Her Majesty the Queen - v. -, 2012 SKPC 189

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 189 Date: December 19, 2012 Informations: 38998646; 38998645; 38998359; 38978559; 36861324; 36861270; 36861233; 30902269; 30902268; 46283243; 38977669; 45144959; 46621993; 31573383; 33831736; 33831441; 31223374; 43509963; 43508475; 39982825 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Carrie Daniels Appearing: H. Sherdahl For the Attorney General of Canada J. Syrnick For the Attorney General of Saskatchewan V. Harvey For the Accused JUDGMENT H. M.

HARRADENCE, J I. INTRODUCTION [ 1 ] The application for bail is a critical stage of any criminal prosecution. For an accused it can have “serious practical effects” on the ability to raise a defence. [1] At the heart of any bail application is the presumption of innocence and the constitutional right to reasonable bail, as guaranteed by s. 11(

e) of the Charter . As stated by Chief Justice Lamer in Morales , “ In general, our society does not countenance preventive detention of individuals simply because they have a proclivity to commit crime .” [2] Pre-trial detention ought to

be the exception, not the rule. [ 2 ] Notwithstanding this philosophy, it seems that the bail system in Canada has failed aboriginal people. On any given day in a Saskatchewan courtroom, the number of aboriginal persons remanded to custody is grossly disproportionate to their population. [3] Justice Cory and Justice Iacobucci recognize in R. v. Gladue a bias in the bail process when they state: [4] The unbalanced ratio of imprisonment for aboriginal offenders flows from a number of sources, including poverty, substance abuse, lack of education, and the lack of employment opportunities for aboriginal people.

It arises also from bias against aboriginal people and from an unfortunate institutional approach that is more inclined to refuse bail and to impose more and longer prison terms for aboriginal offenders. [ 3 ] Counsel for the accused argues that the Gladue findings and principles should apply with equal force to a bail hearing as to a sentencing.

Counsel for the Crown accepts the pervasive effect which the Gladue principles have had on the entire Canadian criminal justice system, including the imposition of bail conditions, but says that the decision to grant bail must be based on the grounds enumerated in s. 515(10) of the Criminal Code . Crown counsel further indicates that public protection and the attendance of the accused at trial must be paramount. II. SECTION 515(10) OF THE CRIMINAL CODE [ 4 ] Counsel agree that s. 515(10) (c), commonly referred to as the “tertiary ground” is not engaged by these circumstances. I agree.

These reasons will focus on s. 515(10) (a), the “primary ground” and s. 515(10) (b), the “secondary ground”. Counsel have also agreed that given the nature of the offences, that the accused bears the onus of establishing that her detention in custody is not justified, a “reverse onus situation”, as defined in s. 515(6) (

c) of the Criminal Code . A list of the charges and the contents of Ms. Daniels’ criminal record are attached as Appendices to these reasons. [ 5 ] The primary and secondary grounds are stated in s. 515(10)(

a) and (

b) as follows:

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice. [ 6 ] These grounds have always been interpreted as a very narrow basis to deny bail.

John Scollin, Q.C., a drafter of the Bail Reform Act in 1971, in his text, indicates in relation to the initial legislation which incorporated these two grounds, the following: [5] It recognizes that the primary justification for denial of pre-trial release is that the accused will not attend his trial; pre-trial release is not to be denied as a form of anticipatory punishment of a person who has not yet been tried. However, the amendments recognize that pre- trial release may properly be refused on the basis of other considerations than simply that of attendance at trial.

From time to time cases arise where it is clear that it would be contrary to the public interest to permit an alleged offender to be at large pending his trial. Where, for example, an accused has threatened to complete an attempted crime, detention is obviously justified. It would be impractical to attempt to list and thereby delimit the various fact situations which the courts might have to consider, but paragraph (

b) affords the courts guidance against too broad an

interpretation of the provision by using terms such as “ substantial likelihood ” and “a criminal offence involving serious harm”. [ 7 ] The narrow basis to deny bail was reinforced by the constitutionalization of the right to reasonable bail in s. 11(

e) of the Charter . The Charter right was considered by the Supreme Court in the oft cited R. v. Morales , and R. v. Pearson . [6] In Morales , Chief Justice Lamer interprets s. 11(

e) of the Charter to mean: [7]

…First, the denial of bail must occur only in a narrow set of circumstances. Second, the denial of bail must be necessary to promote the proper functioning of the bail system and must not be undertaken for any purpose extraneous to the bail system. [ 8 ] The primary ground is straightforward and has not generated a great deal of debate. The issue in relation to the primary ground is whether the detention of the accused is necessary to ensure his/her attendance at Court. This ground is frequently, although not exclusively, equated with a risk to abscond. Justice Sherstobitoff described the test in R. v.

Smith as follows: [8] If the just cause exists, the accused must be detained notwithstanding the presumption of innocence and the right to silence. The presumption of innocence does not prevent the pre-trial detention of an accused. The issue, then, is whether, on the evidence before the judge, his assessment of the risk that the accused will abscond is so high that it is just cause for detention so as to ensure his attendance in court. [ 9 ] As indicated by Justice Trotter in his text, The Law of Bail in Canada , there are a number of factors to be examined as part of the primary ground:

(1) Strength of the Crown case;

(2) Ties to the community;

(3) Accused record for compliance with previous Court orders. [9] [ 10 ] The secondary ground, despite its clarity of language, appears in some circumstances, to be applied more broadly than is justified. The narrow basis on which to deny bail based on the secondary ground was recognized by Justice Vancise in R. v. Tabor : [10] The principal issue is whether the appellant’s detention is necessary for the protection or safety of the public. The Supreme Court of Canada held in R. v. Morales , that the detention of an accused under s. 510(10)(

b) was justified only for those who pose a “substantial likelihood” of committing an offence or of interfering with the administration of justice and only where this “substantial likelihood” endangers “the protection or safety of the public.” The Court went on to state that if the accused will not give his cooperation to refrain from tampering with the administration of justice the objectives of the bail system will be furthered by denying bail. [ 11 ] Both the primary ground and the secondary ground are premised on the presumption of innocence.

