Her Majesty the Queen - v. -, 2015 SKPC 106

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 106 Date: July 13, 2015 Information: 24512537 Location: North Battleford _____________________________________________________________________________ Between: Her Majesty the Queen - and - S.S. Appearing: Ms. Suzanne Reid For the Crown Mr. Blaine Bevan For the Accused DECISION ON SHOW CAUSE HEARING D.

O ’ HANLON , J Note: Pursuant to s. 486(4) of the Criminal Code , the Court made an order directing that the identity of the complainant or a witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way. [ 1 ] S.S. is charged that she did on or between the 4 th day of June, A.D. 2015 and the 5 th day of June, A.D. 2015, at North Battleford, in the Province of Saskatchewan, did kidnap K.M. with intent to cause him to be confined against his will contrary to s. 279(1.1) (

d) of the Criminal Code .

[2] Section 279(1)(

a) states: Every person commits an offence who kidnaps a person with intent to cause the person to beconfined or imprisoned against the person’s will. Section 279(1.1)(

b) states: Every person who commits an offence under subsection 1is guilty of an indictable offence and liable to imprisonment for life. [3] In the case of R v Oakley (1977), 36 CCC (2d) at 436: it was held in order to constitute kidnapping there must be a taking ofthe person or a movement from one place to another and not simply the placing of a person in an area of confinement.

In R v Metcalfe(1983), 10 CCC (3d) at 114, the British Columbia Court of Appeal also held that kidnapping must include “to take and carry away aperson against his will by unlawful force or by fraud”; and in R v Hernandez (2011), 2011 BCCA 112 , 270 CCC at 546 alsoknown as R v Vu, the British Columbia Court of Appeal held that kidnapping is a continuing offence and therefore found the accusedguilty as a party to the offence where the accused did not participate in the initial taking but aided and abetted in the victim’s subsequentconfinement and forced movements between locations.

In the same case it was noted that kidnapping is an aggravated form of unlawfulconfinement due to the element of movement which “increases the risk of harm by isolating the victim from the place where detectionand rescue are more likely.” [4] In S.S.’s case, although it cannot be said that she was present when the victim was unlawfully confined and assaulted over anextended period of time, it should be noted that she, unlike at least some of the others, is not charged with these offences.

The Crowndoes have a very cogent case to show the accused knew that she was assisting her son and the others in transporting the victim from theCapital Theatre here in North Battleford to another location. She knew her son was in a panic mode and did not feel he could let thevictim go after what had already been done to the victim.

She knew the victim was placed in the trunk of her car and that she transportedhim out into the country to Twin Lakes Road, which I know to be several miles west of North Battleford on Highway #16. [5] Whether she knew the victim was blindfolded and gagged is only a small factor to consider. It is not a defence to the chargeof kidnapping. Allowing the victim to be placed in the trunk of her car is to allow the continuation of an unlawful confinementregardless of blindfolding or gagging of the victim.

Once the victim is knowingly in the trunk of her car, to transport him out into thecountry to a place which increased the risk of harm by isolating the victim from a place where detection and rescue would have beenmore likely, causes great concern. [6] Once in the country, this 36 year old woman allows a 19 year old and 16 year old to remove the victim from the trunk of hercar and dispose of him in an isolated area.

Whether she knew the method of disposing of or not does not give her a defence to the chargeof kidnapping if the evidence alleged by the Crown is borne out at the trial of the matter. [7] I will note when I say disposed of I simply mean he is removed from her trunk and left out in the country. She then drivesaway with the 19 and 16 year old co-accused.

I want to emphasize at this point my duty is not to determine the guilt or innocence of theaccused on the sole charge before the Court, my duty is to determine if the Crown has shown cause why the accused’s continueddetention is necessary on any of the grounds enunciated in s. 515(10) of the Criminal Code. I wish to say at this time as well I adopt mycomments made yesterday at the conclusion of counsels’ submissions and before I adjourned to today for my decision.

Those commentsmake up part of my decision on this show-cause hearing. [8] The Crown is seeking the accused’s remand on the secondary and tertiary grounds. They are not, I think, quite rightlyseeking her remand on the primary ground. S.S. has no prior criminal record and although she is an American citizen the surrender ofher passport could be ordered and bail money, sureties and electronic monitoring conditions and other appropriate release conditionswould reduce the concerns in this area.

