R. v. Legare, 2018 BCPC 254

Citation: R. v. Legare 2018 BCPC 254 Date: 20181011 File No: 175632-K-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MATTHEW DAVID LEGARE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE BROOKS Counsel for the Crown: Paul Pearson Counsel for the Defendant: Michael Munro Place of Hearing: Victoria , B.C. Date of Hearing: October 9, 2018 Date of Judgment: October 11, 2018

[ 1 ] Mr. Legare seeks his judicial interim release on an Information charging him with four offences. Those offences are all from the 12 th and 13 th day of August, 2018 and may be summarized as: first, attempt murder, second, aggravated assault, third, unlawful confinement and, finally, uttering a threat. The complainant in each offence is his domestic partner who I shall refer to by her initials, M.K. [ 2 ] The Crown opposes Mr. Legare’s judicial interim release on both the secondary and tertiary grounds.

Prior to summarizing the Crown’s submissions on those two grounds, I will briefly state the allegations surrounding the offences. I do not intend to include all that was put forward as to the circumstances, but only those allegations which will provide context for the submissions made. THE ALLEGED OFFENCES [ 3 ] The complainant and the accused have known each other for approximately a decade. More recently they have been involved in a relationship and were, at one point, engaged. That engagement had been recently terminated. [ 4 ] On August 12, 2018 a male friend had texted M.K.

Out of jealousy, the accused grabbed M.K. by the hair and dragged her in the vicinity of his home. This behaviour was seen by others and 911 was called. [ 5 ] The accused took M.K.’s car keys and phone from her and told her that she was not leaving. The police soon arrived and spoke to Ms. K. She denied that there was any concern and the police left. [ 6 ] Later that day, the accused again became upset and started to strangle M.K. He then attempted to burn her with a cigarette and then threatened to cut off her hair with a switchblade knife.

He told her that he had already spoken to someone and if she went to the police that person would put her in a wood chipper. [ 7 ] She left the residence only to return when she thought that the accused was not there. In fact he was there. He was hiding behind a door. He attacked her. He threw her on a bed and began punching her. He punched her many times inflicting serious injuries: a ruptured ear drum and a fracture of her orbital bone in two places. I understand that she has consulted a plastic surgeon. He then strangled her until she was almost vomiting.

By the time he stopped, she had lost control of her bowels and bladder. To M.K., he strangled as if he were getting satisfaction from it. [ 8 ] He told her she was not allowed to leave and she did not. The next day was August 13. The accused was keeping a very close watch on M.K. At one point he looked at the injury to her eye and said that he could not let her leave in that state, that everyone would know that he was the one who had done this to her. He stated that he had to kill her. He wrapped a belt around her neck.

She managed to get her hand in between the belt and her neck and begged him to stop as she would not tell anyone. He eventually did stop. He expressed extreme upset with himself and took a large number of sleeping pills in order to kill himself. When he passed out, she escaped. [ 9 ] M.K. was taken to the hospital and was initially reluctant to speak to the police. She eventually did, according to my note, on August 15, 2018. Her description to the police was not, however, complete. She did not include the use of the belt nor the words uttered by the accused that made clear his intention to kill her.

Nor had the loss of control of her bowels been understood to have occurred at a time that was, in fact, very close to her death. These additional details were added in the complainant’s subsequent statement of September 5, 2018. [ 10 ] Based on what M.K. had included in her original statement, the accused was arrested on August 15 th on three of the four charges which he now faces, i.e. all the charges but for the attempted murder charge. [ 11 ] He was released that same day with the consent of the Crown on a recognizance in the amount of $2000 with his mother as his surety.

In addition, 14 conditions were set out. Those conditions included protective conditions, a house arrest condition, weapons conditions and what is known as a Rogers order to monitor his mental health. He remained out of custody for approximately seven weeks until he was arrested on the additional charge of attempt murder. [ 12 ] With that context in mind, I turn to the Crown submissions on the secondary and tertiary grounds. CROWN SUBMISSIONS [ 13 ] The Crown relied on both the secondary and the tertiary grounds as a basis for the detention of Mr. Legare. I will consider each of those grounds in turn.

In referring to individual facts, I have not lost sight of the totality of the circumstances which I must consider. Secondary ground [ 14 ] The Crown relies on a number of factors in submitting that the secondary ground requires the detention of the accused. I will briefly summarize those factors. [ 15 ] First, the accused has a criminal record. On November 16, 2015 he was sentenced to, as I understood it, one day in custody on the basis of 45 days he had already spent in custody for the offence of assault causing bodily harm. He was also sentenced to a s. 110 weapons prohibition.

