near where the victim was found.

8In response to a media release seeking information, a witness contacted police and reported that he had observed a male walking on the side of the road in that area apparently being followed by a vehicle which he described as a white GMC Jimmy with tinted windows.

9Because it was suspected that the victim was involved in the drug trade, police searched for a white GMC Jimmy at known drug houses and local hotels. At about 8:25 that evening police located a white GMC Jimmy parked at a local motel. The vehicle had tinted windows. It appeared that the front passenger side door window was down or missing. The police conducted surveillance and a male was observed doing something to the inside front passenger door and the front passenger door window became visible. The police determined that a room at the hotel was registered to "J. Mueller" and occupied by the male seen at the Jimmy. Later, a male and female exited the motel and drove away in the vehicle. The police stopped the vehicle. Officers observed a blood like substance on the inside of the front passenger door, fragments of broken glass in the passenger door pocket, and a slashed passenger seat.

10Subsequently, Mr. Miller, the driver, was charged with second-degree murder.

11The GMC Jimmy was searched pursuant to a warrant. Items found within the vehicle include three pairs of shoes, other items of clothing including a black T-shirt, three cell phones (including a new iPhone), and various receipts for purchases made that day. Also found was a "camo" style pouch with three compartments, some of which were empty. Police secured an identical pouch from a store to determine, by comparison, what items were missing from the empty compartment of the one retrieved from the Jimmy. The pouch is sold as a kit. Missing from the pouch found in the Jimmy was a 9-inch skinning knife.

12The police attended at the stores where the purchases had been made and viewed store surveillance video surrounding the times of the purchases. Of note was the video taken at a gas station around 1:19 p.m., on March 29, 2019, within about 45 minutes of the discovery of the deceased. That video shows a male, who is alleged to be Mr. Miller, purchasing gasoline for the GMC Jimmy. Mr. Miller is observed wearing a black T-shirt with the word "OBEY" on the chest. The shirt is ripped at the front.

13The next purchase is at a beer store at 1:51 p.m. In that video, Mr. Miller is wearing an Edmonton Oilers jersey. He is driving the GMC Jimmy.

14At 2:05 p.m. a purchase is made at an LCBO. Mr. Miller is observed wearing the same jersey. The front passenger window is noted to be down or missing.

15At 2:45 p.m. Mr. Miller is observed buying a new iPhone.

16At 3:24 p.m. he is observed purchasing new shoes.

17A search of the new iPhone's browser history indicated that two YouTube videos demonstrating how to replace car door windows were watched later that day.

18The Crown asserted that the tint on the passenger side door window does not match the tint of the other windows on the Jimmy.

19Forensic analysis concluded that blood found on the black OBEY T-shirt worn by Mr. Miller, and found in the Jimmy, is the blood of the victim. Blood on the shoes in the Jimmy match the victim's blood.

20The police interviewed the woman who was with Mr. Miller, Marita Jamsa, on March 30, 2019. She said that she, Mr. Miller, and the deceased were staying at Bill Raushning's place on Leslie Avenue on March 28. When she awoke on March 29, Mr. Miller and the deceased were not present. She said that Mr. Miller returned and picked her up at about 4:00 p.m. Later, she and Mr. Miller drove out to the country to a location where Mr. Miller replaced the broken front passenger door window. She also told the police that when they were stopped by the police, Mr. Miller told her to tell the police that he had been with her all day. Mr. Miller attempted to contact Ms. Jamsa on April 3, 2019 and Ms. Jamsa's mother did not permit the conversation. The Crown conceded that there was no "non-contact" condition in place at that time.

21The police also interviewed Bill Raushning on March 30, 2019. The Crown asserted that Mr. Raushning is a known drug dealer. Mr. Raushning said that Mr. Miller was his "driver". He knew the victim as "Blacko" and that "Blacko" was working for another person. He said that "Blacko" had $22,000 in drugs which he was selling for someone named "Pitbull" or "Pauly" who works for Luigi. He said that he last saw "Blacko" a few days ago and that Mr. Miller was "Blacko's" driver. He was not aware of any issues between Mr. Miller and "Blacko".

The Applicant

22Mr. Miller is 41. Up until about early March of this year, he was employed full-time for five years at the North American Palladium mine as a heavy equipment operator. He deposed that he was on short-term disability at the time of his arrest. He is married, with young children, and separated from his family shortly before his arrest.

