R v Shyback, 2016 ABQB 175

Court of Queen’s Bench of Alberta Citation: R v Shyback, 2016 ABQB 175 Date: 20160323 Docket: 141408229Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Allan Ray Shyback Accused Restriction on Publication Judicial Interim Release – See the Criminal Code ,

section 517. By Court Order, this decision and the evidence taken, information given or representations made may not be published, broadcast, or transmitted in any manner. NOTE: This decision is available from the court file. It may be published only, after the end of the trial. Editorial Notice: The publication ban has expired. The trial ended September 20, 2017. ______________________________________ Reasons on Judicial Interim Release of the Honourable Mr. Justice B. A. Millar _______________________________________________________

Charges [ 1 ] Mr. Shyback is charged: 1. That he, between the 28 th day of October, 2012, and the 3 rd day of November, 2012, both dates inclusive, at or near Calgary, Alberta, did unlawfully cause the death of Lisa Michelle Mitchell, thereby committing Second Degree Murder, contrary to section 235(1) of the Criminal Code of Canada . 2. That he, between the 28 th day of October, 2012, and the 3 rd day of November, 2012, both dates inclusive, at or near Calgary, Alberta, did improperly interfere with the human remains of Lisa Michelle Mitchell, contrary to

section 182 (

b) of the Criminal Code of Canada . Issue [ 2 ] Should the Accused be released on bail pending trial. Law [ 3 ]

Section 522 of the Criminal Code of Canada requires a superior court judge to assess bail in cases of murder. [ 4 ] Section 522(2) of the Criminal Code of Canada places the onus on the Accused to show cause (on a balance of evidence) why he should be released. [ 5 ] The Accused argues he is releasable and presents a release plan, attached as

Schedule “A” hereto. [ 6 ] The Crown and Defence concede that the Accused is releasable on ground (

a) and (

b) of s 515(10) and that ground (

c) known as the tertiary ground is contested: s. 515(10) for the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

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 or, in the case of an offence that involves, or whose subject matter is a firearm, a minimum punishment of imprisonment for a term of three years or more. [ 7 ] This application is after the preliminary hearing, which was completed earlier this year.

The Accused has been in custody since his arrest December 14, 2014 and Defence Counsel submits the trial will not be held for one year from this date (ie: 2017). [ 8 ] The Supreme Court of Canada has recently revisited the tertiary ground in R v St Cloud 2015 SCC 27 and directed courts in its application: [50] Furthermore, I agree with the appellant that detention may be justified only in rare cases, but that this is simply a consequence of the application of s. 515( 10)(

c) and not a precondition to its application, a criterion a court must consider in its analysis or the purpose of the provision. [51] This

interpretation is consistent with the following comment made by this Court in Hall: While the circumstances in which recourse to this ground for bail denial may not arise frequently , when they do it is essential that a means of denying bail be available. [Emphasis added; para. 31.] [52] I am of the view that a "rareness" of circumstances criterion would be vague and unmanageable in practice. How would such a criterion be assessed? Should justices consider how many cases have been heard (in their jurisdictions, in Canada, in the last year, etc.) and, at the same time, ensure that cases of detention based on s. 515(10)(

c) will remain "rare" if they order detention in the cases before them? Should a justice review the cases in which detention has been ordered and determine whether the facts of the case before him or her are the same (or nearly the same) as the facts of those cases? In any event, it seems to me that a "rareness" of circumstances criterion would prompt justices to engage in a comparative exercise and thus to move away from the careful examination of the circumstances of individual cases that the situation requires.

In my opinion, a comparative approach such as this could potentially undermine the public's confidence in the administration of justice. [53] Moreover, the appellant correctly points out that s. 515(10)(

c) Cr. C. is worded clearly and that it does not require exceptional or rare circumstances... [54] In conclusion, the application of s. 515(10)(

c) is not limited to exceptional circumstances, to "unexplainable" crimes or to certain

types of crimes such as murder. The Crown can rely on s. 515(10)(

c) for any type of crime, but it must prove - except in the cases provided for in s. 515( 6) - that the detention of the accused is justified to maintain confidence in the administration of justice. [ 9 ] The Court reaffirms that the analysis must be conducted using the factors articulated in the Criminal Code . [ 10 ] It also reaffirms that the analysis conducted in Hall was appropriate and should continue to be applied. [ 11 ] This is important because Hall articulates four factors that the court should consider in relation to the tertiary ground: 1. Detention must be necessary, not only advisable. 2.

