R v Whitford, 2017 ABQB 696

Court of Queen’s Bench of Alberta Citation: R v Whitford, 2017 ABQB 696 Date: 20171124 Docket: 171231236U1 Registry: St. Paul Between: Her Majesty the Queen - and - Sherman Robert Whitford 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 By Court Order, this decision and the evidence taken, information given or representations made may not be published, broadcast, or transmitted in any way. 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. Corrected judgment: A corrigendum was issued on November 24, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment.

Editorial Notice: The restriction on publication ended November 25, 2019. _______________________________________________________ Oral Memorandum for Decision of the Honourable Mr. Justice K.P. Feehan _______________________________________________________ Introduction [ 1 ] I deliver this Memorandum for Decision orally for the benefit of advising the parties of my determination on a timely basis. In doing so, I reserve my right to edit this Memorandum to correct grammar, spelling and sentence construction, but not to change matters of substance or conclusion.

I also reserve my right to issue supplementary written or oral reasons to address matters that I may have missed, forgotten or inadequately addressed. The Application [ 2 ] Sherman Robert Whitford brings an original application for judicial interim release, “bail”, pursuant to s 522(1) of the Criminal Code , RSC 1985, c C-46. An original application is made to this Court because Mr. Whitford is charged with second degree murder which is an offence listed in s 469(a)(viii) of the Criminal Code . For the same reason, the onus is upon Mr.

Whitford to show cause why his detention in custody is not justified (s 522(2) of the Criminal Code ). This onus upon Mr. Whitford is to show on a balance of probabilities that: (

a) his detention is not necessary to ensure his attendance in Court, the “primary ground”; (

b) his detention is not necessary for the protection or safety of the public, having regard to all the circumstances including any substantial likelihood that he will, if released from custody, commit a criminal offence or interfere with the administration of justice, the “secondary ground”; and (

c) his detention is not necessary to maintain confidence in the administration of justice having regard to all of the circumstances, including the apparent strength of the prosecution’s case, the gravity of the offence, the circumstances surrounding the commission of the offence, and the fact that if convicted, he would be liable for a potentially lengthy term of imprisonment, the “tertiary ground” (s 515(10) of the Criminal Code ). [ 3 ] Crown counsel conceded that Mr.

Whitford’s detention was not necessary on either the primary or the secondary ground but said detention was necessary on the tertiary ground to maintain confidence in the administration of justice having regard to all of the circumstances. The Charge [ 4 ] Mr. Whitford is charged that on or about August 26, 2017, at or near Cold Lake, Alberta, he committed the second degree murder of Veronica Poitras contrary to s 235(1) of the Criminal Code . At the time, Veronica Poitras was 16 months old and Mr. Whitford was the boyfriend of Veronica’s mother, Jaylene Houle. The Events of August 25 and 26, 2017 [ 5 ] Ms.

Houle gave two statements to police. Crown counsel says that according to Ms. Houle, on Friday, August 25, 2017 at 11:15 a.m. she took Veronica into the community health nurse to obtain a vaccination. At the time, she noticed only “little marks” anywhere on Veronica’s body and there were “no problems” with her health. Mr. Whitford agreed that Veronica’s health was fine at this time. The attending nurse, Tiffany O’Brien, said she thoroughly examined Veronica, who was only wearing a diaper, and found no injuries or bruises on her body or her head.

She said if she had even had a mosquito bite, she would have recorded that, and there were no such recordings. [ 6 ] That Friday evening, Veronica was put to bed with her three year old sister, Vada, at approximately 10:30 p.m. On Saturday morning, August 26, 2017, Ms. Houle noted that Veronica had woken up with some bruising on her face and she exhibited symptoms attributed to her immunization. [ 7 ] Mr. Whitford indicated he had heard some screams coming from the bedroom that morning. He said that Veronica often had bruises, as she wrestled with her sister Vada, and was “a klutz”.

[ 8 ] Both Ms. Houle and Mr. Whitford indicated that on Saturday morning Mr. Whitford went to see his children in Ashmont, Alberta and arrived back at their residence at about 1:40 p.m. Ms. Houle said at that time Veronica was tired, lazy, and wanted to be carried. [ 9 ] Mr. Whitford told police that at about 3:00 p.m. he was watching TV and then went to lay down. Also at approximately 3:00 p.m. Ms. Houle took Veronica’s older sister, Vada, to the military gym in Cold Lake to register her in Play Time. At the time she left, Veronica was fine, and was still fine when she later returned to the apartment.

