R. v. Normore, 2018 NLCA 27

Her Majesty the Queen (appellant) v. Alex Normore (respondent) (16/65) Indexed As: R. v. Normore 2018 NLCA 27 2 C.A.N.L.R. 753 Court of Appeal of Newfoundland and Labrador Green J.A. May 8, 2018

Summary: Mr. Normore was previously convicted of attempted murder, uttering a threat to cause death, and breaking and entering a dwelling while committing attempted murder. This Court, by a majority, quashed the conviction and ordered a new trial. Mr. Normore was remanded in custody until this hearing for judicial interim release could be held. Held: Judicial interim release denied. Green J.A.: The offences of which Mr. Normore is charged are not listed in

section 469 of the Criminal Code and the other reverse onus provisions of the Criminal Code are not applicable. Accordingly, the onus falls on the Crown to justify his detention under section 515(10). The Crown relies on grounds (

b) and (

c) of section 515(10), which state that the detention of an accused in custody is justified if the detention is necessary for the protection or safety of the public (section 515(10)(b)) or if the detention is necessary to maintain confidence in the administration of justice (section 515(10)(c)). Section 515(10)(

b) requires that (

i) the detention be for the “protection or safety” of the public and not for extraneous reasons; (ii) the detention must be “necessary” to achieve protection or safety of the public; and (iii) there is a “substantial likelihood” that the accused, if released from custody, will commit an offence or interfere with the administration of justice. While Mr. Normore’s past obsessive behavior indicates that there is a risk that Mr.

Normore may commit further offences and endanger the protection and safety of the public, it cannot be said that this risk rises to the level of a “substantial likelihood” that he will so act. That said, the protection or safety of the public may also be relevant under section 515(10)(

c) when considering maintenance of confidence in the administration of justice. Section 515(10)(

c) requires judges to adopt the perspective of the public when determining whether detention is necessary. The standard applied is whether a reasonable, dispassionate and thoughtful member of the public who is properly informed about the basics of the rule of law, including the fundamental values of the Charter and the presumption of innocence, and the circumstances of the particular case would consider detention necessary to maintain the public’s confidence in the administration of justice.

A court must consider and balance several factors under this analysis, including the apparent strength of the prosecutions’ case, the objective gravity or seriousness of the charged offences, the circumstances surrounding the commission of the offence, the length of the term of imprisonment assuming the accused is convicted, and all of the other circumstances of the case, such as any potential delay in a re-trial. In this case, all of the factors, except for the potential delay in re-trial if the appeal to the Supreme Court of Canada were to be dismissed, favour detention.

As such, a reasonable, dispassionate and thoughtful member of the community, properly informed about the basics of the rule of law and the circumstances of this particular case would consider that Mr. Normore’s detention is necessary to maintain confidence in the administration of justice. Mr. Normore is ordered to be detained in custody until his re-trial or until further order.

Cases cited: R. v. Normore, 2018 NLCA 10 R. v. Morales, (SCC), [1992] 3 S.C.R. 711 R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 R. v. Normore, 2016 NLTD(G) 43 R. v. Normore (2002), 56 W.C.B. (2d) 119 (NL Prov. Ct.) R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250 R. v. Manasseri, 2017 ONCA 226 R. v. Normore, 2014 NLTD(G) 79 R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 Counsel: Sheldon Steeves, for the appellant; Derek Hogan, for the respondent. This application was heard on April 30 and May 2, 2018 and decision rendered orally on May 2, 2018 by Green J.A.

The following reasons for decision were filed on May 8, 2018 by Green J.A. ______________________________________________________________ Green J.A.: [1] Convicted of attempted murder, uttering a threat to cause death and breaking and entering a dwelling while committingattempted murder, Alexander Normore appealed his convictions. This Court, by a majority, quashed the convictions and ordered a newtrial (R. v. Normore, 2018 NLCA 10). [2] By order, Mr. Normore was remanded in custody until a judicial interim release hearing could be held.

