) ) HER MAJESTY THE QUEEN – v. –, 2010 ONSC 6154

CITATION : R. v. Pierce, 2010 ONSC 6154 COURT FILE NO.: 10-86 DATE: 2010/11/18 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – LACEY PIERCE Accused ) ) ) ) ) ) ) ) Jason Pilon, counsel for the Crown Ross Stewart, counsel for the Accused ) ) HEARD: October 29 th , 2010 REASONS FOR JUDGMENT justice rick leroy Introduction [ 1 ] In the course of one year Lacey Pierce, age 24 went from a criminal justice system neophyte to one who has criminal convictions, who has been imprisoned awaiting trial since March 14, 2010 and who may be facing penitentiary time on the core substantive charges.

On November 20, 2009 Ms. Pierce was charged with confinement and aggravated assault following what is depicted as a wanton wilful beating of two erstwhile friends that involved the use of a golf club and baseball bat and resulted in serious injury to the victims. Since then Ms. Pierce accumulated two breach charges and another assault involving an officer at the detention centre. Ms. Pierce’s application for judicial interim release heard March 18, 2010 was dismissed by Justice of the Peace Guindon.

This application is brought on the basis that the Justice of the Peace erred in law in respect to the reasons given in respect to the secondary ground and should be overturned and, alternatively, on the basis of a material change in circumstances. The events surrounding the crime and the circumstances of the offender point to a tightly restricted judicial interim release. Issues [ 2 ] Onus : Ms. Pierce was detained as the result of having been charged with breach offences while at large on a judicial interim release.

As such, it is her burden to show cause that detention is not merited – s. 515(6)(c). [ 3 ] Nature of the hearing : This is the accused person’s application under s. 520 and is a blend of an appeal and a de novo hearing. If the Justice of the Peace exceeded his jurisdiction, made an error of law or a serious error in appreciation of the evidence the hearing blends more toward the appeal end of the spectrum. If such errors are not evident from the record and if there is insufficient new evidence to manifest a material change in circumstances this court should not substitute its discretion.

The assessment of new evidence is made in the context of the evidence presented at the initial hearing and whether, had the Justice of the Peace known of the new evidence, would there have been a different outcome. [ 4 ] Statutory standard: The prosecution position is that Ms. Pierce is properly detained pursuant to the second and third grounds. Subsection 515(10) sets the standard for detention as follows:

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) Not applicable (

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

c) If the detention is necessary to maintain the 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 offences, 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 that involves or whose subject matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

Narration of pertinent facts : [ 5 ] The noteworthy charges against Ms. Pierce included aggravated assault and confinement committed November 20, 2009. While the initial moments of the altercation were not remarkable, the behaviours reported became more depraved as the victors are alleged to have ambushed two other victims and then inflicted trauma with kicks, golf club and baseball bat over an extended period of time. One victim suffered injury that included brain bleeding and the other was treated for broken ribs and hand. The assertions are that Ms.

Pierce was the instigator of the initial dispute and was actively engaged in the assault. [ 6 ] Ms. Pierce was released on January 13, 2010 on terms that included abstinence from consumption of alcohol, a curfew without sureties and two sureties, namely Debbie Jocko – applicant’s mother and Stephanie Pierce – applicant’s sister. [ 7 ] Ms. Pierce was arrested on March 14, 2010 and charged with breaching the alcohol and curfew restrictions. Ms. Pierce while attending a party with her sister, Stephanie, left the main party area, located a bottle of alcohol and consumed it before Stephanie could stop her.

Stephanie telephoned Ms. Jocko who attended to collect Ms. Pierce and take her home. Ms. Pierce was inebriated and threatening suicide. Ms. Jocko’s instincts were to protect her daughter first and report the breach second. [ 8 ] Ms. Pierce’s family has been concerned as to her mental health for some time. She lost a near term child and withdrew into self medicating alcohol and marijuana rather than more effective bereavement counselling. She refused counselling or acknowledgement of the merit. The family attributes Ms. Pierce’s alcohol and drug abuse, unresolved loss and anger to losing the child.