23Mr. Miller does not have a criminal record.

The Sureties

24The proposed sureties are Mr. Miller's father, Ralph Miller, and his sister, Heidi Turk.

25Ralph Miller is 65 and resides with his common-law spouse in a home he owns in Thunder Bay. He is retired due to work-related injuries. His home has a basement suite which is where Mr. Miller would reside if released from custody.

26He has a modest pension of about $1500 a month. In addition to his home, he owns a "camp" or cottage and he estimates this real property has a value of about $200,000. He is prepared to pledge $100,000 to secure his son's release. He has a very dated criminal record for assault which occurred over 20 years ago. He received a fine and probation for that offence.

27Ralph Miller was not aware that his son had drug issues but was aware that he was off work for mental health issues. He testified that his son told him of his separation about three weeks prior to his arrest.

28In cross-examination, he admitted that he knew that his son was "couch surfing" just prior to his arrest as a result of his separation. He said that he had offered his basement suite to him but that his son did not "show up".

29Ms. Turk is 44, married, and has three children. She works full-time, 8:30 a.m. to 4:30 p.m., as a housing facilitator for St. Joseph's Care Group and earns approximately $52,000 annually. She does not have a criminal record.

30She resides with her husband and two of her children in a mobile home park. She estimates the value of their mobile home at approximately $90,000. She is prepared to pledge $50,000 to secure her brother' s release.

31Ms. Turk testified that she believes that her brother had become depressed and addicted to "crack cocaine". Since her brother's arrest she has been attempting to assist him with his short-term disability claim. If he is released, she plans to assist him in accessing appropriate mental health treatment including addiction treatment.

32In cross-examination, she testified that her brother had long-term mental health issues which she thought were related to depression. Since his separation in early March, she has spoken to her brother about treatment for addiction and thought that he was getting some psychological help through his employment. She admitted that she and her daughter made a complaint to the police in 2010 about some sexual misconduct involving her brother and her daughter in 2007. No charges were laid.

33The proposed release plan would involve Mr. Miller residing primarily with his father but with his sister, as respite, as required. Mr. Miller's father is prepared to abide by a term which equates to "house arrest" with Mr. Miller not being allowed out of the house unless in the company of one of his sureties.

The Law

The Right to Bail

34In R. v. Antic, 2017 SCC 27, Wagner J. (as he then was) reiterated and confirmed the fundamental principles regarding the law of bail in Canada:

[1] The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons.

[4] The "ladder principle", which is codified in s. 515(3) of the Code, requires a justice or a judge to impose the least onerous form of release on an accused unless the Crown shows why that should not be the case.

35The ladder principle was set out at para. 67 of Antic:

[67] Therefore, the following principles and guidelines should be adhered to when applying the bail provisions in a contested hearing:

(a) Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail.

(b) Section 11(e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms.

(c) Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1).

(d) The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, "release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds": Anoussis, at para. 23. This principle must be adhered to strictly.

(e) If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention.

(f) Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms.

(g) A recognizance with sureties is one of the most onerous forms of release. A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.

(h) It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Thus, under s. 515(2)(d) or s. 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable.

(i) When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should not be beyond the readily available means of the accused and his or her sureties. As a corollary to this, the justice or judge is under a positive obligation, when setting the amount, to inquire into the ability of the accused to pay. The amount of cash bail must be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case.

(j) Terms of release imposed under s. 515(4) may "only be imposed to the extent that they are necessary" to address concerns related to the statutory criteria for detention and to ensure that the accused can be released.[5] They must not be imposed to change an accused person's behaviour or to punish an accused person.

Justification for Detention

36As noted, in this case the onus is on Mr. Miller. Mr. Miller must show cause why his detention in custody is not justified within the meaning of s. 515(10) of the Criminal Code:

Justification for detention in custody

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution's case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

37Subsections 515(a), (b), and (c) are commonly referred to as the "primary", "secondary", and "tertiary" grounds.

38In R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.), at paragraph 87, Wagner J. summarized the essential principles that must guide a justice in applying s. 515(10)(c), the tertiary ground, as follows:

• Section 515(10)(c) of the Criminal Code does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.
• Section 515(10)(c) of the Criminal Code must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.
• The four circumstances listed in s. 515(10)(c) of the Criminal Code are not exhaustive.
• A court must not order detention automatically even where the four listed circumstances support such a result.
• The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.
• The question whether a crime is "unexplainable" or "unexplained" is not a criterion that should guide the analysis.
• No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.
• This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).
• To answer this question, the court must adopt the perspective of the "public", that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.
• This reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered.

