PLEASE NOTE: THERE IS PUBLICATION BAN ON THIS JUDGMENT PURSUANT TO S. 517 OF THE CRIMINAL CODE 47 Q.B.B.A. A.D. 2001 No. J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA and HER MAJESTY THE QUEEN RESPONDENT Kevin A. Lang for [A.R.S.] Marylynne T. Beaton for the Crown JUDGMENT GUNN J. January 26, 2001 [1] [A.R.S.] stands charged with the second degree murder of [D.M.] and the second degree murder of [B.J.S.]. Both charges arise out of an incident occurring at the [location] First Nation on December 29, 2000 at the home of [D.M.]. [2] The events of December 28 and 29, 2000 were described by counsel for [A.R.S.] and by counsel for the Crown in oral submissions to the Court. It was agreed by the parties that counsel's submissions should be accepted by the Court without the necessity of either party calling evidence concerning the circumstances of the alleged offences. It was acknowledged by counsel that this should be done even in the face of conflicting views with respect to the facts. [3] It does not appear to be in issue that on December 28, 2000 [A.S.], [G.S.], [C.D.], [G.I.] and [D.M.] were gathered at residence on the [location] First Nation for social visit. Alcohol was being consumed by some or all of those present. Later that evening, [B.S.], [A.R.S.]'s father picked up these individuals and at the request of [D.M.], drove them to [location] where [D.M.] purchased some beer. [B.S.] then drove everyone to [D.M.]'s house and dropped them off. Some time later [B.J.S.] arrived at [D.M.]'s home. [4] At this point the positions of the parties diverge. [A.R.S.] submits that [D.M.] was very intoxicated and that Mr. [D.M.] became very aggressive towards him. When [A.R.S.] attempted to call his father [B.S.] for help, Mr. [D.M.] ripped the phone out of his hand. When [A.R.S.] ultimately made contact with his father, Mr. [D.M.] ripped the telephone cord out of the wall. [5] After receiving the call from his son, [B.S.] hurried to the [D.M.] residence which was nearby. He heard gun shot while en route. [6] [A.R.S.] submits that [D.M.] had gone to his bedroom and brought out rifle. [A.R.S.] says [D.M.] was aiming the rifle at him and/or at [C.D.]. [C.D.] started wrestling with [D.M.] to take the rifle from him and [A.R.S.] joined in. [A.R.S.] says both [D.M.] and [B.J.S.] also had knives which had been used to threaten [A.R.S.] and [C.D.] prior to and during this incident. During the scuffle, [A.R.S.] says the gun went off. In the Crown disclosure provided to counsel for [A.R.S.], [C.D.] provided statement supportive of [A.R.S.]' version of the events. With respect to [B.J.S.], [A.R.S.] says he and [D.M.] were found in the main hallway close to each other. It was unclear whether one or two shots had been fired, and if both men could have been killed by the same shot. [7] The Crown submits that although its investigation is still ongoing, it takes issue with the facts presented by [A.R.S.]. The Crown submits that the forensic reports it has received to date are not consistent with the version of the events suggested by [A.R.S.]. The Crown says the forensic reports do not support an allegation that the gun discharged in the course of struggle. The Crown says as there was no gun residue on either of the bodies, the gun must have been 18" to 24" away when discharged. The Crown further submits that [B.J.S.] was killed first, then [D.M.] [8] The onus is on the accused to show cause why his detention in custody is not justified pursuant to s. 515(10) of the Criminal Code. Section 515(10) now permits detention on three grounds: (a) to ensure attendance; (b) to protect the public and the administration of justice; (c) to answer to "any other just cause" including maintenance of "confidence in the administration of justice" having regard for all the circumstances including: (i) the apparent strength of the prosecution's case; (ii) the gravity of the nature of the offence; (iii) the circumstances surrounding the commission of the offence; and (iv) the potential for lengthy term of imprisonment. (R. v. Blind (2000), 1999 CanLII 12305 (SK CA), 180 Sask. R. 145 (Sask. C.A.)) [9] [A.R.S.] is eighteen years of age. He lives with his parents [B.S.] and [C.S.] and his three siblings on the [location] First Nation. [A.R.S.] was attending [name] Community Educational Centre completing two credits for his grade ten and was also taking classes for his grade eleven. The Vice Principal filed letter with the Court indicating that [A.R.S.] attended school regularly and put reasonable effort into his studies. Ms. Adams said "[A.R.S.]'s pleasant attitude, cooperative behaviour and sense of humour were welcome pleasure in all of his classes." [10] Prior to attending [name], [A.R.S.] attended [location] High School. Sandy Emke-Kish, the Vice Principal of [location] High School also filed letter in support of [A.R.S.] indicating that [A.R.S.] was positive and visible person who followed the school rules. [11] [A.R.S.] has been extensively involved in sports. He has participated in the Saskatchewan Winter Games participating in hockey and badminton and the Summer and Provincial Games playing baseball. He has also attended the North American Indigenous Games. [12] He placed first for poetry at local Arts Festival. He presented paper at the "Stayin' Alive Youth Conference" in Yorkton in March of 2000. He was chosen as role model for the Yorkton District Healthy Choices Conference. He has worked extensively with his father at the community pasture. [13] [A.R.S.]'s previous record consists of charge of mischief for which he received discharge. He faces two outstanding charges, as young offender arising out of house party in October 1999. [A.R.S.] was charged with assault causing bodily harm and assault with weapon, to wit beer bottle. [14] The Crown opposes [A.R.S.]'s release on the ground that his detention is necessary in order to maintain confidence in the administration of justice. [15] I am not satisfied that the detention of the accused is necessary to ensure his attendance at court. [A.R.S.] has always lived with his family. [A.R.S.]'s father [B.S.] has managed the community pasture at [location] First Nation for 16 years. [A.R.S.]'s mother has worked as trust