She had errands to run that afternoon and left Veronica with Mr. Whitford at approximately 4:00 p.m. Mr. Whitford advised police that Ms. Houle was gone from the house from approximately 4:00 p.m. to 5:30 p.m. [ 10 ] RCMP obtained a number of videos, and pursuant to a Production Order issued under

Section 487.014 of the Criminal Code obtained Ms. Houle’s cell phone text message information. As a result, they were able to confirm from video recordings at the Sport Chek store that Ms. Houle was in the store at 5:01 p.m. At 5:16 p.m. she texted Mr. Whitford to ask about sandal sizes. At 5:41 p.m. she texted Mr. Whitford advising that she was at the Kentucky Fried Chicken store, and video surveillance confirmed her attendance at the store at 5:47 p.m. At 5:49 p.m. Ms. Houle texted Mr. Whitford to inquire whether Veronica was still sleeping.

He texted that she was still sleeping although she had woken up, asked for water and then went back to sleep. Mr. Whitford advised the RCMP that at this time Veronica was sleeping in her room and was fine. At 5:48 p.m., Ms. Houle texted “okay, we’re here”, although there was no indication as to where “here” was. Video obtained from Shoppers Drug Mart showed Ms. Houle at that store between 6:02 and 6:15 p.m. [ 11 ] When Ms. Houle arrived back at their apartment, she said she noticed bruises on Veronica’s face and forehead.

Her face was swollen and bruised, her eyes half shut, she was limp and she had no life in her. She said she asked Mr. Whitford what happened and he indicated Veronica had fallen out of bed when he was out on the balcony having a cigarette. He said he heard a thump and went in to see what was wrong. He said he found Veronica face down on the carpeted bedroom floor beside the bed. He said he picked her up and put her back into bed. Defence counsel said that when Mr. Whitford picked up Veronica, she was not crying but her nose was broken and twisted. Mr. Whitford said he then telephoned Ms.

Houle to tell her Veronica had fallen out of bed. He said he advised Ms. Houle that Veronica was hurt badly and she should come home. There is no evidence on RCMP investigation of such a telephone call. [ 12 ] The RCMP determined that Mr. Whitford had spoken to Regan Collins after the incident and advised her that he was not at the apartment at the time of the injuries; he was still in Ashmont with his own children, and had said the injuries were caused by other kids getting rough with a toy wand.

He had also advised his half-brother, Terron Fidler, that the bruising on Veronica had come from the immunization needle and her being hit with a wand. [ 13 ] Ms. Houle decided to take Veronica to the hospital in Cold Lake. By the time she arrived at the hospital, Veronica had no pulse. The doctor at the Cold Lake Hospital, Dr. Meng Lu, resuscitated Veronica on two occasions. She said she observed bruising to Veronica’s chest and abdomen, the back of her head and her forehead. She said she spoke to both Ms. Houle and Mr. Whitford and asked them what had happened. Dr. Lu reported that Mr.

Whitford said Veronica had fallen out of bed on her head onto a cement floor. Photographs of the bedroom clearly show that the floor was carpeted. They also show a standard twin bed in the room, 67 centimeters high, with several toys and laundry baskets on the floor in the vicinity of, but not directly beside, the bed (Photograph, Exhibit B3). [ 14 ] Veronica was airlifted to the Stollery Children’s Hospital at the University of Alberta in Edmonton where she was examined by Dr. Gillian Popel in pediatric intensive care. Dr.

Popel reported that Veronica had significant and extensive facial bruising, abdominal bruising, scalp hematoma, factures to the skull, subdural hematomas, significant brain injury with swelling to the brain, possible injury to the lungs, liver laceration, left kidney laceration, possible injury to the right kidney and fractures to the sixth, seventh and eighth ribs. She concluded that Veronica had experienced trauma “with multiple planes of the body” as a result of “multiple impacts”.

She said these injuries were not explained from a simple fall off a bed with one impact and could not have been caused by the three-year-old sister, Vada, nor the immunizations (Exhibit B4). She said the brain injury was significant, would likely have caused Veronica to be immobile, and that the head trauma to Veronica was most likely due to direct trauma because of the scalp swelling and skull fracture sustained. [ 15 ] An autopsy was performed by Dr. Eric Bol. Dr. Bol determined that the cause of death was multiple blunt force injuries and that the manner of death was homicide.

