Docket: CACR2160 Her Majesty the Queen Appellant - v. –, 2012 SKCA 67

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 67 Date: 20120628 Between: Docket: CACR2160 Her Majesty the Queen Appellant - and – David Neil Woods Respondent These reasons for decision are subject to an order issued pursuant to s. 517(1) of the Criminal Code . The evidence taken, the information given or the representations made and the reasons given by the Court shall not be published or broadcast before such time as the preliminary inquiry is held and Mr. Woods is discharged or, if a trial is held, the trial has ended. Coram: Richards, Ottenbreit and Herauf JJ.A. Counsel: W.

Dean Sinclair for the Appellant Bradley Mitchell for the Respondent Appeal: From: Q.B. No. 626 of 2012, J.C. of Saskatoon

Heard: June 26, 2012 Disposition: Bail Revoked Written Reasons: June 28, 2012 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Herauf Richards J.A. I. INTRODUCTION [ 1 ] Mr. Woods currently stands charged with some 14 offences. The most significant is a count of first degree murder. The Crown contends that he killed his wife, Dorothy Woods.

The other charges consist of two counts of uttering threats to kill or cause bodily harm to his wife’s alleged lovers, eight counts of firearms, weapons or ammunition offences and three counts of violating the terms of a recognizance. [ 2 ] Mr. Woods was granted bail by a Queen’s Bench judge. The Crown takes issue with this decision and the Chief Justice has directed that it be reviewed pursuant to s. 680 of the Criminal Code .

Section 680 reads: 680.

(1) A decision made by a judge under

section 522 or subsection 524(4) or (5) or a decision made by a judge of the court of appeal under

section 261 or 679 may, on the direction of the chief justice or acting chief justice of the court of appeal, be reviewed by that court and that court may, if it does not confirm the decision, (

a) vary the decision; or (

b) substitute such other decision as, in its opinion, should have been made.

(2) On consent of the parties, the powers of the court of appeal under subsection (1) may be exercised by a judge of that court.

(3) A decision as varied or substituted under this

section shall have effect and may be enforced in all respects as though it were the decision originally made. II. RELEVANT LEGISLATION [ 3 ] Section 515(10) of the Criminal Code sets out the considerations which justify the detention of an accused person in custody pending his or her trial. It is set out below: 515.

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

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 any person under the age of 18 years, 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 confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a 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. [ 4 ] In this case, given that Mr. Woods is charged with first degree murder, he bears the onus of showing why his detention is not justified within the meaning of s. 515(10) . Section 522(2) of the Code says this:

(2) Where an accused is charged with an offence listed in

section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is charged shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10) . III. THE FACTS [ 5 ] The relevant facts emerge from the transcript of the bail hearing and the materials presented to the Court during that hearing. I will set out their main features. [ 6 ] Mr. Woods lived with his wife and two children in Saskatoon.

According to their daughter, Ms. Woods was last seen on the evening of November 11, 2011. On November 15, Mr. Woods reported his wife missing. He said she had left and taken her make-up bag with her. [ 7 ] Phone records indicated an abrupt end to outgoing messaging activity from Ms. Woods’ telephone on November 11. No further text messages were sent from the phone until November 15 when racially charged death threats were sent to Derrick Brown, one of Ms. Woods’ alleged lovers. The person sending the messages purported to be Ms. Woods’ husband and accused Mr. Brown of impregnating his wife. Mr.

Brown went to the police and Mr. Woods was arrested on November 17 for uttering threats. [ 8 ] A search warrant was executed at the Woods’ home. A make-up bag belonging to Ms. Woods was seized from a garbage can in the back yard. Ms. Woods’ purse, containing her wallet and identification, was found in the garage. The police also located a locked box in the garage. Mr. Woods was in the possession of the key. All of Ms. Woods credit cards were in the box. [ 9 ] The search also turned up a Co-op receipt, dated November 12, 2011, for 50 feet of rope, a hacksaw and a roll of plastic. There was some rope in the garage.

It showed signs of having been cut. The police also found the hacksaw. They could not locate the roll of plastic but did find its packaging. A November 12 videotape from the Co-op store showed Mr. Woods purchasing the items referred to in the receipt seized from the garage. [ 10 ] In addition, the search of Mr. Woods’ home revealed that he was in possession of 11 firearms and related ammunition. One of the firearms was a sawed-off shotgun, a prohibited weapon. The police also found a set of brass knuckles, another prohibited weapon. Mr. Woods did not have licences for either the shotgun or the brass knuckles.

The police ultimately laid a total of eight firearms, weapons and ammunition charges. [ 11 ] Wayne Lewis, a second alleged lover of Ms. Woods, had received threatening messages on October 22, 2011 from someone using Ms. Woods’ phone and referring to Ms. Woods as his wife. On the same day, Mr. Lewis received more threatening messages, this time from Mr. Woods’ phone, from someone describing himself as “Dot’s husband.” A text message in the same vein was sent to him from Ms. Woods’ phone on October 23. On November 15, someone sent Mr. Lewis racially charged and threatening messages from Ms. Woods’ phone.

