COURT FILE NO.: CR 24-782 DATE: 20240917

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent

– and –

JESSICA MARTIN Applicant

COUNSEL: T. Meehan, for the Crown D. Sid Freeman, for the Applicant

HEARD: August 28, 2024

Justice C. Petersen

DECISION ON APPLICATION FOR BAIL

INTRODUCTION

[1] This is an application for interim release from custody pending trial. Ms. Martin is charged with first degree murder, forcible confinement, two counts of possession of property (valued under $5,000) obtained by the commission of an offence, and three counts of obstruction of justice. All but one of the offences are alleged to have occurred in March 2019. One of the obstruction offences is alleged to have been committed in July 2023.

[2] With respect to most of the charges, the Crown bears the onus of proving that Ms. Martin’s detention is justified pursuant to one or more of the grounds enumerated in s. 515(10) of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”). However, a reverse onus applies with respect to the murder charge: Code, s.522(2). On that charge, Ms. Martin has the burden of showing cause why her detention is not justified.

[3] Subsection 515(10) of the Code sets out three grounds upon which detention of an accused pending trial may be justified. Only two of those grounds are at issue in this application, namely:

a) whether Ms. Martin’s detention is necessary for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that the accused will commit a criminal offence or interfere with the administration of justice if released (“the secondary ground”); and

b) whether Ms. Martin’s detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances (“the tertiary ground”).

[4] I will provide an overview of Ms. Martin’s circumstances, particulars of the offences with which she is charged, and a summary of the Crown’s evidence against her before deciding whether her pre-trial detention is necessary under either or both of these grounds.

MS. MARTIN’S CIRCUMSTANCES

[5] There is limited information about Ms. Martin’s personal circumstances in the Application Record. She is 35 years old and is the mother of five children between the ages of 5 and 13 years.

[6] She has a criminal record. On March 1, 2018, she was convicted of uttering threats and obstructing a police officer. She received a suspended sentence and 18 months’ probation for these offences.

[7] Ms. Martin is currently facing another criminal charge in an unrelated case. She was arrested in September 2023 for possession of methamphetamine for the purpose of trafficking. Her boyfriend at the time, Michael McLaughlin, was also charged in connection with drug offences. It is unclear from the application record whether they were cohabiting, but he certainly frequented her residence.

[8] Ms. Martin was released by police with conditions on the day of her arrest on the drug charge. However, she was taken into police custody when the charges before this court were laid on November 16, 2023. She has been in detention since that date.

[9] At the time of her most recent arrest, Ms. Martin was living with her children in Listowel, Ontario, where she has resided for about 15 years. Her children are now in her parents’ care.

PARTICULARS OF THE CHARGED OFFENCES

[10] The murder and forcible confinement charges relate to the planned kidnapping and brutal killing of a man named Jason Brown. Ms. Martin is not accused of physically confining him or causing his death. Rather, she is charged as a party to these offences, which were perpetrated by others. The extent to which the Crown alleges that she aided the perpetrators is summarized below.

[11] The homicide victim, Mr. Brown, was a probate (probationary member) of the Outlaws motorcycle club. The Outlaws are known to police as a criminal organization. Four other individuals are facing charges relating to his murder: Matthew Drummond, Joshua Drummond, Steven Walsom-Gerigs, and Travis Wand. Each of these men is believed by police to be either a member or an associate of the Outlaws. Matthew and Joshua Drummond are brothers. Steven Walsom-Gerigs and Travis Wand are half-brothers. Steven and Travis’s mother’s name is Christine Hymers.

[12] At the time of the homicide in March 2019, Ms. Martin was living with Mr. Walsom-Gerigs and Mr. Wand at Ms. Hymers’s home. She was in an on-and-off relationship with Mr. Wand, who is the father of two of her (twin) children, born in May 2019.

[13] The Crown’s theory of the case is that Mr. Brown was killed by members and associates of Outlaws because he had an intimate relationship with Matthew Drummond’s girlfriend while Matthew was in jail. The factual allegations against Ms. Martin include the following: She set up a three-way phone call between herself, Matthew Drummond, and Mr. Walsom-Gerigs, during which she overheard plans to kidnap Mr. Brown. Later, on March 12, 2019, she drove one of two vehicles to a cemetery in Harriston to meet Mr. Brown, who had been lured there under false pretenses by Mr. Walsom-Gerigs. There were at least three male occupants of the two vehicles, one of whom was a passenger in a red Dodge minivan driven by Ms. Martin. When the two vehicles arrived, Mr. Brown was already at the cemetery. He had arrived in a Chevrolet Cruze driven by an acquaintance named Allan Marchand. Mr. Marchand had exited his car to urinate. Mr. Wand, Joshua Drummond, and another man exited their vehicles and approached the Chevy Cruze. Mr. Wand was carrying a baseball bat. One of the two other men struck Mr. Marchand with something on the back of the head, likely another baseball bat, causing him to fall to the ground and eventually lose consciousness. The men then beat Mr. Brown with a bat or bats. He screamed for help and one of the men told him to “shut up or we will cut your tongue out.” They gagged him and hog-tied him with duct tape and placed him in the trunk of Joshua Drummond’s vehicle. He was still breathing but was severely injured. Ms. Martin was present throughout and witnessed the attack. Mr. Wand drove away in Mr. Marchand’s Chevy Cruze and abandoned it at a nursing home in Harriston, where Ms. Martin picked him up. Joshua Drummond drove Mr. Brown to the Outlaws clubhouse in Toronto. Mr. Marchand regained consciousness after everyone else had left the cemetery and he called 911.