The detention is not necessary for any goal, but specifically to maintain the confidence in the administration of justice; 3. The judge is to make this appraisal objectively through the lens of the four factors that Parliament has specified; and 4.

The objective measure is the view of a reasonable person who must be properly informed about the philosophy of the legislative provisions, Charter values, and the actual circumstances of the case. [ 12 ] The Court reaffirmed that detention under this provision is based on the need to maintain “public” confidence in the administration of justice. [ 13 ] In an analysis of the applicability of the “public”, the Court concludes: [79] Thus, a reasonable member of the public is familiar with the basics of the rule of law in our country and with the fundamental values of our criminal law, including those that are protected by the Charter.

Such a person is undoubtedly aware of the importance of the presumption of innocence and the right to liberty in our society and knows that these are fundamental rights guaranteed by our Constitution. He or she also expects that someone charged with a crime will be tried within a reasonable period of time, and is aware of the adage that "justice delayed is justice denied": R. v. Trout, 2006 MBCA 96 , 205 Man. R. (2d) 277 (Man. C.A.), at para. 15 .

Finally, a reasonable member of the public knows that a criminal offence requires proof of culpable intent (mens rea) and that the purpose of certain defences is to show the absence of such intent. A well-known example of this type of defence is the mental disorder defence. The person contemplated by s. 515(10)(

c) Cr. C. therefore understands that such a defence, once established, will enable an accused to avoid criminal responsibility. However, it would be going too far to expect the person in question to master all the subtleties of complex defences, especially where there is overwhelming evidence of the crime, the circumstances of the crime are heinous and the accused admits committing it. [80] In short, the person in question in s. 515(10)(

c) Cr.C. is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society's fundamental values.

But he or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences that are available to accused persons. [81] It is of course not easy for judges to strike an appropriate balance between the unrealistic expectations they might have for the public on the one hand, and the need to refuse to yield to public reactions driven solely by emotion on the other.

This exercise may be particularly difficult in this era characterized by the multiplication and diversification of information sources, access to 24-hour news reports and the advent of social media. [ 14 ] The Court went on to conclude on the application of s. 515(10)(c): [87] I would summarize the essential principles that must guide justices in applying s. 515(10)(

c) Cr.C. as follows: • Section 515(10)(

c) Cr.C. does not create a residual ground for detention that applies only where the first two grounds for detention ((

a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused. • Section 515(10)(

c) Cr.C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes. • The four circumstances listed in s. 515(10)(

c) Cr.C. are not exhaustive. • A court must not order detention automatically even where the four listed circumstances support such a result. • The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances. • The question whether a crime is "unexplainable" or "unexplained" is not a criterion that should guide the analysis. • No single circumstance is determinative.

The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified. • This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice.

This is the test to be met under s. 515(10) (c). • To answer this question, the court must adopt the perspective of the "public", that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused. • This reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention

where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified. [88] In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered.

Alleged Facts [ 15 ] On November 17, 2012 Peggy Mitchell (hereafter "the deceased's mother") attended at the Turner Valley R.C.M.P. detachment and reported that the deceased was missing. [ 16 ] The Turner Valley R.C.M.P opened a file and began a missing person's investigation. [ 17 ] It was determined that the deceased had last been seen by the accused the evening of October 29, 2012.