Positions of the Parties

Mr. Miller

39Counsel for Mr. Miller argues that Mr. Miller has clearly met his onus with respect to the primary and secondary grounds given that Mr. Miller has no criminal record and that the sureties, who are pledging a significant portion of their worth, can be trusted to fulfill their obligations.

40With respect to the tertiary ground, counsel acknowledge that this is a grave offence, the second most serious offence in the Criminal Code, and that, if convicted, Mr. Miller will receive a life sentence. However, counsel for Mr. Miller argues that the case against Mr. Miller is based on circumstantial evidence only and that some of the evidence may be ruled inadmissible. In the circumstances of this case, counsel for Mr. Miller argues that a properly informed reasonable person's confidence in the administration of justice would not be undermined by Mr.'s Miller's release since he has no prior criminal record and given the strength of the sureties and their significant pledges.

41Counsel for Mr. Miller referred me to R v McRae, ONSC 7145 [2017] O. J. No 6338, 2017. Mr. McRae was charged with second-degree murder for the death of his son. With respect to the reverse onus, Kane J. stated at para. 44:

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).

42Citing R. v. Downey, [2018] O. J. No. 6133, counsel for Mr. Miller submits that I should disregard the allegations of sexual impropriety that did not result in charges as irrelevant: at para. 9. He reminds me that regardless of who has the onus, the court must be guided by the ladder principle in fashioning a release order: at para. 25.

The Crown

43While primarily concerned with the tertiary ground, the Crown also raises some issues with respect to the primary and secondary grounds. The Crown points to the use of an alias by Mr. Miller upon registering at the motel and his alleged request to Ms. Jamsa to lie to the police as indicating that he cannot be trusted and that he might re-offend if released.

44The Crown characterizes its case as a very strong circumstantial evidence case and argues that the public's confidence in the administration of justice would be undermined were Mr. Miller released given the brutality of this offence, the recognized violence associated with the drug trade, and the damage that the drug trade is doing to the citizens of this region.

45The Crown referred me to R v Dubois, ONSC 5204 [2015] O. J. No 4769, 2015, also a second-degree murder case, which the Crown submitted was similar to the case before me. James J. stated at para. 31:

31 In the case before me, the accused is alleged to have been armed with a knife, lured his victim into stairwell to facilitate a robbery, fatally stabbed his friend and co-worker four times over a small amount of marijuana then attempted to get another friend to lie to the police to provide him with an alibi. If the Crown accusations are true, there is reason to be concerned for both the level of danger the accused poses if he is not detained and whether he will comply with court-ordered constraints on his activities.

46Mr. Dubois was detained on both the secondary and tertiary grounds.

Analysis

47I begin my analysis with the comment about the Thunder Bay District Jail where Mr. Miller is detained. I take judicial notice of the condition of the facility including significant overcrowding and the lack of exercise program and mental health care. Disclosure in this case is ongoing. This trial may not occur for another two years.

The Primary and Secondary Ground

48Given the lack of criminal record and the strength of the sureties and their pledges, I am satisfied, on a balance of probabilities, that Mr. Miller will attend court as required and will not commit a criminal offence or interfere with the proper administration of justice if released.

49What has been described as the "pull of bail" or the "real effective force" of bail is that the accused will comply with his conditions of release "rather than subject his nearest and dearest who has gone surety for him to undue pain and discomfort:" See G.T. Trotter, The Law of Bail in Canada, loose-leaf, 3rd ed. (Toronto: Thompson Reuters Canada Limited, 2019) at p. 7-12; and Canada (Attorney General) v. Horvath, 2009 ONCA 732 at para. 40.

50I am satisfied, based on the evidence of the sureties, that they will comply with their obligations and, particularly, not fail to contact authorities if Mr. Miller does not comply with the conditions of his release. Their pledges are significant – about one half of their wealth. I am satisfied that the "pull of bail" is sufficiently strong in this case. I acknowledge the Crown's concerns arising from the alleged conduct with Ms. Jamsa but, in the circumstances, I am satisfied that these concerns can be addressed by appropriate release conditions.