The importance of the presumption being applied at the bail hearing was recognized by Justice Jackson when considering the strength of the Crown’s case in R. v. Blind : [11] There are also many cases where the strength of the Crown’s case appears, at the pre-trial stage, to be overwhelming only to have it unravel as the trial progresses. It is also dangerous to place too much emphasis on the possibility of a lengthy prison term as all serious crimes carry the possibility of such.

Giving undue weight to this factor becomes a means to start punishment before conviction. [ 12 ] The Court must be vigilant to ensure the presumption of innocence and the right to reasonable bail are respected and enforced at a bail hearing. Bail should only be denied where just cause is demonstrated in reference to the primary and/or the secondary ground, and not where it is convenient, advantageous, [12] or to give effect to the Court’s frustration with the apparent lack of compliance shown to previous Court ordered conditions. III.

THE GLADUE EFFECT [ 13 ] Gladue is premised on a statutory amendment directed at the sentencing of aboriginal offenders: [13] The enactment of the new

Part XXIII was a watershed, marking the first codification and significant reform of sentencing principles in the history of Canadian criminal law. Each of the provisions of

Part XXIII, including s. 718.2( e ), must be interpreted in its total context, taking into account its surrounding provisions. [ 14 ] Justices Cory and Iacobucci in Gladue share the legislator’s view that such a provision was necessary, given the shocking numbers of aboriginal people who are incarcerated: [14]

Thus, it may be seen that although imprisonment is intended to serve the traditional sentencing goals of separation, deterrence,denunciation, and rehabilitation, there is widespread consensus that imprisonment has not been successful in achieving some of thesegoals. Overincarceration is a long-standing problem that has been many times publicly acknowledged but never addressed in a systematicmanner by Parliament. In recent years, compared to other countries, sentences of imprisonment in Canada have increased at an alarmingrate. The 1996 sentencing reforms embodied in

Part XXIII, and s. 718.2(

e) in particular, must be understood as a reaction to the overuseof prison as a sanction, and must accordingly be given appropriate force as remedial provisions. If overreliance upon incarceration is a problem with the general population, it is of much greater concern in the sentencing of aboriginalCanadians. In the mid-1980s, aboriginal people were about 2 percent of the population of Canada, yet they made up 10 percent of thepenitentiary population.

In Manitoba and Saskatchewan, aboriginal people constituted something between 6 and 7 percent of thepopulation, yet in Manitoba they represented 46 percent of the provincial admissions and in Saskatchewan 60 percent: see M. Jackson,“Locking Up Natives in Canada” (1988-89), 23 U.B.C. L. Rev. 215 (article originally prepared as a report of the Canadian BarAssociation Committee on Imprisonment and Release in June 1988), at pp. 215-16. The situation has not improved in recent years.

By1997, aboriginal peoples constituted closer to 3 percent of the population of Canada and amounted to 12 percent of all federal inmates:Solicitor General of Canada, Consolidated Report, Towards a Just, Peaceful and Safe Society: The Corrections and Conditional ReleaseAct -- Five Years Later (1998), at pp. 142-55. The situation continues to be particularly worrisome in Manitoba, where in 1995-96 theymade up 55 percent of admissions to provincial correctional facilities, and in Saskatchewan, where they made up 72 percent ofadmissions.

A similar, albeit less drastic situation prevails in Alberta and British Columbia: Canadian Centre for Justice Statistics, AdultCorrectional Services in Canada, 1995-96 (1997), at p. 30. [15] Justice Lebel in Ipeelee, confirmed that a sentencing Court is required to take judicial notice of systemic issues facingaboriginal offenders in order to ensure that the Court has the necessary context required to sentence an aboriginal offender appropriately:[15] Courts have, at times, been hesitant to take judicial notice of the systemic and background factors affecting Aboriginal people inCanadian society (see, e.g., R. v.

Laliberte, 2000 SKCA 27, 189 Sask. R. 190). To be clear, courts must take judicial notice of suchmatters as the history of colonialism, displacement, and residential schools and how that history continues to translate into lowereducational attainment, lower incomes, higher unemployment, higher rates of substance abuse and suicide, and of course higher levels ofincarceration for Aboriginal peoples.

These matters, on their own, do not necessarily justify a different sentence for Aboriginal offenders.Rather, they provide the necessary context for understanding and evaluating the case-specific information presented by counsel. Counselhave a duty to bring that individualized information before the court in every case, unless the offender expressly waives his right to haveit considered. In current practice, it appears that case-specific information is often brought before the court by way of a Gladue report,which is a form of pre-sentence report tailored to the specific circumstances of Aboriginal offenders.

Bringing such information to theattention of the judge in a comprehensive and timely manner is helpful to all parties at a sentencing hearing for an Aboriginal offender,as it is indispensable to a judge in fulfilling his duties under s. 718.2(

e) of the Criminal Code. [emphasis added] [16] Gladue and Ipeelee were intended to have an infiltrative effect on all aspects of criminal justice in Canada. In Leonard,Justice Sharpe, writing for the Ontario Court of Appeal, applied the Gladue principles to an application for extradition, and stated in part:[16] The Gladue approach has been reinforced by R. v. Ipeelee, 2012 SCC 13 , 2012 SCC 13, 280 C.C.C. (3d) 265, a decisionhanded down after the Minister gave his reasons in this case.

