Her Majesty the Queen - v. -, 2015 SKPC 150

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 150 Date: October 27, 2015 Information: 45442023 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Paul Welsh Appearing: Robin Ritter For the Crown Brent Little For the Accused Note: Pursuant to s. 517 of the Criminal Code , an order has been made directing that the evidence taken, the information given or the representations made and the reasons given by the Justice shall not be published in any document or broadcast or transmitted in any way before such time as if a preliminary inquiry is held, the accused is discharged, or if the accused is tried, the trial is ended.

DECISION ON JUDICIAL INTERIM RELEASE B.G. MORGAN , J Introduction

[1] Mr. Welsh faces one count of aggravated assault on his partner, Raylene Frerichs, contrary to s. 268(1) of the CriminalCode, alleged to have occurred on September 13, 2015. As Ms. Frerichs died on October 13, for reasons that are not before the Court,and as there appear to be no independent witnesses to the alleged aggravated assault, it is apparent that the Crown will need to resort tothe principled exception to the hearsay rules in order to prove the offence. [2] A significant amount of hearsay evidence has been advanced at the bail hearing, through the police officer who initially hadcontact with Ms.

Frerichs, the sergeant from the Domestic Violence Assault Unit who took over the investigation, and written material. This hearsay evidence is not restricted to what allegedly occurred on September 13; rather, it encompasses the period from when theparties first met, approximately nine years ago, to the present, the Crown’s theory being that Ms. Frerichs has been the victim of ongoingdomestic violence virtually since the onset of her relationship with Mr. Welsh. [3] The Crown argues that Mr.

Welsh’s application for bail should be denied on both the secondary and tertiary grounds; thedefence argues that neither ground justifies detention, and further submits that the evidence of historical assaults would be inadmissibleat trial, so no weight should be given to that hearsay evidence at this bail hearing. [4] I will review the use of hearsay evidence at a bail hearing, and the applicable law respecting bail as set out in the case lawand s. 515(10) of the Criminal Code, and give my decision on this application. In this bail hearing, the onus rests on the Crown.

Use of Hearsay Evidence at a Bail Hearing [5] Section 518(1)(

e) of the Criminal Code states that in any proceeding under

section 515, “the justice may receive and basehis decision on evidence considered credible or trustworthy by him in the circumstances of each case.” [6] In Gary K. Trotter, The Law Of Bail In Canada, loose-leaf, (2011 - Rel. 1) 3rd ed, (Toronto: Carswell, 2011) at 5-46, theauthor notes: The relevance of proceedings at a bail hearing is determined by the “substance” of the proceedings. The purpose of the bail hearing is toapply the criteria in s. 515(10) to the facts of the accused person’s case.

To make this adjudication, the justice or judge will requireinformation about the allegations faced by the accused, as well as information about the accused and/or his personal circumstances.... ... At a bail hearing, the court is required to make a prediction about the accused person’s future conduct, as well as the impact of adecision to release on public confidence in the justice system.

The assessment is based upon what the accused is alleged to have done,along with information about the accused person’s social circumstances and character.... [7] There is no doubt that hearsay evidence may be received at a bail hearing (R v Courchene (MB QB),[1999] MJ No 536). After reviewing the law, the Court sums up the principle at para 36: Based on this analysis, I find that s. 518(1)(

e) is wide enough to allow the court to accept hearsay evidence at the bail hearing whichwould not be admissible at a trial. Whether any specific hearsay evidence is admitted will be determined by the judge or justice at thebail hearing on the basis whether he or she finds that it is sufficiently trustworthy to be accepted. [8] In an earlier Saskatchewan case, Baynton J. of the Court of Queen’s Bench reviewed the law respecting hearsay evidence ata bail hearing and concluded as follows: The rules of evidence applicable to a trial do not apply to judicial interim release hearings. These proceedings by their very nature must

in most cases be conducted summarily and on short notice. If the rigid procedures of a trial have to be met, the result will be delay,inconvenience, and additional expense, and the spirit and intent of the bail provisions will be defeated. Hearsay evidence can beconsidered if it is reliable and trustworthy, but the parties must have the opportunity to contradict or challenge such evidence. The onlyquestion is the weight to be given to the hearsay evidence considered on

