IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Paul-Marr, 2007 NSPC 29
Date: May 25, 2007
Docket: 1721474, 1721476,
1721477, 1721478
Registry: Halifax, NS
Between:
Her Majesty the Queen
v.
Jeannette Paul-Marr
DECISION ON APPLICATION TO VARY UNDERTAKING
Judge: The Honourable Judge Anne S. Derrick
Heard: Provincial Court, in Shubenacadie, Nova Scotia
Oral decision: May 25, 2007
Charge: Criminal Code Section 340, 122, 336, and 337.
Counsel: Alain Begin - Defence Counsel
Rick Hartlen - Crown Attorney
By the Court:
[1] Jeanette Paul-Marr is charged with offences under sections 340, 175(1)(a)(I), 122, 336 and
337 of the Criminal Code. The charges against Ms. Paul-Marr include charges of breach of trust by a public officer and criminal breach of trust. The offences are alleged to have been committed on December 18, 2006 and relate to alleged conduct by Ms. Paul-Marr when she was the Chief Electoral Officer for the Indian Brook Band. The offences are indictable and the Crown asserts that Ms. Paul-Marr faces a period of incarceration if convicted. Ms. Paul-Marr has elected judge and jury and is scheduled for a preliminary inquiry on August 9, 2007.
[2] Ms. Paul-Marr was originally released on an Undertaking Given to A Peace Officer which
prohibited her from leaving Nova Scotia. On March 8, 2007, with Crown consent, I heard an application by Ms. Paul-Marr that she be permitted to leave Nova Scotia during the period of March 8 - 25, 2007 to visit family and friends in Toronto, Montreal, Boston and New York. I heard evidence from Ms. Paul-Marr and decided to modify the condition requiring her to stay in Nova Scotia so that she could take her trip. I required her to provide addresses and phone numbers for all the places she would be staying, take her cell phone with her, keeping it on and active to enable the Indian Brook RCMP to contact her and to report once each week to the Indian Brook RCMP by telephone. Ms. Paul-Marr signed the new Undertaking, went on her trip and complied with all the conditions.
[3] The March trip was an exception to the provision of the Undertaking requiring Ms. Paul-
Marr to remain in Nova Scotia. Ms. Paul-Marr is now before the Court with a further application to vary her Undertaking so that she can travel outside of Nova Scotia. This time Ms. Paul-Marr indicates she wishes to study with an Aboriginal Medicine Woman, Diane Longboat, in Toronto. Also, as part of the apprenticeship for qualification to become a pipe carrier for ceremonial purposes, Ms. Paul-Marr is asking to be able to travel through the mid-western American states on the Native pow-wow circuit through the summer months. I have been advised that there is no set schedule for either the meetings with the Ms. Longboat or the pow-wows and that therefore, Ms. Paul-Marr would need to be able to travel from Nova Scotia whenever the opportunities arose for her study, subject to Ms. Longboat’s availability, and apprenticeship. Ms. Paul-Marr also wants to be able to travel in August to Maine for the purpose of participating in the traditional Mi’kmaq activity of blueberry picking. The blueberry harvest is also indeterminate as the crop’s readiness for picking will depend on when the blueberries have ripened, which is influenced by the weather.
[4] The Crown has consented to my hearing this application although vociferously opposes any
lifting of the travel restrictions on Ms. Paul-Marr. The Crown relies exclusively on section 515(10) (a), having made no argument on any other ground for detention, and contends that Ms. Paul-Marr is a flight risk and cannot be depended upon to return to Nova Scotia for her court dates, the next one being on August 9, 2007.
[5] The Crown argues that Ms. Paul-Marr is a flight risk because she faces serious charges and
the prospect of imprisonment which gives her an incentive to flee. The Crown argues that the impulse to run will heighten as the charges move closer to being dealt with on their merits. The Crown notes that Ms. Paul-Marr’s status as an Aboriginal person means she can travel freely across the U.S. border to New England where she has a “network of support” in the form of relatives. The Crown says seizing Ms. Paul-Marr’s passport, if she has one, is of little utility as she can cross the border without it. The Crown was emphatic that Ms. Paul-Marr, if not restricted by her Undertaking, will avoid these charges and the proceedings associated with them by leaving for the U.S. The Crown says a travel prohibition is required because there are no specific conditions that can be imposed in light of the information from Ms. Paul-Marr that she cannot pin down when she will need to leave Nova Scotia or how long she will be away.
[6] Ms. Paul-Marr argues that she is not a flight risk. She has strong family connections here in
Nova Scotia and does not intend to relocate. She says she is not concerned that even if convicted she might go to jail. Ms. Paul-Marr has a prior record for forgery. She notes that she has attended all her court appearances including when she was dealing with the forgery charge. The Crown acknowledges that she does not have any convictions for violations of court orders. She has never served a jail sentence that I know of.