Ipeelee reiterates that the Gladue approach does not amount to reversediscrimination but is, rather “an acknowledgement that to achieve real equity, sometimes different people must be treated differently”:Ipeelee, at para. 71. Gladue recognizes that Canadian courts “have failed to take into account the unique circumstances of Aboriginaloffenders that bear on the sentencing process” and “is intended to remedy this failure by directing judges to craft sentences in a mannerthat is meaningful to Aboriginal peoples”: Ipeelee, at para. 75.

The Gladue principles have been extended by decisions of this court beyond the context of sentencing to address the need to ensureappropriate treatment for Aboriginal people as they interact with the justice system. Frontenac Ventures Corp. v. Ardoch Algonquin FirstNation, 2008 ONCA 534 , 2008 ONCA 534, 91 O.R. (3d) 1, leave to appeal to S.C.C. refused, [2008] S.C.C.A.

No. 357,applying Gladue in the context of civil contempt of court, holds, at para 57: “Although Gladue was focussed primarily on the seriousproblem of excessive imprisonment of aboriginal peoples, the case in a broader sense draws attention to the state of the justice system’sengagement with Canada’s First Nations.” [17] In the 2005 decision of R. v. Sim, Justice Sharpe stated that the Gladue principles, “should compliment” the analysis required by a Review Board when considering the application of

Part XX.1 of the Criminal Code:[17] When assessing the dangerousness or mental condition of the accused, it would no doubt be helpful for the ORB to have as full a recordas possible. A full record would contain information pertaining to the accused person’s background, including aboriginality. However,

so far as I am aware, aboriginal status would ordinarily have little direct bearing upon the dangerousness or the mental condition of theaccused. An individual will not be more or less dangerous, nor will an individual be more or less mentally ill, because of his or heraboriginal status. On the other hand, proper consideration of appropriate placement of the accused, reintegration into society and the other needs of theaccused will call, where the circumstances warrant, for the ORB to advert to the unique circumstances and background of aboriginalNCR accused.

Accordingly, the Gladue principles should be applied to compliment the analysis that s. 672.54 requires. [18] As argued by counsel for the accused, Ontario Courts have accepted that Gladue principles apply to bail applications:[18] It is common ground that principles enunciated in the decision of the Supreme Court of Canada in R. v. Gladue, (SCC),[1999] 1 S.C.R. 688, have application to the question of bail. However, the application judge cannot apply such principles in a vacuum. Application of the Gladue principles would involve consideration of the unique systemic or background factors which may have playeda

part in bringing the particular aboriginal offender before the courts.

The exercise would involve consideration of the types of releaseplans, enforcement or control procedures and sanctions that would, because of his or her particular aboriginal heritage or connections, beappropriate in the circumstances of the offender and would satisfy the primary, secondary and tertiary grounds for release. [19] I am satisfied that, in considering any bail application involving an aboriginal person, the Court is required to take judicialnotice of the unique systemic factors which have affected aboriginal people in Canadian society in order to place in the proper contextthe individual accused applying for bail.

Part of this context is the fact that aboriginal people are disproportionately denied bail. [20] Even so, this application must be governed by the provisions of s. 515(10). Those provisions are consistent with theapplication of Gladue principles. The objective of both is restraint in the use of incarceration either in the bail or sentencing context. [21] However, Gladue principles must be applied within the provisions of s. 515(10) of the Criminal Code. It is for Parliament toamend this

section of the Criminal Code, not the Court, and therefore I disagree with Justice Lee of the Alberta Court of Queen’s Benchin R. v. P.(D.D.), where he states that aboriginal circumstances can justify release, “…irrespective of the existence of the primary, secondary or tertiary ground.”[19] IV. THE FACTS [22] Ultimately, the determination of bail is an individualized process. This accused is an aboriginal person and I will considerboth her aboriginal history and systemic aboriginal factors as part of my analysis. [23] Ms.

Harvey summarized the accused’s background during the bail hearing as follows:[20] She is 31. She is a member of the One Arrow First Nation. She tells me that she has only spent a couple of weeks at One Arrow -- I'msorry, a couple of months. The rest of the time has been living in the city. So she has experienced a disconnect from -- from her homereserve. She says that throughout her entire life, she was exposed to -- to alcohol, to drugs, to violence in the home, and she, herself, wasa victim of violence. She was in a six year relationship that she describes as very bad.

And then, it got to the point where she couldn'ttake the physical abuse anymore, and she did leave her partner. Both of her parents were -- did experience their own problems withsubstance abuse. Carrie, herself, was placed in foster care for about three years, from the ages 14 to 16. She -- she blames herself for that,because she wasn't going to school, she was running away. But of course, one has to look back into why it was that she was not going toschool and running away. But, nevertheless, she did spend that time in foster care. Her education has suffered as a result. She has very minimal employment history.

The last period of employment was in 2010. Sheworked as a waitress at Boston Pizza in North Battleford, and she's had a couple of other waitressing jobs since then. But her -- heremployability is -- is not nearly at the level where, you know, one might expect it to be. As far as treatment goes, she has a long standing drug problem. She was in Regina detox in 2008. That was her only attempt at treatment,so far, in her life. But she is accepting that she needs treatment now, and she is prepared to address her addictions, and will do whatever ittakes to stay clean and sober.

[ 24 ] The initial bail report, dated November 15, 2012, prepared by Calvin Loth, an experienced probation officer, states in

summary the following: [21] The subject is a 31 year old self-admitted IV drug user. She has been ignoring the criminal justice system for years now, ignoring Court and reporting responsibilities. If released, the writer believes she would fast return to this behaviour. [ 25 ] In response to this

summary Ms. Harvey stated at the bail hearing that the accused had hit rock bottom, experienced withdrawals while remanded and is now motivated to change her behaviour: [22] Okay. She's also, as a motivating factor, she says that she does not want to inflict anymore of this sort of lifestyle on her son. She hasn't wanted her son to visit her while she's in Pine Grove. She hasn't even seen or talked to him since she was arrested, because she didn't want to interfere with his adjustment. So the motivation for her to maintain herself in the community, just for her son, is very strong.