summary applications, not whether such evidence is admissible.[references omitted]. ( (SK QB), [1997] SJ No 610, at para 16 SJ) It is recognized that the hearsay evidence at a bail hearing may well not be admitted at trial. In the recent and leading case on bailgenerally, R v St-Cloud, 2015 SCC 27, para 57, the Court made the following comment when dealing specifically with the criteria unders. 515(10)(

c) of the Criminal Code, (dealing with the apparent strength of the prosecution’s case): An interim release hearing is a

summary proceeding in which more flexible rules of evidence apply. As a result, some of the evidenceadmitted at this hearing may later be excluded at trial... The Bail Hearing [9] Section 515(10) sets out the criteria to follow with respect to an application for bail: 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 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 of 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 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 3 years or more. [10] St-Cloud makes clear that each of those grounds stands on its own; there is no “hierarchy” of those grounds (para 41). [11] That case makes equally clear that “the Crown can rely on s. 515(10)(

c) for any type of crime, but it must prove . . . that thedetention of the accused is justified to maintain confidence in the administration of justice” (para 54). [12] Keeping in mind that Mr. Welsh is “still presumed innocent regardless of the gravity of the offence, the strength of theprosecution’s case or the possibility of a lengthy term of imprisonment”, I will now assess the case (para 56). Primary Ground [13] Mr. Welsh is 43 years old, with no record for failing to attend Court. He has employment in Saskatoon, and a residence here. [14] In the circumstances of this case, he has no support from his extended family, although he does have a teenage son from a

prior relationship who was living with him and Ms. Frerichs prior to September 13. Although that child has been referred to as being estranged from Mr. Welsh, that’s a hearsay comment that I give little weight to. The point I make is that he does have family in Saskatoon. [ 15 ] I am not satisfied that the Crown has met the onus placed upon it to justify detention on the primary ground. Secondary Ground [ 16 ] The hearsay evidence is being tendered under this ground, although there is some overlap with aspects of the factors from the tertiary ground.

This will require a bit of background on how these matters came to light. [ 17 ] Constable Moser of the Saskatoon City Police Service responded to a third party call respecting a “domestic situation” involving Ms. Frerichs. A family friend had called the police, who advised them that Ms. Frerichs had said that she was assaulted on September 13, was confined to bed, and did not want the police involved. [ 18 ] Constable Moser went to the identified residence and spoke to Ms. Frerichs, whom he referred to as “polite but uncooperative” in that she didn’t want to speak to the police.

Nor did she want medical assistance. It was obvious to Constable Moser that Ms. Frerichs was in some considerable amount of pain, and was favouring her left arm. [ 19 ] Ms. Frerichs told the officer that the person responsible lived in the house, as did she, and that if she left the house that person would kick her out of the house. She told the officer that “he jacked me off the couch by my arm”, an expression which I take to refer to a sudden or violent pulling motion.

She indicated this had occurred on the weekend prior (September 16 was a Wednesday, September 13 a Saturday), that she and this other person had been drinking, and that she herself was self-medicating with alcohol to ease the pain. Although reluctant to give any details, she showed the injury to the officer, who after unsuccessful attempts to have her go to the hospital, called MD Ambulance.

It took them approximately one-half hour to coax her from the home into the ambulance to go to the hospital, and it came to light later that she checked herself out almost immediately after arriving there. [ 20 ] The investigation was turned over to Sergeant Kiesman from the Domestic Violence Assault Unit, who after reviewing the file became concerned that there was a significant potential issue of ongoing domestic violence. He spoke to the individual who made the initial complaint, followed up with a number of family members of Ms.

Frerichs, and reported to the Court as to what he had learned of the background, and this incident, based on his investigation and these discussions. [ 21 ] With respect to knowledge that he obtained from Ms. Frerichs, he spent some significant time with her the first time he met with her on September 17. It was at that point that she advised him she had checked herself out of the hospital. She had a sling on her arm, but no cast. Although there has been no medical evidence provided, I am satisfied that she had a broken humerus. [ 22 ] Sergeant Kiesman was clear that Ms.