The two of them had been in an argument and based on his initial statement after he went to 7-11 to pick up cigarettes she was gone. [ 18 ] Text messages were exchanged on the same date by the accused's phone number and the deceased's phone number. [ 19 ] The accused provided police text messages including his where he stated "hey where did you go". [ 20 ] Around midnight that evening a message showed which had been sent from the deceased's phone saying "I don't want to talk anymore I'm going out of town with a friend maybe we can talk when I get back in a few days." [ 21 ] The next communication from one of the deceased's accounts came on November 2, 2012 when her mother received an email from her email account stating: Hey I had to go out of town for a while, my phones not working and I'm borrowing a friends computer so I have to make this quick.

I'm not going to make it back this weekend, but I would be back soon I just needed to get away for a while and think about some stuff. I'm with a friend and he's helping me sort some things out. Luv you, talk soon. [ 22 ] On the same date an email was sent form the accused's email account to the deceased' s stating: Do you have the laptop? R u coming to the visit? What’s going on? Please get a hold of me. I'd just really like to know what’s happening. [ 23 ] A response came from the deceased' s email account saying: I just need more time.

I'm sorry I wasn't there but I need to think about what it is I want, and I'm not sure of that right now. Tell the kids I love them. I'll be back soon. My phone not working here so I will talk to you when I get back I just need some space right now and time to think. [ 24 ] On November 3, 2012 the deceased's mother emailed the deceased's account saying: You scared me. I don't have internet, had to borrow from someone. I drove into your place in Calgary tonight when you didn't show up for work. Everyone is worried about you Al said you had emailed him about the kids, so I came home and checked mine.

If you can borrow a computer can you borrow a phone and give me a quick call??? [ 25 ] The accused also sent an email to the deceased's account that day saying, "Your mom is here please email your mom she is really upset". [ 26 ] On November 4, 2012 an email came to the deceased's mother from the deceased's email account saying: I wanted to, even dialed the number but I just can't talk to anyone right now I even chickened out of talking to al when I was in Calgary today.

I think if I talk to anyone right now I won't be able to do this, I feel like I've been doing or being something for everyone all of my life and I want to do something for me right now. I wanted to get some of my clothes, we're going to be back in town next weekend would you be able to pick my clothes up from the house and I could get them from you when I get back? I want to talk more later I'm just not ready yet. [ 27 ] A second email from the deceased's account was sent to the accused on the same date stating: I just can't talk right now, but could you have my clothes ready for my mom to pick up?

I need more time and I don't know how I feel right now. I promise we will talk but for now I need to think about me and figure out what I want, things have gotten really complicated and I just need to think things through. [ 28 ] The deceased's RBC bank card was used on November 5, 2012 to withdraw $64.00 from an ATM at Risque Rouge located at 6307 Center Street South Calgary. [ 29 ] The deceased's mother emailed the deceased's account on November 6, 2012 saying: Hey, got your clothes in my vehicle.

Picked up last night hope your ok love and Miss you lots MWAH! [ 30 ] On November 9, 2012 a reply to the deceased's mothers email came in from the deceased's email account saying: Sorry this is the only way I can get a hold of anyone, neither of us has a working phone right now. It doesn't look like we can get down to Calgary this weekend but he promised to take me to Edmonton and buy some new clothes and he's got to replace his iphone so he said he'll probably buy me a new phone so I can at least call and leave you a msg. Theres just a lot happening right now, and we're even

talking about him being able to pay for me to go to school and possibly a vacation when he has his days off next week, I know the kids will be ok where they are and if I go back to school and he's working all the time, I don't know maybe I would be better for everybody if we get them back later. Ok gotta go love you. [ 31 ] On November 11, 2012 the accused sends an email to the deceased's account saying: Just thought you should know we're thinking of you, they miss you, so do I.

Please call me. (video attached) [ 32 ] On November 15, 2012 the deceased's mother receives a voicemail at 2:46 a.m. from a blocked number stating: Hey, I'm ok, sometimes my weeks get crazy and you know, and it's quiet for so long and then all of a sudden this happened and within half a day , I would say he's back now and I gotta go, love you. [ 33 ] This is the last communication anyone receives from the deceased. [ 34 ] On November 20, 2012 Cst. Turcotte of the Turner Valley RCMP sent an email to the deceased's account and there was no reply. [ 35 ] On January 10, 2013 Cst. MACLEOD and her partner Cst.

