R v Denovan, 2021 ABQB 855

Court of Queen’s Bench of Alberta Citation: R v Denovan, 2021 ABQB 855 Date: 20211029 Docket: 201097185Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Jayme Scott Denovan 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 By Court Order, this decision and the evidence taken, information given or representations made shall not be published, broadcast, or transmitted in any way. NOTE: This decision is available from the court file. It may be published after the end of the trial. The following constitutes the full reasons of a decision delivered orally on October 29, 2021. Editorial Notice: The restriction on publication ended on October 28, 2022. _______________________________________________________ Decision of the Honourable Madam Justice N.

Dilts _______________________________________________________ [ 1 ] These reasons are subject to a publication ban pursuant to section 517(1) of the Criminal Code , which prohibits the publication in any document, broadcast or transmission, of the evidence taken, the information given, or the representations made on Mr.

Denovan’s application, including these reasons, until trial has ended. Introduction and Overview [ 2 ] On October 23, 2020, Mr. Denovan was arrested and charged with first degree murder contrary to section 235(1) of the Criminal Code relating to the death of Olara Ronnie Obina on November 3, 2017. Mr. Denovan has remained in custody since that time. His trial is scheduled to commence October 3, 2022 and is expected to last four weeks. Mr. Denovan now seeks judicial interim release. I heard his application for judicial interim release on September 27 and 28, 2021 and reserved my decision until today. These are my reasons on that application. [ 3 ]

Section 522 of the Criminal Code governs judicial interim release where an accused person is charged with murder. The parties agree that Mr. Denovan has the onus to demonstrate on a balance of probabilities that his detention is not justified under any of the three grounds set out in s. 515(10) of the Criminal Code . Specifically, that means that Mr.

Denovan has the onus to demonstrate that his pre-trial detention is not necessary to: 1. ensure his attendance in court – called the “primary ground”; 2. protect the safety of the public or prevent interference with the administration of justice – called the “secondary ground”; and 3. maintain the public’s confidence in the administration of justice – called the “tertiary ground”. [ 4 ] Mr. Denovan argues that his detention is not necessary on the primary, secondary or tertiary grounds. He says any risk relating to his release can be effectively managed through strict bail conditions. [ 5 ] Mr.

Denovan’s proposed release plan consists of the following: 1. Mr. Denovan would reside in the basement suite of his mother’s rented home, subject to a 24-hour curfew with standard exceptions; 2. Dianne Denovan, Mr. Denovan’s mother, would pledge $20,000.00 and would assume the role of surety; 3. Scott Denovan, Mr. Denovan’s father, would pledge $20,000.00 and would assume the role of surety; 4. If ordered, the Denovans would pay for Mr. Denovan to be monitored by a secure GPS monitored ankle bracelet; 5. If ordered, Mrs. Denovan would install both an alarm system and a landline in her home. [ 6 ] Mr.

Denovan argues that this release plan mitigates any risks relating to his release. He points to his ties to the community and what I will describe as a moral commitment to his parents that he would not jeopardize their financial well-being or his relationship with them by breaching his release conditions. He also points to the fact that he has previously been released into the community pending trial without breaching his release conditions. He argues that his history of compliance is a strong indicator that any risks relating to his release on this charge are low. [ 7 ] The Crown opposes Mr.

Denovan’s release on all three grounds. The Application Record [ 8 ] As a reminder of what I received on this bail application, the application record contains the following material in support of Mr. Denovan’s release: • Letter of support dated January 10, 2021 from Robert Tyler Jones; • Letter of support dated January 8, 2021 from Kory McKellar; • Affidavit of Vince Morelli president of SafeTracks GPS Canada Inc. sworn on November 19, 2020; • Affidavit of Dianne Denovan sworn September 9, 2021, Mr. Denovan’s mother and proposed surety; • Affidavit of Scott Denovan sworn September 9, 2021, Mr.

Denovan’s father and proposed surety; and • Affidavit of Melanie Warenko sworn September 10, 2021. [ 9 ] Within the Affidavit of Dianne Denovan are two offers of employment received by Mr. Denovan, one from Mountainview Paving offering a job as a foreman, and one from Mr. Jones offering a job as a day labourer. In addition to reviewing these records, I had the opportunity to hear both of Mr. Denovan’s parents testify. [ 10 ] The record also includes the materials relied on by the Crown which we entered as exhibits B1, B2 and B3.

Those materials include scene photographs from the murder and from the burned Jeep, videos of Mr. Denovan with an undercover police officer, CCTV videos recording the murder and the theft of the Jeep, and Mr. Denovan’s criminal record, amongst other records. I also heard from Detective Guterson from the Calgary Police Service homicide unit about the investigation that lead to Mr. Denovan’s arrest. Finally, to assist me in reaching my decision today, I had the benefit of well-considered and well-presented written and oral argument from counsel.

