R. v. M.B., 2012 ABQB 692

Court of Queen’s Bench of Alberta Citation: R. v. M.B., 2012 ABQB 692 Date: 20121107 Docket: 120681580U1, 120681580U2 Registry: Edmonton Between: Action No.: 120681580U1 Her Majesty the Queen - and - M.B. Respondent (Crown) Appellant (Accused) and Between Action No.: 120681580U2 Her Majesty the Queen - and - D.L.

Respondent (Crown) Appellant (Accused) Restriction on Publication Judicial Interim Release – See the Criminal Code,

section 517. By Court Order, this decision and the evidence taken, information given orrepresentations made may not be published, broadcast, or transmitted in anymanner. NOTE: This decision is available from the court file. It may be published afterthe accused is discharged after a preliminary inquiry or, if the accused iscommitted to stand trial, after the end of the trial. Editorial Notice: The restriction on publication ended on April 29, 2015. Reasons for Judgment of the Honourable Mr. Justice T.D. Clackson [1] Judge Richardson’s refusal to release the accused was based entirely upon s.515(10)(

c) of the Criminal Code. [2] D.L. argues that ss. 10(

c) does not apply because, as against him, the Crown’s case is not strong. He argues that he had virtuallyno involvement in the care and feeding of his daughters and was not responsible for their condition. He also argues that the Crown’s caserespecting the condition of the girls is not accurate and is in fact grossly overstated. He argues that the actual condition of the girls isexplicable and non-criminal. [3] M.B. accepts the Crown’s case is strong against her, but she argues that ss. 10(

c) does not apply to cases such as this. She arguesthat ss. 10(

c) is reserved for those cases where there is residual community fear of the accused; as in R. v. Hall, 2002 SCC 64 ,[2002] 3 S.C.R. 309, or the accused has acted outrageously and obstructed justice, as in R. v. White (2006), 380 A.R. 188 (CA). She also argues that it is unnecessary and unfair to keep her in pre-trial custody for what is likely to be at least twoyears while the prosecution winds its way through the courts.

She argues that her continuing detention is particularly harsh because theProvince’s remand facilities compromise her ability to follow the dictates of her religion. [4] The Crown’s position is that the condition of the surviving twin, baby S., and the couple’s four year old son demonstrate theculpability of the accused. The Crown argues that the evidence strongly demonstrates that over the course of many months, the accusedsystematically abused their daughters and deprived their daughters of nourishment and care. The Crown argues that D.L. had to knowwhat was occurring and simply turned a blind eye.

[5] The content and application of s. 515(10)(

c) has bedevilled the courts for a considerable period of time. Frankly it is difficult toconvincingly describe the kind of circumstances which would require detention when an accused is not a real risk to commit furtheroffences, interfere with the administration of justice, or fail to attend when required. Section 515(10)(

c) provides: (10) . . . the detention of an accused in custody is justified . . . (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances,including; (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment . . . [6] The Courts have enlisted the reasonable person and his opinion of the administration of justice as the tool to guide the analysisrequired by ss. 10(c).

The reasonable person is a member of the public who is conversant with Charter values, the presumption ofinnocence and the accused’s right to reasonable bail: R. v. B.(A.) (2006), (ON SC), 204 CCC (3rd) 490 (Ont. SCJ); R.v. Laframboise (2005), 2003 CCC (3rd) 492 affd. 2007 (Ont. CA) 750. [7] The reasonable person is not moved by public outcry nor does he believe that a charged person must be guilty and thereforeshould be kept in jail. [8] So what is it that would move a reasonable person to conclude that his confidence in the administration of justice necessitatesthe continuing detention of the accused?

What justifies overriding the accused’s Charter rights?