TESSMAND attended 7622 26a Street SE and met with the accused. [ 36 ] Cst. MACLEOD completed a field interview with the accused who indicated that he had last seen Lisa on October 29, 2012 after they had been in an argument and he had left the house to purchase cigarettes from a local convenience store. When he returned, Lisa and some of her personal items were gone. The accused stated that he sent several texts to Lisa asking where she was and received one reply stating that she had left town with a friend.

Since then he had received an email from Lisa asking him to pack up all of her belongings for Peggy to collect. [ 37 ] On January 17, 2013 the file was opened by the Missing Persons unit, Calgary Police Service to continue the investigation. [ 38 ] The accused is interviewed by Detective Sweet of the Calgary Police Service January 29, 2013 at 13:48 hours. [ 39 ] The accused indicated that he and the deceased had been together for 9 years. That she had been unfaithful to him and he was 1 of 5 potential fathers for his son. [ 40 ] The end of October, before Halloween they got into a "huge fight".

He gave her an ultimatum that things would have to calm down or she'd have to go. [ 41 ] The accused indicates that he felt like "she almost had this planned" referring to leaving and told Detective Sweet that she asked him to go get the cigarettes so he went to 7-11. [ 42 ] When he gets back to the house she's not there.

He texts her and eventually gets a reply that she's gone away for a while. [ 43 ] He also said she took some clothes and the laptop with her. [ 44 ] He speculates that maybe she's up around Edmonton with her friend Chris. [ 45 ] After following up leads regarding potential other men in the deceased's life that may be aware of her location, checking medical records throughout the province and also checking the Edmonton police information systems Calgary Police Service ended the missing person’s investigation and began an investigation into the deceased' s suspected death. [ 46 ] The missing person's investigation was being conducted from November of 2012 to April of 2013. [ 47 ] The change in the nature of the investigation resulted in part from the determination that messages sent to the deceased's mother from the deceased's email account which have been detailed earlier in this document in fact originated from an IP address that is located at the accused's residence. [ 48 ] Also it was determined that voice mail message sent to the deceased's mother appeared to have been spliced together and not originating from the deceased.

It was determined that this call came from a phone which had made several test phone calls to the accused's cell phone and all of these calls were transmitted from a cellular tower location consistent with a close proximity to the accused's residence. [ 49 ] Shortly after the nature of the investigation changed steps were taken to begin an undercover operation. [ 50 ] A tracking device became functional on October 18, 2013 which assisted officers in determining the accused's movements.

It was in place until December 4, 2013. [ 51 ] The undercover operators had their first contact with the accused on December 4, 2013 [ 52 ] Undercover officers ultimately made contact with the accused and entered into discussions with him to become a researcher for the "Auto Brokerage" that they professed to be running. [ 53 ] The accused's role was to locate vehicles for purchase, based on certain specifications and report back when he found a suitable vehicle. [ 54 ] There was no component of "criminal organization" in this undercover operation. There were minimal activities that had some

criminal component such as the transport of a stolen car to Edmonton and the perceived ability of one of the undercover operators to have names removed from a flight manifest. [ 55 ] There were 83 scenarios conducted as a part of the undercover operation. [ 56 ] The accused was paid approximately $6000 as payment for services provided to the perceived company over the course of the twelve month operation. [ 57 ] The accused maintained independent full time employment throughout the operation with the company that had employed him prior to the undercover operation beginning. [ 58 ] These scenarios ended in the confession of the accused to undercover officers on December 5, 2014. [ 59 ] The accused and undercover officers were in Winnipeg Manitoba at the time of his two separate confessions. [ 60 ] The accused believed they were in Winnipeg to do some legitimate business dealings with a business associate and the day before the confessions he was present for the signing of a business contract where one of the undercover officers pledged $200,000 for a 40 percent interest in the company owned by another undercover officer. [ 61 ] No money changed hands and none of that money was promised to the accused. [ 62 ] The accused had been told that if the company continued to operate he could potentially receive full time employment.