Fundamental Principles [ 11 ] I will discuss Mr. Denovan’s release plan and the grounds for detention throughout my reasons. Before I do that, though, there are some fundamental principles regarding bail applications and our criminal trial process that I need to explain, as those principles anchor my entire analysis. [ 12 ] First, s. 11(

e) of the Canadian Charter of Rights and Freedoms provides that no person should be denied bail without just cause. That

section is intended to safeguard the liberty of an accused person: R v Antic , 2017 SCC 27 at para 1 . Even though Mr. Denovan is charged with first degree murder, one of the most serious of crimes in our Criminal Code , if he is able to demonstrate that he does not present a risk under any of the three grounds, the law is clear that he is to be released: R v St-Cloud , 2015 SCC 27 at para 70 . [ 13 ] Second, under our criminal justice system, Mr. Denovan is presumed innocent in these proceedings before me. In fact, he is presumed innocent unless and until he is found guilty following trial.

That means that at this pre-trial stage of the criminal trial process and throughout trial, Mr. Denovan is presumed innocent. That only changes if the Crown proves at trial that he is guilty beyond a reasonable doubt. [ 14 ] Third, it follows that my role as the Justice hearing this bail application is not to determine Mr. Denovan’s guilt or innocence. Rather, it is to undertake a risk assessment relating to Mr. Denovan’s release pending trial. Referencing again the primary, secondary and tertiary grounds for detention, in conducting that risk assessment regarding Mr.

Denovan’s release, I am to consider the risk of Mr. Denovan not appearing at his trial, the risk to the safety and protection of the public should he be released pending trial, and the risk of damaging the public’s confidence in the administration of justice should Mr. Denovan be released or should he be detained. When I conduct this risk assessment, I must consider Mr. Denovan’s personal circumstances, the unique circumstances of this case, and Mr. Denovan’s release plan. I am also required to consider the nature of the charge, the penalty for that charge, and the strength of the Crown’s case.

Doing so engages questions regarding the evidence the Crown relies on in this application and the hurdles the Crown will have to meet to present that evidence at trial. I will discuss those issues later in my reasons. The Alleged Facts [ 15 ] For the purposes of this judicial interim release hearing, the Crown outlined the facts it alleges against Mr. Denovan. Those facts are taken from statements made by Mr. Denovan to an undercover police officer during a Mr.

Big operation, as well as from photographs of the murder scene, photographs of the Jeep, DNA evidence, CCTV video recordings of the theft of the Jeep, CCTV video recordings of the murder of Mr. Obina, and telephone intercept recordings of phone calls between Mr. Denovan and his co-accused Jessey Pearson obtained under judicial authorization. The specifics of the steps on the day-of and the day-after Mr. Obina’s death are important. [ 16 ] The Crown alleges that Mr. Denovan was hired by two men, presumed by the police to be Dan DeVries and John Pham (known members of the drug trade), to murder Mr.

Obina in exchange for $14,000.00. Mr. DeVries provided Mr. Denovan with the information Mr. Denovan needed to kill Mr. Obina: Mr. Obina’s name, the address of where Mr. Obina lived (which was in the northwest neighborhood of Ranchlands), a photograph of Mr. Obina, and the fact that Mr. Obina drove a Dodge Charger. Mr. Denovan was instructed to shoot Mr. Obina in the head. [ 17 ] The Crown alleges that after agreeing to kill Mr. Obina for $14,000.00, Mr. Denovan enlisted his friend Jessey Pearson, his co-accused, to assist him with the killing.

Together they designed a plan to steal a vehicle, drive that vehicle to the murder scene, murder Mr. Obina and then park the stolen vehicle on a country road and light it on fire. [ 18 ] On November 3, 2017, Mr. DeVries gave Mr. Denovan a sawed-off shotgun to use to kill Mr. Obina. Mr. Denovan wiped the shotgun clean and then waited for directions to kill Mr. Obina. [ 19 ] Part of the planning for the murder included the theft of a vehicle from Mr. Pearson’s friend EC, and the theft of a jerry can from Mr. Pearson’s friend JC. On the day of the murder, Mr.

Pearson stole the keys to EC’s Jeep and the jerry can from JC’s garage and filled the jerry can with gas. [ 20 ] Once Mr. Denovan got the signal from Mr. DeVries on November 3, 2017, Mr. Denovan and Mr. Pearson put their plan in action. About two hours prior to the murder, the men stole EC’s Jeep from the parking structure at her apartment building. CCTV video footage from the parking structure shows a man dressed in black jump the fence into the parking structure and walk directly to EC’s vehicle. The man is seen getting into the vehicle and driving away. The Crown alleges that man was Mr.

