R v Mclean, 2016 ABQB 330

Court of Queen ’ s Bench of Alberta Citation: R v Mclean, 2016 ABQB 330 Date: 20160617 Docket: 160419495U1 Registry: Grande Prairie Between: Her Majesty the Queen Crown - and - Leona Ellen McLean Accused/Applicant 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 By Court Order, this decision and the evidence taken, information given or representations made may not be published, broadcast, or transmitted in any manner.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 after the accused is discharged after a preliminary inquiry or, if the accused is committed to stand trial, after the end of the trial. Editorial notice: The restriction on publication ended June 15, 2016 __________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Ms. McLean asks for review of the denial of bail and, if review is granted, for bail on the following conditions: that she report twice weekly to a bail supervisor; that she live with her mother on the Sturgeon Lake Reserve, that she post $1,500.00 cash bail plus $2,000.00 to $3,000.00 in surety from her mother, that she abstain from alcohol and non-prescribed drugs and take counselling or treatment in relation to drug usage.

She says that if the victim of the assault should decide to return to the reserve, she would then move away from the reserve, presumably to Red Deer; and, that she make her best efforts to obtain employment. [ 2 ] The Crown responds that the applicant has not made out grounds for a review: she has not established that there has been a material change of circumstance since bail was denied. [ 3 ] If a material change of circumstance is established, the Crown opposes release on the second and third grounds, with particular emphasis on the need to maintain confidence in the administration of justice. [ 4 ] Bail review is granted: within the bail judge’s concise reasons for denying bail, on two separate occasions he mentioned that it was particularly interesting was that there was no information about the motivation for the torture of the victim and that this lack of information made it impossible to craft a plan that would adequately deal with the protection issues.

As a result of additional disclosure, there is now information about the apparent motive for the torture of the victim: the torturers apparently wanted to discourage the victim from claiming custody of her son. Ms. McLean has no direct interest in that issue. This additional information now allows the court to make a more informed decision on bail. [ 5 ] On a fresh consideration of bail, I conclude that bail must be denied on the second and third grounds.

On the second ground, because the accused and the victim are both members of a small, tightly knit, community, it is very unlikely that the accused will not come to know of the whereabouts of the victim during the likely long delay until the commencement of trial. The accused does have a strong motive to interfere with the victim, and indeed with witnesses, during this period.

In the circumstances here, it is not possible to devise an arrangement that is likely to protect the victim and witnesses, or even materially reduce the risk of further harm to the victim and witnesses, during this hiatus. [ 6 ] On the third ground, there is a strong prosecution case against the accused in the torture of a woman relating to a custody dispute involving other people.

It would undermine the confidence of the very small community in which these events occurred in the administration of justice if the accused, although not directly involved in a dispute, but who is directly linked to, and willing to participate in, prolonged torture of the complainant were released pending trial. Cases and authority cited [ 7 ] By the applicant : R. v St -Cloud 2015 SCC 27 [ 8 ] By the respondent : R. v St- C loud 2015 SCC 27 [ 9 ] By the court : R. v Cocks 2014 BCSC 1294 1.

Summary [ 10 ] Ms. McLean is a 22 year old indigenous woman who is a member of the Cree Nation which lives on the Sturgeon Lake Indian Reserve located approximately 20 km from Valleyview, AB. Indeed, all of the individuals who are primarily concerned in this case live on that reserve, on which it is estimated that a maximum of 2,500 people live. There is no information about when Ms. McLean ceased living full time on the reserve. Ms. McLean is a cousin of the complainant Kayla David; Ms. David is from the reserve. [ 11 ] Ms. McLean has a minor - according to the sentences imposed - recent, record.

On December 3, 2015, she was convicted of, and sentenced to: Possession of property obtained by crime 42 days in custody Breach of recognizance x3 $200.00 fine on each Possession of firearm without a licence $200.00 fine [ 12 ] On April 6, 2016, Kayla David was kidnapped, stuffed in the trunk of a car, and brought to the residence on the reserve of Ms. Papastesis. While in Ms. Papastesis’ residence, Ms. David was beaten with reinforced gloves and chains. She was stabbed in the elbow. Her left index finger was amputated. [ 13 ] Ms.