At the time of this suggestion he already had full time employment at the location where he had been employed throughout the year long operation. [ 63 ] On December 5, 2014, the accused was driving with Cst. Yanyk of the Calgary Police Service who was working in an undercover capacity when the accused received a call from Detective Dave Sweet of the Calgary Police Service Homicide unit, advising him that they needed to have him come in for an interview.

He was told that the missing person’s investigation was now a homicide investigation. [ 64 ] The accused tells the undercover officer that he was on the phone with a homicide detective and that if he went back to Calgary right now, there's a good chance that he would be arrested and his children taken away. [ 65 ] The accused makes several admissions to the undercover officer in the car.

These include that if officers search his house they are going to arrest him and that the deceased' s body is in the house. [ 66 ] He talks about his relationship with the deceased and how it was a bad relationship and talks about her previously swinging a frying pan at him. This incident was reported to police. No charges were laid and the accused had to move out of the house as a result. [ 67 ] In the recording Cst. Yanyk asks the accused, "So what happened?

You just-guys started fighting and". [ 68 ] The accused responds: We were in the kitchen and, this time, instead of grabbing a frying pan, she picked up one of the -just look like chefs knives. She was threatening me with that, saying how, you know, she could probably put me in the hospital. Tell them it was self-defence. She'd get the kids, everything else. And I'd be in jail because they wouldn't believe me. And she lunged. I don't know. I was just -I pushed back at her. I don't know, at some point, my hands were around her neck.

And I remember trying to let go trying to stop ... [ 69 ] The accused continues by saying: I don't know. Somewhere in the back of my head, I just kept thinking that it was too far. Everything happened too much. If I let go, it was just gonna end up the exact same way she just said. I'd done exactly what she –they expected or were-were gonna believe anyways. I attacked her and it wasn't gonna matter that, you know, I was trying to just defend myself.

Keep her from putting a knife in me. [ 70 ] The accused talks about sending text messages and emails to her family and making it look like she had "left". [ 71 ] He describes to the officer how he hid the body in the basement and is concerned that if the police search the house they will find it. He is concerned about the quality of work he did with the cement and indicates it doesn't really look like it belongs there. [ 72 ] After the accused made these admissions to Cst. Yanyk, the officer made arrangements for the accused to meet with Sgt.

Kostiniuk who was fulfilling the role of the legitimate business partner of the group with the premise being that he was the one who could assist in making arrangements to help the accused and his kids get out of the country. [ 73 ] When speaking to Sgt.

Kostiniuk the accused described the incident where he choked the deceased to death and then hid her body in the basement of the residence again. [ 74 ] The accused states: instead of letting her hit me this time, I just pushed back and then was I trying to keep her arm down and then, I don't know - I don't know why or how that happened ... but it did, and I'm trying to hold her down and just make it stop. Just wanted the hurting to stop. [ 75 ] He goes on to speak about her holding the knife and how it landed on the floor before he got her on the ground and started choking here.

He indicates that she never touched him with the knife and he had no injuries after the incident. [ 76 ] When the officer asked him about injuries that she may have if they find her body the accused states:

Like I don't know, like probably around the arms or the wrists, cause she was struggling and against me, so I don't know like, we were bumping and knocking into each other, or anything is -could turn into a bruise after the blood stops flowing. [ 77 ] He goes on to describe how he had her pinned down but it was just his body weight.

She had not been tied up or anything of that nature. [ 78 ] The accused explains in detail the text messages and emails he sent her mother and to himself to make it look like she's still alive. [ 79 ] He explains in detail how he used old voicemails of her recorded voice, and used a program to splice them together. A search of his computer confirmed he had this program.

He then played that new spliced message into his phone after calling her mother at a time when he knew she was unlikely to pick up. [ 80 ] He talks about cleaning up the fluids after she's died, dragging her body down the stairs and ultimately putting it in the rubber container with the water softener salt. [ 81 ] He talks about using a door with a hole in it to create a frame in the comer of the basement and then pouring the cement into that comer. He indicates that the bucket is still in the basement. [ 82 ] The accused lived in the family residence for the entire duration of the undercover operation.