He said there were multiple injuries to the head, an underlying skull fracture, extensive bruising to the face, a subdural hemorrhage, a laceration to the liver, hemorrhage to the large bowel, hemorrhage to the right ovarian area, three rib fractures on the left side, multiple bruises on the chest, arms and legs. He specifically said these injuries “were not consistent with falling off of a bed”. He did say that some of the superficial bruises could be attributed to being hit by a toy wand, but not the other injuries (Exhibit B1). Mr. Whitford’s Character [ 16 ] Mr.

Whitford was born on May 10, 1982 and was 35 years old at the time of the incident in question. He is a journeyman steamfitter and pipefitter with numerous safety courses, including Canadian Red Cross first aid, H2S Alive, construction safety, fall protection, and confined space entry training (Exhibit B2). Although he is not currently working due to his incarceration, he plans to return to his employment should he be released on bail. [ 17 ] Crown counsel advised that Mr. Whitford had no criminal record, when he was approached by police he had not attempted to flee and was not a flight risk.

He apparently had entered into peace bonds in 2007 and 2013, and there is no breach of those orders alleged. [ 18 ] Police interviewed Mr. Whitford’s ex-spouse, April Whitford, who reported that she has taken out an Emergency Protection Order against him, but that did not include any of their children and no particulars of that Order were provided to the Court. The police also interviewed Veronica’s father, Kerey Poitras. Mr. Poitras alleged that Mr.

Whitford had sexually assaulted both of the girls after having given them crushed T-3s, but there was absolutely nothing to support that allegation and defence counsel said that was evidence of the extreme allegations being made against Mr. Whitford in the community.

[ 19 ] Mr. Whitford has joint custody and shared parenting of his biological children on a 50/50 basis with his ex-wife, April Whitford. Ms. Houle is currently pregnant with his child and is due on November 18, 2017. [ 20 ] Although the incident in question occurred in Cold Lake, Alberta, defence counsel advised that Mr. Whitford had now moved out of that community back to his original home in Fish Lake where he was staying with his sister. He said his sister is prepared to take responsibility for him and that Ms. Houle continues to support him.

The Tertiary Ground [ 21 ] Any discussion with respect to an application to grant bail must begin with consideration of the Canadian Charter of Rights and Freedoms ,

Part 1, the Constitution Act, 1982 , enacted by the Canada Act, 1982 (UK, c.11). The relevant provisions are ss 11(

d) and (e): Proceedings in criminal and penal matters 11. Any person charged with an offence 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.... [ 22 ] The Supreme Court of Canada comprehensively addressed the issue of bail pursuant to s 515 and bail review pursuant to ss 520 and 521 of the Criminal Code in its decision in R v St-Cloud , 2015 SCC 27 .

The comments of the Court apply equally to an application under s 522 where the onus is on the accused. [ 23 ] St-Cloud indicated that in considering the tertiary ground “circumstances surrounding the commission of the offence” (s 515(10)(c)(iii), Criminal Code ) such circumstances include the personal circumstances of the accused such as his or her age, criminal record, physical or mental condition, membership in a criminal organization, the status of the victim, the impact on society of a crime committed against that person, and perhaps the fact that the trial of the accused will be held at a much later date (para 71). [ 24 ] For assessing bail in this matter, only the tertiary ground is asserted by the Crown.

In addressing the tertiary ground, the Supreme Court of Canada set the following essential principles: (a) Section 515(10)(

c) does not create a residual ground for detention that applies only where the first two grounds of detention are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused; (b) Section 515(1)(

c) must not be interpreted narrowly nor applied sparingly, and should not be applied only in rare cases, exceptional circumstances or only to certain types of crimes; (

c) The four circumstances listed in s 515(10)(

c) are not exhaustive; (

d) A court must not order detention automatically even where the four listed circumstances support such a result; (

e) The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances; (

f) The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis; (

g) 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; (

h) 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); (

i) 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 required to be able to appreciate the subtleties of the various defences that are available to the accused; and (

j) 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 (para 87). [ 25 ] The Court also indicated that “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” (para 88). [ 26 ] Recently, the Supreme Court of Canada addressed the issue of bail pending appeal after a conviction for murder in R v Oland , 2017 SCC 17 .