At the judicial interimrelease hearing, the Crown opposed his release on the grounds stated in paragraphs 515(10)(

b) and (

c) of the Criminal Code. [3] This hearing is being held under s. 679(7.1) of the Code. That provision incorporates the judicial interim release provisions of s.515 “as though that person were charged with the offence for the first time,” except that the hearing has to be conducted by a judge ofthe court of appeal instead of a justice. The offences charged are not listed in

section 469 and the other reverse onus provisions of theCode are not applicable. Accordingly, Mr. Normore is entitled to be released unless the Crown can justify his detention within s.515(10). [4] I note in passing that the Crown has, as of right, appealed this Court’s order for a new trial to the Supreme Court of Canada andan appeal hearing in that matter is scheduled for October 17, 2018.

Although the current judicial interim release hearing is not beingconducted under the bail-pending-appeal provisions of s. 679(1)-(6) of the Code, where the criteria for release are expressed in slightlydifferent terms and the considerations are not identical, the fact that there is an appeal pending is a relevant consideration whenaddressing delay as a factor in the s. 515(10) analysis. Crown Opposition to Release [5] The Crown relies on grounds (

b) and (

c) of s. 515(10), which read: 515(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: … (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or anyperson under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, ifreleased from custody, commit a criminal offence or interfere with the administration of justice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances,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, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a lengthy term of imprisonment or, in the case of an offence that involves, orwhose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [6] In applying the section, it should be remembered that release of accused persons is the cardinal rule and detention the exception(Canadian Charter of Rights and Freedoms, s. 11(e); R. v.

Morales, (SCC), [1992] 3 S.C.R. 711 at 728; R. v. St. Cloud,2015 SCC 27, [2015] 2 S.C.R. 328 para. 70). Further, regardless of the gravity of the offence or the strength of the prosecution’s case,the presumption of innocence still applies to the accused (St. Cloud, para. 56). Background (

a) Circumstances surrounding the charged offences [7] The essence of the Crown’s case at the original trial was that Mr. Normore entered the residence of Ron Thomas in Deer Lakebetween 6:00 and 7:00 a.m., awakened him in his bedroom, told him he didn’t have a gun but that he was going to kill him anyway,assaulted him with a three-foot-long flashlight and after a struggle fled the house and stole Mr. Thomas’ truck. [8] At trial, two documents were entered into evidence stating that Mr.

Thomas was one of four people to be shot and killed fordrugging and raping young girls in Deer Lake and that the only good R.C.M.P officer was “a dead one and their rat’s” with the names ofMr. Thomas and others printed near the word “rat’s”. Mr. Normore denied authorship of the second document but not the first (AppealDecision, para. 34). Defence counsel challenged the continuity of the documents and suggested they were open to forgery and planting inMr. Normore’s home. When Mr.

Thomas was questioned about who had provided photographs of the documents to him, which he hadsubsequently shown to the police, he refused to answer despite being told by the judge to do so. The judge did not take further steps toextract an answer. [9] Mr. Normore was convicted, relying in part on the documents as evidence of intent. The judge stated (2016 NLTD(G) 43) atpara. 41: “These writings substantiate the idea that doing serious harm to Mr. Thomas had become an obsession of Mr. Normore.” (

b) The Appeal [10] This Court, by a majority, allowed the appeal and ordered a new trial essentially on the grounds that the failure of the judge torequire Mr.

Thomas to answer the question as to the provenance of the documents foreclosed a legitimate line of inquiry into theircontinuity of possession and prevented the development of a possible defence relating to forgery or planting of the evidence therebypossibly affecting the findings of guilt (paras. 39 and 45). [11] The majority also concluded that the trial judge’s error could not be classified as “harmless or minor” (para. 39) and that it couldnot be said that the remaining evidence “was so overwhelming that the trial judge would have found the requisite intention for attemptedmurder or the intent to utter a threat to cause death had he not considered the second note” (para. 45). [12] The appeal was essentially allowed on grounds of lack of procedural fairness with respect to the questioning of the complainant.The appeal decision did not question other salient facts that were presented as part of the Crown’s case, including the entry by Mr.Normore into the dwelling, the attack on Mr.

