Court File and Parties

COURT FILE NO.: 2127/21BR DATE: 20210310 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Joseph DiCarlo

Counsel: Suzanne LaSha, for the Crown Patrick Ducharme, for the Applicant/Defendant

HEARD: February 12 and March 2, 2021

Restriction on Publication

An order has been made pursuant to s. 517(1) of the Criminal Code. Counsel are permitted to circulate this judgment to other counsel for the use in court. Publication and quotation of general principles in these reasons is permitted, but publication of any facts about the applicant, his personal circumstances or the evidence is prohibited.

Ruling on Application for Bail

Desotti, J.

A. Bail Hearing: The Facts

[1] The matter comes before me in the Superior Court because the accused is charged with first degree murder. The warrant of committal is dated January 14th, 2021. This is a reverse onus and thus it is for the accused to present sufficient evidence and facts in support of his judicial release.

[2] The investigation is still ongoing and thus additional evidence and disclosure is to be forthcoming.

[3] On the evening of January 14th, 2021, the accused placed a 911 call indicating that a person was in need of an ambulance as the person was not breathing.

[4] The deceased was a Natalie Bartlett who had been involved with the accused for the last 8 years. They resided in a residence at 1460 Lee Court in Sarnia with the deceased two daughters who were 8 and 11.

[5] When police and ambulance arrived, the accused was standing in his driveway outside of his garage and the deceased was on the floor of the garage. Blood stains were seen on the accused’s hand and right pant leg.

[6] On top of a stool in the garage was observed a silver handgun, an empty magazine and one round of ammunition. On the garage floor was observed spent casings.

[7] The accused was arrested for aggravated assault and was advised of his rights to counsel and upon confirming that Ms. Bartlett died of her injuries, he was then charged with first degree murder.

[8] A preliminary examination of the body indicated that there were at least 16 visible holes that indicated that she may have been struck with 8 rounds of gun shots.

[9] Constable Jamie Moore would indicate that he detected a strong odour of alcohol emanating from the breath of the accused. When asked about his version of events that had transpired, the accused answered, “nothing good”.

[10] There were two children found sleeping in the basement and they were turned over to the Children’s Aid Society and a German Setter dog was also present and turned over to Animal Control and the Humane Society.

[11] A search warrant for the residence at 1460 Lee Court was obtained the next morning and the residence was searched at 3:23 PM. The residence was a back split and up a set of stairs was a bedroom with a closet that was open.

[12] In the closet was a gun safe that was open, and a magazine was observed inside. Additionally, there were other firearms and ammunition inside this closet. Also observed was a set of keys on the bed.

[13] One of the keys on the key set on the bed unlocked the safe, which was already unlocked.

[14] There is a series of photographs at Tab 6 that show the garage and the various guns found at the residence including the silver handgun found on the stool in the garage.

B. The Law

[15] The determination of bail on this reverse onus is governed by s. 515 (10) (c) of the Criminal Code which states as follows:

(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.

[16] In conducting an analysis to determine what a justice should consider when conducting a hearing under this section, Justice McLachlin of the Supreme Court of Canada in R. v. Hall indicated the following at paragraph 40 and 41:

[40] Section 515 (10) (c) sets out specific factors which delineate a narrow set of circumstances under which bail can be denied on the basis of maintaining confidence in the administration of justice. As discussed earlier, situations may arise where, despite the fact the accused is not likely to abscond or commit further crimes while awaiting trial, his presence in the community will call into question the public’s confidence in the administration of justice, Whether such a situation is judged by all the circumstances but in particular the four factors that Parliament has set out in in s.515 (10) (c ) – the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for lengthy imprisonment. Where, as here the crime is horrific, inexplicable, and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence upon which the bail system and the justice system as a whole repose.

[41] This, then, is Parliament’s purpose: to maintain public confidence in the bail system and the justice system as a whole … Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has specified. The judge cannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he must focus particularly on the factors Parliament has specified. At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice … The provision does not authorize a “standardless sweep’ nor confer open-ended judicial discretion. Rather, it strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community. In sum, it is not overbroad.

[17] In this 5/4 decision of the Supreme Court of Canada, the minority would have struck the entire section and allowed the accused to obtain bail for the horrific murder (37 stab wounds) of a woman and the accused’s attempt to behead her. (it should be noted with respect to the minority decision that the accused had already been convicted of first degree murder when the matter was before the Court and thus, this is perhaps one reason for the minority to allow the appeal as his bail was now academic)

[18] The majority decision merely struck a portion of the section that read “any other just cause”, which the majority determined was inconsistent with the presumption of innocence. The majority as well denied the appeal and thus this accused remained in custody.