Justice Iacobucci in his dissent in Hall,supra, at para. 82 and 83 offered the following comment on the content of ss.10(c): 82 ...Indeed, the only justification for the creation of the tertiary ground that the respondent was able to suggest was that“courts should have the exceptional power to deny bail in limited circumstances not covered by the existing legislation” (respondent’sfactum, at para. 21).... 83 On a more theoretical level, in oral argument, counsel were hard pressed to raise even a convincing hypothetical scenariowhich called for pre-trial detention for reasons other than those listed in paras. (

a) and (b). On the facts of this case, given that theaccused was charged with a seemingly inexplicable and brutal murder, the bail judge might have been justified in denying bail under thesecond ground on the basis that, without any apparent motive for the crime, there was a substantial risk of re-offence. As pointed out byProulx J.A. in R. v.

Rondeau (1996), (QC CA), 108 C.C.C. (3d) 474, [1996] R.J.Q. 1155 (C.A.), at p. 480 C.C.C., inthe context of a similarly inexplicable and brutal murder, [TRANSLATION] “[t]he more a crime like the present one is unexplained andunexplainable, the more worrisome bail becomes for society. Counsel also referred to a hypothetical scenario where granting bail inrespect of a highly publicized crime could cause public unrest or rioting. Again, however, in my view, the wording of s. 515(10)(

b) isbroad enough to encompass any type of threat to ‘the protection or safety of the public”, not just a threat from the accused. The provisionstates that detention is justified where it is necessary for the protection or safety of the public, having regard to all the circumstances.This includes, but is clearly not limited to, a consideration of the substantial likelihood that the accused will re-offend or interfere withthe administration of justice. [9] Ultimately, of course, in Hall, the Supreme Court of Canada struck down a portion of s. 515(10)(

c) but upheld what nowremains. In doing so, McLachlin, C.J. said this:

25 Yet it seems to me that the facts of this case, as well as the facts in such cases as R. MacDougal (1999), 1999 BCCA 509, 138 C.C.C. (3d) 38 (B.C.C.A.), and the pre-Morales case of R. v. Dakin, [1989] O.J. No. 1348 (QL) (CA.), offer convincingproof that in some circumstances it may be necessary to the proper functioning of the bail system and, more broadly of the justicesystem, to deny bail even where there is no risk the accused will not attend trial or may re-offend or interfere with the administration ofjustice.

Bolan J., on strong and cogent evidence, concluded that bail could not be denied on either of these grounds. But he also foundthat detention was necessary to maintain confidence in the administration of justice. The crime was heinous and unexplained. Theevidence tying the accused to the crime was very strong. People in the community were afraid. As Proulx J.A., speaking of a similarlyinexplicable and brutal murder stated in R. v.

Rondeau (1996), (QC CA), 108 C.C.C. (3d) 474, [1996] R.J.Q. 1155(C.A.), at p. 480 C.C.C., [TRANSLATION] “[t]he more a crime like the present one is unexplained and unexplainable, the moreworrisome bail becomes for society”. The provision at issue serves an important purpose -- to maintain confidence in the administrationof justice in circumstances such as these. 26 Therefore, Parliament provided for denial of bail where paras. (

a) and (

b) of s. 5 15(10) are not met but the judge, viewingthe situation objectively through the lens of the four factors stipulated by Parliament, has decided that there is “just cause” for refusingbail. To allow an accused to be released into the community on bail in the face of a heinous crime and overwhelming evidence mayerode the public’s confidence in the administration of justice. Where justice is not seen to be done by the public, confidence in the bailsystem and, more generally, the entire justice system may falter.

When the public’s confidence has reasonably been called into question,dangers such as public unrest and vigilantism may emerge. [10] From all of this, it is clear that one factor the reasonable person should consider is whether the crime is explicable orinexplicable. A crime that can be explained, is one which is understandable. That is, a reasonable person could understand how theaccused could come to commit it. The inexplicable is a crime that one cannot understand. That is, it is difficult to image thecircumstances that would have led to the commission of the offence.

The inexplicable often raises fear and that fear may relate to thepossibility that the accused would do something similar if released. However, that is not necessarily so. The systematic deprivation ofnourishment and care over an extended period of time, coupled with physical abuse which effectively ended the life of one of thiscouple’s 27 month old twins is inexplicable.