Thomas with the flashlight and Mr. Normore’s statement that even though he did not have agun he was going to kill Mr. Thomas. Furthermore, Mr. Normore did not deny authorship of the other document, which contained thestatement that four people, including Mr. Thomas, should be shot for drugging and raping girls in Deer Lake. For the purpose of this bailhearing, these matters can properly be considered as factual context. (

c) Other background context [13] Mr. Normore has a short and dated criminal record for assault, uttering threats, mischief and breach of recognizance resultingfrom convictions following a single trial in 2002 (R. v. Normore (2002), 56 W.C.B. (2d) 119 (NL Prov. Ct.). His defence, which wasrejected by the court except in respect of two firearms offences, was that he was not criminally responsible on account of mentaldisorder.

A finding of not criminally responsible on account of mental disorder in respect of the firearms charges, however, resulted inhis being detained in custody at the Waterford Hospital pending a disposition by the Newfoundland and Labrador Review Boardconstituted under s. 672.38 of the Code. [14] Following a number of reviews in the period from 2003 to 2005, the Board ordered that Mr.

Normore be discharged subject to anumber of conditions including a firearms prohibition and an obligation to see a psychiatrist on a regular basis. [15] Following a further review in 2008, the Board ordered that he be discharged absolutely without any conditions. In doing so, theBoard had to be satisfied, in the words of s. 672.54(

a) of the Code, that Mr. Normore was “not a significant threat to the safety of thepublic”. In making its decision, the Board relied on a psychiatric report of Dr. Sheila Lynch which concluded that although he continuedto suffer from paranoid schizophrenia, it was in “partial remission”. She also noted that although he exhibited “traits of obsessive,ruminative thinking and suspiciousness”, he was not psychotic and did not demonstrate any risk of harm to himself or the public.

TheBoard concluded that his condition was stable and had remained so for quite some time without the use of medication and agreed that heposed no significant threat to the safety of the public (Reasons for Decision, February 21, 2008). [16] Since his absolute release in 2008, Mr. Normore has not been convicted of any offence and has not had any incidents ofrecurrence of his mental illness of which I have been made aware. As well, during the period 2003-2005 when he was released subject toconditions, he apparently fully complied with them.

The only time when he failed to observe any court order was the conviction for

breach of recognizance following the trial in 2002. (

d) Mr. Normore’s plan for release [ 17 ] If he were to be released, Mr. Normore plans to reside in Corner Brook. He has no fixed address to which he can go at the moment. He and his counsel explained that although social service authorities will provide him with accommodation funding, they will not do so unless he identifies specific rental accommodation, but he cannot find accommodation unless he is released.

He is therefore in a “Catch 22” situation with respect to developing a long-term plan following release. [ 18 ] To cut this Gordian Knot, his short-term plan is to live with his brother in Reidville, which is approximately 11 kilometers outside of Deer Lake. His brother confirmed that he will take him in temporarily (for two or three weeks) “until social services get their act in order.” Assuming accommodation can be arranged within that time, Mr.

Normore will then move to Corner Brook where the prospects for employment (stationery engineer, dry walling, heating and ventilation, roofing or carpentry) are much better than in the Deer Lake area. [ 19 ] Mr. Normore also points out that by moving to Corner Brook, he will be that much further from Mr. Thomas’ Deer Lake residence, thus minimizing contact. He says he will accept and abide by conditions providing for no contact with Mr. Thomas and others mentioned in the documents referred to earlier.

He also will submit to conditions not to possess firearms and to report periodically to the local police detachment.

He also says he would accept and abide by a curfew, although his counsel submitted that a curfew was inappropriate since such a restriction is normally only appropriate if there is a flight risk, which the Crown in this case concedes is not an issue. [ 20 ] He has no funds and cannot offer anyone to act as surety if he were to be released. [ 21 ] The nature and potential effectiveness of proposed conditions are relevant to the assessment of the risk that release may have on protection and safety of the public. Considerations [ 22 ] With this background, I proceed to consideration of the Crown’s arguments that Mr.