The Tertiary Ground

51Is it necessary to detain Mr. Miller until his trial to maintain confidence in the administration of justice?

52There is a strong circumstantial case that implicates Mr. Miller in Mr. Saint-Jean's murder. Murder is a grave offence. The apparent circumstances of the offence – a vicious stab and slash to Mr. Saint-Jean's throat, the dumping of Mr. Saint-Jean's body at the side of the road in broad daylight, all in the context of the drug trade – are brutal and repugnant. If convicted, Mr. Miller will be sentenced to life imprisonment with no eligibility for parole for at least 10 years.

53The evidence is not, however, at this stage, overwhelming that it was Mr. Miller who stabbed Mr. Saint-Jean. And, as noted, although Mr. Miller has the onus on this application, that onus does not eliminate the presumption of innocence or his otherwise constitutional right to reasonable bail.

54As St. Cloud directs, I must balance all relevant circumstances and ask myself whether Mr. Miller's detention, before his guilt is determined, is necessary to maintain confidence in the administration of justice. Relevant circumstances include the strength of the bail plan.

55In this case, two close family members, Mr. Miller's father and his sister, are prepared to act as sureties and pledge very significant sums of money given their circumstances. I am satisfied, as stated, that the proposed sureties will comply with their obligations and I am satisfied that the "pull of bail" is sufficiently strong in this case.

56I am satisfied, on a balance of probabilities, that a reasonable person who is "properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case" (St. Cloud at para. 87), including the strength of the sureties and the strictness of the release plan, will not lose confidence in the administration of justice.

57Therefore, it is ordered that the applicant, upon entering a recognizance in the amount of $100,000 with the named surety Ralph Miller (DOB February 1, 1954), without deposit, and in the amount of $50,000 with the named surety Heidi May Turk (DOB January 31, 1975), without deposit, be granted judicial interim release upon condition that he:

a. Keep the peace and be of good behaviour;

b. Reside primarily with Ralph Miller at 276 Carl Ave., Thunder Bay and, as required, with Heidi May Turk at 29 – 31 Silver Springs Road, Township Gorham and be amenable to the rules and discipline of that residence and to notify the Thunder Bay Police when he moves from one residence to the other;

c. Be inside his place of residence always and not to leave his residence at any time except in the presence of one of his sureties and, in any event, not to be away from his residence between the hours of 8:00 p.m. and 8:00 a.m. daily;

d. Report in person to the Thunder Bay Police Station every Monday between 8:00 a.m. and 8:00 p.m. commencing on the first Monday following his release from custody with one piece of personal identification which includes a photo;

e. Present himself at the door of his residence when asked to do so by any police officer at any time;

f. Remain within a 100 km radius of the City of Thunder Bay;

g. Deposit with Detective Constable Verescak or his designate his passport, if any, and driver's licence;

h. Abstain absolutely from the purchase, possession and consumption of alcohol, cannabis, or any nonmedically prescribed drugs;

i. Not attend any establishment with the principal purpose of which is the dispensing of alcohol or cannabis;

j. Not be in the presence of any person using or in the possession of nonmedically prescribed drugs;

k. Not possess any weapons as defined by the Criminal Code including a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance;

l. Surrender any possession or possession Acquisition License or any firearm certificate or registration to Detective Constable Verescak or his designate within 24 hours of his release from custody;

m. Provide a letter from his sureties to Detective Constable Verescak or his designate within 24 hours of your release from custody confirming that all firearms and weapons, including crossbows, have been removed from the sureties' residences and to whom said firearms and crossbows were conveyed/transferred;

n. Not possess or use any pager, cellular telephone, or other portable telecommunication device or use Internet access or a landline save and except that he may use a landline or access the Internet in the presence of his surety or in the case of emergency or to contact his surety;

o. Except through counsel, not associate or communicate, directly or indirectly with the following persons: Marita Jamsa or William (Bill) Raushning or be within 100 m of their places of residence or work or where they are otherwise known to be;

p. Not to have any visitors at his residence without the knowledge and permission of a surety;

q. Carry a copy of his recognizance of bail on his person always when not in his residence and present this to the police upon request;

r. Attend court as required.

58Counsel may make submissions with respect to additional necessary conditions or modifications to these conditions to give effect to this order.

59During her evidence, Mr. Miller's sister indicated that she would be assisting her brother in arranging an assessment for treatment for any mental health issues and I recommend to the sureties that they should do so.