Denovan, although his image is not clear. [ 21 ] The two men then drove separately to 12 Mile Coulee Road on the outskirts of northwest Calgary. Mr. Pearson drove a truck he often used and Mr. Denovan drove EC’s Jeep. At 12 Mile Coulee Road, they hid the truck behind some trees or bushes. Then, with Mr. Pearson driving, the two men drove the Jeep to an alleyway behind Mr. Obina’s home in Ranchlands. The Crown alleges that CCTV video footage of the alley shows what looks like the same the Jeep drive past the rear of Mr. Obina’s home and turn left down another alley.

Once parked down the second alley, the Jeep lights turn off. By that time, it was around 2 am, dark and snowing. The men sat in the vehicle for almost two hours until they saw Mr. Obina’s vehicle pull into the alleyway, approaching from the opposite direction from where they entered. [ 22 ] Mr. Obina pulled into the parking area behind his mother’s home. The CCTV video shows that shortly after Mr. Obina pulled into the parking area, Mr. Denovan ran across the alley, staying concealed by a fence. When Mr. Obina opened his car door, Mr. Denovan stepped toward the vehicle with the rifle at his shoulder, aimed at Mr.

Obina’s upper chest and shot one shot. Mr. Obina yelled out loudly just before he was shot.

[ 23 ] The CCTV video then shows Mr. Denovan run back towards where the Jeep is parked, and the vehicle lights turn on. The Crown alleges that Mr. Denovan jumped into the rear of the Jeep and that Mr. Pearson then drove the Jeep to where the truck was stashed just off 12 Mile Coulee Road. There, Mr. Pearson took the jerry can of fuel, doused the inside of the Jeep and lit it on fire, burning his face in the process. The two men left the Jeep to burn and drove back to the city, randomly discarding the shotgun, their clothes and the sim card from Mr. Denovan’s phone on the way. Before doing so, Mr.

Denovan texted Mr. DeVries a code word to let him know the murder was done. [ 24 ] The truck the men were driving broke down near 16 th Avenue NW around 4:35 a.m. Mr. Denovan twice called a cab to take them to a gas station to get gas. [ 25 ] The next day, the two men listened to the news to see if there were reports of the murder. When they did not hear anything on the news about the murder, they drove back to the Mr. Obina’s neighborhood to see if they needed to finish the job. They saw heavy police presence in the area and left. [ 26 ] Mr.

Obina’s body was not found until 4:06 pm on November 4, 2017 when discovered by a neighbor. At the scene, the police recovered a single red shotgun shell from the snow. An autopsy of Mr. Obina’s body concluded that the shotgun blast initially impacted Mr. Obina’s left shoulder before striking his face. [ 27 ] Separately, in the early morning of November 3, 2017, the Calgary Fire Department was alerted to a vehicle fire on 12 Mile Coulee Road. The vehicle fire had extinguished by the time they arrived; however, the fire department found a jerry can in the driver’s well of the vehicle.

Forensic testing later done of the vehicle and the jerry can found fuel in the cup holder of the vehicle and Mr. Pearson’s DNA on the jerry can. [ 28 ] After a lengthy investigation into Mr. Obina’s murder called Operation Hood, the Calgary Police Service commenced a Mr. Big operation targeting Mr. Denovan. Initially, Mr. Denovan was hired to work for a legitimate organization. Over time, Mr. Denovan came to believe he was involved in and working for a criminal organization. The Mr. Big operation involved 57 scenarios culminating in two recorded confessions from Mr. Denovan in which he confessed to killing Mr.

Obina. Circumstances of the Accused [ 29 ] As I already mentioned, every bail application requires the court to consider the accused person’s personal circumstances. That makes sense as the risk I am to assess regarding Mr. Denovan’s potential release is not a generic risk relating to the three grounds, but is an assessment of the risk relating to Mr. Denovan in particular. [ 30 ] Mr. Denovan is 31 years old. He comes from a supportive family. Although his parents are divorced, they have an admirable relationship and present a united front with respect to Mr. Denovan’s release. Mr.

Denovan is the second oldest child of four. Both parents clearly value their relationship with all of their children, including Mr. Denovan. [ 31 ] Mr. Denovan is described by his parents as being respectful, sensitive and loyal, with a strong commitment to friends and family. They describe him as being quick to lend a hand to help others, and as a steady and reliable worker. [ 32 ] Mr. Denovan completed high school in Calgary. He moved out of the family home when he was a young adult, around 17 or 18 years old.

His work history is largely as a labourer with experience in landscaping, the oilfield, and construction. He is described as being a skillful mechanic. [ 33 ] Mr. Denovan is in a long-term relationship. Just prior to his arrest he was living with his girlfriend. Mr. Denovan has a daughter from a prior relationship who is 6 years old; however, he does not have a relationship with his daughter and does not pay child support. [ 34 ] Mr. Denovan has health concerns relating to a tumor discovered and removed from his ankle. He continues to receive treatment for that. [ 35 ] Mr.