It was in that context that Ms. Jocko directed her mind to protecting Ms. Pierce instead of prompt reporting. The synopsis of the evening’s events suggests that Ms. Pierce would not be assuaged leaving Ms. Jocko with no option but to call the authorities for help. [ 9 ] Justice of the Peace Guindon dismissed Ms. Pierce’s judicial interim release application on March 18, 2010 relying on the secondary ground. Ms. Pierce who has been detained continuously since seeks review of that decision. [ 10 ] Ms. Pierce’s troubles did not end there.

She was held initially at the Ottawa-Carleton Detention Centre and is charged with assault on a guard from events of April 27, 2010. The presiding Justice of the Peace determined to release Ms. Pierce from detention in respect to this charge on August 13, 2010 on terms that included attendance at the Akwesasne Family Violence Program and follow treatment as recommended. Of course she was not actually released as the instant detention order remains in effect. [ 11 ] Ms. Pierce acknowledged the March 14, 2010 breaches by pleading to them before Justice MacPhee on August 28, 2010.

She was sentenced on August 28, 2010 and sentenced to one day concurrent on each breach in addition to thirty days pre-conviction detention designated to this conviction. Analysis [ 12 ] Ms. Pierce submits that the Justice of the Peace misapprehended the considerations involved in a detention pursuant to the

secondary ground, namely that detention is necessary for the protection or safety of the public, having regard to all the circumstances including any “ substantial likelihood ” the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice. I disagree. [ 13 ] The Justice of the Peace knew these were offences while Ms. Pierce was already on bail. That is, with respect, a strong secondary ground indicator. He accepted that Ms.

Pierce did not have a criminal record but he noted correctly the evidence of the sureties confirming the breach and their decisions to not report immediately as required. [ 14 ] He emphasized the nature of the offence, the purported planning for the second stage, the ambush and extreme violence. The Justice of the Peace recognized that the more the accused’s participation is characterized by planning and violence the greater the risk to society. [ 15 ] Stability of the accused and strength of the plan : He observed that the plan advanced by the sureties was essentially the same as the failed plan.

The breach involved alcohol consumption in circumstances that suggested Ms. Pierce could not voluntarily abstain. [ 16 ] He heard evidence and observed that the sureties were not committed to their role as Ms. Pierce’s jailers. That Stephanie Pierce, in the role of surety thought it was appropriate to attend a house party with her sister in the role of surety and relative and in the context that the substantive charges arose from another house party is inexplicable. She professes to know all about Ms.

Pierce’s weaknesses, including dependence on alcohol, yet completely disregarded the risks inherent in the activity. Clearly, Stephanie did not appreciate the duties of her role as surety. The Justice of the Peace essentially adjudicated on this issue based on the conduct of Ms. Pierce and sureties and not on what they said. [ 17 ] The Justice of the Peace observed a particularly inadequate set of circumstances involving an accused and sureties who had not grasped the predicament. He noted that he did not believe Ms.

Pierce was not releasable under any circumstances but the plan had to be tighter to protect against what he considered to be substantial likelihood the accused would, if released from custody, commit a criminal offence. [ 18 ] In the circumstances as presented to the Justice of the Peace, detention on the second ground was merited. Ms. Pierce was not ready to comply with conditions including abstinence from alcohol and it is the case that when she drinks problems ensue. Her sureties were more concerned with her safety and care than their role as jailers.

Accordingly, the submission that the Justice of the Peace erred in law for inappropriate discussion of the secondary ground considerations is dismissed. New evidence [ 19 ] The plan presented today bears the same format as those presented in the last three hearings. The difference is Ms. Pierce’s professed recognition of the need and merit of engaging in treatment for bereavement and addictions including marijuana and alcohol. Prosecution warns against jail house epiphanies. [ 20 ] Stephanie Pierce and Ms. Jocko were obviously relieved by Ms. Pierce’s learned insight and discernment. Both considered Ms.

Pierce to have been a happy successful young woman with some academic prowess who lost a child near term and sank into a depression medicated by alcohol and marijuana. They testified to how Ms. Pierce appeared to resign from daily enjoyment of life and was nonresponsive to their entreaties. They return to the court seeking release because they believe Ms. Pierce has reached the catharsis point where she needs to return to the young woman they knew before the loss.

The requisite commitment and good faith that was missing when they were before Justice of the Peace Guindon has come together. [ 21 ] Prosecution argues that Ms. Pierce’s standing today is worse than then. Today, she has two breach convictions and an outstanding assault charge in respect to the events at Ottawa-Carleton Detention Centre. Bail breaches are an important consideration under the second ground. Ms. Pierce has been committed for trial on the substantive charges. Jail house epiphanies are unreliable.