Normore should be detained pending his new trial because it is necessary for the protection or safety of the public or to maintain confidence in the administration of justice. [ 23 ] As a preliminary matter, I note that the most recent pronouncement from the Supreme Court of Canada on the subject of bail is R. v. Oland , 2017 SCC 17 , [2017] 1 S.C.R. 250 , which was not cited by either counsel.

That case dealt with bail pending appeal under s. 679(3) which, as I have noted, expresses the criteria for release in slightly different terminology than under s. 515(10) and applies them in different circumstances. [ 24 ] One of the main differences between bail pending trial and bail pending appeal is, of course, that the accused seeking bail pending trial has the benefit of the presumption of innocence whereas in the appellate context where it is the convicted accused seeking bail, he or she is not presumed to be innocent.

This difference may well have an impact on how resolution of the competing tensions involved in maintaining confidence in the administration of justice will be achieved in the two scenarios. [ 25 ] That said, one cannot ignore the fact that in formulating principles applicable in bail pending appeal cases, the Court drew upon concepts in s. 515(10) and expressed the view that there was virtue in promoting “consistency and harmony between trial and appellate contexts” (para. 33).

To the extent, therefore, that Oland discusses general principles, especially in relation to maintenance of confidence in the administration of justice, reference to it will be appropriate. Protection or Safety of the Public [ 26 ] There is a presumption against preventive detention as a means of addressing dangers to public safety. As Lamer C.J.C. noted in Morales , the “danger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention.

In general, our society does not countenance preventive detention of individuals simply because they have a proclivity to commit crime.” (p. 736). [ 27 ] Section 515(10)(

b) requires the coalescing of three things before detention can be justified on this ground: (

i) detention must be for the “protection or safety” of the public and not for extraneous reasons; (ii) detention must be “necessary” to achieve protection or safety of the public; and (iii) to the extent that it is alleged that it is likely that the accused, if released from custody, will commit an offence or interfere with the administration of justice indicates the need for protection or safety of the public, those risks must be “substantial” ( Morales , p. 737). [ 28 ] The emphasis on necessity and substantiality makes it clear that there must be more than a slight or theoretical risk of danger to the public before release will be denied.

The analysis is essentially an exercise in prediction. There will always be some risk associated with any release. Exact predictions cannot be made. As Lamer C.J.C. stated in Morales it is sufficient to establish a “substantial likelihood” of future criminal activity (pp. 739-740). In R. v.

Manasseri , 2017 ONCA 226 , Watt J.A. described the threshold as a substantial probability or “significantly likely” (para. 87). [ 29 ] The detention must be necessary for “protection or safety of the public” and not for other reasons. “It is not justified where detention would be merely convenient or advantageous” ( Morales, p.737). Likewise, it is not justified solely because it might be advantageous to restrain the accused’s movements by denying bail in the interests of mental health treatment or to minimize the effects of a person’s mental disorder on others. Here, the fact that Mr.

Normore may have suffered from a mental disorder and may continue to do so would not in itself justify his detention unless public safety is significantly impacted. There are other mechanisms within mental health legislation that address those matters. [ 30 ] The question in this case is whether Mr. Normore’s past criminal record coupled with any active mental health issues and the

circumstances surrounding the current charges lead to an inference that there is a substantial likelihood that he will commit a criminal offence or interfere with the administration of justice and whether detention is thereby necessary for the protection or safety of the public. [ 31 ] Mr. Normore’s criminal record, although involving serious crimes including ones of violence and threats of violence, is dated. But for a conviction in 2003 for breach of recognizance, he has demonstrated in the last almost-fifteen years a history of compliance with conditions imposed in the mental health context.

He was released into the community by the Newfoundland and Labrador Review Board on the basis that he was not a significant threat to the community. Aside from an incident involving trespass which did not lead to criminal changes but was dealt with within the mental health system, and aside from the events surrounding the current charges, there have been no other recent indications of a proclivity towards lawbreaking. These facts serve to work against any inference of a substantial likelihood that Mr.