Denovan has a criminal record dating from 2012 and 2019. In January 2010, when Mr. Denovan was 19 years old, he was charged on a 14-count indictment with drug and firearm offences. Mr. Denovan’s mother acted as surety for Mr. Denovan during his release on those charges from January 29, 2010 to November 19, 2012. At that time, he was released on strict conditions and on a $3,000 no-deposit bail. On November 19, 2012, Mr. Denovan was convicted of possession of a prohibited firearm and possession for the purposes of trafficking. For the weapons offence, he was sentenced to 45 days intermittent.

For the trafficking offence, he received a 6- month conditional sentence. Both sentences included a mandatory weapons prohibition for 10 years. [ 36 ] In December 2012, Mr. Denovan was convicted of possession of property obtained by crime and received a suspended sentence and 6 months’ probation. [ 37 ] In January 2019, Mr. Denovan pled guilty to possession of cocaine. He was sentenced to one day incarceration. Analysis [ 38 ] I now turn to the three grounds for detention set out in s. 515(10) of the Criminal Code . Primary Ground

[39] Section 515(10)(

a) provides that the detention of an accused is only justified where it is necessary to ensure an accusedperson’s attendance in court. Indicators of whether detention is required to ensure an accused person’s attendance in court include theaccused’s past history and his connections to the community through family, employment or otherwise. An analysis of risk under thisfirst ground is influenced by an accused’s reputation in the community, and by the strength and circumstances of the allegations againsthim. [40] Mr. Denovan says he is not at risk of failing to attend his trial.

He points to his history of compliance with release conditionsfrom 2010 to 2012 and the fact that he has no history of failing to appear in court. In addition, and as already discussed, Mr. Denovan’sfamily and personal connections are to Calgary. [41] The Crown argues that detention is justified to ensure Mr. Denovan’s attendance in court. It argues that given the strength ofthe Crown’s case, what it says is a strong likelihood of conviction, and the penalty for murder, Mr. Denovan could be motivated to fleeto avoid a life sentence. [42] I am satisfied that detention is not necessary to ensure Mr.

Denovan’s attendance in court. [43] I accept that because both of his parents have offered to pledge money for his attendance in court, Mr. Denovan has strongpersonal reasons to attend at trial when required. Given the tangible and material commitment his parents are offering to make as suretiesand his history of compliance with release conditions, I am satisfied that the risk of Mr. Denovan not appearing in court is low. I acceptthat the moral contract Dianne and Scott Denovan are prepared to make with Mr. Denovan is both real and powerful. I am satisfied thatwhatever risk might exist for Mr.

Denovan to flee, those risks are significantly reduced by the commitment he feels to his family and tohis parents in particular. While not a guarantee, I am satisfied that the surety to be posted by his parents is a meaningful deterrent interms of Mr. Denovan not attending at court. Mr. Denovan’s detention is not required under the primary ground. Secondary Ground [44] Section 515(10)(

b) provides that the detention of an accused person is only justified where detention is necessary for theprotection or safety of the public. With respect to the secondary ground, the law is clear that bail is not to be denied for individuals whosimply pose a risk of committing an offence or interfering with the administration of justice while on bail.

Bail is denied only for thosewho pose a substantial likelihood of committing an offence or interfering with the administration of justice, and only where thatsubstantial likelihood endangers the protection or safety of the public: R v Morales, (SCC), [1992] 3 SCR 711 at 737. Asubstantial likelihood of committing an offence is the probability of certain conduct, not merely the possibility of certain conduct: R vManasseri, 2017 ONCA 226 at para 87. That probability must be substantial or significantly likely to warrant detention.

This standardprotects an accused person from being detained on a mere suspicion or speculation about future criminal activity, while still ensuringconsideration is given to the protection and safety of the public. This has been defined as a reasonable limit within which detention onthe secondary ground is justified. [45] Therefore, when considering the secondary ground for detention, the questions to be answered are whether there is asubstantial likelihood that Mr.

Denovan will commit an offence or will interfere with the administration of justice if he is released; and,if so, whether that presents a risk to the protection and safety of the public. If yes, then I am also to consider whether that risk can bereduced to an acceptable level by strict bail conditions: R v Abdel-Rahman, 2010 BCSC 189 at para 23. [46] In answering those questions, I am to consider all of the circumstances of the case. Of course, in this instance, the Crown’scase against Mr. Denovan is almost entirely based on evidence obtained in a Mr. Big operation. Evidence obtained in Mr.