Obviously, she's demonstrated in the past, that that hasn't been much of a motivating factor. But since she has gone through withdrawals from the drug addiction, she's thinking more clearly now. She is putting her son and her own welfare at the forefront. [ 26 ] In a subsequent bail report, received by the Court on November 27, 2012, ordered for the purpose of considering electronic monitoring, Theresa Carriere, also an experienced and respected probation officer, states in part: [23] Carrie has been an active drug user for the past 13 years.

She has had periods of non-use wherein her abstinence occurred while she resided at her sister Laura’s. Carried informed the writer that her son Landon (4) was recently apprehended by the Ministry of Family Services and placed into foster care. She informed that this coupled with her incarceration was a “real eye opener” for her. Carrie stated while incarcerated she went through withdrawals. She admitted during the first few days of her incarceration she continued to use drugs within the institution. As result of drug use and behaviour issues she was placed in the Maximum Security Unit.

Carrie states she has now been drug free for 10 days. She says she is relieved that she has now gone past the physical withdrawals and explained that it was her avoidance of going through the physical withdrawals that kept her enslaved to her drug addiction. Carrie is involved in case planning with her Family Services Worker for the return of her son into her custody. Her case plan includes a willingness to attend treatment for her addiction and regular drug testing.

The writer spoke with her Family Worker and she is willing to have Carrie complete random drug tests and supply the results to the writer upon a consent to release information form signed from Carrie. Carrie informed the writer she is willing to sign a consent form for the drug testing results to be released to the writer. Carrie informed the writer my son “Landon is my world” and she is willing to change for him. Although the writer believes that Carrie wants to change her life around it is concerning that up to this point in her son Landon’s life she has done very little to address her drug addiction.

The writer spoke with Carrie’s sister Laura Daniels. Laura stated her home is drug free and although she was an addict 16 years ago she has since been drug free. Laura stated she does not tolerate drugs and if she suspected Carrie of using drugs she would be the first to call the police. Laura informed she is the Community School Coordinator for Mistawasis and has excellent contact with resources who would be willing to work with Carrie. Laura reported Carrie does not come around her home if she is using drugs.

It is for this reason that Laura believes Carrie does want to change. [emphasis added] [ 27 ] The volume of charges accumulated by this accused and currently outstanding is significant. These charges are listed in full, from 2009 to 2012, in Appendix “A” to these reasons. [ 28 ] These outstanding charges include a pattern of allegations of failure to appear; breaches by failure to comply; and obstruction by providing a false name.

They also include outstanding charges including allegations of possession of cocaine and marijuana from August 31, 2011; and further allegations of possession for the purposes of trafficking in cocaine and possession of morphine, on May 30, 2012.

[ 29 ] The facts underlying the allegation of possession of marijuana and cocaine from August 31, 2011, were summarized by Ms. Sherdahl at the bail hearing as follows: [24] Three needles were located on her, containing a white powder that appeared to be cocaine. It was NIC tested and showed positive for cocaine. Also located on her, was a small plastic bag containing a green plant-like substance that was believed to be marijuana. She was arrested for those charges. The marijuana was weighed at 3.8 grams, which would have a street value of approximately $20 to $40.

The - - sorry, the three needles were loaded to the 10cc line. Would have a total value of $60, or $20 each. [ 30 ] In relation to these allegations the accused was released on September 1, 2011, before Judge Carter, by consent of counsel, on a $500.00 cash recognizance. [ 31 ] The allegation of possession for the purposes of trafficking in cocaine and possession of morphine from May 31, 2012, is summarize by Ms. Sherdahl at the bail hearing as follows: [25] On May 30th, 2012, officers were called to a single motor vehicle accident.

I will let the Provincial Crown deal with the issues surrounding the identity of the accused. Suffice it to say, the accused was ultimately identified by the passenger of the vehicle. The passenger was Tasha Longjohn. She ultimately identified the driver as her aunt, the accused, Carrie Daniel. She was noted to be – the information provided, with regard to her at that time, matched the description on the system. In a black striped purse, was located, a very large collection of new and used needles, indicating intravenous drug use. The accused was brought to the hospital. It was a motor vehicle accident.

She was brought to the hospital, as a result of her injuries. Three cocaine packages were located under her shirt by her right breast. A cell phone was also seized, as was a large amount of cash. The cash was counted and there was determined to be $1,685 on her. [ 32 ] The accused was released by me on the allegations before the Court, including both drug related matters, from August 31, 2011, and May 30, 2012, on June 1, 2012, after a contested bail hearing. At that time she was released on a recognizance which required the deposit of $2,000.00.

Significantly the recognizance required the accused to refrain from entering the City of Prince Albert, and to reside with her mother unless otherwise ordered by the Court. Specifically this accused was released at that time to the custody of her mother who would provide supervision and support. It was my view at that time that the accused should not be permitted to change her residence unless the Court was satisfied that such a change was appropriate.

However, the accused’s recognizance was amended, with the consent of the Crown, on August 14, 2012, before me to allow the accused to live in Prince Albert away from the supervision of her mother. On September 26, 2012, the accused is alleged to have failed to appear in Court and was charged pursuant to s. 145(2) (

b) of the Criminal Code . She was charged again on November 2, 2012, with trafficking in cocaine and possession of Canadian currency obtained by the commission of a criminal offence. During the show cause hearing Ms. Sherdahl outlined the facts surrounding this allegation as follows: [26] The facts in that regard are, that on November 2nd, 2012, the integrated street enforcement team received confidential information of proven reliability, that the accused was trafficking cocaine packaged in hypodermic syringes from a brown Chrysler 300.

