R. v. Macoon-Evans, 2011 ABQB 569

Court of Queen ’ s Bench of Alberta Citation: R. v. Macoon-Evans, 2011 ABQB 569 Date: 20110928 Docket: 101454353U1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Christopher Macoon-Evans Applicant Restriction on Publication: By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. See the Criminal Code , s. 517.

Editorial Notice: The restriction ended on December 7, 2011. _______________________________________________________ Oral Reasons for Judgment of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________

I. Introduction [ 1 ] Christopher Macoon-Evans stands jointly charged, with two other adults and one young person, with second degree murder, contrary to s. 235(1) of the Criminal Code of Canada . [ 2 ] The offence occurred on September 4, 2010. Mr. Macoon-Evans has been in custody since November 11, 2010. The preliminary inquiry is scheduled for four weeks commencing on November 28, 2011. [ 3 ] Mr. Macoon-Evans now applies for judicial interim release. This is the first time it has been considered. Submissions were initially made by counsel on September 9, 2011.

The matter was then adjourned to September 16, 2011. On that date, Crown counsel requested an adjournment to September 21, 2011 as new information had come to light relevant to this application. Disclosure of that new information was made to defence counsel on September 19, 2011. The new information obtained by the Crown is contained in a KGB statement and is referred to below. II. Background Facts [ 4 ] On September 4, 2010, one Jesse Lee James was operating a red Escalade when he pulled into a parking lot. It is believed by the Crown that Mr.

James was involved in the drug trade. [ 5 ] Two individuals were seen entering the red Escalade. One of them has been positively identified as C.M. Based on information obtained from wiretap evidence and a co-accused, Mahamed Ali Abdulle, the Crown believed the second individual to have been Mr. Macoon-Evans. [ 6 ] At some point, Mr. James was shot in the head and killed. The Crown alleges that either C.M. or Mr. Macoon-Evans fired the shot that killed Mr. James while the other held him. [ 7 ] After Mr. James was shot, a white BMW entered the parking lot, picked up the two individuals and left. Mr.

Abdulle was driving the BMW and Mr. Jason Kadeem Williams was a passenger in the vehicle. [ 8 ] The four accused in this case are Mr. Macoon-Evans, Mr. Abdulle, Mr. Williams and C.M. They are jointly charged with the second degree murder of Jesse Lee James. [ 9 ] On September 1, 2010, three days prior to this incident, another homicide occurred which involved some of the same individuals. The victim in the earlier homicide was Emmanuel Amoah. The four individuals alleged to be involved in the Amoah homicide are Mr. Abdulle, C.M., T.M. (C.M.’s twin brother) and A.A. Mr.

Abdulle and C.M. are therefore alleged to have been involved in both homicides. At the time of the two homicides, the M. brothers and A.A. were young persons (under the age of 18 years). It is not alleged by the Crown that Mr. Macoon-Evans had any involvement in the earlier homicide. [ 10 ] Mr. Williams has been in custody since November 2010. He has recently been granted judicial interim release, one of the conditions of which is that he reside with his great uncle in Etobicoke, Ontario. Mr. Abdulle and C.M. (each allegedly involved in both homicides) remain in custody.

Judicial interim release has been denied to Mr. Abdulle and C.M. has yet to apply for release. The KGB Statement

[ 11 ] On September 16, 2011, the Crown obtained a KGB statement from A.A. A.A. was allegedly involved in the Amoah homicide. In his KGB statement, A.A. identified Mr. Macoon-Evans as having admitted that he killed Jesse James. He also identified Mr. Macoon-Evans as one of two people, the other being C.M., who threatened to kill him if he talked to the police and “snitched” about the Amoah homicide. [ 12 ] A.A was taken from his home by Mr. Macoon-Evans and C.M. on November 2, 2010. They took him to an apartment building, ostensibly to see T.M.

He was taken into the laundry room of the apartment building where, he says, he was accused of talking to police about the Amoah homicide and told that he would be killed if he did so again. [ 13 ] A.A. stated that Mr. Macoon-Evans pulled out a gun from C.M.’s pocket, put it against A.A’s head and said something like “...you know I like to shoot people in the head...I did it just a couple weeks earlier, ya know I’ll do it to you again...”. Later in his statement, A.A. says that Mr. Macoon-Evans put the gun against his forehead and told him that “We’re gonna kill you man.