The Crown therefore points to this history of violent behaviour. More importantly, the Crown emphasizes that he was prohibited from possessing weapons and he breached that order by possessing the switchblade knife referred to above. [ 16 ] Second, the secondary ground refers to interference with the administration of justice. The Crown submits that the accused’s threats to the complainant if she were to go to the police constitute efforts by him to interfere with the administration of justice.

Indeed, the offences were motivated, says the Crown, by the accused’s wish that no one see the complainant and conclude that he had assaulted her. [ 17 ] Third, the accused’s lengthy knowledge of the complainant and her family renders them particularly vulnerable to the actions of the accused.

[18] Finally, the Crown submits that the offences occurred in the home where the accused resides with his mother and other familymembers. As I understood the submission, it was that the accused was willing to commit offences at that place and, therefore, no onewas safe if they came to that address. Tertiary ground [19] Informed by R. v. St. Cloud 2015 SCC 27 , [2015] 2 S.C.R. 328, the Crown submits that the four factors referred to ins. 515(10)(

c) all weigh in favour of detention: the case is a very strong one, the offence of attempt murder carries a maximumpunishment of life, the circumstances surrounding it show an extraordinary callousness and, finally, if convicted the accused faces a verylengthy period of time in the penitentiary. DEFENCE SUBMISSION [20] The defence submits that the accused was released by consent on August 15 on very strict conditions. That is important inseveral respects. [21] First, the consent to release was obtained only after the defence and the Crown had discussed in detail the release plan for theaccused.

That plan is thorough, detailed and deals with the central concern of the Crown, namely, the protection of the safety of thecomplainant. [22] Second, although there has been a more serious charge added, the circumstances as known at the time of the earlier release, were still extremely serious. In particular, all the events of August 12th were part of the Crown’s consideration of appropriate terms ofrelease.

Additionally, the report refers to the criminal record of the accused and, therefore, that was also a consideration that Crown hadavailable. [23] While conceding that the circumstances are serious, the defence does suggest that the mental state of the accused is very muchin issue. The accused had been hearing voices for a period of time before the events in question and has a history of mental healthconcerns. The evidence of those concerns remain to be developed through the evidence of the complainant, the defence says, as she wasactive in assisting him with his mental health issues.

The impact of the totality of the evidence on the mental state of the accused may beto create a reasonable doubt as to the mens rea of the offences. [24] The defence also relies on the nearly two months in which the accused was released from custody in which he abided by theterms of the comprehensive bail order. The Crown conceded that this was so. Specifically, he has employment (which is still availableif he is released) and has engaged in counselling. He resides at his home with his mother, grandparents and his sister on the house arrestterm.

One of those adults is always at home in order to ensure the accused’s compliance. [25] Finally, the defence submits that the family is willing to be a surety for the accused to a much higher dollar value, therebyshowing their belief in his ability to abide by the terms of his release. ANALYSIS [26] No consideration of judicial interim release can begin without recognition of its important guiding principles. [27] At this stage of the proceedings, the accused is presumed to be innocent. Indeed he will remain innocent until, if that timearrives, the evidence tendered proves him guilty beyond a reasonable doubt.

To restate that principle is not a hollow formalism. It is arecognition of the foundation on which our system of justice rests. [28] In addition, the wording of the judicial interim release provisions is to favour the release of those facing criminal chargespending their trial. That wording was decided upon by Parliament and it is their intention in creating those provisions which I mustfollow. As was stated in St.

Cloud at paragraph 70: “Finally it is important not to overlook the fact that, in Canadian law, the release ofaccused persons is the cardinal rule and detention, the exception.” [29] Those introductory observations provide the framework for the analysis of the submissions which have been made. Thatanalysis will focus on individual points made during the course of submissions. Even though I will be referring to those individualpoints, I will do so being aware of the importance of the context and totality of the circumstances which I must bear in mind. [30] I turn to that specific analysis now.

Secondary ground [31] The secondary ground requires that all the circumstances be analyzed “including any substantial likelihood that the accusedwill, if released from custody, commit a criminal offence or interfere with the administration of justice”. [32] As I have said, with regard to the commission of a criminal offence, the Crown points to his prior criminal record from 2015. That conviction was for assault bodily harm. He was sentenced to 45 days in custody. A jail sentence for a first offence suggests thatthe circumstances were serious but that inference is little more than guess work.

I cannot draw any conclusions about the seriousness ofthat offence. I know nothing more. The accused was born November 3, 1991, which makes him just about to turn 27 years old. Itfollows that he has lived virtually all of his life in a law abiding manner. A single conviction suggests a likelihood of compliance withthe law rather than the commission of further criminal offences.

