r v. VERNE MANHERTZ, 2020 QCCQ 8892

R. c. Manhertz 2020 QCCQ 8892 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-202795-206 500-01-208686-201 500-01-208972-205 DATE: October 5 th , 2020 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE PIERRE DUPRAS, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

VERNE MANHERTZ Accused ______________________________________________________________________ DECISION ON A BAIL APPLICATION. ______________________________________________________________________ Introduction [ 1 ] The accused is charged in three different files of serious offences.

They range from possession of different types of narcotics for the purpose of trafficking, to breach of probation and finally to dangerous driving causing death of one Amanda Bradley and failure to stop after an accident causing death. [ 2 ] In the file where the narcotics are concerned, he faces a reversal of the onus and, thus, has to show cause as to why his detention in custody is not justified [1] in the circumstances of this case. [ 3 ] Many witnesses were heard in these proceedings and some documents were marked as exhibits. The orthodox order of presentation was not always respected to accommodate the

schedule of some of these witnesses. I propose to review the Crown’s evidence first, regardless of the order in which the witnesses were presented to the Court, then I will turn to the evidence for the defence. FILES 500-01-208686-201; 500-01-208972-205 [ 4 ] The Crown presented a judicial

summary of the facts together with videos and audio recordings of statements given to the police by different witnesses. In addition to that, a couple of information sheets, a presentence report and excerpts of the Court’s record were submitted. Also, an investigator for the major crime unit of the Montréal police testified viva voce . [ 5 ] The evidence proposed by the Crown established that the accused was the drug supplier of the deceased victim Amanda Bradley.

Support for that proposition can be found in the recordings of the statements of her parents and in Annex 1 of exhibit EC-1, where many electronic transfers of money are shown to have been made from the victim to the accused during a period of a couple of weeks ending on the day she died [2] . The total amount of these transfers is of $1 325. [ 6 ] On August 14th of this year, Amanda Bradley died. Before her death, she was last seen by witnesses on the hood of a black sedan heading north on Rodney Street in Pointe-Claire.

She was lying on the hood of the car while the car was driven until she fell to her death on the pavement. [ 7 ] The chronology of the events of the end of that afternoon can be summarized as follows.

The elements of this time line where taken from different evidentiary sources presented by the Crown. [ 8 ] 18 h 18 until 18 h 32, numerous phone communications took place between the accused and the victim. [ 9 ] 18 h 19, Amanda Bradley phones her mother Lisa Barr to tell her that she is going to walk the dog and meet Pharma Boy that the circumstantial evidence identifies as the accused [3] . [ 10 ] 18 h 30, Amanda Bradley leaves her father’s domicile at [...]. [ 11 ] 18 h 32, a phone call is initiated by Amanda Bradley to the phone of the accused.

That phone call has been tracked to a communication tower found at 18 621, boulevard Pierrefonds, while the accused resides at [...] of the same boulevard.

[ 12 ] 18 h 34 a GHB order is made by text message by the victim to the accused and an E-transfer is made from the victim’s bank account to the accused’s bank account in the amount of $50. [ 13 ] 18 h 53, technical evidence gathered by the police establishes that the engine of the accused’s vehicle was turned off. [ 14 ] 19 h 08, the cell phone associated to the accused was picked up by a tower located at 30, Chemin du Bord-du-Lac in Pointe- Claire which is close to the scene of the event. [ 15 ] 19 h 16:59, the examination of the accused’s car computer reveal that the engine was switched on. [ 16 ] 19 h 18, a call is made to 911 to report the accident. [ 17 ] 19 h 26, a house surveillance camera found at 107, avenue de Vincennes, a parallel street, picks up images of a car passing by that matches the description of the car involved in the death of Amada Bradley. [ 18 ] In addition to these elements of chronology, some of the witnesses observed certain events during the crucial period.