We’re gonna put you, we’re gonna kill you man, we’re gonna put your body in the, in the ditch.” Mr. Macoon-Evans then said something like “Ya know I shot somebody in the head a couple weeks earlier. You know I’m not scared to shoot you in the head.” The gun was later shown not to be loaded at the time of the threats. [ 14 ] A.A. stated that Mr. Macoon-Evans admitted to him that he had killed Jesse James while they were both at the hospital shortly after the James homicide. III. Onus of Proof [ 15 ] Mr. Macoon-Evans brings this application pursuant to s. 522 of the Criminal Code .

Section 522(2) provides that where an accused is charged with an offence listed in s. 469, he shall be detained in custody unless he “shows cause why his detention in custody is not justified within the meaning of subsection 515(10)”. Section 515(10) provides that the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure the attendance of the accused in Court; (

b) where the detention is necessary for the protection or safety of the public; (

c) where the detention is necessary in order to maintain confidence in the administration of justice. [ 16 ] Mr. Christopher Macoon-Evans is charged with murder which is one of the offences listed in s. 469. Accordingly, the onus is on him to show why his detention in custody is not justified. IV. Discussion [ 17 ] Two fundamental principles must always be borne in mind when considering whether an accused should be released pending his trial.

The first is the fundamental principle of crucial importance in a free and democratic society that an accused is presumed innocent until proven guilty beyond a reasonable doubt. The second is that an accused has the right not to be denied reasonable bail without just cause. These two fundamental principles have been emphasized by their inclusion in

section 11 of the Canadian Charter of Rights and Freedoms which provides: 11. Any person charged with an offense has the right (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(

e) not to be denied reasonable bail without just cause... [ 18 ] There is no category of offence for which an accused is automatically precluded from obtaining judicial interim release. Bearing this in mind, together with the fundamental principles outlined above, I turn now to a consideration of Mr. Macoon-Evans’ application. a. Is Mr. Macoon-Evans ’ detention necessary to ensure his attendance in Court? [ 19 ] Mr. Macoon-Evans is charged with the serious criminal offence of murder. Second degree murder carries a penalty of life imprisonment.

The seriousness of the charge, the possibility of conviction and the potential penalty if convicted, whether for murder or a lesser and included offence, may provide motivation for Mr. Macoon-Evans to avoid facing trial by fleeing the jurisdiction. [ 20 ] Mr. Macoon-Evans has limited ties to the City of Edmonton. He moved to Edmonton at the beginning of July 2010 and to the time of his arrest on November 11, 2010, he had not had any legitimate employment in the City. The only family tie to the City is an aunt who apparently lives in Edmonton. [ 21 ] Mr. Macoon-Evans is 21 years of age.

He does have roots in the City of Toronto. His mother lives in Toronto and is a Canadian citizen. The family has lived in the same home for 19 years and his mother has indicated that he is welcome to return to live in the family home. He also has a grandmother, uncles and aunts living in Toronto. [ 22 ] Mr. Macoon-Evans has finished Grade 11 and has had sporadic employment in the City of Toronto. He has a criminal record for offences committed while he was a youth in 2006 and 2007. One of his convictions was pursuant to s. 145(3) of the Code for failure to comply with a recognizance.

The other offences for which he was convicted include two convictions for theft under $5,000, one for assault and one for possession of a

Schedule I substance for the purpose of trafficking. On two occasions, he was sentenced to 12 months probation. There is no record of his having breached any term of his probation on either occasion. (It is worth noting that Mr. Williams was granted release notwithstanding a prior record of failing to comply with a court order and failing to appear.) [ 23 ] The Crown emphasizes the seriousness of the offence and the incentive to flee due to the possibility of a conviction and lengthy sentence. The Crown then refers to a direction by the police while interviewing Mr.