However, a reasonable person would not fear for his safety because of that. [11] Additionally, the inexplicable may reasonably suggest some depravity or substantial lack of conscience which a reasonable personmight find troubling enough to be concerned about the accused’s ability to function in the community, if released. [12] If the inexplicable generates fear or concern, then ss. 10(

b) could be enlisted to protect the community. In cases such as Olson,Bernardo, Twitchell and the like, that is an obvious result. However, it seems to me that where there could be an order for release whichaddresses the communities’ fears, there is still a possibility of a residual or niggling fear or concern. A reasonable person might still beconcerned that there are really no release conditions that can adequately protect against this residual fear or the worry of depravity or lackof conscience. Subsection 10(

c) is the tool that addresses those reasonable concerns: R. v. Hall, supra. [13] Although not specifically identified in R. v. Hall or R. v. White, it is implicit that another possible factor which a reasonableperson may consider, in a ss. 10(

c) analysis, is the degree of brutality demonstrated by the accused. Killings are usually brutal andheinous, but their perpetrators are not always detained. However, a person charged with a particularly, markedly or exceptionally viciousor brutal criminal attack, is more likely to be detained. Again, to the extent ss. 10(

c) as opposed to ss. 10(

b) is relied upon for that result,one could conclude that it is residual fear or concern for depravity which compelled detention. Nonetheless, it would seem that evenwhere there is no residual fear, particular brutality can be a factor in a ss. 10(

c) analysis. [14] In my view, another factor to be considered is the vulnerability of the victims. In cases where the victim is a child or otherwiseparticularly vulnerable, I would suggest that detention is more likely than not. That is particularly so where the crime is not the result ofan emotional explosion or loss of control, but rather is a product of reflection, considered action or action over a protracted period. Areasonable man might consider that despite lack of concern under ss. 10(

a) or 10(b), one who victimizes the vulnerable should not begiven freedom pending trial. It is the vulnerable, the weak and our children who are most in need of our protection. Those persons areparticularly vulnerable when their caregivers treat them violently. Refusing release in such circumstances is a declaration that suchabhorrent behaviour cannot be tolerated and must be discouraged even if it means incarcerating the presumed innocent. Depriving theaccused of his freedom pre-trial in such cases can be seen as a societal declaration that the protection of the weak is a fundamental, orcore value of a just society. [15] As well, it seems to me that in a ss. 10(

c) analysis, the reasonable person should consider whether the offence has caused publicoutrage. By that I mean, are reasonable people appalled by the inexplicable, the brutality and/or the fact that the crime victimizedsomeone vulnerable? There was outrage as a result of the Boxing Day shooting in Toronto and as a result of the killing of theMayerthorpe RCMP officers. The public was outraged by the crimes of Olson and Bernardo. Public outrage can be considered to besome evidence of the views of reasonable people. One can assume that reasonable people are among the members of the public who are

outraged. Therefore, if public outrage exists, it ought to be considered in trying to determine whether reasonable people would lose confidence in the judicial system if the perpetrators of the crimes in question were released. If there is outrage, then release is likely to kindle further outrage and diminish confidence in the justice system. “Public unrest and vigilantism may emerge”: R. v. Hall supra, para. 26 . [ 16 ] In

summary, in an attempt to identify what factors a reasonable person might consider on deciding whether releasing the accused would erode confidence in the justice system, I have concluded that, along with the statutorily mandated factors in ss. 10(c)(

i) through (iv), the following are some of the factors that a reasonable person ought to consider: 1. Is the criminal behaviour inexplicable, generating fear or concerns which cannot be entirely overcome by strict conditions of release? 2. Is the criminal activity shocking, brutal or particularly abhorrent? 3. Was the victim a child or particularly vulnerable? 4. Was the crime against the child or vulnerable person perpetrated by a person in a position of trust? 5.