Without going in every detail revealed in the Crown’s brief, it will suffice, for our purpose, to state the following. [ 19 ] It appears that somewhere between 18 h 30 and the 19 h 18 call to 911, a dispute was observed between a woman walking her dog and a black man in his thirties wearing a gold chain [4] . This dispute would have been observed on Rodney Street near the West Island Women’s center located at number 11. [ 20 ] Witnesses saw the verbal altercation, heard screams, but could not hear the conversation.

According to the Crown brief, it appears that the victim became angry. [ 21 ] The next scene observed by the witnesses depict the victim, a couple of minutes later, laying on the hood of the black sedan while it is driven towards the north. [ 22 ] Mrs. Ford saw her roll on the hood and then fall to the ground while the car was moving. She added that the car never stopped.

Amanda Bradley was found near 16, Rodney Street which is located about 52 metres away from number 11. [ 23 ] The scene where Amada Bradley fell to her death was analysed and, among other things, a flask of what might possibly be GHB was found two meters from her body. [ 24 ] During the days that followed the events that were just described, the police obtained different judicial authorisations and ended up locating the accused and his vehicle and, according to the Crown’s theory, they match the person involved in the dispute of the 14 th of August and the car observed in the circumstances. [ 25 ] Physical surveillance of the accused will then be organised by the police and photographs of the accused will be made [5] .

They show a black man seemingly in is thirties and wearing a gold chain. [ 26 ] The accused will be arrested on August the 19 th and the incidental searches will yield, among other things, a gold chain, three cell phones and a BMO card. [ 27 ] The search of the accused’s car will reveal the presence of different narcotics in relatively small quantities, there was hashish, cocaine, barbiturates, dilaudid, clonazepam, speed, mdma, chrystal meth, crack and Xanax for an estimated street value of $2000. [ 28 ] On the evidence in those files, the Court adds that the cross-examination of Detective Sergeant Patrick Parent, established that no witnesses has identified the accused as being present on the location of the event on Rodney Street. [ 29 ] Further, no witnesses described the car as being a Lexus which is the model of the accused’s car and Mr.

Parent added that no witnesses were sure of the model of the car involved. [ 30 ] Also of importance, he said that no witnesses saw what happened between the moment where the two persons are discussing and the moment the car started. Finally, no one saw how Amanda Bradley found herself on the hood of that black car. [ 31 ] Essentially, the evidence that the accused faces regarding the driving offences is circumstantial in nature.

FILE 500-01-202795-206 [ 32 ] In this last file where the accused is charged with a breach of probation, the Crown’s evidence is to the effect that the accused did not respect some of his rendez-vous with his probation officer and offered an unsatisfactory collaboration to the follow-up procedure. [ 33 ] The original sentence was presented to the Court together with a Rapport d’événement of the intervenant communautaire in document EC-1. [ 34 ] Finally, the criminal record of the accused was also produced and it will be commented below.

EVIDENCE FOR THE DEFENCE [ 35 ] The first witness called for the defence was Steve Tan a representative of Recovery Science Corporation , a company that offers compliance monitoring programs.

[ 36 ] Essentially, what the corporations does is to install ankle bracelets equipped with a GPS chip on individuals that need, for different reasons, to be monitored. [ 37 ] They currently handle or supervise 1200 bail cases in Canada including 34 in Québec. The bracelet sends a signal to the monitoring service of the company every minute and when a breach of compliance is noted the police is advised. Other than monitoring bail cases, the company also monitors individuals who are serving conditional sentences and others that have signed recognizances under

section 810 of the Criminal Code . [ 38 ] As an example of the workings of the electronic surveillance, Mr.

Tan explained that in a situation where a curfew would be imposed at 22 h, if a monitored person is not in the zone around his residence at the set time then the system, unless there are exceptions, generates a curfew violation that is reported. [ 39 ] There are, obviously, costs to this monitoring service and they were established at $250 in the beginning and then to $540 monthly during the surveillance period. [ 40 ] It is not, said he, a prevention tool, it is a risk management tool that is reliable up to 99.95 %. [ 41 ] The defence also called Will Manhertz to testify. He is a brother of the accused.