The test at issue was whether or not the appellant had established that “his detention is not necessary in the public interest” [s 679(3)(c), Criminal Code ] which has some similarity to the test in s 515(10)(c). The Court said the public interest criteria under s 679(3)(

c) consisted of two components: public safety and public confidence in the administration of justice. They said Parliament

had not provided appellate judges assistance as to how bail is likely to affect public confidence in the administration of justice pendingappeal, but that it had done so in s 515(10)(c), and those factors were instructive. [27] The Court reinforced the factors to be considered: the strength of the prosecution’s case, the gravity of the offence, thecircumstances surrounding the commission of the offence, and the potential length of imprisonment (paras 38 & 40). The Court remindedus that: ...public confidence is to be measured through the eyes of a reasonable member of the public.

This person is someone who is thoughtful,dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values: R v St-Cloud, 2015 SCC 27,[2015] 2 SCR 328, at paras 74-80.

In that sense, public confidence in the administration of justice must be distinguished fromuninformed public opinion about the case, which has no role to play in the decision to grant bail or not. (para 47) [28] The Court concluded that where public safety or flight concerns are negligible and the defence case is not frivolous, bailshould be allowed “even in the case of murder or other very serious offences” . (para 51) [29] In a brief decision of the Alberta Court of Appeal, R v Lafleche, 2017 ABCA 104, the applicant was detained on charges ofsecond degree murder and assault with a weapon against her child, and the Queen’s Bench Justice denied her release on the tertiaryground (2017 ABCA 72).

The Court of Appeal said that the accused had no criminal record, enjoyed the support of family in her localaboriginal community, and was to be supported and supervised by her father and aunt. It said she had not re-offended nor attempted toinfluence, intimidate or otherwise manipulate her remaining children who were the prime witnesses in the matter. It said the offence wasundeniably grave but that the defence was not frivolous.

As a result, it said: ...an informed member of the public, understanding that an accused person is presumed innocent until proven guilty and has a Charterright to reasonable bail, would understand why this accused, in the circumstances...would be released on appropriate conditions. (para13) [30] As a result, the Court of Appeal set aside the denial of bail on the tertiary ground and ordered her release pending trial onconditions. [31] Decisions prior to St-Cloud are instructive, but must be considered with caution.

In R v Hall, 2002 SCC 64 , [2002] 3SCR 309, the Supreme Court of Canada addressed the constitutionality of what was then s 515(10)(

c) of the Criminal Code. It struckdown certain clauses within the

section as it was then drafted, leaving us substantially with the current section. [32] The Court said s 515(1)(

c) delineates a narrow set of circumstances under which bail can be denied on the basis ofmaintaining confidence in the administration of justice, judged by all the circumstances but in particular the four factors set out in thatsection. Where a crime is “horrific, inexplicable, and strongly linked to the accused”, it said that “a justice system that cannot detain theaccused risks losing the public confidence” (para 40). [33] The Court said Parliament’s purpose is to maintain public confidence in the bail system and the system of justice as a whole,and that to rely upon this

section to justify detention, such detention must “not only [be] advisable but necessary” to maintain confidencein the administration of justice, through the lens of the four factors specified. The Court said this

section should be viewed objectivelythrough the eyes of a “reasonable member of the community”, being one properly informed about “the philosophy of the legislativeprovisions, Charter values and the actual circumstances of the case”, quoting from R v Nguyen, (BC CA), [1997]119 CCC (3d) 269. [34] Another pre-St-Cloud decision is that of Veit, J. in R v Noskiye, 2001 ABQB 598.

In that case, Veit J. correctly indicated thatParliament had determined an accused who was charged with murder should be detained in custody until trial unless the accused couldsatisfy the Court that his or her detention is not necessary to achieve the objectives set out in s 515(10) of the Criminal Code. In thematter before her, Ms. Noskiye, had been charged with second degree murder in the stabbing death of her husband.