In this regard the language of the Supreme Court of Canada in R. v.Morales (1992) 77 C.C.C. (3d) 92 at page 107 is apt: Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while onbail. Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration ofjustice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified

only when it is “necessary” for public safety. [ 33 ] The Crown also submitted that there is a substantial likelihood that this accused would interfere with the administration of justice. The fact that he threatened the use of a wood chipper is an interference with the administration of justice. Additionally, the stated motive for the offence on August 13 was to stop the complainant reporting the assault or being seen in her injured condition.

That behaviour establishes that the accused has already interfered with the administration of justice says the Crown. [ 34 ] While the circumstances relied on by the Crown are important, it is nevertheless important to bear in mind that the actions of the accused were at a time when his mental state is said to be in question. Perhaps more importantly, the question I am to determine is the substantial likelihood that the accused will, once released, interfere with the administration of justice.

Nothing has been suggested that since August 13 th the accused has taken any actions to interfere with the administration of justice. Given his lengthy history with the complainant and those around her, he would certainly have the knowledge with which to carry out such actions were he so inclined.

In conclusion, based on all the circumstances, I am unable to conclude that there is a substantial likelihood that the accused would do either of the actions set out under the secondary ground. [ 35 ] If I am in error with regard to the substantial likelihood of the accused so behaving, I am nevertheless of the view that detention on the secondary ground is not ‘necessary’. I come to this conclusion as I do not accept the submission of Crown that the accused will not abide by an order of release.

In so concluding, I take into account the Crown submission that the accused, being in possession of a switchblade on August 12 th , was acting contrary to the weapons prohibition he was placed on for the 2015 conviction. However, that act must be taken in the context of all the circumstances. I have already referred to the defence submission that Mr. Legare’s mental state was compromised at the time of the allegations. I have no other allegations of non-compliance from his prior charge. More importantly, Mr. Legare was released on August 15 th on a recognizance with 14 conditions.

It was not alleged in the approximately seven weeks of his release that he breached any of those very restrictive conditions. He has demonstrated a present ability and intention to comply with conditions of release. [ 36 ] With respect to those conditions, the Crown says that they are not estopped from saying that those conditions are inadequate even though they agreed to their adequacy at the time of the consent release on August 15. They are, it is submitted, entitled to argue that Mr. Legare’s detention is necessary.

I agree that the Crown is fully within their rights to argue, as they now do, that the conditions he was released on do not adequately protect the public nor the complainant in this case. [ 37 ] As I understand the Crown submission, they argue that the more serious allegations contained in the September 5 th statement of using a belt, having strangled the complainant to the point of near death and having stated an intention to kill her dramatically alter what conditions may be appropriate for release.

In short, the Crown submits that no conditions can adequately protect the complainant or the public and accordingly his detention is necessary. [ 38 ] To analyze that submission it is helpful to set out in shortened point form the 14 conditions of Mr. Legare’s consent release.

They are: - keep the peace and be of good behaviour; - no contact with M.K.; - no go to any residence, school or workplace of M.K.; - report as directed; - reside at [omitted for publication] with your surety not change residence without written permission of you bail supervisor; - obey all rules of your residence; - house arrest except with written permission of your bail supervisor or while in the course of your employment.

House arrest check condition; - provide bail supervisor of employment or relationship status; - no go north of the Malahat; - no alcohol or drugs; - Rogers order regarding his mental health; - no weapons; - not reside where any other person possesses a weapon; and - no knives. [ 39 ] The effect of this bail order is that Mr. Legare is confined to his home except to go to work or with the specific permission of his bail supervisor. As has already been stated, other family members are typically at home when he is not working. [ 40 ] The Crown says that the conditions of release are inadequate.

Specifically, it is submitted, as I understand it, that the offences occurred in the residence at [omitted for publication]. He was able to commit those offences there and accordingly it is not a safe place for those who may attend there. If that logic were persuasive then it would generally be the case that offences which occurred in the residence of an accused would be ones where bail was less likely because of the prospect of the offence occurring again. I am unable to

accede to that logic generally or specifically as it applies in this case. Mr. Legare lives with a number of family members. One is asurety now and the defence is proposing that another resident family member be added as a surety. These individuals know now theimportance of the monitoring of Mr. Legare’s behaviour. His behaviour is to be monitored by mental health professionals. The situationnow is simply not the same as at the time of the commission of the alleged offences. [41] Taken in their totality, I am satisfied that the conditions, with some modifications, are sufficient to make Mr.