[14] Mr. Brown died of his injuries. His body was found the next day on a country road in Oshawa. The Crown alleges that, after learning of Mr. Brown’s death, Ms. Martin and Mr. Wand returned to the abandoned the Chevy Cruze and cleaned it with bleach to remove blood, fingerprints, and other evidence that might assist forensic investigators. The Crown also accuses Ms. Martin of knowingly possessing and purposely destroying Mr. Brown’s and Mr. Marchand’s cell phones, which had been taken from them at the cemetery, and which contained data that would assist police in the investigation of the kidnapping and murder. Finally, the Crown accuses Ms. Martin of burning some of Mr. Brown’s clothing more than 4 years later, in July 2023, after his unsolved murder was profiled on the news.

[15] The above summary represents the Crown’s theory of the case. These are mere allegations. Ms. Martin is presumed innocent of the charges against her.

STRENGTH OF THE CROWN’S CASE

[16] On a bail application, the gravity of the alleged offences is relevant, but it is of little consequence unless there is strong evidence that implicates the accused in the offences. Without in any way detracting from the presumption of innocence, the fact that the offences are mere allegations may be offset by the apparent strength of the Crown’s case. This factor is relevant to both the secondary and tertiary grounds for detention upon which the Crown relies in this case.

[17] My task is not to make findings of fact or to try Ms. Martin in the manner of a trial judge, but rather to assess the apparent strength of the Crown’s case based on the available evidence, while remaining mindful that she is presumed innocent of the charges against her.

[18] The Crown adduced its evidence at the bail hearing in the form of a written synopsis summarizing the fruits of the police investigation. The synopsis highlights findings from the autopsy performed on Mr. Brown, which revealed evidence of extensive blunt force trauma to his body and head. He suffered a traumatic brain injury. He had a broken arm and broken wrist, as well as fractures to his collar bone, sternum, nasal bridge and cheekbone. He also had abrasions and hemorrhaging around multiple fractured ribs, numerous bruises, black eyes, and lacerations to the eyebrow and skull.

[19] The Crown’s synopsis includes a summary of portions of Mr. Marchand’s statement to the police. He identified Travis Wand in a photo line up as the man who was carrying a baseball bat in the cemetery, but he subsequently recanted, apparently due to fear of the Outlaws. He described a female who was driving a burgundy mini van in the cemetery as “an attractive woman with short hair.” This description could be viewed as consistent with Ms. Martin’s appearance, but it is extremely generic.

[20] Video surveillance evidence from neighbouring businesses captured a red Dodge Caravan and a grey Chrysler 300 in the vicinity of the cemetery just prior to and after the attack in the cemetery. The timing of the attack can be approximated by reference to the time of Mr. Marchand’s call to 911. Mr. Wand’s mother, Christine Hymers, owned a red Dodge Caravan matching the estimated model year of the van depicted in the video. Ms. Hymers gave conflicting statements to the police about the whereabouts of her van on the night in question. A tire imprint consistent with the Dodge Caravan’s tires was found in the cemetery. Joshua Drummond owned a grey Chrysler matching the estimated model year of the other car depicted in the surveillance video. His vehicle disappeared after March 12, 2019 and has never been located.

[21] The Crown’s synopsis also reviews cell tower data pinging the location of Mr. Marchand’s phone immediately after the attack in the cemetery. It shows that the phone was in proximity to Ms. Martin’s and Mr. Wand’s residence. GPS information taken from Mr. Marchand’s Chevy Cruze reveals that the car was driven from the cemetery to the dumping location immediately after the attack.

[22] Police interviewed numerous witnesses who confirmed Mr. Brown’s and others’ association with the Outlaws. Witnesses also provided information relating to the motive for the homicide.

[23] Cell phone records confirm that Ms. Martin and the other accused persons were in frequent communication on the day leading up to the kidnapping and murder.

[24] The Crown synopsis also summarizes forensic evidence that implicates two of the other accused individuals. Police located a cardboard roll with partial duct tape at the cemetery. Mr. Brown’s and Joshua Drummond’s DNA were located on a swab from the inner surface of the roll. The duct tape on the partial roll is indistinguishable from the duct tape found on Mr. Brown’s left wrist. Mr. Walsom-Gerig’s DNA was located on a sample from the inner surface of the duct tape around Mr. Brown’s neck. There is no forensic evidence tying Ms. Martin to the duct tape found at the cemetery or on Mr. Brown’s body.

[25] None of the above, even taken collectively, is compelling evidence against Ms. Martin. It does not amount to a strong case against her on any of the charges.