Frerichs “flat-out refused” any request that she give a statement. Sergeant Kiesman attended on a number of other occasions with other officers, and each time, Ms. Frerichs refused to cooperate with police. Eventually, on September 29, she agreed to give some details, so using a cell phone, an audio-visual interview was conducted. However, she would make certain admissions off-camera, but refused to do so on-camera. Not having seen that video, I have no information as to specifically what is on it. [ 23 ] However, the information that was forthcoming from Ms.

Frerichs included an earlier incident at a specific residence on Louise Avenue in Saskatoon, allegedly involving an assault with a golf club, that was also referred to by her daughter in discussions with Sgt. Kiesman. In sum, based on his investigation, this officer had significant concerns about the level of violence that appeared to have been inflicted on Ms. Frerichs by Mr. Welsh over a number of years. [ 24 ] Interspersed with his various meetings with Ms. Frerichs was information he was receiving from her family, all of which led

[ 24 ] Interspersed with his various meetings with Ms. Frerichs was information he was receiving from her family, all of which led him to the conclusion that there had been ongoing abuse for the past nine years that Mr. Welsh and Ms. Frerichs had been together. He took statements as well from two adult daughters of Ms. Frerichs from a previous relationship. [ 25 ] The oldest daughter, now 20, provided information to him about a situation near the start of the relationship in which she said her mother said she was “ jumped” at a bar, although this daughter thought it was Mr. Welsh who assaulted her mother.

She told him of the incident respecting an assault with a golf club at the Saskatoon residence that her mother told her of, as well as another specific incident that she herself witnessed approximately six years prior. She told the officer that in all of those incidents, her mother refused to tell the police or do anything about the situation. [ 26 ] The younger daughter, now 18, did refer to a situation approximately four years ago, in which she intervened when her mother was being assaulted by Mr. Welsh, and she herself was allegedly assaulted by him when she did so. [ 27 ] Ms.

Frerichs’ mother gave information to the officer, both verbally and by letter (there was also a letter filed from one of Ms. Frerichs’ sisters), all of which led inescapably to the conclusion that, if accepted, there has been an ongoing volatile relationship between these parties for nine years. However, the source of this information that these family members have generally came from what they were told by Ms. Frerichs, sometimes reluctantly and sometimes of a vague nature, coupled with their suspicions of what was going on in the relationship: the exceptions are what either daughter actually witnessed.

I accept that they certainly had concerns, that they are convinced that Mr. Welsh is an abuser, and that Ms. Frerichs was under his control during the relationship. [ 28 ] Mr. Welsh was arrested on September 18, and has been in custody since that date. At that time, he admitted that he did pull her off the couch, but denied that he caused her broken arm, and he denied the assault with a golf club. [ 29 ] On an appearance of September 21, a non-communication order was made with respect to Ms. Frerichs. Mr. Welsh has remained in custody awaiting his anticipated trial date of October 19.

However, with the death of Ms. Frerichs on October 13, that changed the texture of the Crown’s case, and he now makes application for bail. [ 30 ] Against that background, I return to the secondary ground. The Crown argues that there is evidence that between the dates of September 18 and September 24, Mr. Welsh was ignoring the non-contact order. He was allegedly phoning Ms. Frerichs, e-mailing her, and as part of the investigation, Sergeant Kiesman was able to listen to the recording of calls between the parties when Mr.

Welsh was in the Saskatoon Correctional Centre. [ 31 ] He also became aware of a letter that Mr. Welsh allegedly wrote to her, which Ms. Frerichs refused to deliver up when she was alive. However, it came to light after her death, and this communication, in conjunction with evidence Sergeant Kiesman has that Mr. Welsh used another inmate’s phone to call Ms. Frerichs, thereby masking the originator of that call, leads the Crown to argue that detention under the secondary ground is justified as well by Mr. Welsh’s refusal to follow the previous order. [ 32 ] Mr.