Big operationsis presumptively inadmissible to prove the guilt of an accused at trial: R v Hart, 2014 SCC 52 at para 10. That evidentiary rule isintended to guard against the danger of unreliable confessions and to protect against the prejudice to an accused from the bad characterevidence that must be admitted to put the operation and the confession in context. At trial, Mr. Big evidence is not admissible unless theCrown is able to establish on a balance of probabilities that the probative value of the confession outweighs its prejudicial effect: Hart atpara 85. The question of Mr.

Big evidence, said simply, is whether the value of the evidence is worth its cost: Hart at para 94. [47] The question in this application is what use I can make of the Mr. Big evidence in undertaking the risk analysis required underthe secondary ground. In the case of R v Gill, 2015 BCCA 275, the British Columbia Court of Appeal concluded that the bail judge wasentitled to rely on Mr. Big evidence in her analysis of the secondary ground for detention. Mr. Gill was accused of murdering his wife.Some of the most probative evidence against him was obtained through a Mr.

Big operation relating to the suggested importation ofdrugs from Pakistan. In the course of that operation, Mr. Gill sought advice on how to “clean up” the murder investigation and attemptedto interfere in the police investigation of the murder. The bail judge concluded that Mr. Gill was willing to interfere with theadministration of justice and that if released he would likely seek other ways to subvert the Crown’s case. In reaching that conclusion,she relied on evidence gathered through the Mr. Big operation. However, before using the Mr.

Big evidence in her analysis of thesecondary ground, the bail judge turned her mind to the credibility and trustworthiness of the Mr. Big evidence, including the existenceof corroboration. [48] The British Columbia Court of Appeal concluded that the bail judge properly considered the Mr. Big evidence under thesecondary ground. In reaching that conclusion, the Court acknowledged that a bail judge is not concerned with the guilt of the accused,but with how that accused is likely to behave in the future.

Accordingly, the rules of evidence are relaxed and the bail judge mayconsider any evidence he or she considers to be “credible or trustworthy…in the circumstances” (s. 518(1)(e)): Gill at para 24. Based onthe reasoning in Gill, if I conclude that the Mr. Big evidence against Mr. Denovan is credible or trustworthy, it follows that I canconsider that evidence in assessing the secondary ground for detention. [49] Whether the Mr. Big evidence is credible or trustworthy requires me to consider how that evidence was obtained and whetherthere are markers of reliability or corroborating evidence relating to the Mr.

Big confession. Of course, I have little insight into the Mr.Big operation itself and the methods used to induce Mr. Denovan into confessing; however, I note the following: first, the existence ofpressure on the target of a Mr. Big operation is an essential component of the operation, whether that pressure is from the threat of losingopportunity, income, or community, or the prospect of arrest. The videos entered as exhibits demonstrate that Mr. Denovan believed the

undercover officer had inside information into the police investigation into Mr. Obina’s murder and could help him avoid arrest or prosecution. Second, there was no evidence elicited on cross examination of Detective Guterson that the police preyed on any particular vulnerability of Mr. Denovan’s. From the evidence of Dianne Denovan and Scott Denovan, it appears that Mr. Denovan had skills, support and family stability at the time of the Mr. Big operation. [ 50 ] Turning to the question of whether there are markers of reliability respecting the Mr.

Big evidence, I am satisfied that the credibility and trustworthiness of the Mr. Big evidence is demonstrated by the level of detail Mr. Denovan provided of the crime, many of which would not be known and most of which are validated by looking at the CCTV video of the murder. For example: • Mr. Denovan described the fencing along the alley and the direction from which both the Jeep and the Dodge Charger entered the alley. When describing how the murder took place, Mr.

Denovan created a diagram with his hands to show where the Jeep entered the alley, where the Jeep was parked, and where the Dodge Charger driven by Mr. Obina entered the back alley. He described how he approached Mr. Obina’s vehicle. Those descriptions of the murder are consistent with the CCTV video. • Mr. Denovan’s description of stealing the Jeep aligns with the CCTV video from EC’s parking structure. • In his confession and unprompted by the undercover officer, Mr. Denovan recalls the name Olara, mentions the Ranchlands neighborhood, and describes Mr. Obina’s car as a Dodge Charger. • Mr.

Denovan said that Mr. Obina yelled out before he was shot which I understand will be substantiated by a nearby neighbor who heard the yell and the shot. • Mr. Denovan said that he was instructed to shoot Mr. Obina in the face, but aimed lower at his shoulder. This is consistent with the autopsy report of Mr. Obina’s injuries. [ 51 ] These “markers of reliability” as discussed in Hart at para 105 are important in assessing whether the Mr. Big evidence is credible or trustworthy. In addition, the Crown has Mr. Pearson’s DNA on the jerry can placing him at the Jeep, and evidence of Mr.