[26] However, the Crown has other inculpatory evidence against her, consisting of text messages recovered from her cell phone; extensive recordings of her intercepted telephone calls in the months leading up to her arrest; and other recordings of her conversations obtained from listening devices, including conversations with an undercover officer who befriended her. This evidence was obtained pursuant to judicially authorized warrants. The Defence has not, at this stage of the proceeding, challenged the validity of the warrants, or raised any arguments contesting the admissibility of the evidence.

[27] The evidence in question captures numerous self-incriminating statements made by Ms. Martin. According to the Crown’s summary of the intercepted communications, on two separate occasions in July 2023, Ms. Martin mentions to two different people burning “some dead guy’s shit” with her then boyfriend Michael McLaughlin. In one conversation, she tells an unknown female to “look up Jason John Brown, it was just on the news” and says, “so I burned his shit at your house.” In another conversation in October 2023, she talks to a friend about missing clothes and says, “if I say I did do something in that sense, what makes you think I would keep that clothing and not destroy it?” In yet another conversation with a different friend in October 2023, she mentions that “Michael helped her burn it all in the fire pit at the Solicitor General’s daughter.”

[28] In several conversations in September 2023, Ms. Martin speaks about Mr. Brown’s homicide to various people. On more than one occasion, to more than one person, she describes details of how he was beaten with baseball bats and tied up and gagged with duct tape at the cemetery. She mentions that a second guy was present, a friend of the deceased, and says the friend was also assaulted but ran away. She states that the dead guy was still alive and breathing when she and Mr. Wand left the cemetery. She describes how “they” hogtied him and threw him in the back of Joshua Drummond’s car. She says Mr. Wand drove the Chevy Cruze to a nursing home, where she picked him up. She admits to then wrecking the two victims’ cell phones and leaving pieces all over. She also admits to going back that night with Mr. Wand to wipe prints off the Chevy Cruz.

[29] In a few of these intercepted communications, Ms. Martin expresses concern about the possibility of being charged with murder because she “helped drive and pick up.” She tells one friend that police are trying to get information about internet searches she conducted using her mother’s cell phone. She says, “Do you know what I looked up two days before this happened? I’m fucked.”

[30] The police retrieved data from Ms. Martin’s Messaging App, including text messages she sent to Mr. Wand accusing him of killing Mr. Brown. In her texts, she threatens to tell the police how Mr. Brown was killed and how she followed “them” to Harriston. She also mentions going back to wipe down the Chevy Cruze and leaving one bloody handprint. She states, “I picked you up after you killed him, you were covered in blood.” She tells him, “U are going to jail for murder …on Jason Brown.”

[31] In any bail application, it is important to scrutinize the quality of the Crown’s evidence to determine the weight to be given to the strength of the prosecution’s case as a factor in the overall analysis: R. v. St. Cloud, 2015 SCC 27, at para. 58; R. v. Dang, 2015 ONSC 4254, at para. 53. In that regard, the evidence against Ms. Martin is both circumstantial and direct. There are potentially triable issues with respect to the admissibility of her self-incriminating statements, but no objections to admissibility have been raised by the Defence at this stage of the proceeding.

[32] Defences are not always raised in bail hearings, and often no evidence is led to support potential defences: R. v. Zameer, 2021 ONSC 6129, at para. 8. I am therefore mindful that, at this early stage of the proceeding, the Crown’s case can appear artificially cogent: R. v. H.(R.), 2006 ONCJ 116, at para. 29. I am also mindful of the need to be cautious in gauging the strength of the Crown’s case because of the reduced level of formality in terms of procedure and the relaxed rules of evidence at a bail hearing.

[33] Ms. Sid Freeman advised the court that the identity of the female driver of the Dodge Caravan will be put in issue at trial. The application record contains evidence relevant to this defence. In one of Ms. Martin’s intercepted communications on September 24, 2023, the undercover officer asks her if “his” brother was “there” and Ms. Martin says “no, he left with his mom before anything happened.” The officer then states, “I thought you drove?” and Ms. Martin responds by saying, “he had to be with his surety, he was on house arrest at the time, [1] so him and his mom left before buddy even got there.” Ms. Martin explains that she dropped Mr. Wand off at his mom’s and then “however he got there is how he got there.” She says, “but I picked him up after because whatever was done was done.”

[34] The vagueness of the latter phrase (“whatever was done, was done”) could be viewed as circumstantial evidence that Ms. Martin must not have been at the cemetery because she does not know what transpired there. However, there are numerous other intercepted communications in which Ms. Martin recites details of the attack on Mr. Marchand and Mr. Brown, which appear to derive from her own personal eye-witness observations. There are also several conversations in which she refers to driving and picking up Mr. Wand on the night of the homicide. In one conversation with a friend named Cassandra on October 8, 2023, she expresses her concern that she is going to “get first degree murder” because “she helped drive and pick up.” Nevertheless, the statements made by Ms. Martin to the undercover officer on September 24, 2023 have the potential to raise reasonable doubt about whether she actively aided any of the kidnappers and murderers by driving them to the cemetery to carry out their plan, or whether she merely offered assistance to Mr. Wand as an accessory after-the-fact.