She was said to be using a certain cell phone number to assist her drug trafficking activity. The Chrysler 300 was located at the residence of Carrie Daniels. It was stopped when it left that residence. There were four occupants in the vehicle. The front seat female passenger gave the name of Crystal Napope (ph). It was learned that that individual was actually Carrie Daniels. She was found to be in possession of three hypodermic syringes that contained suspected cocaine. She also had a cell phone on her. She was arrested and taken to cells. She was searched and the sum of $1,465 in cash was located on her.

Following her arrest, the vehicle was towed and it was searched, as well. Police located 70 unused hypodermic syringes, still in their wrapping. Police also reviewed the text messages on the phone, which contained evidence of cocaine trafficking, and the cell phone matched the cell phone number that had been provided by the informant. The three hypodermic syringes located on her would have a street value of $60.00. [ 33 ] She has been in custody awaiting her show cause hearing since November 2, 2012. [ 34 ] The accused has an acknowledged lengthy record which is reproduced in Appendix “B” to these reasons.

Her involvement in

the criminal justice system started in 1994 as a youth and has continued relatively consistently to 2009. Significantly, her record does not include any convictions for violence or drug trafficking, but is replete with convictions for charges related to failure to appear, prostitution and breaches. V. ANALYSIS [ 35 ] I must consider all the circumstances in determining whether the accused has satisfied me that her detention is not justified. I have considered her criminal record and the charges pending against her.

The accused has a 13 year drug addiction which has led to difficulty with the law, resulting in criminal convictions, including prostitution. Now, the allegation is that she has repeatedly resorted to the use or sale of illicit drugs on a small to moderate level. This factual background is unfortunately consistent with the plight of many aboriginal offenders who come before the Court struggling with issues of addiction, poverty, social and economic disadvantage and racism, as identified in Gladue . [ 36 ] The accused now says that she has hit rock bottom and wishes to turn her life around.

As the Crown points out in argument, this is not the first time this accused has said this. However, she is once again providing structure and supervision as an integral part of her release plan. I realize, given the history of this matter, that this structure and supervision is more significant to this accused than any amount of cash bail. She proposes to live with her sister, Laura Daniels, on the Mistawasis First Nation. The bail officer, Ms.

Carriere, has verified this bail plan. [ 37 ] She has spent her entire life in Saskatchewan and has established a residence in close proximity to the Court which can be monitored. She has strong family ties who will assist her and monitor her behaviour. The significance of these ties is noted by Justice Trotter in The Law of Bail : [27] Factors such as the presence of family, friends and property, as well as the accused’s employment, standing and other “roots” in the community, may also be relevant to the likelihood of the accused absconding.

The rationale is that a person with these connections to a community is more likely to attend his/her trial than a person with fewer ties who is more mobile.

That is, in addition to the other costs involved in successfully absconding, which might be considerable, an accused person would have to walk away from a number of significant family/social attachments to permanently avoid trial. … Moreover, the willingness of someone prepared to undertake the task of supervising the accused and ensuring his/her attendance in Court by entering into a recognizance may be of great significance. [ 38 ] This accused acknowledges her dismal record for breaching Court orders and failing to attend Court. She also currently faces a number of similar offences.

This specific concern, more than any other, requires a careful and thorough analysis to determine if she has established that her detention in custody is not justified. She is a First Nations individual, who has struggled her entire life with social and economic disadvantage. She has a long standing drug addiction. Overwhelmingly, her past demonstrates an individual and societal failure to respond to uncontrolled drug use and the criminalization of her addiction.

The strength of an addiction and the repeated and determined efforts necessary for an individual, such as this accused, to control it, should not be underestimated. [ 39 ] As discussed, Gladue and Ipeelee emphasize the requirement for a Court sentencing an aboriginal person to take judicial notice of factors such as lower educational attainment, lower income, unemployment, higher rates of substance abuse and suicide, together with higher levels of incarceration of aboriginal people.

This necessary context is equally applicable to an application for bail. [ 40 ] Specifically, in relation to Carrie Daniels, she has suffered family dysfunction; violence in the home; foster home placement as an adolescent; lower educational achievement; lower income; sparse employment; documented substance abuse; and frequent periods of incarceration. During the past six weeks of remand she has overcome physical withdrawals and has made a new commitment to a drug free lifestyle in the hopes of establishing a relationship with her young son.

She has the stability of a residence with her sister, Laura Daniels, who has been drug free for 16 years, and does not tolerate drug use. Laura Daniels is employed as a community school coordinator and has access to the community resources which will be required on an on-going basis by this accused.

[ 41 ] Justice Trotter in his text indicates that the focus of the primary ground is to ensure the accused does not abscond and permanently avoid trial. [28] This accused is originally from the One Arrow First Nation. She proposes to live on the Mistawasis First Nation. Both the One Arrow First Nation and the Mistawasis First Nation are approximately one hour from Prince Albert. It is a fact that given the Gladue factors highlighted in the context of this accused’s history, she does not have the resources or the ability to permanently abscond from this jurisdiction.

While her behaviour may have been frustrating and inconvenient, although not entirely unexpected given her background, to rely on the draconian use of pre-trial detention to ensure she attends Court defeats the purpose of the primary ground. [ 42 ] The Crown argues that protection of the public must be paramount in any bail application. Further, it is argued that the use and sale of hard drugs endangers the community and given the accused’s past and current charges she has failed to establish that her detention is not justified on the secondary ground.

It is apparent that this accused has breached numerous Court orders and has accumulated a consistent pattern of mainly system generated charges. If this alone were a basis for pre-trial detention she would certainly qualify. It is not, nor should it be. This accused does not have a violent record. Importantly the bail plan includes a stable, drug-free environment after a six week period of withdrawal. Substance abuse, and the other Gladue factors discussed above, are the issue in this case, not violence.