Welsh’s local record includes a breach of undertaking from December 4, 2012, as well as another breach of undertaking, a threats charge, and an assault from March 26, 2013. The CPIC record shows a breach of undertaking from June 26, 2013. [ 33 ] It is the use of the hearsay evidence that defence takes great exception to, arguing all of the evidence of the historical assaults will be inadmissible at trial, so no weight should be attached to it at this point. Mr. Little argues that none of this historical hearsay evidence has anything to do with the issue of whether or not on September 13 Mr.

Welsh actually assaulted Ms. Frerichs. [ 34 ] In looking at “all the circumstances” in the secondary ground, it is common to file an accused’s criminal record, as it could of course be relevant on the issue of whether or not there is a “substantial likelihood” of further offences being committed. Obviously, if an individual has a record that shows a propensity for failing to come to Court, that would be relevant both on the primary and secondary grounds.

[ 35 ] However, it is a different matter when one is dealing not with a criminal record that discloses past proven offences, but rather what is hearsay evidence of past unproven and unreported alleged criminal and abusive activity. The former can play some role in predicting future behaviour, a relevant inquiry, as discussed earlier. The latter is essentially evidence of bad character, and whereas one can argue that it has a bearing on that predictive analysis, I find that it has little value in that regard.

Further, it is clear that evidence that one knows will be inadmissible evidence at trial should not be used at a bail hearing. [ 36 ] The best I can take out of the hearsay allegations respecting an ongoing abusive relationship is that this may have been the case. Those allegations will be of no benefit to the Court when determining guilt or innocence on the September 13 allegation.

Even if I accept it for the purposes of this bail hearing, I note that the only specific threat that may be posed to a living person is, potentially, either daughter; each of those are allegedly the victim of an assault themselves. [ 37 ] I am not satisfied the Crown has met the onus justifying detention on the secondary ground. [ 38 ] Turning to the tertiary ground, I will start with the apparent strength of the prosecution’s case. As noted earlier, there is a lot of hearsay evidence that will have to be relied on by the Crown, at trial, if it is admitted, to establish the case.

However, on the evidence before me at this point, I have hearsay evidence Ms. Frerichs conveyed to the investigating officers, prior to her death, that Mr. Welsh pulled her off the couch. There is some suggestion that she then fell and broke her arm. [ 39 ] Mr. Welsh did give a statement to the police upon his arrest, and assuming that is admissible at trial, it would confirm that he did pull her off the couch. However, he denied doing anything more than that, and at best it’s an admission that he may have pulled her arm too hard.

There is no direct evidence of a sustained beating, and the actual act that caused the arm to be broken is not clear to me at this point. [ 40 ] Further, as was pointed out in St-Cloud , it is necessary to look at the proposed defence evidence. Exhibit D-1 is a letter from Mr. Welsh’s then lawyer, consisting of a conversation he had with Ms. Frerichs, that was initiated by Ms. Frerichs. In that conversation, Ms. Frerichs allegedly told counsel that she had fallen and broken her arm, and it was not Mr. Welsh’s fault. [ 41 ] I also have to take note of the fact that all of the statements Ms.

Frerichs gave to the police were at a time when she was self- medicating with alcohol, that by her own admission, both parties were drinking at the time of the events of September 13, and that although she has given a partial statement to the police, she has been adamant throughout that she did not want police intervention and was in fact a most reluctant witness. I have no suggestion that there is a formal KGB sworn warned statement given by Ms.

Frerichs, and I have no further information respecting what snippets may be on a partially recorded videotaped statement on a cell phone. [ 42 ] There are no other witnesses to the alleged assault other than the deceased, and Mr. Welsh, and I cannot agree with Crown counsel’s suggestion that the strength of their case is “overwhelming”. [ 43 ] I contrast this case with the situation in St-Cloud , where Mr. St-Cloud was one of three assailants, captured on a video, administering a prolonged beating to a bus driver, coupled with eyewitness evidence.