Normore would commit a criminal offence or interfere with the administration of justice if released. [ 32 ] On the other side of the scale, there is the fact that when he was released into the community by the Review Board, the Board was still of the view that he suffered from paranoid schizophrenia which was only in partial remission. While the fact that a person has been diagnosed with a mental illness should not lead to the drawing of inferences of inherent dangerousness based on that fact alone, since that would result from stereotypical thinking based on the stigma of mental illness, the fact that Mr.

Normore’s disease was only in partial remission, with the possibility that the effects of the disease might still be felt, does raise the question whether there may be some likelihood of impact on public safety. [ 33 ] More concerning in this context is that Dr. Lynch concluded that Mr. Normore continued to exhibit traits of “obsessive, ruminative thinking and suspiciousness” when he was released from the Waterford Hospital in 2008.

Can an inference be drawn that those traits may still be operative today, ten years later, with a consequential potential for impact on public safety? [ 34 ] The circumstances surrounding the events involving Mr. Thomas in 2014 are also relevant. They certainly could be construed as resulting from certain obsessions which Mr. Normore continued to hold. The documents that were in dispute on the appeal from conviction were regarded by the trial judge as substantiating the idea that doing serious harm to Mr. Thomas had become an obsession for him. While Mr.

Normore denied authorship of one of the documents, he did not do so with respect to the other. From that document, coupled with Mr. Normore’s mental history, I can draw the inference that obsessive thinking may have influenced Mr. Normore’s engagement in the charged criminal activity. Furthermore, the findings of fact by the trial judge with respect to Mr. Normore’s involvement in the entry into Mr. Thomas’s home and the resulting assault were not subject to challenge and were not overturned on appeal.

While they are all subject to re-proof on a retrial, I am still entitled to take them into account on this bail hearing, just as a bail judge can take account of the unproven facts alleged against an accused, including witness statements, when considering the appropriateness of bail in the first instance. These alleged facts raise a question that the conclusion drawn by the Review Board, to the effect that Mr. Normore in 2008 posed no significant threat to public safety, may no longer be operative as of 2014 in light of continued obsessive thinking.

This indicates a potentially serious impact on public safety and raises a serious question about the likelihood of Mr. Normore committing further offences. [ 35 ] I am satisfied that there is a likelihood that Mr. Normore, who has been in jail ever since he was arrested on the current charges (bail having been denied both initially and on review: R. v. Normore , 2014 NLTD(G) 79) and therefore had no opportunity to interact with Mr. Thomas for the past four years, would, if released, have difficulty resisting any obsessions he may still have respecting Mr.

Thomas and others mentioned by him as targets for his displeasure. I say this despite Mr. Normore’s assurances at the bail hearing that he would agree to stay away from Mr. Thomas if he were released. Obsessive behavior is hard to resist despite the best of intentions. [ 36 ] Furthermore, the type of conditions proposed if release were granted would not, in my view, be able to address any public safety concerns that might exist in the sense of acting as an acceptable substitute for detention. While not living in Deer Lake where Mr. Thomas lives is good so far as it goes, Corner Brook, where Mr.

Normore proposes to live (after an initial temporary stay with his brother in Reidville), is not that far from Deer Lake and the Trans-Canada Highway cuts right through Deer Lake. Proximity may present a temptation that Mr. Normore may not be able to resist. Furthermore, a requirement to report periodically to the police and imposition of a curfew are not likely to provide sufficient supervision to reduce the risk of Mr. Normore acting on his own if he felt so inclined. He was not able to offer a surety which could have provided more continuous supervision. Indeed, Mr.

Normore’s counsel opposed the imposition of a reporting and curfew requirement in any event (although Mr. Normore nevertheless indicated in evidence that he would comply with them if imposed). [ 37 ] Notwithstanding my conclusion that there is a risk that Mr. Normore may commit further offences and endanger the protection and safety of the public, I am nevertheless unable to conclude, given the dated nature of most of the material before me and the absence of much current evidence, that this risk rises to the level of a “substantial likelihood” that he will so act. Accordingly, I cannot say that s. 515(10) (

b) has been satisfied. [ 38 ] That said, protection or safety of the public may also be relevant when considering maintenance of confidence in the administration of justice as a ground for denying release. As Moldaver J. noted in Oland , “public safety concerns that fall short of the substantial risk mark – which would preclude a release order – will remain relevant under the public confidence component and can, in some cases, tip the scale in favour of detention” (para. 39; see also para. 27). Maintenance of Confidence in the Administration of Justice [ 39 ] St.