[22] The essence of the Judicial Interim Release process is Ms. Pierce’s promise to comply. Ms. Pierce’s promise given today isworth more than it was in March. She accepts responsibility for the breaches. One set of breaches arising from the same incident is notdispositive in a longer term context. It isn’t unusual for a first time offender to breach. It is a new and different world than the one shehad without release constraint.

I accept that approximately six months pre-trial detention involving twenty-two hours per day in her cellfor an erstwhile law abiding citizen ought to make the point and she learned individual deterrence as regards criminal activity pendingtrial. [23] I accept that Ms. Pierce is in the nascent stages of dealing with bereavement, substance abuse, poor self esteem and angermanagement in a constructive fashion and her focus can now divert to positive resolution. It may well have been a jail house epiphanyand the Crown’s submission as to credibility or reliability would carry more consequence if Ms.

Pierce had more experience in thecriminal justice system. I conclude that her rethink on expectation is ingenuous. Sureties [24] Ms. Jocko merits faith in her proper commitment to the terms of release if Ms. Pierce is to be released. She truly cares for Ms.Pierce’s well being and views it from a mature and bigger picture. She is alert to the influence of loss and perceives the change in Ms.Pierce to be positive and important. [25] Stephanie Pierce has achieved success professionally and may be helpful from a bond perspective but I don’t accept that she addsmuch in terms of supervision outside Mrs.

Jocko’s residence. Her decision to attend a party with her sister reveals a completemisapprehension of her role as jailer. [26] Their plan entails house arrest and surety supervision almost on a 24 hour basis. [27] The question is whether such is sufficient to overcome such factors as the nature of the offence, the likelihood of conviction, Ms.Pierce’s degree of participation and planning in the offence, the close relationship between Ms. Pierce and victims and the two breaches,all of which tend to weigh against release and are measures of the dangerousness of releasing Ms.

Pierce into the community. [28] Bail is denied on the second ground only for those who pose a substantial likelihood of committing an offence or interfering withthe administration of justice and only where this substantial likelihood endangers the protection or safety of the public. The measure isthe likelihood of dangerousness. [29] The breaches are important considerations on the issue. Parliament intended that releases be vacated in situations where theaccused breaches. On the facts of this case, clearly alcohol or other substance abuse are symptomatic of Ms. Pierce’s unresolved issues.

Given the opportunity, Ms. Pierce would select consumption ahead of abstinence every time. Justice of the Peace Guindon was right todismiss the release application. The breaches need to be assessed against the realizations achieved by Ms. Pierce in the meantime andthey take on lesser importance once there is evidence to demonstrate that the symptoms should ameliorate with growing awareness. Gladue [30] The Supreme Court of Canada principles enunciated in R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 apply to bailhearings. Winkler, CJO in R. v.

Robinson, [2009] ONCA 205 observed that the application judge cannot apply such principles in avacuum. Application of Gladue principles involves consideration of the unique systemic or background factors which may have playeda

part in bringing the particular aboriginal offender before the courts. The exercise involves a consideration of the types of release plans,enforcement or control procedures and sanctions that would, because of her or his particular aboriginal heritage or connection, beappropriate in the circumstances of the offender and would satisfy the release grounds in 515(10). [31] The release plan presented for Ms. Pierce is centered on a holistic native treatment program aimed at Ms. Pierce’s assessed needsand merits serious consideration in the Gladue context. [32] Detention is not justified when it is merely convenient or advantageous. The alleged offence includes facets that are truly

disturbing and difficult to explain. That said in the circumstances, I accept that the applicant is not substantially likely to reoffendpending trial. [33] Accordingly, I am not prepared to detain Ms. Pierce under the secondary ground. Tertiary Ground [34] Paragraph 515(10)(

c) of the Code was designed so that a consideration of all the circumstances, including the apparent strengthof the prosecution case, the gravity and nature of the offence, the circumstances surrounding its commission and the potential for alengthy term of imprisonment, results in a detention or release determination that maintains the public’s confidence in the administrationof justice – R. v. E.W.M., (ON CA), [2006] O.J.