Pearson’s friendship with EC tying him to the Jeep. The Crown also has cellphone records of contact between Mr. Denovan and Mr. Pearson around the time of the murder. I am satisfied based on this corroborative evidence the Mr. Big evidence is credible and trustworthy and that I can consider it in assessing Mr. Denovan’s risk under the secondary ground. [ 52 ] Turning then to the secondary ground, it is, of course, impossible to predict with certainty what will happen if Mr. Denovan is released pending trial.

As I said at the outset of these reasons, I can only undertake a risk assessment informed by the allegations against Mr. Denovan and Mr. Denovan’s personal circumstances. Before 2019 and the charge Mr. Denovan now faces, a court would likely take the view that Mr. Denovan’s record is not lengthy and, although it contains weapons offences, it is not a record of violence. However, Mr. Denovan is now charged with a very serious and violent crime. [ 53 ] In my view, the risk of Mr. Denovan reoffending resides in a number of factors in this case: first, the allegation is that Mr.

Denovan agreed to kill for hire – it was a commercial transaction that ended the life of someone who was a stranger to him. The only possible motivation for such a crime is to earn quick and significant money, or because of a criminal lifestyle. While the shooting of Mr. Obina was targeted, Mr. Denovan was allegedly facilitating someone else’s business. When the allegations involve a murder that is in the nature of a targeted ‘hit’, provided there is some strength in the evidence against the accused, the risk of the accused reoffending moves beyond the theoretical to the real. These circumstances and Mr.

Denovan’s alleged willingness to kill for hire, in my view, demonstrate that there is a substantial risk to public safety that Mr. Denovan would commit a further crime should Mr. Denovan be released. [ 54 ] Second, while I might think that Mr. Denovan’s alleged motivation to kill for hire could be mitigated if he is able to earn a reasonable living with one of the offers of employment he has received, there is nothing before me to suggest that Mr. Denovan lacked the ability to earn a legitimate living in 2017 when it is alleged that he agreed to kill Mr.

Obina for $14,000, or in 2020 when he agreed to work for a criminal organization. It is also a concern to me that Mr. Denovan appears to have been connected to the dangerous drug subculture in Alberta and that the whereabouts of the men who allegedly hired Mr. Denovan are unknown. I am also concerned by the ease by which illicit activity can be orchestrated by cell phones that are easy to acquire and to conceal. Finally, I am concerned by Mr.

Denovan’s willingness to mislead the police, which is evident in the video recordings and his discussion of prior police encounters. [ 55 ] Third, I am also not satisfied that Mr. Denovan’s proposed release plan can sufficiently mitigate the risk of Mr. Denovan reoffending. There is no dispute that significantly restrictive bail conditions can often address the risk to the public from an accused person’s release. For example, diligent and reliable supervision along with house arrest can often be sufficient to reduce the risk to public safety.

Proposed bail conditions play an important role in any analysis under the secondary ground. [ 56 ] However, the proposed bail conditions proposed for Mr. Denovan do not alleviate my concerns that Mr. Denovan remains a significant risk of reoffending. Both Dianne Denovan and Scott Denovan struck me as hard working, principled and accomplished people. Both have a strong commitment to family. Despite their divorce, they are respectful of each other and are committed to working together for the sake of their son.

They both understand the responsibilities of acting as surety and are committed to doing so as best as they can. I accept that both of Mr. Denovan’s parents are well-intentioned and committed sureties. I also acknowledge that Dianne Denovan has a history of ensuring Mr. Denovan’s compliance with bail conditions.

I also acknowledge that a bail plan of house arrest with conditions amounts to the most restrictive bail conditions short of being detained in custody. [ 57 ] I also accept that the $20,000 offered by each of the proposed sureties is substantial and is a strong measure of their confidence in their son’s commitment to compliance. Both parents put a great deal of reliance on their belief that their son would not put either of them at risk by breaching his bail conditions. [ 58 ] However, there are a significant number of weaknesses in the release plan.

First, Dianne Denovan works long and demanding hours as a registered nurse and acknowledges that her job would not allow her to be at home to supervise Mr. Denovan during the work week. Mrs. Denovan is gone from her home from 8:30 – 5:30 Monday to Friday. She rents a home in Calgary where she has lived for 5 years. The proposed bail plan is that Mr. Denovan would live in the basement suite of her home. That suite shares a back entrance and

laundry but otherwise is a self-contained residence. Dianne Denovan acknowledges that Mr. Denovan would largely be unsupervised during the workday, but offers to install a landline at her home so anyone can confirm that he is at the home. She also offers to install an alarm system that would register an alert if the doors or windows are opened. [ 59 ] Although Scott Denovan intends to support Dianne Denovan in supervising Mr. Denovan, he too works long days and has limited ability to supervise his son.