In all the circumstances, I conclude that the apparent strength of the Crown’s case is not that strong. Gravity of the Offence [ 44 ] Aggravated assault is indictable by law and carries a maximum term of imprisonment of 14 years. In the case of an assault causing bodily harm, or assault with a weapon, proceeded by indictment, the maximum penalty is ten years, and straight assault, again if indictable, carries a maximum penalty of five years. Objectively, as this ground is to be assessed, there is no question an aggravated assault is a serious offence.

Circumstances Surrounding the Commission of the Offence [ 45 ] Much of what is germane here has been dealt with already. I note that this refers to the “circumstances surrounding the commission of the offence”, that is, this alleged offence of September 13, and much of this has been addressed already. In my view, the history of past alleged violence has no bearing on the guilt or innocence of Mr. Welsh, and plays little of any role in assessing the circumstances respecting this offence. [ 46 ] As indicated above, I am certainly aware that Ms.

Frerichs suffered a broken arm, although beyond that the circumstances of how that occurred are not clear. Potential for a Lengthy Term of Imprisonment [ 47 ] Crown counsel has indicated that, on a preliminary review, he would seek a sentence upwards of four years if Mr. Welsh is found guilty.

I would consider that to be a lengthy term of imprisonment and defence does not argue otherwise. [ 48 ] In assessing the need for detention on the tertiary ground, I am required to “engage in a balancing exercise”, the ultimate question being whether detention is necessary to maintain confidence in the administration of justice. This concept is discussed in paragraph 69 of St-Cloud, which notes that the “...argument that detention must automatically be ordered if the review of the four circumstances favours that result is incompatible with the balancing exercise required by s. 515(10) (

c) and with the purpose of that exercise”. [ 49 ] St-Cloud instructs the Court to look at the public perception through the lens of a reasonable person, as that person is described in that decision. In my view, detention is not necessary on the tertiary ground. A reasonable person would accept that Mr. Welsh should be granted bail.

As was pointed out in paragraph 86 of St-Cloud , public confidence in the administration of justice “...may be undermined not only if a justice declines to order the detention of an accused in circumstances that justify detention, but also if a justice orders detention where such a result is not justified”. [ 50 ] In crafting these conditions, I have considered the representations made by Mr. Welsh’s counsel. [ 51 ] Mr. Welsh will be released on an undertaking with the following conditions: 1. He is to appear before the Court when required to do so by the Court; 2.

He is to report to a probation officer at 129, Main floor, 122 - 3 rd Avenue North, Saskatoon, Saskatchewan, in person by no later than 10:00 a.m. on Wednesday, October 28, 2015 and after that as told to do so by his probation officer or designate; 3. He is to live at a residence approved by the probation officer and not change that residence without prior written permission of the probation officer or designate or the Court; 4.

He is to stay inside his approved residence from 11:00 p.m. each night until 6:00 a.m. the following morning, unless he has the prior written permission of his probation officer, designate or the Court to be elsewhere, and he is to come to the door of his approved residence when asked to do so by a probation officer or police officer who may be checking the residence and curfew conditions on this order; 5. He is not to possess or consume alcohol or drugs that have not been prescribed for him by a medical doctor; 6.

He is to have no contact of any kind in any way, directly or indirectly with any of the following persons, except through a lawyer: Ramona Quinn, Darrell Frerichs, Meranda Frerichs, Samantha Frerichs, Jamison Frerichs, and Rhonda Hall; 7. He is not to be at or near the residence, work place, or place of education of any of those individuals as may be known to him;

8. He is not to possess any firearms or ammunition, crossbow, prohibited weapon, restricted weapon, prohibited device, prohibited ammunition or explosive substance or other weapons and he shall immediately deal with any firearms or ammunition he may have in his possession by turning those over to the Saskatoon Police Service by no later than 4:00 p.m., Wednesday, October 28, 2015; 9. He is to remain in the Province of Saskatchewan; 10. He is to deposit any passport or travel documents he may have with the Court by no later than 4:00 p.m., Wednesday, October 28, 2015; and 11. He is not to attend any funeral or memorial service for Raylene Frerichs. _______________________ B.G. Morgan, J