[19] In R. v St-Cloud, the decision of the Supreme Court of Canada was delivered by Justice Wagner for the entire seven member Court. Justice Wagner expressly indicated that the expression “the crime as horrific, heinous and unexplained” was simply an observation that was made by the court and was not the imposition of a condition or a prerequisite for a determination under s. 515 (10) (c).

[20] Justice Wagner stated at paragraphs 47 and 48 as follows:

[47] In my view, the question whether a crime is “unexplainable” or “unexplained” is not a criteria that should guide justices in their analysis under s. 515 (10) (c). Apart from the fact that the provision itself does not even refer to such a criterion, I consider the concept ambiguous and confusing. What is meant by an “unexplainable crime? Is it a crime against a random victim? A crime that could be committed only by a person who is not rational? An especially horrific crime?

[48] Moreover, many crimes may be “explainable” in one way or another; for example, it may be that the assailant was provoked by the victim or that he or she had a mental illness or was intoxicated. From this perspective, the “unexplainable crime criterion is of little assistance.

[21] Justice Wagner also went out of his way to affirm that detention is only justified in rare circumstances, but that is simply a consequence of the application of s. 515 (10) (c) and not a precondition to its application, a criterion a court must consider in its analysis or the purpose of the provision.

[22] Justice Wagner stated as follows at paragraph 51:

While the circumstances in which recourse to this ground for bail denial may not arise frequently, when they do it is essential that a means of denying bail be available.

[23] In short, s. 515 (10) (c) does not require rare or exceptional circumstances to unexplained crimes or to certain types of crime such as murder. “The Crown can rely on s. 515(10) (c) for any type of crime, but it must prove – except in the cases provided for in s. 515 (6) that the detention of the accused is justified to maintain confidence in the administration of justice”.

C. Strength of the Crown’s Case

[24] Although there may be some evidence adduced on a bail hearing that might be excluded at trial, the evidence that allows me to conclude that the Crown has an extremely strong case, I will summarize as follows:

The accused had an on again off again relationship with the deceased, Natalie Bartlett, with the off-again ending of this relationship as reflected on the text messages of the deceased phone some two hours before her death;
The accused and the deceased resided together in the accused’s residence along with her two daughters;
The 911 emergency call made by the accused from the accused’s residence at 1460 Lee Court in Sarnia indicating that the accused needed an ambulance as the victim was not breathing;
The handgun found on the stool in the garage with one unspent cartridge and numerous cartridges on the garage floor;
The fact that the victim, the girlfriend and one time fiancée of the accused, had sustained at least 8 gunshot wounds to her torso and 16 wounds to her body and was beside the stool on the garage floor;
The open gun safe with the key to the gun safe found on the accused’s bed in the bedroom along with numerous other firearms;
The blood stain on the accused’s right pant leg and on his hand.

[25] While there are two defences that come to the forefront, such as intoxication and provocation, the actus of the alleged first degree murder is extremely strong and the aforementioned defences would only convert first degree murder to second degree murder.

D. The Gravity of the Offence

[26] The maximum penalty for first degree murder is life imprisonment with no chance of parole for 25 years. Second degree murder is life imprisonment with no chance of parole for a minimum of 10 years. The offence before the court is the gravest of all criminal offences.

E. Circumstances Surrounding the Commission of the Offence, Including Whether a Firearm was Used

[27] A firearm was used, the offence was a violent act with apparently 8 gunshots to the body of the deceased. This was an offence of domestic violence where the deceased’s daughters were in the residence asleep in their downstairs bedroom. This latter factor is a significant aggravating factor as it was entirely possible that these two children could have awakened during this 8 volley firing and witnessed their mother dead on the garage floor.

[28] As it was, they were awakened by a police officer and then placed in the custody of the Children’s Aid Society, a truly terrifying experience coupled with the eventual disclosure that their mother was dead.

F. The Fact that the Accused is Liable for a Potentially Lengthy Term of Imprisonment

[29] As stated the accused faces a sentence of life imprisonment with no chance of parole for 25 years or life imprisonment with no chance of parole for 10 years.

G. Listed Circumstances Are Not Exhausted

[30] Justice Wagner made it abundantly clear that even if the four factors are present, a detention order is not automatic. In affirming what the Chief Justice stated in R. v. Hall at paragraph 41:

At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice.

[31] Justice Wagner went on to say at paragraphs 69 and 70 the following:

[69] Moreover, the automatic detention argument disregards the fact that the test to be made under s. 515 (10) (c) is whether the detention of the accused is necessary to maintain confidence in the administration of justice. The four listed circumstances are simply the main factors to be balanced by the justice, together with other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. This is the provision’s purpose. Although the justice must consider all the circumstances of the case and engage in a balancing exercise, this is the ultimate question the justice must answer, and it must therefore guide him or her in making a determination. The argument that detention must automatically be ordered if the review of the four circumstances favours that result is incompatible with the balancing exercise required by s. 515 (10) (c) and with the purpose of the exercise.