On the secondary ground, whether the detention is necessary for the protection or safety of thepublic, including any victim of or witness to the offence, or any person under the age of 18 years having regard to all of thecircumstances including any substantial likelihood that the accused will, if released, commit a criminal offence or interfere with theadministration of justice, I have taken into consideration a number of factors. [9] The accused has no prior criminal record.

The electronic monitoring release conditions could help to ensure concerns notedin this ground as could the persons willing to serve as sureties, as they would also assist to ensure adherence to this ground. As well,even though the victim has expressed his concern and fears to the authorities, these fears and concerns are more directly linked to the co-accused as their participation preceded that of the accused and the threats are more attributable to them than to this accused. Thisdoesn’t mean that he won’t have heightened anxiety or fear if she is released.

I think probably he would, but it reduces the Crown’sability to show cause for detention on this ground. More evidence may indeed come forward that would support the Crown’s opposition

to release on the secondary ground, but for purposes of this hearing and my determination on it, I do not take that into consideration. [10] Finally, the fact that some or all of the others referred to the accused as “Queen B” does not lead me to conclude that she wasa mastermind or directing mind in any of this matter. She was the manager of the Capitol Theatre and could have been bestowed thismoniker for that reason as well as any other. Consequently on the secondary ground I am not satisfied the Crown has shown cause forthe accused’s continued detention. [11] I turn now to the tertiary ground.

If the detention is necessary to maintain confidence in the administration of justice, havingregard to all the circumstances, including: 1. The apparent strength of the prosecution’s case; 2. The gravity of the offence; 3. The circumstances surrounding the commission of the offence, including whether a firearm was used; and 4.

The fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or in the case of an offence thatinvolves, or whose subject matter is a firearm, a minimum punishment of imprisonment for a term of three years or more. [12] In considering this ground I, of course, rely on the Supreme Court of Canada’s recent decision in R v St. Cloud, a case broughtto my attention by counsel and one which I had previously read and brought into Court with me. Beginning at page 32, Mr. JusticeWagner looks to the principles enunciated in R v Hall, a 2002 SCC decision.

At para. 32 he begins: Principles from Hall 32 The central issue in Hall was the constitutionality of s. 515(10)(

c) Cr.C. However, the Court provided some guidance on how tointerpret this provision. Basis for Section 515(10)(

c) Cr.C. 33 McLachlin C.J., writing for the majority of the Court, explained that in some circumstances it may be necessary to deny an accusedbail, even where there is no risk he or she will not attend trial or may reoffend or interfere with the administration of justice: Hall, at para.25. According to the Chief Justice, "[w]here justice is not seen to be done by the public, confidence in the bail system and, moregenerally, the entire justice system may falter": para. 26.

Yet, she wrote, "[p]ublic confidence is essential to the proper functioning of thebail system and the justice system as a whole": para. 27, citing Valente v. The Queen, (SCC), [1985] 2 S.C.R. 673, at p.689. Distinctiveness of the Ground Set Out in Section 515(10)(

c) Cr.C. 34 McLachlin C.J. also explained that s. 515(10)(

c) Cr.C. creates not a ground for detention that might be characterized as "residual"in the sense that it applies only as a last resort, but one that is separate and distinct: Bail denial to maintain confidence in the administration of justice is not a mere "catch-all" for cases where the first two grounds havefailed. It represents a separate and distinct basis for bail denial not covered by the other two categories. The same facts may be relevantto all three heads... But that does not negate the distinctiveness of the three grounds. [Emphasis added.] (Hall, at para. 30) Test Under Section 515(10)(

c) Cr.C. 35 The Chief Justice did not elaborate at length on the analysis to be conducted by a justice who must determine whether s. 515(10)(

c) Cr.C. applies. However, I will reproduce the following re marks: Section 515(10)(

c) sets out specific factors which delineate a narrow set of circumstances under which bail can be denied on the basis of maintaining confidence in the administration of justice. As discussed earlier, situations may arise where, despite the fact the accused is not likely to abscond or commit further crimes while awaiting trial, his presence in the community will call into question the public's confidence in the administration of justice.

Whether such a situation has arisen is judged by all the circumstances, but in particular the four factors that Parliament has set out in s. 515(10) ( c ) -- the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for lengthy imprisonment... This, then, is Parliament's purpose: to maintain public confidence in the bail system and the justice system as a whole... Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has specified.