Cloud exhorts judges to “adopt the perspective of the public in determining whether detention is necessary” (para. 4) [ 40 ] The bell weather for public confidence in the administration of justice is not the chanting mob gathered outside the courthouse or the social media storm braying for punishment or expressing uninformed or unthinking visceral reactions to or revulsion at what is considered unacceptable social behavior. Rather, it is the calm, well-informed, rational and reasonable citizen, described in St.

Cloud as follows: [79] … a reasonable member of the public is familiar with the basics of the rule of law in our country and with the fundamental values of our criminal law, including those that are protected by the Charter . Such a person is undoubtedly aware of the importance of the

presumption of innocence and the right to liberty in our society and knows that these are fundamental rights guaranteed by our Constitution. He or she also expects that someone charged with a crime will be tried within a reasonable period of time, and is aware of the adage that “justice delayed is justice denied.” … Finally, a reasonable member of the public knows that a criminal offence requires proof of culpable intent ( mens rea ) and that the purpose of certain defences is to show the absence of such intent. … [80] In short, the person in question in s. 515(10) (

c) Cr. C. is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society’s fundamental values.

But he or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences that are available to accused persons. … [82] … the courts must … be careful not to yield to purely emotional public reactions or reactions that may be based on inadequate knowledge of the real circumstances of the case. [83] However, the courts must also be sensitive to the perceptions of people who are reasonable and well informed.

This enables the courts to act both as watchdogs against mob justice and as guardians of public confidence in our justice system. [ 41 ] The courts are the last bastion between the accused and the lynch mob. The prosecutor and the court must resist the easy temptation to adopt the popular mantra of unthinking revenge and retribution. [ 42 ] Section 515(10)(

c) is not a residual ground for detention that only applies where the other grounds are not satisfied and is not limited to exceptional circumstances ( St. Cloud , paras. 5, 34, 50, 54 : R. v. Hall , 2002 SCC 64 , [2002] 3 S.C.R. 309 , para. 30 ). [ 43 ] The primary focus in determining whether detention is necessary to maintain confidence in the administration of justice is on the four factors listed. ( Hall , para. 41 ). It is their “combined effect” which must be considered in the context of a “balancing exercise” ( St. Cloud , para. 55 ).

As well, it is “all” relevant circumstances that must be considered, so the list of circumstances is not exhaustive. Other factors such as age, criminal record, physical or mental condition, membership in a criminal organization, anticipated trial date and the status of the victim may also be relevant ( St.

Cloud , para. 71 ). [ 44 ] As was noted in Oland , though in a different context, there is a tension evident in the application of bail provisions between the need to protect society and maintain public confidence in the criminal justice system while at the same time protecting the liberty rights of the accused and, in the context of bail pending trial, the presumption of innocence. Section 515(10) provides guidance for the balancing of this tension by directing the bail court to consider certain relevant factors. (

i) Apparent strength of the prosecution’s case [ 45 ] While being careful not to play the role of trial judge or jury, especially with respect to determining credibility or determining reliability of scientific evidence, the Court must nevertheless consider the “quality” of the evidence tendered by the prosecutor in light of the defences raised by the accused ( St. Cloud , paras. 58-59 ). [ 46 ] In the current case, we have the statements of Ron Thomas to the police describing the attack in his home and the findings of the trial judge as to what happened.

The appeal to this Court did not call into question the factual circumstances underpinning the charges. The appeal was allowed on essentially a procedural fairness ground which, the majority found, went to the issue of intent. Even there, however, only one of the documents in issue was denied by Mr. Normore as being authored by him. The trial judge relied on both. In addition, there is the statement by Mr. Thomas that during the altercation Mr.