His evidence left me to understand that if it was necessary, he could drop by Dianne Denovan’s home during the work week, but that his trips would be infrequent and brief. [ 60 ] Given the severity of the offence with which Mr. Denovan is charged and the circumstances of that offence, I am not satisfied that this amounts to adequate supervision for Mr. Denovan should he be released. He will be left unsupervised for extended periods of time in a largely self-contained residence. My concerns are not alleviated by the addition of an alarm system in the house or the use of a GPS tracking device.

Those tools do not ensure compliance, but are triggered on breach. Unlike vigilant supervision, they are not preventative measures. As well, although both Dianne Denovan and Scott Denovan were forthright in acknowledging that as parents they more than once counselled their son against breaking the law, his record indicates he did so despite their advice. Finally, I note that neither Scott or Dianne Denovan have much awareness of the seriousness of the allegations against their son. [ 61 ] The totality of the circumstances in this case leaves me with serious concerns that the risk to the public posed by Mr.

Denovan’s release is substantial and cannot be mitigated by the proposed release plan. I conclude that Mr. Denovan has not met the onus of demonstrating that his detention is not warranted under the second ground in s. 515(10) (

b) of the Criminal Code . On this basis, I am satisfied that Mr. Denovan’s detention is justified for the protection and safety of the public. Tertiary Ground [ 62 ] My analysis of the tertiary ground for detention leads me to the same conclusion. Section 515(10) (

c) provides that detention of an accused person is justified only if necessary to maintain confidence in the administration of justice, having regard to all the circumstances of the case, 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; and iv) the fact that the accused would face a potentially lengthy term of imprisonment if convicted. [ 63 ] As in the case of the secondary ground, whether detention is or is not necessary on the tertiary ground is to be determined only after considering all of the circumstances of the case; however, with respect to the tertiary ground, the court is to pay particular regard to those four factors Parliament has identified: St-Cloud at para 35 .

As well, the use of a firearm plays an important role in the analysis under the third and fourth factors. [ 64 ] There is little doubt that the second, third and fourth factors outlined in section 515(10) (

c) weigh in favour of Mr. Denovan’s detention. Mr. Denovan is charged with murder, one of the most serious offences in the Criminal Code , and he faces a sentence of life imprisonment. The circumstances surrounding the offence are serious. The killing of Mr. Obina was allegedly planned and deliberate and was a killing for hire. As expressed by the court in R v Di Trapini , 2012 ONSC 1178 at para 52 , an allegation of a killing for hire will often satisfy the tertiary ground for detention given its callousness. [ 65 ] The dispute in this case is whether I can conclude that the Crown has a strong case against Mr.

Denovan and what use I can make of the Mr. Big evidence. Mr. Denovan’s counsel argues that because confessions from an accused that are elicited through a Mr. Big operation are presumptively inadmissible, the Crown’s case can only ever be viewed as contingent or conditional. As a result, he argues the Crown’s case is neutralized, meaning a court cannot conclude that the Crown has a strong case. [ 66 ] With respect, I disagree with defence counsel’s position regarding the use of Mr. Big evidence in an assessment of the strength of the Crown’s case. In my view, the framework for considering Mr.

Big evidence in assessing the strength of the Crown’s case under the tertiary ground was well set out by Associate Chief Justice Cullen in R v Handlen , 2015 BCSC 1023 . Although that case was issued prior to the British Columbia Court of Appeal’s decision in Gill , it is instructive on the use of Mr. Big confessions in an analysis under the tertiary ground for detention. At paras 55-58 of Handlen , Associate Chief Justice Cullen says: There is of course no doubt that R. v. Hart has changed the law in respect of statements prompted by Mr.

Big operations, in that the Crown now bears the onus of proving, on a balance of probabilities, that the probative value of the statements exceeds their prejudicial effect.

The court in Hart links the probative value of such statements to their reliability and offers non-exhaustive factors or circumstances to consider in determining the reliability of the statements, including the length of the operation, the number of interactions, the nature of the relationship established, the nature and extent of inducements or threats, the conduct of the interrogation, and the personality of the accused, including his age, sophistication, and mental health.

The trial judge will also have to consider markers of reliability, the level of detail, whether it leads to discovery of other evidence, whether it identifies non-public aspects of the crime, or whether it accurately describes mundane or non-memorable aspects of the crime which, absent actual participation, a person would not likely know or remember. Confirmatory evidence is not a necessity, but “it can provide a powerful guarantee of reliability”. It is, of course, not my function in the context of this hearing to engage in an analysis of the likelihood that the applicant’s Mr.