Subsequent investigations revealed that those messages were transmitted from a cell tower located a few blocks from Mr. Woods’ residence. On November 19, 2011, Mr. Woods was arrested for uttering threats to kill Mr. Lewis. [ 12 ] On November 22, 2011, Mr. Woods was released from custody with respect to the threatening and weapons charges. He was ordered not to contact Wayne Lewis or Derrick Brown. He was ordered not to possess or consume alcohol. [ 13 ] Also, on November 22, 2011, the police obtained an order allowing them to surreptitiously install a tracking device on Mr. Woods’ vehicle.

It permitted them to record the movements of the vehicle. In addition, the police conducted a surveillance operation. They videotaped Mr. Woods entering licensed establishments and purchasing alcohol on December 10, 17 and 20 – all in violation of the terms of his release. [ 14 ] On January 2, 2012, police found the body of an unidentified female south of Saskatoon. Information about the discovery was released to the media. Within hours of the information going public, the tracking device on Mr.

Woods’ vehicle recorded it being driven south of Saskatoon on Highway 11, then down a side road, then reversing back to the highway. The next day, police searched the area where Mr. Woods’ vehicle had turned around and found Ms. Woods’ body stuffed into a culvert. She was wearing only a bra. Someone had used a weapon to inflict two deep wounds on her head. Her hands and feet were tied together with rope and there was a piece of rope around her neck. Her body was wrapped in a roll of plastic.

[15] The plastic which was wrapped around the body was consistent with or matched the plastic Mr. Woods had bought at the Co-op onNovember 12. The rope used to bind her hands behind her back was consistent with rope which secured the above-ground pool in theWoods’ backyard. The rope around Ms. Woods’ neck was consistent with the rope Mr. Woods had purchased at the Co-op onNovember 12. It also was consistent with the piece of cut rope found by the police in the Woods’ garage. The person who had murderedMs. Woods had used green and blue electrical tape to secure the plastic around her body.

On re-searching the Woods’ home, policefound a roll of green electrical tape. [16] Mr. Woods was arrested and charged with the first degree murder of his wife on January 6, 2012. He was also charged with threecounts of bail violation in relation to the liquor purchases on December 10, 17 and 20. He was remanded into custody. [17] On April 18, 2012, Mr. Woods applied to the Court of Queen’s Bench for an ordering granting interim release on the first degreemurder charge. The application was made pursuant to s. 522 of the Criminal Code. It did not refer to any of the other offences withwhich Mr.

Woods had been charged. [18] A Queen’s Bench judge concluded that Mr. Woods’ detention was not necessary to ensure his attendance in court, for theprotection or safety of the public, or to maintain confidence in the administration of justice. He ordered Mr. Wood released on a verystrict recognizance that, most notably, required him (on electronic monitoring) to remain in his house except for employment. Theprobation officer was to approve any other absences (for up to three hours) from his house and, in such cases, he was to be supervisedeither by his 75 year old mother or an adult son.

As explained more fully below, the recognizance referred not just to the murder charge,but to all of the 14 charges that had been laid against Mr. Woods. IV. ANALYSIS [19] The Crown alleges that there were errors in the analysis of the judge below. It begins by arguing that the judge acted in excess ofjurisdiction. Its point here is that Mr. Woods had applied for release only on the murder charge, not on the other charges, and that thejudge had no original jurisdiction under s. 522 of the Code to deal with those other charges. Second, the Crown says the judge belowmisinterpreted and misapplied s. 515(10)(

c) of the Code and that Mr. Woods’ detention pending trial is necessary to maintain publicconfidence in the administration of justice. Third, and finally, the Crown says the judge erred in concluding that Mr. Woods’ detentionwas not necessary to ensure the safety of the public as per s. 515(10)(

b) of the Code. [20] Notwithstanding the approach taken by the Crown, this proceeding is not an appeal in the usual sense of the word. The authoritiesreveal that the duty and responsibility of the Court in a review of this kind is to render the decision it concludes should have been madeby the judge below. The Court does not defer to the conclusion of the judge or intervene only in the case of demonstrated error. Payingthe requisite deference to the judge’s findings of fact, we are to make an independent assessment of the situation and substitute ouropinion for that of the judge below should that prove necessary.

See: R. v. Le, 2006 MBCA 68, 240 C.C.C. (3d) 130; R. v. Mapara,2001 BCCA 508, 158 C.C.C. (3d) 312; R. v. Nielsen (2001), (ON CA), 152 O.A.C. 362 (Ont. C.A.). [21] I will deal first with the jurisdictional issue. It arises because Mr. Woods applied for judicial interim release only in relation to themurder charge but, for reasons which are unclear, the recognizance refers to all of the charges he faced. Against this background, theCrown submits that the judge had no jurisdiction to grant bail in relation to the non-murder offences. It takes this position on the basisthat (

a) the non-murder matters were not before the judge, and (

b) if they had been, the judge had no authority to deal with them in lightof ss. 515 and 524(8) of the Criminal Code. [22] Counsel for Mr. Woods acknowledged that interim release in respect of the non-murder charges had not been the subject of anyapplication to the Queen’s Bench judge and, indeed, had not been the subject of any argument or submission during the course of the bailhearing before that Court. Apparently, the prosecutor and Mr. Woods’ counsel had agreed to hold such matters in abeyance pending theoutcome of the bail application on the murder charge.