The judge cannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he must focus particularly on the factors Parliament has specified. At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice... [T]he provision does not authorize a "standardless sweep" nor confer open-ended judicial discretion.

Rather, it strikes an appropriate balance between the rights of the accused and the need to maintain justice in the community. In sum, it is not overbroad. ( Hall , at paras. 40-41) [ 13 ] And then at para. 50, Justice Wagner states: 50 Furthermore, I agree with the appellant that detention may be justified only in rare cases, but that this is simply a consequence of the application of s. 515(10) (

c) and not a precondition to its application, a criterion a court must consider in its analysis or the purpose of the provision. [ 14 ] And then at para. 54, he states: 54 In conclusion, the application of s. 515(10) (

c) is not limited to exceptional circumstances, to "unexplainable" crimes or to certain types of crimes such as murder. The Crown can rely on s. 515(10) (

c) for any type of crime, but it must prove -- except in the cases provided for in s. 515(6) -- that the detention of the accused is justified to maintain confidence in the administration of justice. [ 15 ] And then just before considering the four circumstances enunciated in s. 515(10(c), Justice Wagner states at paras. 55 and 56: Circumstances Set Out in Section 515(10) (

c) Cr.C. 55 Section 515(10)(

c) expressly refers to four circumstances that must be considered by a justice in determining whether the detention of an accused is necessary to maintain confidence in the administration of justice. The justice must assess each of these circumstances -- or factors -- and consider their combined effect.

This is a balancing exercise that will enable the justice to decide whether detention is justified. 56 It must be kept in mind that, at this stage of criminal proceedings, the accused is still presumed innocent regardless of the gravity of the offence, the strength of the prosecution's case or the possibility of a lengthy term of imprisonment. [ 16 ] I do at this point, as stated by Justice Wagner, keep this in mind with regards to the apparent strength of the prosecution’s case. I note that they have statements from Garth Iron, C.S., J.K., the victim and even the accused as well as J.N.

There are many consistencies in these statements albeit there are also inconsistencies. For example, the complainant believes the car he was transported in, and that he saw leaving the country location where he was left, was a red vehicle. This is inconsistent with other evidence the Crown has, however, they have cogent evidence that it was the accused’s car that transported the complainant through the Tim Horton’s from the Capitol Theatre and out into the country, even though her vehicle was not red. As well, the complainant thought C.S. was driving the vehicle.

Again cogent evidence shows otherwise. [ 17 ] One has to consider that by the time the complainant made these observations he had been held captive, subject to prolonged assaults with weapons, gagged and blindfolded and transported in the trunk of a car for some distance. The eventual trier of facts will no doubt consider this, along with all the other evidence in determining the accused’s guilt or innocence. I consider it only in terms of

determining the apparent strength of the Crown’s case. These statements by the complainant, when looked at in light of the other Crown submissions, including the evidence from the Tim Horton’s drive thru, and the various other statements, does not detract from the apparent overall strength of the Crown’s case. [ 18 ] As well, I consider the physical evidence uncovered in the accused’s vehicle, at the Capitol Theatre and the apparent site the complainant was dropped off at in the country and I am satisfied the Crown has an apparently strong case against the accused on the sole charge of kidnapping.

Especially in light of the cases I previously cited, R v Oakley, R v Metcalfe and R v Hernandez , also known as R v Vu . [ 19 ] I also consider that defence may not have placed their entire defence or even their best defence before the Court at this early stage. What I do have is that the accused could tell something was wrong, that she was afraid and that she did a very stupid thing. In this regard I do take into consideration Mr. Justice Wagner’s comments at para. 59 of the decision in R v St. Cloud where he states: 59 On the other hand, the justice must also consider any defence raised by the accused.

Rather than raising a defence at the initial hearing, the latter will most likely not do so before the release hearing held upon completion of the preliminary inquiry, and may not even raise one before trial. If the accused does raise a defence, however, this becomes one of the factors the justice must assess, and if there appears to be some basis for the defence, the justice must take this into account in analyzing the apparent strength of the prosecution's case.

As the Quebec Court of Appeal noted in a relatively recent decision, "it would be unfair to allow the prosecution to state its case if the justice is not in a position to consider not only the weaknesses of that case, but also the defences it suggests": R. v.