No. 3654. [35] The public interest involves a gamut of considerations including public image of the Criminal Code of Canada, apprehension andconviction of criminals, attempts at deterrence and protection of law abiding citizens. It is a balance between rights of the accused andthose of the community and no one of the circumstances is determinative. Apparent strength of Prosecution case [36] The Prosecution case seems strong enough. Identification doesn’t appear to be an issue. The victims were familiar with theiraggressors. The case has been committed to trial.

It is a consideration but I recognize that the prosecution case is often at its zenithbefore commencement of trial. Notwithstanding, Ms. Pierce has pleaded not guilty to the offences charged and the burden remains withthe Crown. There is, as well, the presumption of innocence. It would be unwise to slide into the position that the prosecution case isstrong, the accused is probably guilty and so it is of no great hardship to order detention, relying on this consideration as the prominentcomponent. Gravity of the offence [37] Gravity pertains to more than the events of the offence.

Within every offence circumstances of commission vary and some areworse than others. There are seldom new crimes. The behaviour of offenders is repeated with different players at different times withappalling frequency. The use of violence is a consideration but as many offences involve violence consideration is given to whether theviolence occurred in circumstances of gratuitous or malevolent violence or spontaneously. It may include consideration of the allegedoffender’s propensity for violence or whether a firearm or other weapon was used. Past behaviour is an indicator of propensity.

Gravitycan pertain to the status of the victim particularly if the victim is a member of a vulnerable group such as a senior citizen or child. [38] The contest between the pugilists began as a spontaneous routine scrap between two young women over some missing jewellery. The synopsis suggests that the situation became more and more unpleasant as the victors consumed more and more alcohol. Theywaylaid the two male late comers to the party. They are alleged to have kicked and struck the victims with a baseball bat and golf club. Ms. Pierce is alleged to have actually targeted a victim’s hand with the bat.

If it proves out the violence may well be considered aswanton. [39] Ms. Pierce was not known to be prone to violence. She did not have a criminal record. The picture presented by the sureties isthe opposite and, save for the emotional effects of losing the child, Ms. Pierce was a pleasant dedicated young woman and this behaviourwas out of character. [40] None of the victims are members of a vulnerable victims group – children, spouses, senior citizens. The synopsis discloses thatthe worst of the beating occurred after the victims had been subdued.

To that extent they became defenceless and that is an aggravatingcircumstance.

Nature of the community in which the offence occurred: [41] All performers, perpetrators and victims, are native. Theirs is the native community and that is a necessary consideration. Ms.Pierce’s plan includes a restorative component and she acknowledges the necessity of professional engagement to help with thebereavement, self esteem and anger management. I take notice that the native community would prefer judicial interim release andrestorative approaches to Ms. Pierce’s needs.

Liability for a potential lengthy period of incarceration [42] The Supreme Court of Canada in Gladue conceded that generally the more serious and violent the crime the more likely it will bethat the terms of imprisonment will be the same for similar offenders and offences, whether the offender is aboriginal or non aboriginal. The same logic applies to judicial interim release considerations.

That said, every application is an individual process and in each casethe analysis must be what is a fit determination for the accused for this offence in this community. [43] The four factors are to be analysed together and not separately having regard to all the circumstances and having regard to thepublic’s confidence in the administration of justice. Convictions for serious offences attract lengthy periods of imprisonment. JudicialInterim Release is available on all offences if detention cannot be justified under s. 515(10).

A conviction for the offence of aggravatedassault if established on the facts evidenced by the synopsis may attract a lengthy period of incarceration for Ms. Pierce. [44] The overriding perspective is that, it is only in rare and exceptional cases that an accused would be detained where she is likely toattend trial and there is no danger to the public. Need more than a serious crime that merits lengthy imprisonment. See R. v. B. (A.)(2006) (ON SC), 204 C.C.C. (3d) 490.

Conclusion [45] The public perception and confidence in the administration of justice is heavily influenced by the aboriginal status of theperformers. The Gladue principles pervade all aspects of the criminal process when natives are involved. At the heart of it is theconcern there are systemic disadvantages that result in disproportionate representation of natives in our prisons. In this case, thecentrepiece of the interim release plan involves a young woman who lost a near term child and suffered emotional damage as the result. She resisted counselling and the loss is said to have changed her behaviours.