[35] In addition to this potential hurdle in the Crown’s ability to meet its onus of proof, there is no evidence in support of the Crown’s theory that Ms. Martin rendered assistance to the other accused for the purpose of helping them murder Mr. Brown. The element of intent to kill (or intent to aid someone to kill) must be proven beyond a reasonable doubt to secure a murder conviction, and that appears to be beyond the reach of the prosecution’s evidence. The Crown’s case on the murder charge therefore appears weak.

IS MS. MARTIN’S DETENTION NECESSARY?

Constitutional Right to Reasonable Bail

[36] My analysis begins with a recognition of Ms. Martin’s constitutional right not to be denied reasonable bail without just cause. Numerous Supreme Court of Canada decisions discuss the scope and meaning of this constitutional guarantee, beginning with the Court’s decisions in R. v. Morales, [1992] 3 S.C.R. 711 and R. v. Pearson, [1992] 3 S.C.R. 665, through to its more recent decisions in R. v. Oland, 2017 SCC 17, R. v. Myers, 2019 SCC 18, and R. v. Zora, 2020 SCC 14. This jurisprudence underscores the principle that, “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception”: R. v. St. Cloud, 2015 SCC 27, at para. 70.

[37] The importance of the constitutional right to reasonable bail was eloquently expressed by Iacobucci J. in R. v. Hall, 2002 SCC 64, at paras. 47 and 49, where he stated (in dissent, but not on this point):

At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty….

Section 11(e) of the Canadian Charter of Rights and Freedoms calls particularly on courts, as guardians of liberty, to ensure that pre-trial release remains the norm rather than the exception to the norm, and to restrict pre-trial detention to only those circumstances where the fundamental rights and freedoms of the accused must be overridden in order to preserve some demonstrably pressing societal interest.

Secondary Ground for Detention

[38] Pre-trial detention is justified under s. 515(10)(b) of the Code if it “is necessary for the protection or safety of the public … 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.” To the extent that there is an identified substantial likelihood of offending, or of interference with the administration of justice, the Court must determine whether conditions of release can be crafted to mitigate the risk: Morales, at pp. 736-740.

[39] The standard to justify pre-trial detention under this secondary ground is high. Detention must be necessary for the protection or safety of the public. Detention will not be necessary merely because the Court identifies a risk that the accused may commit an offence if released. As the Supreme Court stated in Morales (at p. 21), “our society does not countenance preventive detention of individuals simply because they have a proclivity to commit crime.” Rather, there must be a substantial likelihood that, if released, the accused will interfere with the administration of justice or commit an offence that endangers the protection or safety of the public: Morales, at p. 22. The Court of Appeal for Ontario has ruled that “substantial likelihood” refers to “a probability of certain conduct, not a mere possibility, and the probability “must be substantial, in other words, significantly likely”: R. v. Manasseri, 2017 ONCA 226, at para. 87.

[40] One factor relevant to this assessment is whether the accused has a record of prior offences. Ms. Martin has a criminal record, but not a lengthy one. It is not evidence of serial offending or chronic anti-social behaviour. Moreover, her two convictions are somewhat dated, having been registered on the same day in March 2018. Her criminal record therefore does not support an inference of a substantial likelihood that she will commit a criminal offence that endangers public safety if released on bail.

[41] Another relevant factor is the nature of the allegations against the accused. In some cases, serious charges involving violent offences can give rise to concerns for public safety, even if the accused does not have a criminal record or a history of non-compliance with court orders: R. v. Syed, 2020 ONSC 2195, at paras. 10-11; H.(R.), at paras. 29-30. In this case, Ms. Martin is charged with two very serious violent crimes, namely forcible confinement, and murder.

[42] This factor must, however, be approached with caution. No matter the gravity of the alleged offences, the Code contemplates the potential for bail. Therefore, the nature of the offences charged, by itself, cannot justify the denial of bail: R. v. LaFramboise (2005), 203 C.C.C. (3d) 492 (Ont. C.A.), at para. 31; R. v. Williams, 2020 ONSC 2237, at para. 113; and R. v. Guisalta, 2021 ONSC 1102, at para. 38. Interim release can and has been granted in cases involving murder charges: R. v. N.K., 2022 ONSC 5673, at paras. 25 and 32; Zameer, at para. 248; Guisalta, at paras. 42, 54 and 59; R. v. Hoo-Hing, 2020 ONSC 6343; and R. v. Iglesias, 2020 ONSC 169, [2020] O.J. No. 251. Each case depends on its own facts and circumstances.

[43] In assessing whether Ms. Martin’s detention is necessary for the protection or safety of the public, I must look behind the murder and forcible confinement charges and examine the specific allegations about the way these violent offences were committed. In other words, the brutality of the index offences must be evaluated and taken into account: R. v. Braun (1994), 91 C.C.C. (3d) 237 (Sask. C.A.); H.(R.), at para. 29. Moreover, the Court must carefully consider the accused’s alleged behaviour during the commission of the charged offences to assess the level of danger that she may present to public safety if released: R. v. Rondeau (1996), 108 C.C.C. (3d) 474 (Que. C.A.), at paras. 24-25.