Veit, J. quoted atlength from R v Blind, (1999) (SK CA), 180 Sask R 145, reviewed below, in concluding there is a significant historyof releasing persons charged with serious crimes once it has been determined they will appear to answer the charges against them and donot represent a threat to the safety of the public, on the basis that the public concern with respect to the release of an accused awaitingtrial must take into account that an accused is presumed to be innocent at that time (para 13). [35] Also relying upon Nguyen, she noted that a great many offences involve violence and it is important to consider “whether theapplicant is a person prone to violence or cruelty or whether she or he became caught up in circumstances where awful things sometimeshappen” (para 13, quoting from Nguyen at para 22). [36] Finally, quoting from the dissenting opinion of Berger, J.A. in R v Cooper, 2000 ABCA 75, on a point not considered by themajority, she said “...judicial interim release should not be refused simply because the Applicant is charged with a category of offencethat society considers serious and of great concern” because that would itself preclude an individual from bail and would be in clearcontradiction of the “...parliamentary intention that some persons charged with very serious offences, including first-degree murder, areentitled to judicial interim release” (para 16, quoting from Nguyen at para 48). [37] In Blind, the Saskatchewan Court of Appeal indicated that the “key to the proper application of clause 515(10)(

c) lies in thecircumstances, the question then being whether the circumstances are such as to make the detention necessary to maintain confidence inthe administration of justice”.

It said the bail judge will have to consider “all relevant aspects of the charge, the accused’s circumstances,the accused’s right not to be denied bail without reasonable cause, and the public’s perception of justice” (para 14), and warned that thebail judge must not become “so focused on the gravity of the offence and the strength of the Crown’s case as to overlook that there areno categories of offences for which bail is not a possibility” (para 15). [38] R v AB, (ON SC), [2006] OJ No 394 (OSCJ) is of assistance in describing “the reasonable member of thepublic” contemplated in guiding consideration of the tertiary ground for denying bail.

It identified that, at minimum, the reasonablemember of the community would understand and appreciate the following:

(

a) The importance of the presumption of innocence, the golden thread that runs through our system of criminal law and is guaranteed in s 11(

d) of the Charter . She or he would understand that the presumption of innocence attaches to any person charged with a criminal offence and that it is not displaced until the Crown has satisfied an independent and impartial tribunal of the accused’s guilt beyond a reasonable doubt. She or he would understand that the person seeking bail is only alleged to have committed an offence. ... She or he would understand that pre-trial detention of a person who is merely accused of a criminal offence is inconsistent with the presumption of innocence and must therefore be justified with care; (

b) The significance of the liberty of the subject and the constitutional guarantee of a right to bail in s 11(

e) of the Charter . She or he would understand that s 11(

e) leaves judges with only a strictly circumscribed discretion to refuse bail and that a denial of bail must be confined to a “narrow set of circumstances” related to the proper functioning of the bail system; (

c) The granting of bail must be assessed on a case-by-case basis, and an accused person should be released if none of the grounds set out in s 515(10) is satisfied. The reasonable person would understand that there are no offences for which bail is automatically prohibited and that persons charged with offences as serious as sexual assault and murder are often granted bail. Equally important, she or he would understand that the vast majority of those who are charged with criminal offences are granted bail and do not abscond or commit further offences while on release; (

d) The actual nature of the allegations against the accused person, and the fact that these may or may not be proven at their eventual trial; (

e) Pre-trial detention can last for many months before trial; a fact that can have a significantly adverse effect on the life of the accused person and his or her family – resulting, for example, in loss of employment or interruption of education ...; (

f) The poor may be more likely to be detained than those accused persons with greater financial resources. The reasonable person would want all persons to be treated equally in terms of pre-trial release regardless of their socio-economic class; (

g) Pre-trial detention can significantly complicate the ability of an accused person to prepare their defence.... The reasonable person would not want the results of our criminal justice system to be skewed by pre-trial detention, a factor unrelated to demonstrated guilt; (

h) In our system of justice, incarceration is imposed as punishment only after a person has been convicted of an offence and the sentencing judge has heard submissions as to the appropriate sentence in the circumstances ...; (

i) The personal circumstances of the accused person. That is, they would assess the propriety of the person's release in light of their antecedents and the support available to them from family, friends and the broader community; and (

j) The terms imposed by the judge granting bail and how these are designed to prevent the accused from absconding or committing further crimes while awaiting trial (para 19). [ 39 ] These criteria, of course, must be interpreted in this case in light of the reverse onus upon Mr. Whitford in the application before this Court. [ 40 ] However, there are many instances where bail is granted in serious crimes including murder: see Trotter, J., The Law of Bail in Canada (3d), Thomson Reuters, Toronto, pp 3-48 to 3-50; Blind ; AB ; R v Bone , [1996] AJ No 1306 ; R v Cheeseman , 2008 ABQB 282 ; R v White , 2006 ABCA 65 ; and R v AAC , 2015 ONCA 483 . Elements of s 515(1)(