David was also subjected to psychological torture: a firearm was shot in her direction and she was told that she would be killed and left at the edge of the reserve. [ 14 ] On April 7, 2016, Ms. McLean arrived at Ms. Papastesis’ house. She couldn’t help but become immediately aware of the dreadful harm which had been inflicted on Ms. David. According to the Ms. David, Ms. McLean then hit Ms. David in the face – probably only with bare fists – and after Ms. David had fallen off a chair as a result of blows, had kicked Ms. David, put Ms. David in a closet, taken Ms. David out of the closet, made Ms.

David apologize to Ms. McLean, perhaps about drug debts, and made to apologize to Ms. Papastesis’ son for some unknown reason. Ms. David states that, at some point during these events, Ms. McLean and Ms. Papastesis got high; there is no indication, however, that Ms. McLean was high or inebriated when she arrived at the Papastesis residence. Ms. David heard Ms. Papastesis, Ms. McLean and one other accused discussing with one another what they would eventually do to her; she heard them say that they would not kill her, but if she ever went to the police to report the events, they would kill her. Ms.

McLean then tied Ms. David’s hands behind her back and helped to dump Ms. David in the crawl space under Ms. Papastesis’ home. Ms. Papastesis’ son had refused to participate in the further assault of Ms. David on the grounds that it was obvious that “she had had enough”. After Ms.

David had been dumped in the crawl space, she was eventually able to escape from her confinement and to go to a neighbour’s house for help. It is not clear when, during all of these events, Ms. David suffered a broken nose. When the police arrived at Ms. Papastesis’ home in response to Ms. David’s plea for help, Ms. McLean came out of the house with Ms. Papastesis. [ 15 ] Ms. David’s evidence is confirmed by medical reports and photographs from the hospital which support the claim of injuries suffered, by blood found in Ms. Papastesis’ house and by a tarp and wire found under Ms. Papastesis’ house.

In addition to Ms. David’s evidence, two other co-accused have also given statements to the police which statements support Ms. David’s evidence. Ms. David’s report of the incident is also re-enforced by its nuance, for example by distinguishing between individuals who participated willingly in her ordeal and those who were forced to participate, and as a further example, by her attempt to be very accurate about whether Ms. McLean used a weapon while committing assaults on her. [ 16 ] From interviews conducted as part of the investigation, the police have heard that Ms. Papastesis believed that Ms.

David was attempting to recover custody of a child, now a toddler, from Children’s Services. The father of the child was in custody but about to be released. Ms. Papastesis was involved with the father. The father was of the view that the mother of his child was incapable and should not regain custody of the child. Although Ms. McLean was a cousin of Ms. David, she had had a falling out with her prior to these events; Ms. McLean may be a former lover of Ms.

Papastesis. [ 17 ] Some of the persons who are also facing charges in connection with these events have been released on their own recognizances; the Crown says that most of those only had a small part to play in the events or were coerced into participation. [ 18 ] For her protection, Ms. David has left the Sturgeon Lake/Valleyview area; her location is being kept confidential by the police. [ 19 ] Ms. McLean, who is not currently employed, had at the original bail hearing, indicated that she had an offer of employment from an individual.

The police checked on that individual, as he had invited them to do, and learned that he does not have a contracting business, that he is not an entrepreneur in the normal sense of that word, and that he is currently facing drug charges. At the original bail hearing, Ms. McLean had proposed that she would live at her current girlfriend’s grandparents’ home in Red Deer. [ 20 ] At the bail review, based on the fact that Ms. David has left the Sturgeon Lake Indian Reserve, Ms.

Mclean proposes that she: report twice weekly to a probation officer by telephone or in person; live on the reserve with her mother, who is a long term employee of the nation; post $1,500.00 or $2,000.00 cash bail and that her mother provide a surety in the amount of $2,000.00-$3,000.00; use her best efforts to obtain employment; abstain from alcohol and non-prescribed drugs and take drug counselling and treatment; and, observe a curfew. 2. Has the accused proved that she is entitled to a fresh hearing? [ 21 ] I have concluded that Ms.

McLean has established that she is entitled to a fresh review of her bail situation. [ 22 ] Within the bail judge's concise reasons for denying bail, on two separate occasions he mentioned that it was particularly interesting was that there was no information about the motivation for the torture of the victim and that this lack of information made it impossible to craft a plan that would adequately deal with the protection issues.

I agree with him that where there is an absence of such information, it is very difficult to decide what measures may have to be taken to deal with the various concerns set out in s. 515 of the Code. [ 23 ] As a result of additional Crown disclosure, there is now information about the apparent motive for the torture of the victim: the torturers apparently wanted to discourage the victim from claiming custody of her son. Ms. McLean has no direct interest in that issue; there is no information about any independent motive that Ms.