Did the accused’s crime result from an emotional outburst or loss of control, or were the accused’s crimes the product of planning or considered action or the result of action over a protracted period? 6. Is there outrage in the community respecting the alleged crime, the accused or both? [ 17 ] The factors I have identified and the statutorily identified factors are part of “all the circumstances”, that a reasonable person must rely upon in determining the issue:

Section 515(l0)(

c) sets out specific factors which delineate a narrow set of circumstances under which bail can be denied on the basis of maintaining confidence in the administration of justice. As discussed earlier, situations may arise where, despite the fact the accused is not likely to abscond or commit further crimes while awaiting trial, his presence in the community will call into question the public’s confidence in the administration of justice.

Whether such a situation has arisen is judged by all the circumstances , but in particular the four factors that Parliament has set out in s. 515(l0)(c) -- the apparent strength of the prosecution’s case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for lengthy imprisonment.

Where, as here, the crime is horrific, inexplicable, and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence upon which the bail system and the justice system as a whole repose. (emphasis added) Hall , supra para. 40 [ 18 ] In this case, the behaviour of the accused M.B. is inexplicable, it raises concerns respecting her conscience and mental processes. As well, in the evidence before me, D.L. was wilfully blind as to what was going on. Why he would do nothing is inexplicable.

His wilful blindness raises concerns. [ 19 ] The starving, neglect and abuse of a child over a long period by the child’s parents is particularly unusual, shocking and particularly abhorrent. The fact that the accused’s children suffered at their hands while in their care, further appals. That these actions took place over an extended period is particularly offensive. [ 20 ] The Crown’s case is admittedly a strong one against M.B. In my view, the Crown’s case against D.L. is also strong.

[ 21 ] On the other hand, the charges faced by the accused do not provide for life imprisonment, although, sentences of up to 14 years are possible. In the circumstances of this case, while lengthy imprisonment on conviction is likely, it is not certain or inevitable. [ 22 ] As well, although the offences are grave, the accused are not presently charged with murder, manslaughter or criminal negligence causing death.

The accused’s charges are not the most grave. [ 23 ] Additionally, while in this case, there has been a great deal of media coverage, particularly relative to the heart rendering decision to stop efforts to keep baby M. alive, and I accept that there is also a good deal of public interest in this case, I do not have any foundation in the evidence before me to conclude that there is public outrage.

Indeed, I was advised that the bulk of the large gallery in my courtroom, for this application, were supporters of the accused. [ 24 ] Finally, there is no reason for the community to fear the accused if they are released, although it is possible to have a reasonable residual concern for the lack of conscience and/or depravity that the accused’s crimes imply. [ 25 ] The ss. 10(

c) analysis takes place in the context of a burden of proof. Plainly the burden of proof in this case is upon the Crown. It is the Crown’s obligation to establish the need for detention on a balance of probabilities. In the context of ss. 10(

c) that means the Crown must show that it is more likely than not, that a reasonable person would likely conclude that detention is necessary to maintain confidence in the administration of justice: R. v. Hall , supra at para. 41. [ 26 ] After analyzing the factors which are applicable to this case, on balance, it is my view that a reasonable person would conclude that release of the accused would undermine confidence in the administration of justice.

It seems to me that the inexplicable nature of the criminal behaviour, the vulnerability of the victims, the fact that the accused were trusted caregivers of the victims, the systematic deprivation and abuse of the victims, the strength of the Crown’s case, the likelihood of a lengthy term of imprisonment on conviction all outweigh the lack of apparent outrage, the fact that although serious, the accused are not charged with murder or some other charge of that ilk, the fact that M.B. is continuing detention is difficult for her religiously and the fact that it is likely to be a long time before the accused are actually tried for these offences. [ 27 ] It follows that Judge Richardson’s decision on the matter was correct and the Crown has met its burden on the balance of probabilities. [ 28 ] The applications by the accused are dismissed.

Heard on the 18 th day of October, 2012. Dated at the City of Edmonton, Alberta this 7 th day of November, 2012. T.D. Clackson J.C.Q.B.A. Appearances: Shelly Bykewich Crown Prosecutors’ Office

for the Respondent (Crown) Dale Kniesely Knisely Shipanoff LLP for the Appellant (Accused) M.B. Walter Raponi Tarrabain & Company for the Appellant (Accused) D.L.