coordinator for 15 years for the [location] First Nation. Neither of [A.R.S.]'s parents have criminal records. [A.R.S.] has always been involved in school, sports and community activities. He has strong roots in the community which is evidenced by his history at [location] First Nation, and by the letters and affidavits of support filed by relatives and friends from the [location] First Nation. [16] I am not satisfied that the detention of the accused is necessary for the protection or safety of the public. Generally bail is denied only for those who "pose substantial likelihood of committing an offence or interfering with the administration of justice" (R. v. Morales (1992), 1992 CanLII 53 (SCC), 77 C.C.C. (3d) 91 (S.C.C.) at 107). There is no evidence that [A.R.S.] poses a substantial likelihood of committing further offences or that he will, if released, interfere with the administration of justice. [17] The question remains whether there is any other "just cause" whereby detention of the accused is necessary to maintain confidence in the administration of justice. In R. v. Blind, supra, Jackson J.A. considered Parliament's intention when sub-section (c) was added to s. 515 (10) in 1997. Madam Justice Jackson concluded that in order to detain an accused prior to trial pursuant to this section, the court must find "just cause" to do so. Justice Jackson said the following at para 13: ... In applying this clause it is not sufficient, as was done in this case, to find the Crown has strong case, that the offence charged is extremely grave, and that potentially lengthy term of imprisonment is in the offing, or, indeed, to list circumstances which could describe any violent crime. More is required. The clause poses the ultimate question, in case such as this, of whether in all of the circumstances, not just the circumstances surrounding the commission of the offence, detention is necessary to maintain confidence in the administration of justice. [18] Madam Justice Jackson in the Blind decision, referred to R. v. Nguyen (Y.V.) (1997), 1997 CanLII 10835 (BC CA), 119 C.C.C. (3d) 269 (B.C.C.A.) where it was held at para 22: ... An important consideration is whether the violence occurred in circumstances of malevolent rather than foolish or spontaneous intent. It is important to consider whether the applicant is person prone to violence or cruelty or whether she or he became caught up in circumstances where awful things sometimes happen. Without stating any rule which can be applied to every case, it is my view that detention pending appeal will not always be necessary for young men or women fighting on Saturday night, even though awful consequences sometimes result. [19] The Crown has indicated that these events have divided the [location] First Nation. Clearly [A.R.S.] has significant support as evidenced by the many letters and affidavits filed on his behalf. The Chief and Council of the [location] First Nation have taken no position on the release of the accused due to the fact that both [A.R.S.] and one of the deceased, [B.J.S.] are members of their First Nation. [20] am satisfied in all of the circumstances that the continued detention of [A.R.S.] pending his trial cannot be justified under the law as laid down by Parliament in s. 515(10) of the Criminal Code. The accused will be released on his own undertaking on a set of strict conditions. The conditions are these: (1) He shall keep the peace and be of good behaviour. (2) He shall report to the court whenever required to do so by the court. (3) He shall report in person to the Intensive Probation Supervision/Electronic Monitoring Co-ordinator at 72 Smith Street East, Yorkton, Saskatchewan; SN3 2Y4, (306) 786-1475 within days of his release from custody and thereafter at dates and times specified by the Bail Supervision Officer. (4) He shall participate in the Electronic Monitoring Program, and shall comply with all Program rules. (5) He shall be confined to his residence and shall receive written permission from the IPSEM Co-ordinator, or his designate, to be absent from his residence. He shall provide the IPSEM co-ordinator, or his designate with information regarding his whereabouts. (6) He shall reside at residence with his mother in Yorkton, the address of that residence to be provided to the IPSEM Co-ordinator. (7) He shall immediately advise the IPSEM Co-ordinator, or his designate, of any changes in attendance at an educational facility, and/or any contact with police officials. (8) He shall abide by curfew and be in his residence from 11:00 p.m. to 6:00 a.m. daily unless given permission to be absent from his home by the IPSEM Co-ordinator. (9) He shall not attend at the [location] First Nation. (10) He shall abstain from the consumption and possession of non-prescription drugs and alcohol, and shall not enter any establishment the primary purpose of which is the sale of alcohol. (11) He shall have no contact, directly or indirectly with any prosecution witness as may be stipulated by the Crown in the order to be issued, except through member of the Law Society of Saskatchewan. (12) He shall abstain from owning, possessing or carrying any firearm, cross bow, or restricted weapon or prohibited weapon. (13) He shall attend school and/or take correspondence classes in order to continue with his education. (14) He shall provide breath and/or urine samples to any police officer upon reasonable request.
The 18 year old, charged with the second degree murder of two individuals, applied for release from custody. HELD: The accused was released on his own undertakings under a set of strict conditions, including participation in an electronic monitoring program. The onus is on the accused to show cause why his detention in custody is not justified. Criminal Code s.515(10) now permits detention on three grounds. His detention was not necessary to ensure his attendance at court nor for the protection or safety of the public. There was no evidence he posed a substantial likelihood of committing further offences or that he would interfere with the administration of justice if released. There was no other just cause, including maintenance of confidence in the administration of justice.