[7] Ms. Paul-Marr is Mi’kmaq and a resident of Indian Brook First Nation. She has family in
Nova Scotia, including a daughter and granddaughter in Sydney. She has lived at Indian Brook for 34 years, with the exception of last winter when she lived in Cape Breton where she has family. She lives at Indian Brook now with her 13 year old daughter and her son, who is on a conditional sentence. She has a 25 year old daughter in Halifax who visits on the weekends. Ms. Paul-Marr is unemployed presently and receives a student allowance and a partial welfare payment. She has a Masters in Education and for the past two years has been doing qualifying work for a PhD under supervision through Mount Saint Vincent University, which is affiliated with the University of Southwestern Australia. Her thesis committee is based at Dalhousie University.
[8] At the earlier variation application, Ms. Paul-Marr testified that she had no desire to leave
Nova Scotia for an extended period because her life and her children are here. Ms. Paul-Marr also testified that the blueberry harvesting season is usually for two or three weeks only, in August.
[9] This application is governed by section 523(2) (c) with the consent of Crown and Defence.
(R. v. Hill, [2005] N.S.J. No. 494 (N.S.P.C.)) I understand the Crown is consenting to my hearing this application. As this is a variation application, the onus is on Ms. Paul-Marr to show cause for the removal of the travel prohibition. Section 523 (2) (c) (i) provides that “the justice by whom an order was made under this Part or any other justice may on cause being shown vacate any order
previously made under this Part for the interim release...of the accused and make any other order provided for in this Part for the...release of the accused until his trial is completed that the justice considers to be warranted.”
[10] I must be mindful that Ms. Paul-Marr is innocent until proven guilty beyond a reasonable
doubt and that she is entitled under the Charter to reasonable bail. The presumption of innocence does not mean there can be no deprivation of liberty until guilt is established beyond a reasonable doubt at trial. (R. v. Pearson (1992), 77 C.C.C. (3d) 124 (S.C.C.)) As Pearson establishes, the denial of bail or limitations on an accused’s liberty through restrictive release conditions “is consistent with the view that certain deprivations of liberty and security of the person may be in accordance with the principles of fundamental justice where there are reasonable grounds for doing so, rather than only after guilt has been established beyond a reasonable doubt.”
[11] The essential issue on this application is, am I satisfied that Ms. Paul-Marr has shown cause
for the removal of the travel prohibition?
[12] The issue of ensuring attendance at trial was addressed in R. v. Pearson, where Lamer C.J.
held that:
Ensuring the appearance of the accused at trial is the primary purpose of any system of pre-trial release, and the system must be structured to minimize the risk that an accused will abscond rather than face trial. For most offences, the risk that an accused will abscond rather than face trial is minimal. It is not an easy thing to abscond from justice. The accused must remain a fugitive from justice for the rest of his or her lifetime. The accused must flee to a country which does not have an extradition treaty with Canada (or whose extradition treaty does not cover the specific offence which the accused is alleged to have committed). Alternatively, the accused must remain in hiding. Either prospect is costly. Neither prospect is possible unless the accused is exceedingly wealthy or part of a sophisticated organization which can assist in the difficult task of absconding. Most alleged offenders are neither wealthy nor members of sophisticated organizations.
[13] Chief Justice Lamer went on to refer to drug importers and traffickers as classes of accused
with access both to a large amount of funds and to sophisticated organizations that can assist in a flight from justice. He observed that “these offenders”, as he called them, accordingly pose a significant risk that they will abscond rather than face trial.
[14] It has not been established that Ms. Paul-Marr has access to significant amounts of money
or connections with sophisticated organizations to assist her in evading the authorities and leading a life as a fugitive. In her evidence at the earlier variation hearing, she spoke of her daughter paying for her trip during the March break and using her own resources, such as they are, to pay for her food. Ms. Paul-Marr stayed with friends and relatives and said her daughter would be paying for the gas for the trip. Ms. Paul-Marr has not been shown to be a person with the kind of financial resources that would enable her to live as a fugitive in the United States, a country, I note, that has an extradition treaty with Canada in any event.
[15] There is no evidence before me that Ms. Paul-Marr has ever failed to attend court. The
evidence is that she is anchored here through family and community ties. In R. v. Lohnes, [2006] N.S.J. No. 302, Cromwell, J.A., referring to similar factors, found that Mr. Lohnes was not a flight risk and granted bail pending appeal. Mr. Lohnes’ ties included business ties but he also had a lengthy
criminal record and the sentence he was appealing included a six month jail term. Cacchione, J. in R. v. Bonin, [2006] N.S.J. No. 471, was satisfied that a record of never having failed to attend court as required meant the accused was not a flight risk and could not justifiably be detained under section 515(10)(a).
[16] With respect, the Crown’s assertion that Ms. Paul-Marr will not attend court if she is
permitted to travel outside of Nova Scotia is speculative. No evidence was lead to support the Crown’s allegation: it is an allegation founded on Ms. Paul-Marr’s Aboriginal status and the argument that she is facing jail time if convicted and therefore has an incentive to flee the jurisdiction and evade justice. The Crown asks me to accept that these two factors are sufficient to require a travel prohibition even though they could apply to any Mi’kmaq person facing serious criminal charges with the potential for a custodial sentence. I note that many Mi’kmaq people in Nova Scotia have familial and traditional ties to the New England area. Blueberry picking in Maine is for example a very traditional Mi’kmaq practice. I was told in submissions that Ms. Paul-Marr has participated in the harvest for 37 years. Each case must be examined on its own merits to determine if restricting an accused’s liberty and mobility is justified on the evidence.