Macoon- Evans not to leave the jurisdiction as he was a suspect and a subsequent intercepted telephone communication where Mr. Macoon-Evans seems to suggest that he was going to “cut town”. However, he obviously did not do so in the week after he allegedly made this statement and before his arrest. [ 24 ] In my view and notwithstanding his one conviction for breaching a recognizance as a youth, his apparent full compliance with two 12-month probation orders is indicative of an individual who does and will comply with court ordered conditions for release. [ 25 ] There is no doubt that Mr.

Macoon-Evans faces the potential of a significant term of imprisonment if convicted. However, I am satisfied that a substantial cash deposit together with sufficiently restrictive conditions will be adequate to ensure his future attendance in Court. [ 26 ] Mr. Macoon-Evans has satisfied me that his detention in custody is not necessary to ensure his attendance.

b. Is Mr. Macoon-Evans ’ detention necessary for the protection or safety of the public. [ 27 ] There are two aspects to this ground for detention. First, if released from custody, will the accused commit a criminal offence? Second, if released, will the accused interfere with the administration of justice? [ 28 ] Before obtaining the KGB statement from A.A., the Crown simply relied on the apparent drug dealer lifestyle of Mr. Macoon-Evans as a basis for suggesting that there was a likelihood that he would re-offend if released.

He had no job in Edmonton, appeared to be involved in drug trafficking, had no place to live in Edmonton and apparently had access to firearms. Further, the crime took place in a public area with children around, showing a lack of concern for public safety. [ 29 ] The Crown’s position has been strengthened by the KGB statement obtained from A.A. By connecting dots in the statement, it appears clear that A.A. is referring to Mr. Macoon-Evans as the individual who confessed to shooting Mr. James and who, together with C.M., threatened him in the laundry room on November 2, 2010.

These aspects of the statement are also corroborated by police surveillance. [ 30 ] Counsel for Mr. Macoon-Evans asks the Court to assess and consider the credibility of A.A. in determining whether his allegations against Mr. Macoon-Evans are true. Counsel points out that A.A.’s involvement in the Amoah homicide, the fact that he gave his statement as part of a plea arrangement and that certain identifiable characteristics of Mr. Macoon-Evans were not mentioned by A.A. should all cause the Court to question A.A.’s credibility and discount his allegations. [ 31 ] In my view, the statement of A.A. tying Mr.

Macoon-Evans to the James homicide and the threats to A.A. cannot be ignored or discounted at this time. While counsel has not yet had an opportunity to cross-examine A.A. and test the credibility of his evidence, that opportunity will arise during the preliminary inquiry in this case scheduled to begin on November 28, 2011. [ 32 ] The KGB statement of A.A. leaves a strong impression that if Mr. Macoon-Evans is released, he may commit a criminal offence and more importantly, may attempt to interfere with the administration of justice. Mr.

Macoon-Evans has failed to satisfy me on a balance of probabilities that there are sufficiently stringent conditions that could be imposed upon him if released that would prevent him from committing a criminal offence or interfering with the administration of justice. It is on this ground, therefore, that his application is denied. [ 33 ] Notwithstanding my finding on this ground, I will go on to consider the third ground set out in section 515(10) of the Code. c. Is Mr. Macoon-Evans ’ detention necessary in order to maintain confidence in the administration of justice? [ 34 ] Section 515(10)(

c) provides that the detention of an accused is justified where the detention is necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances. [ 35 ] The factors to be considered include: i. the apparent strength of the prosecution’s case; ii. the gravity of the nature of the offence; iii. the circumstances surrounding its commission;

iv. the potential for a lengthy term of imprisonment. [ 36 ] Before coming into possession of the KGB statement of A.A., the Crown candidly acknowledged difficulties it might have in prosecuting Mr. Macoon-Evans and placing him at the scene of the James homicide. The Crown’s case, however, gained significant strength with the KGB statement. If A.A. is believed, then Mr. Macoon-Evans has both acknowledged killing Mr. James and was involved in an attempted interference with the administration of justice by threatening A.A. [ 37 ] Mr. Macoon-Evans is charged with a serious offence.

The circumstances allegedly surrounding its commission are equally serious and there is unquestionably the potential for a lengthy term of imprisonment if Mr. Macoon-Evans is convicted. As stated above, the prosecution’s case has been strengthened by the KGB statement from A.A. and Mr. Macoon-Evans now appears strongly linked to the crime. [ 38 ] In light of all of these circumstances and the apparent attempt by Mr. Macoon-Evans to interfere with the administration of justice by threatening A.A., I am satisfied that the detention of Mr.