[70] Finally, it is important not to overlook the fact that, in Canadian law, the release of an accused persons is the cardinal rule and detention, the exception: Morales at p. 728. To automatically order detention would be contrary to the “basic entitlement to be granted reasonable bail unless there is just cause to do otherwise” that is guaranteed in s. 11 (e) of the Charter: Pearson at p, 691. This entitlement rests in turn on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11 (d) of the Charter (Hall, at para. 13). These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case.

[32] It should be noted both in Hall and St-Cloud that the person in question in s. 515 (10) (c) is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society’s fundamental values. But 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 that are available to accused persons.

[33] Justice Wagner summarized his conclusions at paragraph 87 as follows:

[87] I would summarize the essential principles that must guide justices in applying s. 515(10)(c) Cr.C. as follows:

Section 515(10)(c) Cr.C. 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) Cr.C. 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) Cr.C. 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 in-formed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a le-gal 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.

[34] As stated in St-Cloud, the personal circumstances of the accused as well as his lack of criminal record has to be considered. Additionally, there is strong likelihood given the state of the province of Ontario during this pandemic that a trial is not likely to take place for another 2 years and thus if there is a detention order the Covid 19 virus is a very grave concern.

[35] Counsel for the accused provided the court with a comprehensive discussion of this issue of the pandemic and jailed inmates and I have taken judicial notice that a Covid 19 outbreak has taken place at the Sarnia jail with over 40 inmates affected. Recently, with an accused in pre-sentence custody and having an asthma condition, I allowed a 1/3 of a day for each day this accused spent in pre-trial custody (see R. v. Isaiah Simmons).

[36] On the other hand, the fact that the victim’s two daughters are without their mother and the allegation that she was murdered by their mother’s boyfriend, is obviously a significant aggravating circumstance as well.

[37] As stated by Justice Wagner, “if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victims were vulnerable, pre-trial detention will usually be ordered” (para. 88).

[38] Counsel for the accused set forth a most comprehensive bail plan that included, although not mentioned in the bail plan filed, the provision to have the accused monitored with an ankle bracelet.

[39] I have included the bail plan as follows:

Proposed plan for release is recognizance with multiple sureties – including parents as residential sureties

Report to Sarnia Police Services by phone every Monday, commencing February 16, 2021

Reside with sureties at 6214 Telfer Road, Sarnia, Ontario. a. Notify officer in charge of change of address

Remain in residence at all times, except a. For the purposes of travelling directly to, from and while at pre-arranged court appearances, while in the presence of a surety; b. For the purposes of travelling to, from and while at pre-arranged meetings with your lawyer, while in the presence of a surety; c. For travel to and from work for scheduled shifts, while in the presence of a surety; d. For travel to and from medical appointments, while you are in the company of your surety; e. For medical emergencies involving you or a member of your immediate family.

Do not contact, communicate with the following: (witnesses) a. Do not be within 100 metres of any places you know these individuals to live, work, go to school, etc.

Remain in Ontario

Deposit passport with Sarnia Police Service

Do not apply for a passport or other travel documents

Do not attend at Sarnia Chris Hadfield Airport, located at 1500 Airport Road, Sarnia, Ontario

Do not travel on Airport Road or Airport Service Road, Sarnia, Ontario

Do not possess any firearms or weapons, as defined by the Criminal Code

Do not apply for an authorization, licence or registration for any weapon as defined by the criminal code

Do not consume alcohol or controlled substances, without a valid prescription.

[40] The sum of $214,000.00 has been pledged by 8 sureties with the sum of $75,000.00 in cash to be deposited.

[41] Essentially the plan proposes 24 hour residential or work contact with the accused with one or both of the accused’s parents. This direct contact would take place at either the parents’ residence or at the accused’s workplace including any attendances for court or to visit his lawyer or for any medical emergencies.

[42] The accused is not to consume alcohol or drugs during this period and will, if granted bail, not contact directly or indirectly any parties so indicated by the Crown.

[43] The Crown, in addition to the factors and circumstances as reflected in s. 515 (10) (c) of the Criminal Code, has some concern on the primary ground since Sarnia is a border city with access by boat to the St. Clair river and potentially some landing in the U.S. Although the accused has had his passport seized and is prepared to have Sarnia police retain this passport, the accused does have dual citizenship with Italy.

[44] His Italian passport has expired but the Crown has submitted that there is nothing preventing the accused from reapplying and obtaining an Italian passport.