In these circumstances this accused has satisfied me that with the suggested stability and structure of her release plan there is not a substantial likelihood of her committing an offence which would endanger the public, nor is there a substantial likelihood of her interfering with the administration of justice. While there exists a possibility of her being charged with further offences, based on her past record and current circumstances there is no evidence that she is a significant danger to the public. VI.

CONCLUSION [ 43 ] The accused, Carrie Daniels, has satisfied me that her detention in custody is not justified on the primary or secondary ground. She will be released on a cash recognizance in the amount of $500.00, pursuant to s. 515(6) (

c) and s. 515(2) (

b) of the Criminal Code . The recognizance will include: close supervision of a bail officer; a residence with her sister Laura Daniels; a strict curfew; as well as conditions of abstinence from alcohol and illegal drugs. The particulars of these release conditions will be discussed with counsel to ensure that their views are thoroughly canvassed and appreciated, specifically in relation to the release conditions. [ 44 ] Dated at the City of Prince Albert, in the Province of Saskatchewan this 19 th day of December, A.D. 2012. ________________________ H. M. Harradence, J APPENDIX “ A ” Information 38998645

(1) On or about the 2 nd day of November, A.D. 2012, at or near Prince Albert, Saskatchewan did wilfully obstruct peace officers engaged in the lawful execution of their duty by providing a false name, contrary to

section 129 (

a) of the Criminal Code . Information 38998646

(1) On or about the 2 nd day of November, A.D. 2012, at or near Prince Albert, Saskatchewan did unlawfully have in her possession a controlled substance to wit: cocaine (schedule

I) for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act .

(2) Have in her possession proceeds of crime, Canadian currency of a value not exceeding five thousand dollars knowing that all or part of the property was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to

section 354 and 355 of the Criminal Code .

(3) Being at large on her undertaking given to a justice or a judge and being bound to comply with a condition thereof, to wit: not have in her possession a cellular telephone or pager, fail without lawful excuse to comply with that condition, contrary to section

145(3) of the Criminal Code .

(4) Being at large on her undertaking given to a justice or a judge and being bound to comply with a condition thereof, to wit, refrain absolutely from the use, possession or consumption of alcohol/beverage alcohol as defined by The Alcohol and Gaming Regulations Act , 1997, and any drugs except as prescribed for her by a medical doctor and, where so prescribed, take only as prescribed, fail without lawful excuse to comply with that condition contrary to section 145(3) of the Criminal Code .

(5) Being at large on her undertaking given to a justice or a judge and being bound to comply with a condition thereof, to wit: keep the peace and be of good behaviour, fail without lawful excuse to comply with that condition, contrary to section 145(3) of the Criminal Code . Information 38998359

(1) On or about the 27 th day of October, A.D. 2012, at or near Prince Albert, Saskatchewan did fail, without lawful excuse, to attend Court as required by the Court, contrary to section 145(2) (

b) of the Criminal Code . Information 38978559

(1) On or about the 26 th day of September, A.D. 2012, at or near Prince Albert, Saskatchewan did having appeared before Prince Albert Provincial Court did fail, without lawful excuse, to attend Court as required by the Court contrary to section 145(2) (

b) of the Criminal Code . Information 36861324

(1) On or about the 4 th day of July, A.D. 2012, at or near Prince Albert, Saskatchewan did being a person to whom a summons is directed did fail to appear in Court in answer to the said summons contrary to section 24(1) of The

Summary Offences Procedure Act, 1990 . Information 36861270

(1) On or about the 26 th day of June, A.D. 2012, at or near Prince Albert, Saskatchewan did having appeared before Prince Albert Provincial Court did fail, without lawful excuse, to attend Court as required by the Court contrary to section 145(2) (

b) of the Criminal Code . Information 36861233

(2) On or about the 20 th day of June, A.D. 2012, at or near Prince Albert, Saskatchewan did being a person to whom a summons is directed did fail to appear in Court in answer to the said summons contrary to section 24(1) of The

Summary Offences Procedure Act, 1990 . Information 30902268

(1) On or about the 30 th day of May, A.D. 2012 at or near Prince Albert, Saskatchewan did have in her possession a controlled substance for the purpose of trafficking, to wit: cocaine, in an amount not exceeding three kilograms, contrary to

section (5(2)) of the Controlled Drugs and Substances Act .

(2) Unlawfully possess a controlled substance, to wit: morphine, in an amount not exceeding thirty grams, contrary to section 4(5) of the Controlled Drugs and Substances Act .

(3) Have in her possession proceeds of property, to wit: $1685, of a value not exceeding five thousand dollars knowing that all or part of the proceeds of the property was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment, contrary to sections 354 and 355 of the Criminal Code .

(4) Being at large on her recognizance, entered into before a justice or a judge and being bound to comply with a condition thereof, to wit, refrain absolutely from the use, possession or consumption of alcohol/beverage alcohol as defined by The Alcohol and Gaming Regulations Act , 1997, and any drugs except as prescribed for her by a medical doctor and, where so prescribed, take only as prescribed, fail without lawful excuse to comply with that condition contrary to section 145(3) of the Criminal Code .

(5) Being at large on her undertaking given to a justice or a judge and being bound to comply with a condition thereof, to wit, keep the peace and be of good behaviour, fail without lawful excuse to comply with that condition contrary to section 145(3) of the Criminal Code . Information 30902269

(1) On or about the 30 th day of May, A.D. 2012, at or near Prince Albert, Saskatchewan, did wilfully obstruct Cst. Valmont, a peace officer engaged in the lawful execution of his duty by providing false names, contrary to

section 129 (

a) of the Criminal Code . Information 46283243

(1) On or about the 12 th day of October, A.D. 2011, at or near Saskatoon, Saskatchewan did having been named in a recognizance entered into before an officer in charge that was confirmed by a justice fail without lawful excuse to attend Court, to wit Saskatchewan Provincial Court, 220-19 th Street East, in accordance therewith, contrary to section 145(5) of the Criminal Code . Information 38977669

(1) On or about the 31 th day of August, A.D. 2011 at or near Prince Albert, did unlawfully possess a controlled substance, to wit: cannabis marihuana, contrary to section 4(5) Controlled Drugs and Substances Act .