From a restorative perspective, Ms. Pierce requirescounselling to deal with one or more of bereavement, substance abuse, self esteem and anger management issues. There are, no doubt,overlapping or intermingled elements to her issues so that counselling for one aspect flows over to others. Those services have beenavailable but until now Ms. Pierce resisted and that resistance disqualified her from release. So long as loss and anger drove herbehaviour the usual application of the community confidence standard prevailed. The restorative aspect of the plan is a preeminentconsideration.

The informed native community would support the restorative plan advanced. [46] In the circumstances of this charge, the strength of the prosecution case and likely prospect for lengthy imprisonment are of thesame cloth. If the prosecution case proves out and Ms. Pierce is an unsympathetic offender both factors may be in retrospection at thetime, obvious. We are not there yet. [47] The events depicted in the synopsis suggest that the genesis for the assault began with immature, spontaneous intent rather thansomething planned and malevolent.

The purport of the gravity consideration involves more than the eventual gratuitous violence. Thevictims say they were subdued and subjected to torment over a period of time before release. The victims suffered serious bodilyinjuries. That is, with respect, one element of gravity of the offence. Most aggravated assaults involve violence. This assault began inthe context of thoughtless spontaneity. It began as a garden variety tussle between cousins over missing jewellery that with thelubrication of alcohol progressed to what it became.

The assault, as described, was spontaneous as opposed to planned and deliberate. [48] There is no evidence to suggest that Ms. Pierce was prone to violence. Indications are that Ms. Pierce lowered her inhibitions inthe heat of the progression, drank too much alcohol and there are awful consequences. [49] Ms. Pierce does have the resolve to abide by release terms. She complied for 60 days at a time when she had not come to termswith her emotional needs. She paid dearly for the offence. She has been imprisoned for six months spending 22 hours daily in her cell inpre-trial detention.

[ 50 ] The reasonable and informed community member would be disturbed to know of these circumstances. Lacey Pierce was clearly a troubled young woman. The important members of her family and Lacey herself see that she turned a corner these past months. The events surrounding the crime and the circumstances of the offender point to a tightly restricted judicial interim release. [ 51 ] Ms.

Pierce is to be released on satisfaction of Recognizance of bail terms to include that each of Debbie Jocko, Stephanie Pierce and Lacey Pierce deliver completed bonds in the amount of $3,000.00 and the accused execute a recognizance of bail in the usual form committing: 1. To reside at 59 Kawenhnoke Rd, Unit 25, Apartments Road, Akwesasne, Cornwall Island, Ontario and be amenable to the routine and discipline of such residence; 2. To not associate or communicate directly or indirectly with Shelby Bush, Julie Ladue, Matthew Richards, Joseph Coffey, Candy Pierce, Jesse Joe Benedict; 3.

To not be away from the residence except as follows: in the presence of Debbie Jocko, for the purpose of employment, for the purpose of attending school, for the purposes of counselling or treatment (residential or otherwise) and present yourself at the door of your residence if and when Police attend to the residence; 4. To abstain from the consumption of alcohol absolutely or being found any place where alcohol is sold save restaurants; 5.

To abstain from the possession or consumption of any drug or narcotic listed in the Schedules of the Controlled Drugs and Substances Act , or being found in the company of anyone known to you to use or deal in such substances; 6. To not possess, until dealt with according to law, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance; 7. To not obtain any authorization, license or registration certificate relating thereto; 8. To seek and maintain employment or attend school or both; 9.

To not attend the United States of America; 11. To keep the peace and be of good behaviour; 12. To attend the Akwesasne Wholistic Health and Wellness Program and follow treatment recommendations including any residential component; and 13. Since the Akwesasne Wholistic Health and Wellness Program could be residential in nature, you may reside there for the duration of the program and so there is no issue as to the reasons for attendance, a copy of these reasons is to be presented to intake at the first interview, and 14. To attend before the Court on January 13 th , 2011 at 10:00 a.m.

Justice Rick Leroy Released: November 18 th , 2010 CITATION : R. v. Pierce, 2010 ONSC 6154 COURT FILE NO.: 10-86 DATE: 2010/11/18

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – LACEY PIERCE REASONS FOR JUDGMENT Justice Rick Leroy Released: November 18 th , 2010