Normore threatened to kill him. [ 47 ] While it is true that the majority of this Court, in applying the curative provision in s. 686(1)(b)(iii) of the Code and ordering a new trial, concluded that the evidence was not “so overwhelming” that the trial judge would have found the requisite intention for attempted murder or the intent to utter a threat to cause death, I am satisfied that, given the lack of dispute with respect to the factual circumstances and the existence of other evidence of intention or from which intention could be inferred, the case for the prosecution is a strong one even absent the disputed documents.

This favours detention. (ii) Gravity of the offence [ 48 ] The court must determine the “objective” gravity of the charged offences, assessed on the basis of the maximum sentence provided for in the Code ( St. Cloud , para. 60 ) [ 49 ] The offences of attempted murder and breaking and entering a dwelling house and committing an indictable offence therein both attract a maximum sentence of life imprisonment. By any standard, they are serious offences.

Much ink has been spilled in the law reports on emphasizing the importance of the public feeling safe and protected in their own homes and how that factors into sentencing for offences that violate that sense of safety and security. Members of the public have a legitimate interest in knowing that the criminal justice system can respond in a way that protects them in their homes. [ 50 ] This consideration also favours detention. In Oland , Moldaver J., in commenting on s. 515(10) (

c) noted that the seriousness of the crime plays an important role in assessing whether public confidence can be maintained: “The more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the accused is released on bail pending trial”(para. 37). (iii) Circumstances surrounding the commission of the offence [ 51 ] Relevant considerations under this heading include, so St.

Cloud tells us, whether the offence is a violent, hateful or heinous one, whether it was committed in circumstances of domestic violence and whether the victim was a vulnerable person such as a child or an elderly person, as well as general aggravating or mitigating factors that might be relevant on sentencing (para. 61).

[ 52 ] In this case, it has to be said that the circumstances of the charged offences here, which are mostly not challenged by Mr. Normore, are very concerning: an entry into a private dwelling early in the morning, assaulting a person in his bedroom, use of a weapon (admittedly not a firearm) that was capable of doing serious physical damage, the use of violence and the uttering of threats of death or serious bodily harm.

These events are very serious and are such that would be cause for alarm in the minds of reasonable members of the public hearing about the incident. (iv) Liability on conviction for a lengthy term of imprisonment [ 53 ] Under this heading, the bail judge must consider all the circumstances of the case and attempt to determine whether, assuming the accused is convicted, he or she will likely receive a “”lengthy term of imprisonment”. This is a subjective assessment ( St.

Cloud , paras. 63-65 ). [ 54 ] In this case, I have the advantage of the original trial judge’s sentencing decision (Court file 2015 04G 0027) in which, giving a more careful consideration to the facts than I am able to do on this bail application, he regarded the attempted murder charge as meriting nine years, and the break and enter charge five years to be served concurrently to the attempted murder conviction. For the purpose of this bail hearing, these determinations are a reasonable benchmark for what might be expected after re-trial, if convictions occurred. [ 55 ] Counsel for Mr.

Normore pointed out that Mr. Normore has already served four years of his nine year sentence. If on re-trial he were only to be convicted of the break and enter charge and not the attempted murder, he would probably end up serving more time in jail than for which he would be sentenced. Furthermore, he points out that the Crown appeal to the Supreme Court of Canada will delay the retrial (assuming the appeal is unsuccessful) by at least six months, meaning that his retrial might not be heard until well into 2019 or possibly early 2020. [ 56 ] These potentialities are matters for concern.

However, they depend on a number of speculative assumptions: that the appeal will be unsuccessful and that the retrial will result in an acquittal on the attempted murder charge. None of this can be predicted with any degree of accuracy. I note that if the Supreme Court of Canada appeal is in fact unsuccessful, Mr. Normore would have the ability to apply for a reconsideration of bail if it is then known that the retrial will take a long time to resolve. (

v) Other circumstances [ 57 ] As noted earlier, the court must take account of “all the circumstances” when considering the impact of release or detention on maintenance of confidence in the administration of justice. [ 58 ] One of the considerations in the non-exhaustive list mentioned in St. Cloud is the fact that the trial of the accused will be held “at a much later date” (para. 71). I have already discussed that under the previous heading.