Macoon-Evans is necessary in order to maintain confidence in the administration of justice. That is, Mr. Macoon-Evans has failed to satisfy me on a balance of probabilities that his release would not erode the public’s confidence in the administration of justice. Accordingly, I would have denied Mr. Macoon-Evans’ application on this ground as well. V. Conclusion [ 39 ] Mr. Macoon-Evans has failed to show on a balance of probabilities why his continued detention in custody is not justified. His application for judicial interim release is denied. Heard on the 9 th , 16 th , 21 st and 23 rd day of September, 2011.

Delivered orally on the 27 th day of September, 2011. Eric F. Macklin J.C.Q.B.A. Appearances: Melanie Hayes-Richards for the Respondent D’Arcy DePoe

for the Applicant Appendix A Christopher Macoon-Evans is released on his own recognisance with a cash deposit of $5,000 upon the following conditions: 1. He must keep the peace and be of good behaviour. 2. He is to appear before the Court as and when required. 3. He is to report in person on his release to Detective Brian Robinson of the Edmonton Police Service, or his designate. 4. He is to reside in the home of his mother at [...] Street, Toronto, Ontario (“the subject residence”). 5.

He is to remain in the subject residence at all times, except between the hours of 9:00 a.m. and 1:00 p.m. during which he may shop for the necessities of life, look for employment or arrange to attend school or other educational programs. 6.

Should he obtain employment or enrol in an educational program, he shall be entitled to be away from the subject residence during the periods of employment or the periods during which he must attend for the educational programming as well as 1 ½ hours before and 1 ½ hours after such attendance for the purposes of travelling to and from his place of employment or schooling. 7. He is to maintain a landline telephone at the subject residence and is to personally answer that phone during the term of this Order when required to be in the residence.

If he does not personally answer a call or return a call made by Detective Robinson or his designate from the landline phone within ten minutes of the call being made, he will be deemed in breach of this Order. 8. Detective Robinson or his designate may attend the subject residence to meet with him to ensure compliance with the conditions of this Order. If Detective Robinson or his designate knocks at the door or rings the bell at the subject residence at any time when Mr.

Macoon-Evans is obliged to be there, he must attend at the door to be identified within ten minutes or he will be deemed in breach of this Order. 9. Notwithstanding clause 5 above, he is to report by telephone each Monday and Thursday between the hours of 9:00 a.m. and 12:00 noon to Detective Brian Robinson or his designate at the Edmonton Police Service and must do so from the landline telephone at the subject residence. - 2 - 10.

He shall turn in any passport or other travel documents in his possession or control and shall undertake not to apply for any other passport or travel documents while subject to this Order.

11. He must abstain absolutely from the possession, use and consumption of alcohol and any non-prescription drug. 12. Detective Robinson or his designate may demand a blood, breath or urine sample from him for the purpose of detecting the presence of alcohol or drugs if Detective Robinson or his designate reasonably suspects that he has alcohol or illicit drugs in his body. Detective Robinson or his designate may make such demands at any time. 13. He is not to possess any firearms, ammunition or explosives. 14.

He is not to possess, use or have any access to a cell phone, pager or any other electronic device for the purpose of wireless communication. 15. If Detective Robinson or his designate has reason to suspect that he is in breach of one or both of condition numbers 11, 13 and 14, he will consent to a search of the subject residence, in a vehicle he is in or his person. 16. He shall turn himself in to the Edmonton Remand Centre 48 hours before any required Court appearance and shall remain in custody until that Court appearance is completed following which he shall return forthwith to the subject residence. 17.

He shall abstain from communicating directly or indirectly with any of the co-accused in this matter and any of the following witnesses as identified by the Crown: 18. He shall forthwith notify Detective Brian Robinson of any changes in the individuals residing at the subject residence. In particular, should anyone move into the subject residence or anyone move out of the subject residence, he shall notify Detective Brian Robinson forthwith. 19. At all times when away from the subject residence, he is to keep on his person a copy of his Order of Release and show it to a Peace Officer on demand.