[44] The kidnapping and homicide in this case were part of a planned revenge killing. Mr. Brown was subjected to a savage beating by multiple assailants wielding baseball bats. He was defenceless. He had been lured to a remote location under false pretenses. Battered and severely injured, he was hog-tied and gagged with duct tape and forced into the trunk of a car. His body was later dumped on the side of a road.

[45] These are gruesome brutal crimes, but Ms. Martin is not accused of participating in the attack on Mr. Brown. The Crown’s theory of her guilt with respect to the murder and forcible confinement charges rests entirely on party liability, namely driving one of the assailants to the scene of the crime at the cemetery and picking up Mr. Wand at a different location afterward. Even if the Crown’s allegations can be proven beyond a reasonable doubt, the facts underlying the charges do not suggest that Ms. Martin personally committed any violence. The allegations therefore do not support a finding that she poses a significant danger to public safety. Moreover, as noted earlier in this decision, the Crown does not have evidence that Ms. Martin possessed the requisite intent to commit murder, even as a party to the offence. That deficiency in the Crown’s case further attenuates any risk that she may pose to public safety.

[46] For the above reasons, I find that there is no substantial likelihood that Ms. Martin will, if released from custody, commit a criminal offence that would imperil public safety. However, that does not conclude the analysis under s. 515(10)(b) of the Code. I must also consider whether there is a substantial likelihood that she will, if released, interfere with the administration of justice, such that her detention is necessary for the protection of the public.

[47] The three obstruction charges against Ms. Martin involve alleged interference with the administration of justice, namely the intentional destruction of evidence of a kidnapping and murder. The Crown appears to have an overwhelming case against Ms. Martin’s with respect to these offences, based on her own admissions to various people that she wrecked and discarded pieces of Mr. Brown’s and Mr. Marchand’s cell phones, and also burned some of Mr. Brown’s clothing.

[48] In addition to the evidence that supports the three charged obstruction offences, the Crown also appears to have compelling evidence that Ms. Martin assisted Mr. Wand in cleaning blood and prints off the Chevy Cruze in which Mr. Brown and Mr. Marchand had travelled to the cemetery – another act of destruction of evidence relevant to the murder and kidnapping investigation.

[49] Furthermore, there is reason to believe that Ms. Martin may have disposed of other evidence pertaining to criminal activity (possibly the murder, possibly drug trafficking). During an intercepted telephone conversation with a person named Harper on September 5, 2023, Harper asks Ms. Martin if she “still has the stuff at her parents.” Ms. Martin says no. Harper then tells her to “get rid of it.” Ms. Martin confirms that she already did, but states that she still has her phones. In another intercepted conversation with a person named Brody shortly after Ms. Martin’s mother’s house was raided by police in October 2023, Ms. Martin recounts telling someone named Dave Lewis, “you’re not gonna find what you’re looking for, it’s been gone a long time, you think I still got ‘it’, nah bitch it’s gone.” She also tells Brody that “all the evidence at her house was right in front of them” and says, “now it is gone.”

[50] The Crown’s evidence appears to establish a concerning pattern of behaviour that involves Ms. Martin’s deliberate concealment and destruction of evidence of criminal activity.

[51] Defence counsel submits that there is no realistic possibility of any further interference with the administration of justice if Ms. Martin is released on bail, because the Crown’s allegations are that she already destroyed all the available evidence relating to the homicide and kidnapping. I disagree.

[52] The police intercepted statements by Ms. Martin that suggest physical evidence relating to the kidnapping and homicide still exists, is in her possession or control, and is therefore vulnerable to destruction if she is released. For example, on September 24, 2023, Ms. Martin told the undercover officer that she “had a weird intuition feeling earlier in the summer and had a campfire.” The officer asks what she burned. She does not, at that moment, specifically admit to burning Mr. Brown’s clothing, but she says, “I just burnt some shit, the only thing I got is my phone” (emphasis added).

[53] In another conversation with the undercover officer that same day, Ms. Martin states that, on her way back from picking up Mr. Wand at the nursing home where he abandoned the Chevy Cruze, she cut up pieces of the two victims’ cell phones. She says, “I made my way slowly back to my mother’s, in the process of getting rid of things, leaving ‘em places and knows exactly every spot I left something” (emphasis added). During a subsequent conversation with an individual named Cassandra on October 8, 2023, Ms. Martin says she removed the SIM cards from the victims’ cell phones before wrecking them and leaving the pieces all over the place (emphasis added).

[54] Furthermore, in the text messages to Mr. Wand in which Ms. Martin threatens to tell the police how he killed Mr. Brown, she reminds him that he was covered in blood when she picked him up after the murder. She tells him that she still has his (Mr. Wand’s) bloody coat. She also tells him that she found a pair of old bloody work pants.