Coates , 2010 QCCA 919 , at para. 19 . [ 20 ] I do take into consideration what has been raised by the defence in determining the apparent strength of the Crown’s case and I find in considering all of this, the Crown apparently has a strong case on the charge facing the accused. [ 21 ] Turing to the second point, the gravity of the offence, para. 60 of R v St. Cloud is seminal: Gravity of the Offence 60 For the purposes of s. 515(10) (c), what the justice must determine is the "objective" gravity of the offence in comparison with the other offences in the Criminal Code .

This is assessed on the basis of the maximum sentence -- and the minimum sentence, if any -- provided for in the Criminal Code for the offence. [ 22 ] A conviction for the offence faced by the accused carries a maximum sentence of life imprisonment. Looking at sections of the Code generally, there are more onerous sentences such as mandatory life imprisonment for murder. There are mandatory minimum jail sentences for a myriad of offences ranging from subsequent drunk driving offences to firearm used in offences including up to murder.

But there are relatively few offences in the Criminal Code that have a possible sentence of life imprisonment upon conviction. The gravity of this offence is very high. [ 23 ] Under the third consideration, the circumstances surrounding the commission of the offence, including whether a firearm was used, I will note first that I have no evidence before me to suggest that this accused knew of the use of any firearms. I then look to para. 61 of St.

Cloud as follows: Circumstances Surrounding the Commission of the Offence, Including Whether a Firearm Was Used 61 Without drawing up an exhaustive list of possible circumstances surrounding the commission of the offence that might be relevant under s. 515(10) ( c ), I will mention the following: the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability).

If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account.

[ 24 ] In looking at this I consider that, if proven, this was a cowardly crime with several people confining the complainant, taking him out a fire escape from the Capitol Theatre here in North Battleford, taking him to the accused’s car, placing him in the trunk, transporting him out into the country and leaving him tied and gagged and abandoning him.

It cannot be said that the accused had detailed knowledge of what transpired before her involvement, but it can be said that she facilitated the very kidnapping of a child of 16 years of age by allowing her son and others to place him in the trunk of her vehicle and transporting him out into the country and abandoning him. Whether she knew of his condition upon her abandonment both mitigates and aggravates.

On the one hand she cannot, at this point, be said to have known that he was beaten for a prolonged period of time, that he was tied up, gagged, blindfolded and a hole dug for him in the country, but it can be said, and it was said, that she knew something was wrong, that her son couldn’t let him go at that point; and yet she abandoned him in the country, left him there in either unknown or known condition and took the co-accused and left. She was 36, Garth Iron was 19, the others were 16. She was apparently the most mature adult.

Her role in the kidnapping, can be viewed at this stage, even though several other people are involved, as pivotal to the offence. Without her there was no apparent way to transport the complainant to this isolated location and leave him in whatever condition he was in. [ 25 ] On the fourth consideration: is the accused liable for a potentially lengthy term of incarceration?

I consider that the accused has no prior criminal record, that she is not charged with most of the offences the other co-accused are charged with, but she may well be seen to have, as defence counsel stated, stupidly reacted to the circumstances placed before her by her son and the others. But I also consider her age relative to the others and the fact that she facilitated the kidnapping of a 16 year old boy and his abandonment in the country and that she did so without apparent concern for his condition upon abandonment. The accused, I conclude, is liable for a lengthy prison sentence if convicted.

In considering all of this, as I have outlined on the four considerations under s. 515(10) (c), I have to conclude that a reasonable member of the community, in other words, a reasonable, well-informed person, not a legal expert with an in- depth knowledge of our criminal justice system, would be satisfied that denial of release is necessary to maintain confidence in the administration of justice. I therefore remand the accused on the tertiary ground as stated in s. 515(10) (

c) of the Criminal Code . [ 26 ] I will make an order under s. 515(12) of the Criminal Code that S.S. have no communication or contact, directly or indirectly, with K.K. and/or Garth Iron and/or D.N. and/or C.S. and/or K.M. and/or J.K. and/or Z.H., except through a lawyer. [ 27 ] Your matter will be adjourned then to July 13, 2015 at 11:30 a.m. via CCTV and there is remand. ___________________ D. O’Hanlon, J