c) i. Apparent Strength of the Prosecution’s Case [ 41 ] Crown counsel agreed that the case against Mr. Whitford was circumstantial, but he called it a “tight circumstantial case” based upon the detailed timeline that had been established as a result of the video recordings and recovered text messaging. He said based upon that timeline Mr. Whitford was the only person in contact with Veronica over the time that the injuries were sustained. The Crown says the timeline indicates Veronica was uninjured before approximately 5:00 p.m., but by about 6:30 p.m. Ms. Houle had found her daughter in great distress.

Crown counsel said Veronica had no history of prior injuries and pointed out that the community health nurse had found her in good physical health the day before the incident. Crown counsel said that Mr. Whitford had told provable lies to the police about the presumed telephone call to Ms. Houle, about the floor in the bedroom being cement, rather than carpeted, and with respect to the various stories told to others about how the injuries to Veronica had occurred. [ 42 ] The theory of the Crown is that Mr.

Whitford “just snapped” while he was caring for Veronica on that Saturday afternoon. [ 43 ] Defence counsel pointed out that Mr. Whitford wasn’t arrested until October 2017, and this application is now made less than a month after the date of arrest. He said that the strength of the Crown’s case was still very much in doubt. He has not yet been provided with full disclosure, including a formal autopsy report, clinical notes from any of the Cold Lake Hospital, Stollery Children’s Hospital or medical examiner, and the brief

summary of those clinical records have not been subject to peer review or cross-examination.

He pointed out that the word “fracture” in the summaries did not distinguish between mere hairline fractures and far more serious comminuted compound fractures. [ 44 ] Crown counsel replied that although disclosure was not complete at this time, this was not a case that was going to tail off for the Crown, as they had no witness attendance problems and no intended evidence that would require a Vetrovec warning. [ 45 ] Defence counsel agreed the evidence before this Court was that death from blunt force trauma was inconsistent with Veronica simply falling off the bed.

He said, however, that the situation would be different if she had been standing on the bed before she fell,

particularly if she had impacted any of the toys or baskets on the floor. As an alternate theory, defence counsel proposed that the injuries to Veronica might have had multiple causes. Perhaps, he speculated, Mr. Whitford had hit Veronica and then put her back to bed. After that, Veronica had fallen out of bed and injured herself on the toys or the baskets in the room. The reverse order of those speculative events is also possible. He said there would then be an issue as to which incident caused her death. [ 46 ] Defence counsel said that the allegations against Mr.

Whitford were inconsistent with his past behaviour. He has no criminal record, no history of violence, no child welfare involvement and no mental health issues. The evidence from April Whitford was that although he was not good with children, whenever there was a crisis with children “he shut down”, exactly the opposite of what was being alleged by the Crown in this case.

Defence counsel said that in most cases of child abuse there is evidence of incremental acts of violence against the child, and that was not the case with respect to Veronica. [ 47 ] Defence counsel indicated that this was a serious case but it was purely circumstantial. [ 48 ] Taking into consideration the alleged facts, set out above, and the representations of counsel, I find that the Crown appears to have a relatively strong, albeit circumstantial, case against Mr. Whitford. I particularly note the detailed timeline, Mr.

Whitford’s sole presence at the relevant time, and the conflicting stories that he has told about the causation of the injuries to Veronica. [ 49 ] On the other hand, I am not prepared to find at this time, prior to substantial disclosure, that the defence case is frivolous. The issue of causation is available to the defence. [ 50 ] As a result, this factor, the strength of the Crown’s case, is neutral as to whether or not bail should be granted to Mr. Whitford. ii. Gravity of the Offence [ 51 ] Crown counsel indicates that the offence with which Mr.

Whitford is charged is very grave: second degree murder of a defenceless and helpless baby. He said that the murder of a baby is the “biggest breach of trust you can have” and “a total breach of trust”. He said that the injuries sustained by Veronica were “horrific” and included multiple injuries on multiple planes to her body. [ 52 ] There is no doubt that this element favours the detention of Mr. Whitford. iii. Circumstances Surrounding the Commission of the Offence [ 53 ] The circumstances of the offence have been set out in full above.