Legare’s detentionnot necessary. [42] I turn now to the tertiary ground. Tertiary ground [43] The Crown relied on and I have had the opportunity to read again the leading case of R. v. St. Cloud. A key holding of that caseis that detention on the tertiary ground is not reserved for exceptional circumstances or unexplainable crimes. The language of thesection is to be applied as it is stated in s. 515(10)(

c) of the Criminal Code. [44] The Crown went through the four sub-paragraphs of the tertiary ground. No strong exception was taken by the defence to theCrown analysis. With respect to the first sub-paragraph, the Crown submitted that the case is a strong one. As the evidence of thecomplainant is corroborated by physical injuries, she will be particularly compelling. The only defence in play is the mental state of theaccused.

With respect to the second sub-paragraph, the gravity of the offence is high as the Criminal Code provides for a maximumsentence of life imprisonment for attempt murder and 14 years imprisonment for aggravated assault. The circumstances surrounding thecommission of the offences are aggravated by the fact of this occurring in a domestic relationship. They are significant because of thedegree of violence and the fact that it occurred over two days. Finally, the liability for a potentially lengthy period of imprisonment isvery real.

In mitigation of that prospect is the role that the mental health of the accused plays into that ultimate analysis. As well, theyouth of the accused, his limited criminal background and the support that he has in the community may reduce the prospect of a lengthyperiod of imprisonment. Nevertheless, that potential remains. At this stage I am unable to assess that potential with any degree ofcertainty. [45] Accordingly, the analysis of the four sub-paragraphs tends to favour detention. But do they require detention? [46] In St.

Cloud, it was urged that a detention order must be made when the four circumstances weigh in favour of that result unlessthere are other ‘circumstances’ that might justify release. The Supreme Court of Canada rejected that submission. In doing so the courtemphasized that the ultimate test is the need to maintain the public confidence in the administration of justice. In explaining what thatpublic confidence ought to look like the court adopted language from R. v.

Lamothe (1990) (QC CA), 58 C.C.C. (3d)530 which said: Therefore, the perception of the public must be situated at another level, that of a public reasonably informed about our system ofcriminal law and capable of judging and perceiving without emotion that the application of the presumption of innocence, even withrespect to interim release, has the effect that people, who may later be found guilty of even serious crimes, will be released for the periodbetween the time of their arrest and the time of their trial. [47] A reasonably informed person would be aware that bail has been granted in very serious cases even those involving the mostserious offence known to our criminal law, first degree murder: R. v.

Nenadic (Unreported) November 16, 1992 (B.C.S.C.); R. v. Chelle(Unreported) January 11, 1996 (B.C.S.C.); R. v. Crocker (Unreported) April 7, 1994 (B.C.S.C.); R. v. Johal et al (Unreported) April 28,1995 (B.C.S.C.). That reasonably informed person would also know that conditions are imposed that would be used to ensure that thepresumption of innocence was respected. On this latter point, I disagree with the submission of Crown that release plans do not matter tothe tertiary ground.

While I accept that the main consideration of a release plan is under the secondary ground and that consideration ofthe release plan must not render the tertiary ground a repetition of the secondary ground, those points do not mean that the significance ofa release plan is spent. The release plan and the existence of bail supervision, logically, must still be part of what a reasonably informedperson would know. On the facts of this case, we have a plan that monitors Mr. Legare as closely as one could reasonably expect aperson to be monitored. He is on house arrest.

He is only away from his home in circumstances known to his bail supervisor. Thesurety resides with him. Such monitoring is certain to enhance the public confidence in the administration of justice. [48] As well, the conditions do not permit the accused to travel north of the Malahat. I have been told that the complainant is out ofthis jurisdiction. Taking those two elements together, I infer that the safety of the complainant has been assured to the full extent that itis possible to do so. [49] Finally, I note that the Supreme Court of Canada in St.

Cloud noted in paragraph 87 that, “This reasonable person’s confidencein the administration of justice may be undermined not only if a court declines to order detention where detention is justified havingregard to the circumstances of the case, but also if it orders detention where detention is not justified.” [50] Accordingly, when all the circumstances are taken into account I have concluded that the tertiary ground does not requiredetention. However, the importance of his monitoring to the sureties and to the community must be part of any release order.

This is tobe achieved by raising significantly the amount of the recognizance on which he is released. CONCLUSION [51] Mr. Legare can be released upon entering into a recognizance in the amount of $50,000 with one or more sureties. I intend toimpose conditions very similar, albeit stricter, than those of his prior release. I will not impose those conditions until I have heard furthersubmissions from counsel. BY THE COURT

________________________________ The Honourable Judge A. Brooks