Big statements will be admitted or not, nor am I in a position to undertake such an analysis any more than I would be to analyze the

voluntariness of a statement made to a person in authority. As I see it, insofar as a consideration of the tertiary ground requires me to assess the strength of the Crown's case, my task involves making a qualitative assessment of the evidence placed before me, while bearing in mind its interplay with evidentiary rules which may condition its admissibility. Emphasis added [ 67 ] Not unlike how a court on a bail application would consider a confession to a person in authority or similar fact evidence, when confronted with Mr.

Big evidence in the analysis, the court must assess the nature and quality of the evidence bearing in mind the rules governing its admissibility at trial. That means that when assessing the strength of the Crown’s case based largely on Mr. Big evidence, a bail justice must take into account the evidentiary rule that governs its admissibility and assess the quality of that evidence although without determining its admissibility at trial: Handlen at para 60 .

In my view, this entails an examination of how the evidence was obtained and the markers of reliability of the evidence given the type of evidence it is, the presence of corroboration, or otherwise. [ 68 ] In my view, this framework falls in line with the discussion of the tertiary ground in St-Cloud at paras 57-58 regarding the court’s assessment of the apparent strength of the Crown’s case: An interim release hearing is a

summary proceeding in which more flexible rules of evidence apply. As a result, some of the evidence admitted at this hearing may later be excluded at trial. As Justice Trotter notes, it may be difficult to assess the strength of the prosecution’s case at such a hearing: “The expeditious and sometimes informal nature of a bail hearing may reflect an unrealistically strong case for the Crown” (p. 3-7). Despite these difficulties inherent in the release process, the justice must determine the apparent strength of the prosecution’s case.

On the one hand, the prosecutor is not required to prove beyond a reasonable doubt that the accused committed the offence, and the justice must be careful not to play the role of trial judge or jury: matters such as the credibility of witnesses and the reliability of scientific evidence must be analyzed at trial, not at the release hearing. However, the justice who presides at that hearing must consider the quality of the evidence tendered by the prosecutor in order to determine the weight to be given to this factor in his or her balancing exercise.

For example, physical evidence may be more reliable than a mere statement made by a witness, and circumstantial evidence may be less reliable than direct evidence. The existence of ample evidence may also reinforce the apparent strength of the case. Emphasis added [ 69 ] Keeping in mind the decision in Handlen and the guidance in St-Cloud , the evidentiary hurdle regarding the admission of the Mr. Big evidence is one of the factors I am to take into account in analyzing the quality of the Crown’s evidence and the apparent strength of the Crown’s case.

Using the language of Handlen , I am to consider the nature and quality of the evidence elicited through the Mr. Big operation bearing in mind that the Crown must rebut the presumption of inadmissibility at trial by demonstrating on a balance of probabilities that the value of the evidence is worth its cost. [ 70 ] There is no dispute that the Crown’s case against Mr. Denovan is materially dependent on the Mr. Big evidence. There are no eye witnesses to the murder and the video evidence does not allow for identification of the shooter. The weapon was never recovered. There is no evidence placing Mr.

Denovan at the murder scene or DNA evidence placing Mr. Denovan in the Jeep. However, as already discussed, there are a number of markers of reliability regarding Mr. Denovan’s confessions. The level of detail Mr. Denovan shared with respect to the murder, including details that would otherwise be unknown to someone not present, and the corroborative evidence from the CCTV recordings, the DNA evidence and the cell phone records, leave me satisfied that the quality of the Mr. Big evidence is strong and that the apparent strength of the Crown’s case is high. Keeping in mind that the Mr.

Big evidence is presumptively inadmissible, I am satisfied that the strength of the Crown’s case weighs in favour of Mr. Denovan’s detention. The result is that I am satisfied that the four listed factors in s. 515(10) (

c) support Mr. Denovan’s detention under the tertiary ground. [ 71 ] The law is clear that even though I have reached that conclusion, I am not to automatically conclude that Mr. Denovan should be detained. Rather, I am to consider all the circumstances of the case and engage in a balancing exercise to decide whether detention is justified: St-Cloud at para 69. Considering the circumstances of this case as a whole, including the cost to Mr.

Denovan of detention until trial and the proposed bail plan with its strengths and weaknesses, I am satisfied that the reasonable member of the public, properly informed about the philosophy of the bail provisions in the Criminal Code , the Charter , and the circumstances of this case would have a heightened concern about the integrity of a bail system that granted release to Mr. Denovan who, it is alleged, was willing to kill for hire. [ 72 ] For all the reasons I have discussed, I am satisfied that detention of Mr.

Denovan is necessary for the protection of the public and is necessary to maintain confidence in the administration of justice. Mr. Denovan’s application for judicial interim release is therefore denied. Heard on the 27 th day of September, 2021. Dated at the City of Calgary, Alberta this 29 th day of October, 2021. N. Dilts J.C.Q.B.A.

Appearances: Doug Taylor Renato Di Lorenzo for the Crown Pawel Milczarek for the Accused