While it is potentially a problem – and is a factor favouring release – its potential negative impact could perhaps be alleviated by a further bail review once the result of the appeal to the Supreme Court of Canada becomes known. [ 59 ] Another factor that should be considered here is the potential for impact of considerations of protection or safety of the public on maintenance of confidence in the system.

Moldaver J. in Oland suggests that in the context of bail pending appeal, public safety concerns should also be taken into account when measuring public confidence even if the risk of the accused committing a criminal offence if on release does not approach the “substantial likelihood” benchmark: [27] … I should not be taken to mean … that the public safety component and the public confidence component are to be treated as silos. To be sure, there will be cases where public safety considerations alone are sufficient to warrant a detention order in the public interest.

However … where the public safety threshold has been met by an applicant seeking bail pending appeal, residual public safety concerns or the absence of any public safety concerns remain relevant and should be considered in the public confidence analysis. [ 60 ] Admittedly, the analysis on an application for bail pending appeal proceeds a bit differently than an application for bail pending trial. The issues of public safety and public confidence in the administration are addressed as two components under the rubric of “public interest” in s. 679(3)(

c) whereas they are required to be considered as separate grounds in s. 515(10) (

b) and (c). Nevertheless, I believe that even in hearings relating to bail pending trial, considerations of protection and safety of the public are relevant to be considered when dealing with maintenance of confidence in the administration of justice. The public relies on the criminal justice system to maintain social order and thereby promote public safety.

The fact that there may be public safety concerns in a given case is surely relevant to a determination whether detention is necessary to maintain confidence in the system. [ 61 ] In this case, I have concluded that although I cannot say there is a “significant likelihood” that Mr. Normore will commit an offence if released, there is some risk present. There is therefore a concern about protection or safety of the public.

It is a factor – though not the deciding factor or tipping point – to be considered along with the other factors discussed above in deciding whether detention is required to maintain confidence in the system. (vi) Balancing [ 62 ] The combined effect of all circumstances must be considered in a balancing exercise ( St. Cloud , para. 55 ). [ 63 ] Wagner J. observed in St.

Cloud that: [88] In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered. [ 64 ] As the circumstances of a case move away from that situation, there is greater opportunity for concluding that detention is not needed to maintain confidence in the administration of justice.

Here, however, the crimes alleged are both objectively and subjectively serious, involved violence and the use of a weapon in the context of a home invasion on a man who had not even gotten out of bed, as well as the uttering of threats of death with the present ability to carry them out. I have further concluded that the Crown has a strong

case (though not necessarily an “overwhelming” one). This is a nightmare scenario for any right-thinking reasonable member of the public. While such a reasonable person would be mindful of the presumption of innocence and the need to suspend judgment until all the facts are known, it is a scenario where confidence in the system could be shaken if Mr.

Normore were to be released in circumstances where there are also concerns about protection or safety of the public, particularly of the alleged victim of the charged crimes. [ 65 ] All of the factors, except for the potential delay in re-trial if the appeal to the Supreme Court of Canada were to be dismissed, point to detention. [ 66 ] I conclude that a reasonable, dispassionate and thoughtful member of the community, properly informed about the basics of the rule of law, the fundamental values of the Charter and the criminal law and of the circumstances of this particular case and that it is important to try an accused within a reasonable time and to presume him or her to be innocent until that time, would consider that Mr.

Normore’s detention is necessary to maintain confidence in the administration of justice.

Summary [ 67 ] In view of the foregoing conclusions, I must order that Mr. Normore be detained in custody until his re-trial or until further order. [ 68 ] While I recognize that if the Crown’s appeal to the Supreme Court of Canada of the order for a new trial is dismissed, then in the ordinary course Mr. Normore’s retrial might not occur until close to or after the length of time he will have spent in custody for the break and enter offence (assuming he is not convicted on re-trial for attempted murder).

On the other hand, if the appeal is allowed, that will bring an end to the matter and a re-trial will not be necessary. A review of his detention after the result of the appeal is known or for other appropriate reason is the better way to deal with this potential concern. Application dismissed.