In argument, neither counsel addressed this element separately from their review of the alleged facts. While the alleged circumstances of this offence are horrific, they remain at this time to be proven. I consider the weight of this element in determining whether or not bail is to be granted to be dependent upon determination of the strength of the Crown’s case. iv. Potentially Lengthy Term of Imprisonment if Convicted [ 54 ] Crown counsel indicated that the potential length of imprisonment, should Mr. Whitford be convicted, is life, with no eligibility for parole for between 10 and 25 years.

This element is really no more than a result and reflection of the second element above, gravity of the offence, and so neither adds to nor subtracts from the weight of that element favouring the detention of Mr. Whitford. v. Conclusion with Respect to Maintaining Confidence in the Administration of Justice [ 55 ] Crown counsel indicated that given the seriousness of the offence, the injuries sustained by the victim, the significant breach of trust alleged, and the reverse onus set out in the Criminal Code upon Mr.

Whitford, granting him bail under any terms or conditions would undermine confidence in the judicial system and bring the administration of justice into disrepute. [ 56 ] Defence counsel asked what a reasonable person would say in all of the circumstances of the case. There is no fear that Mr. Whitford will not attend in court as this matter progresses, there is no fear that he will commit a criminal offence or interfere with the administration of justice, he has no criminal record and no history of violence or mental illness.

He has moved out of Cold Lake, is living with his sister and supported by his mother and Ms. Houle. He is prepared to abide by strict bail terms and conditions. Under the circumstances, defence counsel argued that the release of Mr. Whitford on bail would not bring the administration of justice into disrepute. Conclusion on the Application for Bail [ 57 ] Taking into account the four elements of s 515(10)(

c) of the Criminal Code , in considering all of the circumstances of this case balanced in combination, the ultimate question to be answered is whether the detention of Mr. Whitford is necessary to maintain confidence in the administration of the justice system and the system of bail in the eyes of a reasonable person. A reasonable person is as described in St-Cloud , Oland , Lafleche , Hall , and AB . [ 58 ] The reasonable person would be thoughtful, dispassionate, informed and would respect and understand the legislative provisions and Charter values, especially the right to be presumed innocent until proven guilty, and the right not to be denied bail without just cause.

[ 59 ] The reasonable person would say that an accused not yet found guilty of any crime, without a prior criminal record, history of violence or mental illness, with considerable support in the community, who is not a flight risk nor a risk of re-offending, should be granted bail even when charged with a very serious offence such as the second degree murder of a defenceless and vulnerable baby. [ 60 ] As a result, I find that Mr. Whitford has met the reverse onus upon him to show that he should not be detained pending his trial and I grant him judicial interim release on strict terms and conditions.

Bail Terms and Conditions [ 61 ] Defence counsel indicated that if Mr. Whitford were released on bail, he would continue to stay with his sister in Fish Lake who would be responsible for him, his mother would act as a surety and post either a substantial cash bail or surety of between $5,000 and $10,000. He said that Mr. Whitford would abide by standard bail conditions including reporting to a probation supervisor immediately after release and as required. He said that Mr.

Whitford would abide by a curfew as determined by his probation officer, subject to accommodations for work, medical attendances and shopping for the necessities of life. He said that Mr. Whitford would agree not to change his name, address or employment, to maintain a telephone land line and to answer it whenever it rang, and to attend at the door of the house when called upon. He said that Mr.

Whitford would agree to a prohibition on alcohol and drugs not prescribed by a doctor, would agree to any suggested treatment or counselling, would agree to weapons prohibition, and would carry a copy of a release order whenever he was outside his residence. [ 62 ] I am prepared to discuss these and further terms and conditions as proposed by counsel. Heard on the 6 th day of November, 2017. Dated at the Town of St. Paul, Alberta this 24 th day of November, 2017. K.P. Feehan J.C.Q.B.A. Appearances: Jeffrey F. Rudiak Crown Prosecutors’ Office for the Crown Timothy J.

Dunlap for the Accused _______________________________________________________ Corrigendum of the Oral Memorandum for Decision of The Honourable Mr. Justice K.P. Feehan

_______________________________________________________ In line 1, paragraph 8 of page 3, “Mr. Ashford” was corrected to “Mr. Whitford”.