McLean would have for participating in these crimes. [ 24 ] Now that the apparent reason for the crime have been discovered, along with additional information about Ms. McLean’s lack of connection with those reasons, the court has useful additional information to take into account in making decisions on bail issues. [ 25 ] This court therefore embarks on a fresh, or de novo , bail hearing. 3. Has the Crown proved that it is necessary to detain Ms. McLean for the protection and safety of the public including the victim? [ 26 ] I have concluded that this is a case where it is necessary to detain Ms.

McLean for the safety of the public, including the victim. [ 27 ] Part of the problem of trying to keep the victim safe after a direct threat is made to kill her if she goes to the police is that, without knowing where the victim is located, it is impossible to say that a specific distance between the complainant and the accused is likely to keep the two separate. [ 28 ] Moreover, the circumstances of this case include the fact that the accused and the victim are not only related, but are both members of a very small, very inter-connected, community.

A police shroud around the whereabouts of the victim is therefore very unlikely to be totally effective, given the inter-relationships amongst members of the Sturgeon Lake Community. [ 29 ] Although there is now information available about Ms. Papastesis’ motivation for torturing Ms. David, Ms. McLean’s motives for participating in the prolonged torture remain unclear. Perhaps she was acting out of solidarity with a former lover, or perhaps acting out against a person with whom she had recently had a falling out. [ 30 ] Although the threat to kill was only made in Ms.

McLean’s presence, the circumstances in which such a threat were made suggest that the individuals who were making that threat may have a similar concern about giving evidence at the eventual trial. The concern of the court is therefore not just for Ms. David’s safety until the trial, but also for the safety of all persons who may be called to

give evidence at the trial. [ 31 ] There is no suggestion that Ms. McLean was high or drunk when she arrived as Ms. Papastesis’ residence. Therefore, Ms. McLean’s participation in these events cannot be attributed to some aberrant behaviour that was occasioned by the ingestion of drugs. [ 32 ] These events occurred at least in part during the daytime, in a private residence. Therefore, the common type of condition that requires an accused to abide by a curfew and to avoid places where alcohol is sold would not be effective here. [ 33 ] It has been suggested that Ms. McLean only arrived at the 11th hour.

That is not, with respect, an accurate representation of Ms. McLean’s knowledge of, and participation in these effects. When Ms. McLean arrived at the Papastesis residence it would have been apparent to her the amount of trauma that had already been inflicted on Ms. David; Ms. McLean therefore should be said to have added to and continued the offences that had already been perpetrated on Ms. David. [ 34 ] The fact that Ms.

McLean was recently convicted of 3 breaches of recognizance, that is three failures to obey court orders, is some evidence that, even if the court could think of a practical way to ensure the safety of the complainant and of witnesses until the trial, it would necessarily have some misgivings about Ms. McLean’s ability and willingness to abide by those conditions. However, this is a minor aspect of the concern relating to the second ground. The concern about Ms. McLean’s recent breaches could be dealt with by the deposit of cash and the taking of surety.

This would be a situation in which the assignee of the cash deposit would presumably have to be warned that they stand in no better position than does the accused in relation to obtain the return of any cash deposit. [ 35 ] In

summary with respect to this ground, the Crown has satisfied the onus of establishing that the pre-trial detention of the accused is necessary to protect both the victim and the witnesses to the events. 4. Has the Crown proved that it is necessary to detain Ms. McLean to maintain confidence in the justice system? [ 36 ] I have concluded that this is a case where it is necessary to detain Ms.

McLean, even before her trial, even while she is presumed innocent, in order to maintain confidence in the justice system. [ 37 ] Both counsel have usefully reminded us of the guidance from the Supreme Court of Canada on the application of the third ground. In R. v St.-Cloud , 2015 SCC 27 , that court told us The circumstances listed in s. 515(10)(

c) are not exhaustive. The court must consider all the circumstances of each case, paying particular attention to the four listed circumstances. 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.

Thus, the court must not order detention automatically even where the four listed circumstances support such a result. Some other circumstances that might be relevant are the personal circumstances of the accused (age, criminal record, physical or mental condition, and membership in a criminal organization), the status of the victim and the impact on society of a crime committed against that person, and the fact that the trial of the accused will be held at a much later date. The justice's balancing of all the circumstances under s. 515(10)(

c) must always be guided by the perspective of the "public", that is, of a reasonable person who is properly informed about the philosophy of the legislative provisions, the values of the Canadian Charter of Rights and Freedoms , and the actual circumstances of the case. The person in question is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of the case is inaccurate or who disagrees with our society's fundamental values.