Prior to the operation starting he was given access privileges to his children and the three of them lived in the family residence where the deceased's remains were entombed. [ 83 ] He indicates many times in his statements to police that he hid the deceased' s body for the sake of the kids.

He didn't want them to lose both of their parents and end up back in the child and family services system. [ 84 ] The accused is arrested shortly after he provides these details to the officer. [ 85 ] The residence is searched and the deceased's body is located in a Tupperware container filled with softener salt covered in cement in the basement of the house they had shared. [ 86 ] The door he told officers he used to make the form to create the cement seat in the comer of the basement is there, as is the pail with dried cement. [ 87 ] The medical examiner completed a report after examining the deceased indicating that the cause of death was manual strangulation. [ 88 ] A forensic examination of the accused's computer showed that he in fact had the program necessary to create the voicemail he admits sending to the deceased's mother.

Position of the Crown and Defence Crown [ 89 ] The Crown opposes his release, arguing detention is necessary in order to maintain confidence in the administration of justice. Defence [ 90 ] The defence argues in favor of release and has filed a Release Plan

Schedule A hereto and an Affidavit of Chris Shyback, uncle of the Accused. He agreed to have his nephew live with him and be responsible for his supervision. [ 91 ] The defence further submits • The fact that there is no reason to detain on s 515(10)(

a) or (

b) weighs in favor of release on s 515(c) • The presumption of innocence applies at the bail stage • There are defences available here: (1) self-defence, (2) provocation, (3) admissibility of Mr Big operation • Detention is not automatic because the four listed factors militate in favour of detention • The "other relevant factors" in the case at bar are: (1) the significant delay for trial; (2) the strict release conditions proposed; (3) the fact Mr. Shyback is not a flight risk; (4) the fact Mr. Shyback is not a danger to the public; (5) that Mr. Shyback has no prior record; (6) that Mr. Shyback has no mental illness that makes him dangerous or volatile;

(7) that Mr. Shyback has no criminal organization or gang connections; and (8) that the one person who was at risk is no longer here. • On the facts the Accused need not be detained in order to protect the administration of justice • The Accused post offence conduct cannot be used to establish his level of culpability and should have little, if any, effect on thebail application • The evidence from the Mr Big operation and what flows from that is presumptively inadmissible Analysis [92] Mr. Shyback is presumed innocent and constitutionally has the right not to be denied reasonable bail without just cause. [93] I would apply the four factors of s 515(10)(

c) as follows:

(1) Strength of the Crown’s Case [94] It is strong. The Accused makes two statements describing the killing to undercover officers. [95] This evidence is more likely than not to be admissible when assessed using the other corroborative evidence, including: a. Evidence of the technology used to create a voicemail to the deceased's mother on the accused's computer. b. Evidence that the text messages sent between the accused and deceased's phones after her disappearance which were sent from thesame location. c. Evidence of the location where the deceased's ATM card was last used to empty her bank account. d.

Evidence including receipts from Home Depot where he purchased the cement to entomb the deceased and where he returned theextra bags of cement. e. Evidence of a wooden door in his basement with a hole in it and cement and caulking on its edges that fits the area where he pouredthe cement which covered the deceased's body. f. Evidence at his residence which included the pail and stick he used to mix the cement, with dried cement still inside. g. Evidence of the deceased's entombed body in the comer of the accused's home. A residence he lived in from the time of herdisappearance. h.

Evidence upon autopsy that the deceased' s cartilage in her neck was fractured which is consistent with manual strangulation. [96] This corroboration is important because in the Hart analysis of Mr.

Big operations, which is required per R v Hart 2014 SCC52 , [2014] 2 SCR 544, corroboration makes the probative value of the evidence quite high and favors admission. [97] At this early stage, there is no allegation of inappropriate tactics by the police, such as, threats of violence, use of alcohol ordrugs or abuse of process. [98] The admission of the evidence raises the issue of two potential defences, Self Defence and Provocation. [99] Using the Accused’s description of events the deceased threatened him with a knife. [100] After the Accused began choking the deceased, there is no evidence that he was still being threatened with the knife, yetcontinued manual strangulation, which the medical examiner opines lasted a minute or more. [101] Provocation would lead to a conviction for manslaughter, it is not a complete defence and the other charge of committing anindignity to a body appears to be a strong Crown case.