[55] The evidence therefore appears to show that Ms. Martin retained a cell phone that contains relevant data, as well as bloody clothing worn by Mr. Wand on the night that Mr. Marchand and Mr. Brown were attacked. There is also evidence that she knows where pieces of the victims’ cell phones can be retrieved, including the SIM cards. While it may, at first glance, seem unlikely that she would still possess or be able to recover any of these items so long after the homicide, there is compelling evidence that she burned some of Mr. Brown’s clothing in July 2023, more than four years after he was killed.

[56] Furthermore, the Crown has evidence showing that Ms. Martin made inquiries about other possible ways to impede the ability of police to gather evidence of criminal activity. In an intercepted conversation with a friend named Harper on October 7, 2023, she asked if the cops can legally take her phone if it’s in her mother’s name. The evidence shows that she had just purchased a new phone after the police seized one of her old phones during a raid. It seems she was contemplating putting the new phone in her mother’s name if that would insulate it from police search and seizure.

[57] For all the above reasons, the Crown has persuaded me that it is substantially likely that Ms. Martin will attempt to interfere with the administration of justice if released. I must therefore determine whether the substantial risk posed by her release can be attenuated with her out of custody, through options available to the Court under the Code: Dang, at para. 58; N.K., at para. 28.

[58] Ms. Martin proposes a plan of release that includes supervision safeguards and significant restrictions on her liberty. If granted bail, she would reside with her parents and children at her parents’ home in Atwood, Ontario, under conditions of modified house arrest. Specifically, she would not leave the residence unless accompanied by one of her sureties. She would be prohibited from communicating with Mr. Marchand and with any of the other persons charged in connection with Mr. Brown’s murder. Any communications that she has with any other parties would need to be pre-approved by her sureties. Finally, if the court deems it necessary, she would wear a GPS-monitored anklet so that her movements could be tracked.

[59] The two proposed sureties are Ms. Martin’s parents, Pamela and Paul Martin. To avoid confusion, because they share a common surname, I will refer to them and to the accused by their first names in this part of my decision.

[60] Pamela and Paul both testified during the bail hearing. Neither of them is expected to be a witness at trial for either the Crown or the Defence.

[61] Neither Pamela nor Paul has a criminal record. Both have acted as sureties successfully in the past, although not for their daughter. Paul was a surety for his son, and Pamela was a surety for one of Jessica’s ex-boyfriends. They clearly understand the responsibilities that the commitment of a surety entails, including the obligation to contact the police without delay if the accused breaches any conditions of interim release.

[62] Pamela and Paul impressed me as honest and hard-working individuals. They are aware of the nature of the charges against their daughter. They appear to be serious about their undertaking to monitor Jessica if the court releases her under their supervision. They expressed a genuine willingness to report her to the police if they become aware that she has breached any court-imposed conditions.

[63] Pamela and Paul both believe that they have a close relationship with their daughter. Their belief appears to be sincere but mistaken. Pamela testified that, prior to Jessica’s arrest, she saw Jessica for two to three hours daily. Pamela was working full time as a supervisor in a retail store. During the week, she had lunch with Jessica every day, and visited her after work. On the weekends, she spent even more time with Jessica and her grandchildren. Paul testified that he also visited Jessica and the grandchildren briefly every day. In addition to these visits, both Pamela and Paul spoke with Jessica regularly on the telephone.

[64] Despite this frequent contact with their daughter, neither Pamela nor Paul is familiar with most of the other individuals accused in connection with Mr. Brown’s murder, persons with whom Jessica had frequent contact or communications. They are not aware of the social circles in which Jessica apparently travels. They do know Mr. Wand, who fathered two of their grandchildren. They dislike him and disapproved of Jessica’s former relationship with him, but they were not aware that he was associated with the Outlaws. Paul testified that he was “flabbergasted” when he heard that there was a connection to a biker gang, because that is something outside the scope of his experience and upbringing.

[65] Paul and Pamela both displayed a degree of naïveté during their testimony. They were stunned by the charges against their daughter, both the charges before this court and the outstanding drug charge. They were bewildered when Jessica’s home was raided and searched by police. Pamela said she thought Mr. McLaughlin was “a nice guy,” so she was shocked to learn that he was also charged with drug offences.

[66] The Crown’s synopsis includes evidence that Jessica is involved, if not immersed, in a subculture about which her parents know nothing, an under-world of biker gang members, drug trafficking, and other serious criminal activity that is utterly foreign to them. Paul testified that he finds it disturbing that “un-country-like” (big city) activities have migrated to small communities. However, he said he is not concerned that these activities would affect his household if Jessica were released under his supervision, because the other people allegedly involved in the homicide are all incarcerated and “out of the picture.” He expressed confidence that Jessica would not be drawn into their world if released from jail because he would have full control over what she is allowed to do, who she can contact, and who is permitted to contact her.