All of this may serve to explain why the Queen’s Bench judge’s reasons fordecision make no reference to anything other than the murder charge. As indicated, the reference to the non-murder matters appears onlyin the recognizance itself. This leads one to speculate that the reference to them in the recognizance might be in the nature of a clericalerror. [23] In any event, given that the application made for interim release was in connection with the murder charge only, the terms of therecognizance must be amended so that it refers to nothing but that charge.

It is not necessary, as a result, to deal with the question ofwhether the Queen’s Bench judge would have had the jurisdiction to deal with bail in relation to the non-murder charges if they had, infact, been before him.

[24] I turn, therefore, to the substance of this review. As noted above, Mr. Woods carries the onus of establishing that his detentionpending trial is not necessary in order to ensure his attendance in court (s. 515(10)(a)), protect the public (s. 515(10)(b)), or to maintainpublic confidence in the administration of justice (s. 515(10)(c)). In my view, this matter can be resolved on the basis of s. 515(10)(c))and, therefore, I propose to turn directly to that provision. For ease of reference, it is reproduced below: 515.

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the followinggrounds: . . . (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances,including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a 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. [25] The leading authority in relation to s. 515(10(

c) is R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309. It indicates that a court is to makeits assessment of the s. 515(10)(

c) issue “… through the lens of the four factors Parliament has specified.” McLachlan C.J., writing forthe majority of the Court, explained the proper approach as follows: 41 This, then, is Parliament's purpose: to maintain public confidence in the bail system and the justice system as a whole. Thequestion is whether the means it has chosen go further than necessary to achieve that purpose. In my view, they do not. Parliament hashedged this provision for bail with important safeguards.

The judge must be satisfied that detention is not only advisable but necessary.The judge must, moreover, be satisfied that detention is necessary not just to any goal, but to maintain confidence in the administration ofjustice. Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament [page333] hasspecified. The judge cannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he mustfocus particularly on the factors Parliament has specified.

At the end of the day, the judge can only deny bail if satisfied that in view ofthese factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintainconfidence in the administration of justice. In addition, as McEachern C.J.B.C. (in Chambers) noted in R. v. Nguyen (1997), (BC CA), 119 C.C.C. (3d) 269, the reasonable person making this assessment must be one properly informed about "thephilosophy of the legislative provisions, Charter values and the actual circumstances of the case" (p. 274).

For these reasons, theprovision does not authorize a "standardless sweep" nor confer open-ended judicial discretion. Rather, it strikes an appropriate balancebetween the rights of the accused and the need to maintain justice in the community. In sum, it is not overbroad. [emphasis in original] [26] Here, although much of the evidence against Mr. Woods is circumstantial, the prosecution’s case appears to be very strong. I neednot repeat the evidence because it speaks for itself. Counsel for Mr.

Woods suggested various ways in which the Crown’s position mightbe undermined at trial but, given the nature of the record presently before the Court, he was unable to make much headway in thisregard. Things may, of course, change during the course of the trial but the question for the moment is the “apparent” strength of theCrown’s case. At this point in time, it appears to be very compelling. [27] Dealing with the balance of the considerations enumerated in s. 515(10)(c), I note first that, in relation to s. 515(10)(c)(ii), theoffence in issue here is first degree murder – a crime of extreme gravity.

Second, with respect to s. 515(10)(c)(iii), the circumstancessurrounding the offence are disturbing to say the least. The murder itself was brutal and involved the alleged killing of a spouse. Further,it occurred in the context of racially-charged threats of death and castration to Ms. Woods’ suspected lovers. Third, and dealing with s.515(10)(c)(iv), Mr. Woods faces a sentence of imprisonment for life with no hope of parole for at least 25 years if convicted. In short,each of the factors identified in s. 515(10)(

c) is engaged very strongly by the particulars of this case. [28] Taking into account all of the circumstances relevant here, I conclude that Mr. Woods has not discharged the onus he carries inrelation to s. 515(10)(

c) and that, as a result, he must remain in custody pending his trial. To follow any other course in the situation athand would risk undermining the confidence of reasonable members of the public in not only the bail system, but in the justice system asa whole. V. CONCLUSION

[ 29 ] For the reasons set out above, I would amend the recognizance so that it refers only to the charge under s. 235 of the Criminal Code and set aside the order below. Mr. Woods’ is directed to surrender himself forthwith to the police in order that he may be detained in custody pending the trial of the murder charge or until he is otherwise dealt with according to law. DATED at the City of Regina, in the Province of Saskatchewan, this 28 th day of June, A.D. 2012. “Richards J.A.” ___________________ Richards J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Herauf J.A.” Herauf J.A.