R. v. Dubois 2022 ONSC 6155

COURT FILE NO.: 22-37200182

DATE: October 27, 2022

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING

T. James, Counsel for the Crown

• and -

David Dubois

Accused

J. Addelman, Counsel for the Accused

HEARD: October 27, 2022

REASONS FOR DECISION

JAMES, J.

Introduction

1This is a bail hearing for David Dubois who is charged with second degree murder in connection with the death of his common law partner, Sara McKeddie on January 20, 2022.

2For the reasons that follow, I have determined that Mr. Dubois’s application to vacate the detention order ought to be dismissed.

3Mr. Dubois is 32 years old. He and Ms. McKeddie were in a long term relationship dating back to when they were teenagers. They have two children, ages 5 and 3.

4Ms. McKeddie was seriously injured in an automobile accident in 2008 and sustained life-altering head injuries as a result. She received a large monetary settlement. It appears the accident settlement provided at least some of the funds for the couple to live on.

5There were incidents of domestic conflict between them in the past. On August 19, 2018 the police were contacted to investigate an allegation that Mr.Dubois had threatened Ms. McKeddie. She told police that Mr. Dubois was having mental health issues; that they had been arguing and that he said he would make sure she never sees the kids again. She said that two days prior to the argument Mr. Dubois threatened to throw her down the stairs, take the stairs away and board up the windows so she could not get out. She said he had threatened to burn down the house on several occasions, most recently the day before. She told police Mr. Dubois had also threatened to harm or kill himself.

6A few days later Mr. Dubois’s father obtained an order under the Mental Health Act for Mr. Dubois to be examined at the Montfort Hospital in Ottawa. He was diagnosed with schizophrenia, apparently for the first time. He was placed on medication and advised that if he didn’t take his meds consistently, he could be placed under a community treatment order.

7About three years later, on July 29, 2021 police were dispatched to their residence after receiving a call from a neighbour. David Dubois was at the residence and explained to police that he was home with the children and got into an argument with Ms. McKeddie and she left the residence. She later returned to the residence with her father, Randall McKeddie, who got in a physical altercation with Mr. Dubois.

8A few days later, on August 7, 2021 police were dispatched to the residence again after receiving a call from a neighbour who said she could hear a disturbance coming from the Dubois/McKeddie residence. She said there had been yelling for a long period of time and that it sounded as if there were items breaking in the residence. When the police arrived all appeared to be calm and no sounds were heard. Ms. McKeddie answered the door and police noted she was intoxicated. She refused to speak to them. David Dubois was upstairs in the residence, as were the two children. Mr. Dubois came downstairs and the police noted he was also intoxicated. He told police that he and Ms. McKeddie had a verbal dispute and alleged that Ms. McKeddie had fallen because she was intoxicated. Police contacted Sara McKeddie’s parents – Karen and Randall McKeddie, who attended at the residence. No charges were laid.

9Then about 6 weeks later, on September 24, 2021 Ms. McKeddie attended at the Arnprior Hospital for treatment for facial bruising, a headache and chest pain on her right side. She said she had been physically abused by her boyfriend the previous day; that her boyfriend was taking injections for schizophrenia and that when it nears time for his next injection, his paranoia increases.

10Turning to the incident that resulted in the current charge against Mr. Dubois, Ms. McKeddie called her parents on or about December 27, 2021. When her father attended at the residence the next day, he observed that she had black eyes and bruising around her chest area. She said her ribs were sore. The process of standing up or sitting down caused severe pain. She told her father that she had been sexting with another man and that Mr. Dubois had gotten angry and “put the boots to her” which she said included kicking her on her side, stomping on her with his foot and punching her in the face. Photographs of her injuries were consistent with this description.

11Mr. Dubois said that she had fallen down the stairs. Mr. McKeddie told his daughter that she should call the police but she refused. She left with her father and stayed at her parents’ home for three days. Her mother later told police that Ms. McKeddie’s eyes were black and blue, that she had other bruising on her face and down the sides of her neck. She had several bruises on her arms and ribs and she reported that her ribs were sore.