(2) Unlawfully possess a controlled substance, to wit: cocaine, contrary to section 4(1) of the Controlled Drugs and Substances Act .

(3) Being at large on her undertaking given to a justice or a judge and being bound to comply with a condition thereof, to wit: keep the peace and be of good behaviour, fail without lawful excuse to comply with that condition, contrary to section 145(3) of the Criminal Code . Information 45144959

(1) On or about the 8 th day of August, A.D. 2011, at or near Prince Albert, Saskatchewan did being at large on her undertaking given to a justice or a judge and being bound to comply with a condition thereof, to wit, report, in person, to the bail supervision officer at 12 th floor, McIntosh Mall, Box 3003, Prince Albert, Saskatchewan, S6V 6G1, telephone – 953-2835, immediately upon release from Court and thereafter at times and dates and in a manner specified by the bail supervision officer, fail without lawful excuse to comply with that condition, contrary to section 145(3) of the Criminal Code .

(2) On or about the 17 th day of August, A.D. 2011, at or near Prince Albert, Saskatchewan did being at large on her undertaking given to a justice or a judge and being bound to comply with a condition thereof, to wit, report, in person, to the bail supervision officer at 12 th floor, McIntosh Mall, Box 3003, Prince Albert, Saskatchewan, S6V 6G1, telephone – 953-2835, immediately upon release from Court and thereafter at times and dates and in a manner specified by the bail supervision officer, fail without lawful excuse to comply with that condition, contrary to section 145(3) of the Criminal Code . Information 46621993

(1) On or about the 20 th day of July, A.D. 2011, at or near Saskatoon, Saskatchewan did having been named in a recognizance entered into before an officer in charge or a peace officer, that has been confirmed by a justice, fail without lawful excuse to appear at Saskatchewan Provincial Court, in accordance therewith, contrary to section 145(5) of the Criminal Code . Information 31573383

(1) On or about the 19 th day of July, A.D. 2011, at or near Prince Albert, Saskatchewan did being at large on her undertaking given to a justice or a judge without lawful excuse fail to attend Court, to wit, Saskatchewan Provincial Court in accordance therewith, contrary to section 145(2) (

a) of the Criminal Code . Information 33831441

(1) On or about the 6 th day of July, A.D. 2011, at or near Prince Albert, Saskatchewan did having appeared before Prince Albert Provincial Court did fail, without lawful excuse, to attend Court as required by the Court contrary to section 145(2) (

b) of the Criminal Code . Information 33831736

(1) On or about the 6 th day of July, A.D. 2011, at or near Prince Albert, Saskatchewan did having been named in an appearance notice that has been confirmed by a justice, fail without lawful excuse to appear at the Prince Albert Police Service for the purposes of The Identification of Criminals Act in accordance therewith, contrary to section 145(5) of the Criminal Code . Information 31223374

(1) On or about the 8 th day of March, A.D. 2011, at or near Prince Albert, Saskatchewan, did commit mischief by wilfully destroying or damaging property to wit: a motor vehicle, of a value not exceeding five thousand dollars, the property of Darlene Turner, contrary to section 430(4) of the Criminal Code . Information 43509963

(1) On or about the 17 th day of May, A.D. 2010, at or near Saskatoon, Saskatchewan did having been named in a recognizance entered into before an officer in charge or a peace officer, that has been confirmed by a justice, fail without lawful excuse to appear at Saskatoon Provincial Court, 220-19 th Street East, in accordance therewith, contrary to section 145(5) of the Criminal Code . Information 43508475

(1) On or about the 26 th day of August, A.D. 2009, at or near Saskatoon, Saskatchewan did having been named in a recognizance entered into before an officer in charge or a peace officer, that has been confirmed by a justice, fail without lawful excuse to appear at Saskatoon Provincial Court, 220-19 th Street East, in accordance therewith, contrary to section 145(5) of the Criminal Code . Information 39982825

(1) On or about the 25 th day of July, A.D. 2009, at or near Saskatoon, Saskatchewan did being at large on his undertaking given to a justice or a judge and being bound to comply with a condition thereof, to wit: shall abstain from all use, consumption and possession of alcohol and non-prescription (illicit) drugs and not enter any premises in which the primary function is the sale or consumption of alcohol, except for employment, fail without lawful excuse to comply with that condition, contrary to section 145(3) of the Criminal Code . APPENDIX “B” Date Charge Sentence 1994-09-01 Prince Albert Sask (Youth Court) Poss of property obtained by crime under $1000 sec 355(

b) CC (Prince Albert PD 94-2286) Probation 12 mos 1995-07-07 Prince Albert Sask (Youth Court)

(1) Fail to comply with Disposition Sec 26 YO Act

(2) Assault sec 266 CC

(3) Fail to attend Court Sec 145(2)(

a) CC

(4) Obstruct peace officer Sec 129(

a) cc

(5) Fail to comply with recognizance Sec 145(

c) CC (2 chgs)

(6) Theft under $5000 Sec 334(

b) CC

(7) Fail to comply with disposition Sec 26 YO Act (Prince Albert PD 1603-95, 1804-95, 1928-95) (1-5) 4 Mos open custody On each chg (6-7) 4 mos open custody & probation 8 mos on each chg

1996-02-15 Prince Albert Sask (Youth Court)