(2) Gravity of the Offence [102] The charges are some of the most serious in the Criminal Code.

(3) Circumstances Surrounding the Commission of the Offence [103] The Accused killed his common law partner. This is a domestic homicide. The indignity to the body arises from, covering it insalt, and burying the body in a container in a cement tomb. [104] The Accused continued to live in the household with his two children and their mother’s body entombed in the basement. [105] The Accused took numerous steps to mislead Police and family. Reporting the murder as a missing person’s case. Cleaning upthe scene, burying the body in salt, making false phone messages and emails justice.

[106] This post offence conduct, may in the trial be excluded but at this early stage it is more probable than not that it will beadmitted as going to intent as a result of recent case law in R v Rodgerson 2015 SCC 38 , [2015] 2 SCR 760. [107] In any event, such information, if known to the public militates against release.

(4) Liable on Conviction to a Lengthy Term of Imprisonment [108] If convicted of murder, the sentence is life imprisonment with a minimum parole eligibility of 10 years. [109] If convicted of manslaughter and the indignity to a body, considering the statutory aggravating factor of a domestic assault, theprison term would be lengthy. [110] The eight “other factors” argued by Defence favor release. [111] Balancing the four factors, the release proposal the “other relevant” factors, and all the other circumstances, I find that thedetention of the Accused is necessary to maintain confidence in the administration of justice.

The reasonable member of the publicdescribed by Justice Wagner is St Cloud would, in my view, hold the administration of justice in disrepute where, as in this case, there isoverwhelming evidence of the crime, the circumstances of the crime are heinous and the Accused admits committing it. [112] I order you detained until the completion of your trial. Heard on the 11th day of March, 2016. Dated at the City of Calgary, Alberta this 23rd day of March, 2016. B.A. Millar J.C.Q.B.A. Appearances: Ms. Jayne Williams for the Crown Mr. J. Balfour Der for the Accused

Schedule A Accused Proposed Release Plan

F32 $10,000 cash. Conditions: 1. Keep the peace and be of good behaviour. 2. Appear before the Court when required to do so by the Court. 3. Within two business days of your release from custody, report to a bail supervision officer and after that first meeting; continue to report in person as directed by your bail supervision officer. 4. You must reside at an address that has been approved by your bail supervisor in advance. 5. You must remain in your home or its grounds 24 hours a day 7 days a week with the following exceptions: a. Traveling to and from and being at work, b. Medical emergencies, c.

Reporting to probation or attending professional appointments, d. 2 hours per week for shopping for the necessities of life, and e. Any other absence approved in writing by your bail supervisor obtained in advance. 6. You must not change your name, address, or employment without notifying the Court or your bail supervisor. Any such changes must be approved of by your bail supervisor in advance of doing so. 7. You must maintain a landline telephone with no call forwarding features and answer it, when it rings. 8.

You must present yourself at the door of your residence when called upon by a bail supervisor, peace officer or designate. 9. You are prohibited from buying, having in your possession, using or consuming alcohol, intoxicating substances or any drug not prescribed for you by a doctor or a dentist. 10. You are prohibited from going to or being in any establishment where the primary purpose is to sell alcohol. 11.

In order to confirm that you are complying with your conditions, especially condition number 9, you must submit to demands for blood, breath or urine samples when requested by a peace officer or bail supervisor. 12. You must attend for any treatment or counseling for substance abuse or anger management as directed by your bail supervisor. 13. You are prohibited from owning, having in your possession or

carrying any weapons, including edged weapons except as required for work or for eating purposes. 14. You must surrender your passport, if you have one, and you are prohibited from applying for any travel documents. 15. You must have a copy of this order on your person at all times when outside of your residence.