12On January 1, 2022, Ms. McKeddie returned to her home with Mr. Dubois but only for a few days before returning to her parents’ residence. She told her parents that Mr. Dubois had been verbally abusive in front of the children. The next morning Karen McKeddie discovered her daughter in medical distress, paramedics were called, and Ms. McKeddie was later airlifted to hospital in Ottawa where she was found to have multiple trauma including a subdural hematoma, multiple rib fractures and bleeding from her liver. Medical staff performed emergency surgery to drain blood from her skull.

13Unfortunately, Sara McKeddie died on January 20, 2022. The preliminary cause of death was indicated to be due to complications related to her brain injuries.

14Dr. Hamilton, a specialist in neurology/pathology, conducted a subsequent examination and said the injuries that caused her death were between a few days and a few weeks old.

The Interim Judicial Release Provisions of the Criminal Code

15There are three specified grounds in the Criminal Code for detaining a person in custody prior to trial. Each is to be assessed independently of the others. Detention can be ordered on the basis of any one or more of the enumerated grounds. They were previously referred to as the primary, secondary and tertiary grounds. Although these labels are no longer used in the Criminal Code, they are still commonly used to differentiate the basis upon which a person can be detained. They are as follows:

The Primary Ground - To secure the attendance of the accused at all required court appearances;

The Secondary Ground - To protect the public, including a victim or witness to the offence, having regard to all the circumstances, including any substantial likelihood that the accused will, if released, commit a criminal offence or interfere with the administration of justice; and

The Tertiary Ground - To detain the accused when detention is necessary to maintain confidence in the administration of justice.

16The principles governing interim judicial release before trial include the following considerations:

1. A person who has been charged with a crime is entitled to the presumption of innocence unless and until his or her guilt is proved beyond a reasonable doubt;

2. An accused person has a constitutional right to be granted bail on reasonable terms unless just cause for detention is shown;

3. The release of an accused person pending trial is the norm; pre-trial detention is exceptional; and

4. Where a person is charged with murder, the onus is placed on the accused person to show just cause why he or she should be released on a balance of probabilities.

17The position of the defence is that Ms. McKeddie sustained her injuries as a result of a fall. There is evidence that she sometimes drank heavily, up to a bottle of liquor per day. She had a history of falling.

18In addition, defence counsel says that Mr. Dubois is a good candidate for release pending trial. He does not have a criminal record. His father, Michael Dubois, has agreed to act as a surety and has demonstrated that he understands his responsibilities as a surety. Mr. Dubois would be under house arrest and his mother would be present throughout the day.

19The surety is prepared to post a bond up to $100,000. GPS monitoring would be arranged.

20A release order for a person awaiting trial often has conditions attached to it that are designed to control the behaviour of the accused. Generally speaking, the more serious the crime, the more onerous the conditions. As noted, the bail plan proposed by the defence in this case has several components which are intended to manage the risks associated with the release of the accused pending trial.

21In assessing the release plan, Crown counsel commented that there is lack of details with respect to Mr. Dubois’s plan of treatment for his schizophrenia.

22I agree that a suitable release plan in the circumstances present in this case should include evidence of the present and future course of treatment for Mr. Dubois’s schizophrenia, the type of medication he is on, the supports which are in place to help manage his condition and the extent to which Mr. Dubois has complied with the plan to date. These elements are missing from what is being proposed.

23I should add that I do not regard Mr. Dubois as being a high flight risk and I don’t think that GPS monitoring adds much to the bail plan in this case.

24While Mr. Dubois’s father has a high level of confidence that his son will respect the limitations placed on him if he is released, there is an absence of evidence to support this contention. Recall that Michael Dubois had to rely on the Form 1 provisions of the Mental Health Act to get his son admitted to the Montfort Hospital. This suggests to me that his admission was not voluntary despite his family’s wishes. There is also evidence that Mr. Dubois sent derogatory texts regarding his father that raise the question of whether Mr. Dubois would respect parental authority.