[45] The Crown also submits that the accused proposed residence is very close to the Sarnia airport and even with an ankle bracelet, there is nothing preventing the accused from slipping the bracelet and escaping the jurisdiction, particularly since the Crown has such a strong case and since the criminal sanction is so severe.

[46] Although not necessary for my determination, I would note that the detention in Hall was as a result of the strong Crown’s case, the gravity of the offence and the horrific nature of the murder (37 stab wounds and a cut across the woman’s neck that was as deep as her spine).

[47] In St-Cloud, the victim was a bus driver who was brutally attacked by several people in the middle of the night. Justice Wagner went on to say that the detention was necessary as the bus driver was serving his community, the victim’s health was serious compromised, and the event was captured on video that left no doubt as to the respondent’s active participation in the assault.

[48] Justice Wagner’s conclusion was that “confidence in the justice system of a reasonable member of our society would be undermined if the interim detention of the respondent were not ordered”.

[49] Counsel for the accused has presented a factum and a Brief of Authorities together with a comprehensive Bail Plan seeking the release of the accused.

[50] On the other hand, in addition to the enumerated factors set out in s. 515 (10) (c) of the Criminal Code that are present in this case that is the strength of the Crown’s case, the gravity of the offence, the circumstances surrounding the case including the use of a firearm, and the potential life imprisonment for the accused, there are other aggravating factors as follows:

A) This was a brutal and violent act, where there can be no question that this was not an accidental shooting given the 8 gun shot wounds to the victim’s body see R. v. St-Cloud para. 88). This was a crime of domestic violence allegedly carried out by the boyfriend of the deceased;

B) This violent act was born of years of jealously toward this victim and even with a divorced former spouse;

C) Two young children (8 and 11 years of age) of the deceased were present in the residence at the time of murder;

D) Although these children were not awakened because of the gun shots, they were awakened by a policeman and presented to the Children’s Aid Society of Sarnia (at 1:38 AM the children were transported from the bedroom). Undoubtedly, they would have been inquiring about their mother and her whereabouts and would have been significantly traumatized with the significant presence of police cars at their residence. Additionally, at some point they would have been told of their mother’s death and murder;

E) Continuing on this heartbreaking circumstance is the stark reality that these two young girls have now been deprived of their mother’s care and love for the rest of their lives and will be longing and missing all the significant events normally experienced by children with their parents;

F) The 911 call was made without any real emotion noting that an ambulance was needed and that the person on his garage floor was not breathing;

G) Some deliberation and preparation were part of this murder as the accused inferentially had to attend in his bedroom, unlock the gun safe, retrieve and load his firearm, return to the garage and then fire eight shots at the body of his girlfriend/fiancée;

H) The Crown suggests that other parties would be concerned should the accused be released, and they include his former spouse Natalie DiCarlo, his former girlfriend Ms. Melissa Green, Mr. Fracalanza, who he believed had cheated with his former spouse, and certainly Mr. Marlowe, who he also believed had cheated with his former wife and Steve Salmikivi, who he believed was cheating with his deceased girlfriend Natalie Bartlett. Therefore, there is a concern on the secondary ground that the accused may wish to settle scores out of some misguided jealous rage;

I) The Crown submits that because the accused father’s business known as T.R.E.L. has business dealing through its machine shop with Lambert, a weapon manufacturing business, that the accused in working at this business could have access to weapon parts. I agree that this is a possibility but given that this represents about 5 per cent of the output of this business, this may be a consideration of concern, but at the extreme low end of the scale. However, the public knowing about this potential access to weapon parts as part of an ongoing business where the accused works, and who allegedly violently used a firearm against an unarmed woman might be left with a lack of confidence in the administration of justice;

J) The Crown submits that they have concerns as well under the primary ground as the accused has an expired Italian citizenship passport that could be applied for in the future and as well has easy access to the St. Clair River and a possible landing point in the United States even if the road border access is presently closed. Additionally, the Crown notes that the accused parents’ residence is proximate to the Sarnia airport and thus potentially access to, for example, a plane to a foreign destination such as the U.S.

[51] The related and relevant factors and circumstances as indicated in Hall and affirmed in St-Cloud is whether a reasonable member of the public who, although not a legal expert, is nonetheless properly informed about the philosophy underlying the legislative provisions, Charter values and the circumstances of the case would not understand why the accused should not remain in custody pending his trial.

[52] Such members of the public are not people who would allow themselves to be guided by their emotions and be swayed by the mob or by the incomplete or distorted information.

[53] Having considered all those relevant factors and circumstances, I conclude and believe that the confidence in our justice system of a reasonable member of our society would be undermined if the interim detention of the accused was not ordered.

[54] A detention order shall issue.

The Honourable Mr. Justice John A. Desotti

Released: March 10, 2021

R. v. DiCarlo, 2021 ONSC 1703

Case Summary