[17] I note that bail may be granted even where an accused has been convicted and sentenced,
where the incentive to flee must be greater. MacPherson, J.A. commented on the psychological dimensions of this in R. v. Patterson, [2000] O.J. No. 3189 (Ont. C.A.), observing:
In my view, flight before trial and flight after conviction are very different scenarios. Before trial, an accused person might reject flight because of the role optimism and hope play in the decision-making process. When optimism and hope recede [following conviction and sentencing], thoughts of flight might well advance.
[18] In assessing Ms. Paul-Marr’s application I have examined the question of whether it is
relevant for me to consider what role, if any, the Gladue decision should play in the analysis I must undertake. There is some authority for Gladue applying to bail matters. The Ontario Supreme Court of Justice in R. v. Bain, [2004] O.J. No. 6147 was unequivocal about the relevance of Gladue, holding at paragraph 12 that: “...the principles of Gladue are overriding principles in the justice system from the time a person comes into the system to sentence.” In the British Columbia case of R. v. R.R.B, [2004] B.C.J. No. 2024, dealing with a young person, defence counsel made the argument that the Gladue principles applied to adult bail proceedings. At paragraph 22 of the decision the Court held: “I am prepared to accept for these proceedings without deciding that the principles set out in R. v. Gladue and section 718.2 (e) of the Criminal Code relating to aboriginal offenders are a relevant factor on the issue of bail.”
[19] I have concluded I do not need to decide if Gladue applies directly to Ms. Paul-Marr’s
application to vary her Undertaking. I am not assessing whether Ms. Paul-Marr should be held in custody and, with the exception of one consideration I will address in a moment, have arrived at the conclusion, without applying an analysis involving Gladue, that there is no evidence Ms. Paul-Marr poses a flight risk and therefore, that restrictions on her liberty to ensure her attendance at court cannot be justified. I am satisfied Ms. Paul-Marr has shown cause for the variation of this condition of her Undertaking. I believe it is appropriate to note, as did the court in R.R.B., that in the case of an Aboriginal person, the Gladue principles may mitigate sentence and reduce the likelihood of incarceration. If Ms. Paul-Marr is convicted of any of the charges she is facing, Gladue will have to be considered in the matter of her sentencing and a Crown argument for incarceration weighed against Gladue and section 718.2(e) of the Criminal Code. This is relevant to the Crown’s assertion that Ms. Paul-Marr faces a custodial term if convicted and therefore is subject to an incentive to evade justice.
[20] For the foregoing reasons I am prepared to remove the requirement in the Undertaking that
Ms. Paul-Marr remain in Nova Scotia. I am going to require her to comply with the following conditions relating to her out-of-province travel:
1) She is to notify the Indian Brook RCMP, no later than 5 days of her departure, that she is leaving Nova Scotia. If she knows when she will be returning to Nova Scotia, she is to inform the Indian Brook RCMP of this information;
2) She is to provide the Indian Brook RCMP with Ms. Longboat’s address and telephone numbers;
3) She is to inform the Indian Brook RCMP of the address and phone number of where she will be staying when she is not in Nova Scotia. If she cannot provide a fixed address and telephone number during the pow wow circuit, she is to notify the Indian Brook RCMP of the location where she will be travelling, including the names of the nearest communities and the states in which they are located;
4) When she is outside of the Province, she is to call the Indian Brook RCMP once per week during the hours of 8:30 a.m. - 4:30 p.m. AST to report;
5) With respect to the blueberry harvest in Maine, she is to notify the Indian Brook RCMP where she will be residing, providing an address and phone number. If no phone number is available, she is to keep her cell phone on and active while she is away so that the police can contact her.
6) She is to ensure the Indian Brook RCMP have her cell phone number, inform them if her cell phone number changes, and provide them with any new cell phone number.
[21] I am imposing these conditions because Ms. Paul-Marr has indicated she cannot now
provide any concrete information about when she will be travelling outside of Nova Scotia or where she will be. The court has only a vague description of the travel Ms. Paul-Marr intends and nothing
to indicate why more information is not available. Similar conditions to the ones I am imposing now were accepted by Ms. Paul-Marr as reasonable for the March Break variation allowing her to leave the Province where her plans were better particularized. I believe placing some obligation on Ms. Paul-Marr to maintain contact with the police and inform them of her whereabouts is appropriate and reasonable especially in the circumstances of Ms. Paul-Marr’s Preliminary Inquiry occurring in August, and the court having no information presently about when she will be away or where or for how long prior to this date. I have sought to craft conditions that take into account the nature of Ms. Paul-Marr’s intended travel that are still responsive to the need to maintain public confidence in the administration of justice.
Judge Anne S. Derrick
Provincial Court