His criminal record was marked as evidence under ECD-1. It shows mainly, but not exclusively, drug related offences, the last of which dates from 2009. [ 42 ] He is ready to take the risk, did he say, of depositing $10 000 in order to favour his brother’s release. He would also report him to the police if he was to breach his conditions. [ 43 ] The accused also took the stand to establish that he finished his studies to become an electrician in 2018 and that he was working on different contracts where the union, local 568 of the IUEW, would send him.

He said that, except when he was between contracts, he would work 40 hours a week. [ 44 ] He also mentioned that he was the father of three children and the provider for the youngest. [ 45 ] If he was to be released, he would live at his mother’s place in LaSalle and proposed that he could go straight from there to his work and back. He said that he would willfully wear the bracelet. [ 46 ] Document EC-6, the presentence report, mentions that he had, in May 2017, $80 000 in unpaid traffic tickets together with $20 335,34 in amounts owed to the Québec government for undeclared revenues.

Faced with this information during cross-examination, the accused said that he declared everything. [ 47 ] The last two witnesses presented by the defence where Jonas Manhertz and the accused’s mother Mrs. Parken. [ 48 ] Jonas Manhertz is a plumber who lives in an apartment just below his mother’s residence. He works full time for Plomberie et chauffage Normande in LaSalle. [ 49 ] He is willing to enter into a third party recognizance up to an amount of $3 000 to support his brothers application and to act as surety.

Further, he said that if the accused faced financial problems, he would help him pay the fees relating to the monitoring by the electronic surveillance company. [ 50 ] Finally, Claudette Anne-Marie Parken, the mother of the accused, also testified. She is willing to welcome her son at her A residence on Street A which is located, as we mentioned earlier, above Jonas Manhertz’s own residence. [ 51 ] She said that presently she is at home and is not working, indicating that she would be able to be present for her son. She said that she would be his living jail bars.

DECISION [ 52 ] The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release — at the earliest opportunity and in the least onerous manner — is the default presumption in Canadian criminal law .

Pre-trial detention is the exception, not the rule [6] . [ 53 ] These words where written by Chief justice Wagner in the first paragraph of the recent decision of the Supreme Court in Myers [7] , they act as a powerful reminder of principles that, together with the applicable legislation, must guide the Court’s actions. [ 54 ] Having this in mind and the requirements found in paragraphs

b) and

c) of subsection (10) of

section 515 of the Criminal Code [8] and the pertinent case law [9] , the Court will now turn to its analysis of the evidence in these files. [ 55 ] The main file, it is trite to say, is the file in which the accused is charged with dangerous driving causing the death of Amanda Bradley together with failing to stop. [ 56 ] The attorney for the Crown, guided by case law of our Court of appeal [10] , insisted, among other things, on the seriousness of the offence, the probability of a condemnation and the profile of the accused. [ 57 ] There is no question that these are serious offences, no one, including the defense, is challenging that.

A young woman found death in those circumstances and there is a maximum imprisonment for life associated to such offences. [ 58 ] On the probability of condemnation, the Crown has a serious case based on circumstantial evidence. But consideration must be

given to the fact that no one identified the accused on the scene of the death of Amanda Bradley and no one saw what happened for her to find herself on the hood of that black sedan. [ 59 ] The Court will leave it for the trial judge or judges to appreciate the probative value of the evidence on that matter and the inferences that are authorized by law, but at this stage of the proceedings, consideration must be given to these facts in this limited perspective. [ 60 ] As to the profile of the accused, the Court was not impressed by his debts with the city and the state nor by his testimony generally.