(1) B & E with intent Sec 348(1)(

a) CC

(2) BE & Commit Sec 348(1)(

a) CC

(3) Fail to comply with disposition Sec 26 YO Act (2 chgs)

(4) Unlawfully at large Sec 145(1)(

b) CC (Prince Albert PD 96-1037) (1-2) 4 Mos secure custody on each chg conc (3-4) 1 mo secure custody on each chg conc & conc 1997-01-30 Prince Albert Sask (Youth Court)

(1) Poss of property obtained by crime under $5000 Sec 355(

b) CC

(2) Dangerous operation of motor vehicle Sec 249(1)(

a) CC

(3) Theft under $5000 Sec 344(

b) CC (RCMP Prince Albert 97-0063) (1) 9 Mos secure custody (2) 6 mos conc (3) 3 mos conc Probation for 3 yrs Date Charge Sentence 1998-09-16 Prince Albert Sask (Youth Court)

(1) Fail to attend Court Sec 145(2)(

b) CC

(2) Communication for the purpose of prostitution Sec 213(1)(

c) CC

(3) Fail to comply with disposition Sec 26 YO Act

(4) Fail to attend Court Sec (145(2)(

a) CC (Prince Albert PS 98-2210) (1) 2 Mos (2-4) 2 Mos open custody on each chg conc & probation 12 mos on each chg 1999-05-11 Prince Albert Sask (Youth Court)

(1) Fail to comply with undertaking Sec 145(3) CC (3 chgs)

(2) Fail to attend Court Sec 145(2)(

b) CC (Prince Albert PS 99-1533)

(1) Time served (1 day) on each chg (2) 5 hrs comm. Serv work 2001-02-08 Saskatoon Sask Obstruct peace officer Sec 129(

a) CC (Saskatoon PS 69153) $200 I-D 4 days 2001-09-11 Prince Albert Sask Escape lawful custody Sec 145(1)(

a) CC (Prince Albert PS 01-2205) Time served (11 days)

2002-02-25 Saskatoon Sask

(1) Fail to attend Court Sec 145(2)(

b) CC

(2) Theft under $5000 Sec 334(

b) CC (Saskatoon PS 69153) (1) $100 I-D 2 days

(2) Susp sent & Probation 3 mos Date Charge Sentence 2003-01-08 Saskatoon Sask

(1) Obstruct peace officer Sec 129(

a) CC

(2) Fail to comply with recognizance Sec 145(3) CC (Prince Albert PS 03-1040)

(3) Fail to comply with recognizance Sec 145(3) CC

(4) Fail to attend Court Sec 145(2)(

b) CC

(5) Fail to comply with probation Order Sec 733.1(1) CC (Saskatoon PS 68153) (1) $100 I-D 1 day (2-4) Time served on each chg

(5) Susp sent & probation 12 mos 2003-11-19 Saskatoon Sask

(1) Poss of property obtained by crime under $5000 Sec 355(

b) CC

(2) Fail to comply with probation Order Sec 733.1(1) CC

(3) Fail to attend Court Sec 145(2)(

b) CC

(4) Fail to attend Court Sec 145(2)(

a) CC

(5) Fail to comply with recognizance Sec 145(3) CC

(6) Theft over $5000 Sec 334(

a) CC

(7) Fail to comply with recognizance Sec 145(3) CC

(8) Fail to comply with probation Order Sec 733.1(1) CC (Saskatoon PS 69153) (1-4) 6 Mos conditional sentence order (5) 6 mos conditional sentence order (6-8) 6 mos conditional sentence order

2005-03-30 Saskatoon Sask

(1) Fail to attend Court Sec 145(2)(

a) CC

(2) Fail to comply with probation Order Sec 733.1(1) CC

(3) Communicate for the purpose of prostitution Sec 213(1)(

c) CC

(4) Fail to comply with recognizance Sec 145(3) CC (Saskatoon PS 69153) (1-2) 4 mos conditional sentence order& probation for 9 mos (3-4) 4 mos conditional sentence order& probation for 9 mos Date Charge Sentence 2005-07-07 Breach of conditional sentence order Sec 742.6(9)(

c) CC Entry dated 2005-03-30) Order suspended 2006-05-10 Breach of conditional sentence order Sec 742.6(9)(

d) CC Entry dated 2005-03-30) Order terminated 2007-01-18 Saskatoon Sask

(1) Fail to attend Court Sec 145(2)(

a) CC (2 chgs)

(2) Fail to comply with probation Order Sec 733.1(1) CC (2 chgs) (Saskatoon PS 06-76180, 09-116915) (1-2) time served on each chg 2007-25-07 Adult Court Theft under $5000 – shoplifting – sec 334(

b) CC 15 day(s) (*S) 2008-08-12 Prince Albert Sask

(1) Fail to appear Sec 145(5) CC

(2) Fail to attend Court Sec 145(2)(

b) CC

(3) Fail to comply with recognizance Sec 145(3) CC

(4) Communicate for the purpose of prostitution Sec 213(1)(

c) CC

(5) Fail to comply with recognizance Sec 145(3) CC (Prince Albert PS 07-19689, 08-2463, 08-2466) (1-4) 90 days on each chg conc (5) 90 days consec 2009-19-05 Saskatoon Sask Wilfully obstruct Sgt. Keen $300

Date Charge Sentence 2009-18-08 Saskatoon Sask Failure to comply with recognizance Time Served 2001-11-09 Adult Court Escape lawful custody sec 145(1)(

a) CC 11 day(

s) time served (*

s) Ensuring the appearance of the accused at trial is the primary purpose of any system of pre-trial release, and the system must be structured to minimize the risk that an accused will abscond rather than face trial. For most offences, the risk that an accused will abscond rather than face trial is minimal. It is not an easy thing to abscond from justice. The accused must remain a fugitive from justice for the rest of his or her lifetime. ( See also: page 40.)