However, this person is not a legal expert, and, although he or she is aware of the importance of the presumption of innocence and the right to liberty in our society, expects that someone charged with a crime will be tried within a reasonable period of time, and knows that a criminal offence requires proof of culpable intent and that the purpose of certain defences is to show the absence of such intent, the person 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. [ 38 ] We must therefore first look at the four circumstances listed in the Code.

i) The apparent strength of the Crown’s case [ 39 ] This may be the most important of the four factors: every accused is entitled to a trial and the outcome of a trial can never be predicted with certainty. However, the stronger the prosecution case, the greater the likelihood of conviction. [ 40 ] Here, the Crown’s case against Ms. McLean is strong. It is true, of course, that there is no evidence that Ms. McLean had anything to do with the kidnapping, the stabbing, the assault with weapons, and the amputation. It is also true that, prior to these events, Ms. David and Ms.

McLean had had a falling out, so that Ms. David may have a motive to unfairly recount Ms. McLean’s participation in her ordeal. [ 41 ] However, the evidence is very strong that Ms. McLean knowingly participated in maintaining the detention of the complainant, of further assaulting and demeaning the complainant, and of threatening the complainant. ii) The gravity of the offence [ 42 ] The offence here is very grave. Not only are the physical results permanent, the trauma of this torture session is also likely to have a continuing devastating effect on the complainant. [ 43 ] The degree of Ms.

McLean’s responsibility for the harm inflicted upon Ms. David will, of course, have to be assessed by a trial judge. However, Ms. McLean is not correct to say that an approach based on “in for a penny, in for a pound” will clearly have no application here. On the contrary, a trial judge will have to consider what effect Ms. McLean’s late participation in the events has both

with respect to guilt and to sentence. As the B.C. decision in Cocks reminds us: 126 The second part of s. 21 addresses the situation of common unlawful purpose as distinct from aiding and abetting. In apresentation at a National Criminal Law Program entitled "In for a Penny, In for a Pound? The Common Purpose Doctrine and PartyLiability under Section 21(2)", G. Fitch (now Fitch J.) wrote: Section 21(2) ... has no application when the parties who are acting in concert do precisely what they set out to do.

Rather, it applieswhere the offence actually committed is not the one the accused and the principal offender originally agreed to commit. In essenceParliament has chosen "to impose liability on persons who engage in criminal conduct with others for additional criminal acts that couldbe foreseen as likely to be committed in furtherance of the underlying offence." [R. v. Hibbert, (SCC), [1995] 2 S.C.R.973 at paragraph 42]. The

section makes everyone a party to an offence who, having formed an intention in common with one or moreothers to carry out an unlawful purpose, knew or ought to have known that the probable consequence of carrying out that unlawfulpurpose was the commission of a different, consequential offence by a confederate. The provision extends party liability to one whoneither committed the offence charged nor aided or abetted the principal offender in its commission. [R. v. Jackson and Davy (1991), (SCC), 86 C.C.C. (3d) 385 at page 421, affirmed [1993] 4 S.C.R. 573].

It is sufficient that the accused knew or ought tohave known that the commission of the collateral offence was a probable consequence of carrying out the common unlawful purposewith the actual perpetrator. [R. v. Simpson, (SCC), [1988] 1 S.C.R. 3 at paragraph 14]. The provision operates so as togive rise to criminal liability for distinct, incidental offences which occur in the course of commission of the joint enterprise offence.

Ineffect, section 21(2) makes the accused liable as a party for an offence in which his only actual involvement is constructive. iii) The circumstances surrounding the commission of the offence, including whether a firearm was used [44] The circumstances surrounding the commission of the offence were appalling and were obvious. Even a 14 year old boycould recognize that adults should stop their assaults on the victim. There is evidence of cruelty in the continuing torture of Ms. David;this was not a spur-of-the-moment crime. [45] Although there is no evidence that Ms.

McLean used a firearm during the time that she was in Ms. David’s presence, theevidence is that a firearm was used during the torture and it seems likely that Ms. McLean would, at a minimum, have been able toobserve the evidence that a firearm had been used within Ms. Papastesis’ residence. However, in relation to Ms. McLean, the firearmissue is not of primary importance. [46] Overall, however, the circumstances of the commission of the offence are horrific.