But even if his priors show many breaches of probation and undertakings, it remains that his adult record shows, as far as jail is concerned, one two year conditional sentence and one 90 days intermittent sentence. [ 61 ] Regarding the drug offences in the same perspective now, one has to note that the seriousness of these offences while objectively very high in the panorama of offences, must be relativized when looking at the quantities involved and the street value admitted by the parties. [ 62 ] The probability of conviction is high, at this stage, but the term of imprisonment faced by the accused may not be so important for this file alone as to become a factor to justify, with others, pre-trial detention. [ 63 ] The profile of the accused reveals past drug consumption and prior convictions for drug related matters. [ 64 ] Finally, on that topic, the breach of probation file was taken by way of

summary conviction which makes the accused liable to a sentence of a maximum of 18 months or a maximum fine of $5000 or both. [ 65 ] When this is all taken in consideration and when the release plan is examined in the light of the requirements of paragraphs

b) and

c) of subsection 515 (10) of the Code , the Court concludes that the detention of the accused in pre-trial custody is not required provided that his release is controlled by a close supervision and strict conditions. [ 66 ] Even though the accused has numerous drug related priors, the Court cannot conclude, on the evidence, that there is a substantial likelihood that the accused will if released commit a criminal offence or interfere with the administration of justice. [ 67 ] Further, the Court is of the opinion that the accused detention is also not required for the protection or safety of the public.

His criminal record, except for the period where he was a young offender, does not reveal the commission of violent crimes and he will be forbidden to drive any motor vehicle. [ 68 ] As for the third motive, in the Court’s opinion, a person well informed of the philosophy underlying

section 515 of the Code , of the values and principles protected by the Canadian Charter of Rights and Freedom and of the circumstances of these cases, would not see its confidence in the administration of justice undermined by the release of the accused. [ 69 ] The apparent strength of the cases was discussed earlier at paragraphs 58 and 62, together with the gravity of the offences at paragraphs 57, 61 and 64; the Court will not repeat itself. [ 70 ] The circumstances surrounding the commission of the offences were also described at length earlier, but let’s add that as far as the driving offences are concerned premeditation does not appear to be an issue; of course the drug trafficking offences are, on that aspect, of a completely different nature. [ 71 ] Regarding, the duration of a potential detention term, again, the drug offences usually will, in the light of the variety of narcotics possessed by the accused and his priors, generate a detention period, but the Court reiterates that we are not looking at what could be described as a lengthy term of imprisonment. [ 72 ] It would be otherwise should he be convicted of the driving offences but the weighing of all the relevant factors in this context leads the court to the conclusion it outlined earlier that is that the accused’s detention is not justified under this third motive.

FOR THESE REASONS, THE COURT ORDERS that the accused Verne Manhertz be released from custody under the following conditions: • A third party recognizance will have to be signed by Jonas Manhertz in the amount of $3 000 before his release; • A deposit of money in the amount of $10 000 will have to be made by Will Manhertz before his release; • He will have to attend Court as required; • He will have to reside at [...], in Ville LaSalle; • He will have to be at that address between 21 h 00 and 06 h 00; • He will not change his address without the prior authorisation of the Court or of the DPCP; • He will have to deposit his driver’s licence to the Court before his release; • He will abstain from driving any motor vehicle whatsoever; • He will abstain from communicating with people that, to his knowledge use or sell narcotics; • He will formally abstain from possessing a pager or a cell phone except for work purposes;

• He will be forbidden to have in his possession or to use drugs or narcotics, including marihuana, except in accordance with a validly obtained medical prescription; • He will abstain from possessing any type of weapon the list of which will be included in the condition sheet; • Finally, before he can be released, he will have to enter into an agreement with Recovery Science Corporation in order to be submitted to their compliance monitoring program; • He will have to respect all terms and conditions, financial or other, of such agreement; • The electronic surveillance bracelet will have to be installed to the accused ankle before he can be released from custody. __________________________________ PIERRE DUPRAS, J.C.Q.

Me Gabriel Lapierre Directeur des poursuites criminelles et pénales Crown attorney Me Vincent Lefebvre and Christian Gauthier Defense attorney Dates of hearing: 10, 18 and 24 th of September 2020