[67] The proposed sureties have developed a plan of supervision. Pamela now works part-time doing laundry and housekeeping at a nursing home. She works from 6:30 AM to 2:30 PM two days per week, and 7:00 AM to 3:00 PM every third weekend. When she is not at work, she will monitor Jessica in the home. When she is at work, Paul will either monitor Jessica in the home, or he will bring Jessica with him to his workplace. He typically works in his vehicle or outdoors on large construction sites. He does soil evaluations for big construction projects. The evaluations are conducted before construction begins, so the worksites are usually building-free. He testified that it would therefore be easy to keep track of Jessica if she accompanied him to work. He stated that she would be by his side at all times.

[68] The proposed plan of release does not include any terms with respect to monitoring Jessica’s cell phone use, but during his cross-examination, Paul testified that he would be willing to do that. He said he would periodically demand to see her phone, especially if “it was going off a lot.” If he discovered that she was communicating with someone who was not a relative or someone not familiar to him, “that would be it for the cell phone.” He reiterated that Jessica would not be permitted to communicate in any way with anyone without his or his wife’s prior approval. During his re-examination, he added that, if the court ordered that Jessica was not permitted to have a cell phone, he would be willing to supervise and enforce that condition.

[69] Pamela and Paul are both prepared to use the equity in their home, in the amount of $279,000, to secure Jessica’s release. In addition, they are each prepared to pledge the full amount of their respective RRSP savings, namely $32,000 for Pamela and $15,000 for Paul. In short, they are willing to risk their collective life savings. These pledges exceed what would be necessary to provide meaningful incentive for them to be diligent in the fulfillment of their duties as sureties. I believe that they are well-intentioned.

[70] Paul and Pamela are trustworthy sureties who have made meaningful financial pledges, but the safeguards in the proposed plan of release are insufficient to attenuate the substantial likelihood that Jessica, if released, will interfere with the administration of justice. As explained below, I have concluded that, despite their good intentions, her parents would not be able to adequately supervise and enforce her bail conditions if she is released.

[71] In the circumstances of this case, Jessica is almost certainly under immense pressure from the other accused not to cooperate with the police. If, as the evidence in the Crown’s synopsis suggests, she is in possession or control of physical evidence that incriminates them, she would likely also come under pressure to destroy that evidence if released. The fact that the other accused are currently incarcerated does not preclude them from communicating threats to her or otherwise conveying messages to her indirectly. As Mr. Meehan noted in his submissions, the Outlaws motorcycle club is a criminal enterprise that is much larger than the individuals accused of the kidnapping and homicide in this case.

[72] Even if Ms. Martin were not subjected to any outside pressure, she would still be motivated to destroy or discard any incriminating evidence for her own sake. I am not concerned that she will personally destroy physical evidence if she is released. Under the terms of the proposed release plan, it would be extremely difficult for her to do so unless the evidence is stored in her parents’ home, which is unlikely given that their home was searched by police (albeit for a different purpose, namely to look for drugs) in October 2023. My primary concern is that, if she is released, she will communicate in some fashion with others to obtain assistance in disposing of evidence, or that others will communicate with her to enlist her assistance in covering up the Outlaws’ involvement in the offences.

[73] The record contains evidence that Ms. Martin is acquainted with individuals who may be willing to help her in that regard. For example, there is evidence that her boyfriend, Mr. McLaughlin, helped her burn Mr. Brown’s clothing. Similarly, there is evidence that a friend named Cynthia gave her advice on how to delete incriminating electronic data from her cell phone. After Ms. Martin’s home was raided and searched by police on or about September 20, 2023 as part of a drug investigation, she mentioned to the undercover officer and to other friends that the police had taken all her cell phones. The next day, in a conversation with Cynthia, she remarked that she just got a new phone. Cynthia then tells her that “once her phone’s hooked up, she should go onto her settings, if her phone is hooked up to that account, do lost phone, lock device and erase all the data and shit.” Ms. Martin’s network of friends appears to include individuals willing to assist her in destroying evidence, and willing to provide her with unsolicited advice on how to do it effectively.

[74] The Crown synopsis includes evidence that Jessica had multiple cell phones at once and kept old phones in her possession. Paul Martin testified that he would be willing to ensure that she does not have a cell phone if the court imposed such a condition, but there is no specific plan in place to implement this restriction. Nor is there a plan to prevent her from accessing anyone else’s phone, including her parents’ phones or those of visitors to the Martins’ home.

[75] Moreover, a cell phone is not the only means by which Jessica could communicate with others. Social media platforms can be used to send and receive messages from any electronic device or computer that has internet access. Jessica appears to be aware of this. During an intercepted conversation with someone named Kaiden on September 20, 2023, she mentioned needing to log onto Messenger somehow. That day, she was also recorded telling an unknown male that she was “just released and has no phone, but is on Michael’s tablet.”

[76] Pamela Martin testified that they have a computer in their home. The proposed sureties have no plan to restrict or monitor Ms. Martin’s use of the computer. Under the terms of the current plan, it would not be realistically feasible for Paul and Pamela to do so 24 hours daily.