If the accused does not have the moralsense of a 14 year old child, it is problematic to release her into the community. iv) The potential for a lengthy term of imprisonment [47] The Supreme Court did not need, of course, to spell out the ways in which this factor is an important one when consideringwhether a person who is presumed innocent should be detained pending trial. The more obvious reasons are probably those that put anaccused in a bad light. A person who is realistically facing a lengthy sentence may be tempted to flee the reach of the court.

A personwho is facing a lengthy term of imprisonment may commit further offences to obtain funds to deal, in one way or other, with lengthyimprisonment. It is clear that, in light of all the circumstances, if Ms.

McLean is convicted of the offences charged, the Crown will beexpecting a penitentiary term. [48] However, it must also be remembered that even where, at the pre-trial stage, it appears likely that an accused will beconvicted, the bail court must always be aware that punishment for crime is individualized and that, in the absence of a mandatorysentence, evidence may eventually be presented that would make in unfair to sentence a particular convict to a penitentiary term. In thiscase, for example, it may well be that even if Ms.

McLean were to be convicted of serious crimes, the court would have to consider aGladue report to assist it in determining the degree of Ms. McLean’s personal responsibility for the offences.

It would be counter-productive to the objective of the sentencing provisions of the Code if an accused person would, while still presumed innocent, be jailedwhen they would not be jailed after conviction. [49] Similarly, even if it appears at this stage of proceedings that an accused is likely to be convicted, if the sentence that could beimposed would exceed the time spent in pre-trial custody, the court will have to balance that potential inequity against the reasons thatsupport pre-trial detention. [50] In this case, Ms.

McLean is facing a realistic proposal for a lengthy term of imprisonment, but, there is the likelihood thatcultural issues will have to be taken into account in sentencing. At this stage of the proceedings, there is no information before the courtabout when Ms. McLean’s trial is likely to take place. When that information becomes available, that will presumably constitute amaterial change of circumstance that will justify a re-assessment of her bail status. At this time, however, it is only possible to say that,given the seriousness of the events with which we are concerned, it remains likely that Ms.

McLean is facing a penitentiary terms ifconvicted. [51] Having looked at the four stated grounds, it is now necessary to turn to an assessment of the overall issue of whether it isnecessary to detain Ms. McLean to maintain confidence in the administration of justice.

v) Detention is necessary to maintain the confidence of the public in the administration of justice [52] The Supreme Court has reminded us that, even if there are concerns on each of the four named factors, that should not lead toan automatic decision to keep an accused in pre-trial custody. [53] Ms. McLean is young, she has a minimal criminal record, and, she is not a member of a criminal organization.

[ 54 ] On the other hand, the court is also asked to consider the social impact of the crime against this victim. This is a somewhat unusual case in that all of the participants have a very close connection with a very small community. It seems obvious that this crime of torture will have a serious impact on that community. [ 55 ] Obviously, the possibility of Ms. McLean coming to live in Sturgeon Lake when Ms. David had had to leave that community is unacceptable. What lesson would that teach the 14 year old boy who knows that Ms.

McLean was involved in the torture of the complainant? [ 56 ] Indeed, the presence of Ms. McLean in the community at this point is not conducive to social peace. Ms. David told police that when she escaped her confinement, she did not go to the first neighbour, for fear that that neighbour would not be supportive of her because of their links to the people who had held her captive and inflicted the injuries on her. [ 57 ] Alan, an individual who was very involved in the kidnapping and original torture of Ms.

David had not been identified or apprehended. [ 58 ] Sturgeon Lake is a small community which no doubt has been shocked by these events. There is no evidence that this is a community where torture is a regular occurrence. [ 59 ] This is a situation where the identity of the accused is not in doubt: the accused and the complainant are cousins who know one another well. The fact of the injuries is not in doubt. The fact that Ms.

McLean was not present for the kidnapping or the first serious assaults including the amputation is not in doubt. [ 60 ] In the end, this is a situation which warrants the exercise of the third ground to detain the accused even under the more restrictive regime which applied prior to the St.-Cloud decision. Heard on the 13 th and 15 th days of June, 2016. Dated at the City of Grande Prairie, Alberta this 17 th day of June, 2016. J.B. Veit J.C.Q.B.A. Appearances: Michael J. Marchen, Hladun & Company for Ms. McLean, applicant Brenda F. Scragg, Aisling E. Ryan, Crown Prosecutors' Office, Grande Prairie for the Crown