25In my view, the bail plan does not adequately address the requirements of the secondary grounds which are centered on the protection of the public. The evidence supports the finding that Mr. Dubois’s mental illness has contributed to violent outbursts in the past and there is a risk he may do so in the future, hence the requirement that the terms of his release include specific provisions related to his schizophrenia.

26The third basis for detention, the need to maintain confidence in the administration of justice, requires an analysis of all the circumstances of the case including the apparent strength of the Crown’s case, the gravity of the offence, the circumstances surrounding the commission of the offence, including whether a firearm was used, and whether the accused is facing a lengthy prison sentence if convicted.

27In R. v. St. Cloud, 2015 SCC 27, [2015] SCJ No. 27, the Supreme Court of Canada clarified that the application of this ground of detention is not limited to exceptional circumstances, to unexplainable crimes or to certain classes of crimes. There is no requirement that the provision is to be interpreted narrowly or sparingly applied. No single circumstance is determinative. Detention should not be automatic even where the four listed circumstances support such a conclusion. There needs to be a balancing of all the relevant circumstances. At the end of the balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain public confidence in the administration of justice. The notion of what “public” means in this context consists of someone who is thoughtful, informed of the philosophy of the legislation and Charter values and the circumstances of the case, someone who is not prone to emotional reactions. This person need not be a legal expert but should be aware of the importance of the presumption of innocence and the right to liberty unless just cause be shown for detention (para. 87).

I will address each of the elements to be considered when assessing whether detention is necessary to maintain public confidence in the judicial system.

Apparent Strength of the Prosecution’s Case

28The assessment of the strength of the case against an accused person before the investigation is complete and before the accused has presented his defence can be a difficult and uncertain task. The case to be presented against an accused can become much less conclusive closer to trial but the question of whether or not to grant bail requires the court to look at the apparent strength of the case at this stage of the proceeding.

29In my view, the case against Mr. Dubois is strong. In the absence of the other circumstantial evidence, the defence suggestion that Ms. McKeddie fell down some stairs, standing alone, is plausible. There is evidence that she drank heavily at times and may have had balance difficulties from her injuries sustained in the car accident. However, when the evidence of prior abuse by Mr. Dubois is added to the mix, photos of serious injuries sustained by Ms. McKeddie that she said were the result of beatings by Mr. Dubois, the police attendances at the home due to arguments overheard by neighbours, the evidence of jealous rages accompanied by threats of physical harm, together with evidence of delusions and a demonstrated reluctance to take prescribed medication, a strong prima facie case emerges.

The next two elements are: The Gravity of the Offence and the Possibility of a Lengthy Prison Sentence

30I will deal with these two factors together. The loss of life due to any criminal act is extremely serious. Here the accused must answer to a charge of murder. By definition this is a grave crime.

31Even if there is a reasonable doubt in connecting Ms. McKeddie’s death to the injuries she sustained in late December, Mr. Dubois is exposed to other charges that could result in a lengthy period of imprisonment.

The final element is: The Circumstances Surrounding the Offence

32This case involves a victim who at this stage of the proceeding appears to have been beaten to death by her partner. The level of violence is high. It also appears that this wasn’t the first time that the victim sustained a beating at the hands of Mr. Dubois. The victim was a vulnerable person. She was much smaller physically than Mr. Dubois and likely unable to protect herself. The beatings took place in her home. No one else was around to come to her aid. The evidence suggests that she had cognitive deficiencies from the car accident in 2008. She was afraid that if the authorities became involved there was a risk that the children could be removed from her care so there was a reluctance on her part to involve the police. The fact that she may have provoked Mr. Dubois by communicating with other men does not lessen her vulnerability.

33In the St Cloud case the Chief Justice of the Supreme Court of Canada summarized the law by stating that if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim was a vulnerable person, pre-trial detention will usually be ordered (para. 88)

34It is essential that the courts maintain the confidence of the community in the administration of justice. Having considered these various factors, I have concluded that Mr. Dubois ought to be detained on both the secondary and tertiary grounds.

35For these reasons, the application to vacate the detention order is dismissed.