[77] Moreover, there is no evidence that Paul and Pamela are sufficiently tech-savvy to be able to detect whether Jessica has used either of their phones or their computer to access social media accounts, or web-based email, or to message third parties without their knowledge in some other way. On the other hand, there is evidence that Jessica is at least somewhat knowledgeable about cell phone technology. In a recorded conversation about the murder with an unknown female on October 4, 2023, Jessica says she spoke to a lawyer who told her, “you can go to jail for driving somebody to and from.” She mentions still having her phone and says, “it’s not about the phone it’s about the SIM card.” As noted earlier, in another intercepted conversation with Cassandra on October 8, 2023, Jessica says she removed the SIM cards from Mr. Brown’s and Mr. Marchand’s cell phones before wrecking them and discarding the pieces.

[78] Imposing a condition that Jessica wear a GPS-monitored anklet would do nothing to attenuate these concerns. The anklet could not detect if Jessica breaches her bail conditions by communicating with others in a manner that interferes with the administration of justice. Consequently, the success of the proposed plan of release rests largely on Jessica’s willingness to comply with the court-ordered conditions and the house rules imposed by her sureties.

[79] Defence counsel argues that Jessica has a demonstrated history of compliance with court orders. Her criminal record shows that when she was convicted of offences in March 2018, she received a suspended sentence and a period of probation. Ms. Sid Freeman submits that the court should infer that she respected the terms of her probation because there is no evidence of a breach. I agree that is a reasonable inference to draw.

[80] However, the Crown’s evidence includes statements made by Jessica that reveal efforts on her part to communicate with her co-accused Michael McLaughlin in the immediate aftermath of the police raid on her home and their mutual arrest on drug charges in September 2023. During an intercepted conversation with friends named Ryan and Kaiden on September 21, 2023, Jessica mentions that the cops took her cell phones and her “side-by-side along with anything to do with trafficking.” She says she “needs to get a phone to contact Michael” who was incarcerated. There is no evidence in the record before me of the conditions imposed on Jessica when she was released after her arrest on drug charges, but it is highly probable that she was prohibited from communicating with her co-accused. Since this cannot be confirmed, I give this evidence very little weight. There is other more compelling evidence in the record that causes me to believe that Jessica is significantly likely to ignore or disobey court orders and/or her parents’ house rules.

[81] In an affidavit sworn in support of this application, Jessica deposed that she would not breach her bail conditions if released because her parents are making a substantial monetary pledge and she would not want to jeopardize their financial welfare. This presupposes that she would put her parents’ interests ahead of her self-interest, which is not supported by the evidence before me. For example, during a telephone conversation on September 20, 2023, while the police were searching Jessica’s house for drugs, Jessica told her mother Pamela, “I’m putting it on you, I’m gonna say it was you.”

[82] Paul Martin testified that he believes Jessica respects him. The evidence in the record suggests that she does not respect either of her parents. For example, during a telephone conversation with her mother in June 2023, Jessica tells Pamela to “shut up” and yells that Pamela doesn’t know what she’s talking about. During another telephone conversation with her mother on September 20, 2023, which occurred while the police were searching Jessica’s home for drugs, Jessica tells Pamela, “If I lose my kids again because of you I will kill you.” In a conversation with the undercover officer on September 24, 2023, Jessica discusses her actions after the attack in the cemetery. She mentions getting Clorox at her parents’ house for her and Mr. Wand to use to wipe prints off the Chevy Cruze. She says her mom asked what they were doing, and she told her mother they were cleaning his shoes. She says, “they were idiots.”

[83] The totality of the evidence in the application record shows that Ms. Martin bullied her mother and played her parents for fools. She appears to be skilled at deceiving them. For these reasons, the proposed plan of release, which would place Ms. Martin under their supervision, does not adequately mitigate the identified risks. In short, the Crown has satisfied me, on a balance of probabilities, that her detention is necessary to protect the public because there is a substantial likelihood that, if released, she will interfere with the administration of justice.

Tertiary Ground

[84] It is unnecessary for me to provide further reasons for my decision to deny this bail application. The Crown has met its onus on the secondary ground for detention with respect to the obstruction charges. I note, however, that I also would have denied the application on the tertiary ground, not with respect to the murder charge (for which the Crown has a weak case), but with respect to all the other charges.

Petersen J. Released: September 17, 2024

COURT FILE NO.: CR 24-782 DATE: 20240917 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – JESSICA MARTIN DECISION ON APPLICATION for BAIL

WARNING: Information contained in this Decision is subject to a publication restriction. Pursuant to s. 517(1) of the Criminal Code, no information about any evidence taken (both orally and in writing), information given, or representations made to the court in this bail hearing, or about the reasons contained in this Decision, shall be published in any document or transmitted in any way before such time as the trial in this matter is concluded. The final result of the Decision may, however, be published. Exceptions: Counsel may circulate this Decision to other counsel for use in other court cases. A copy of this Decision may be provided to the proposed sureties.

Justice Petersen Released: September 17, 2024

Footnote

[1] NOTE: The Crown interprets this statement as a reference to Mr. Wand being on bail at the time of the homicide, but I read the statement differently. Taken in context with all the other communications, I believe this statement could also refer to Mr. Walsom-Gerigs being on bail at the time.