Her Majesty the Queen v. Whyte

[Indexed as: R. v. Whyte]

Ontario Reports

Court of Appeal for Ontario,

Feldman, Tulloch and Lauwers JJ.A.

April 4, 2014

119 O.R. (3d) 305 | 2014 ONCA 268

Case Summary

Criminal law — Bail — Jurisdiction — Change in circumstances — Accused charged with accessory after the fact to murder and being detained pursuant to s. 515(11) of Code — Accused's first application for bail brought one year after her arrest denied on secondary ground in s. 515(10)(b) — Accused bringing second bail application about six months after first application before Superior Court judge on basis of change in circumstances — Second bail judge erring in dismissing application on basis that renewed application for bail based on change of circumstances had to be by way of review by Court of Appeal under s. 680 of Code — Superior Court and Court of Appeal having concurrent jurisdiction to consider bail application based on change in circumstances — Change in circumstances arising largely from passage of time since arrest — Accused's trial unlikely to start until at least four years after arrest — Considering credit for pre-trial custody accused would have served in excess of likely sentence upon conviction — Accused no longer involved in relationship with accused murderer — Crown conceding that accused likely to receive time served if pleading guilty immediately — Appropriate to release accused pending her trial even absent a responsible surety — Criminal Code, R.S.C. 1985, c. C-46, ss. 515, 680.

The accused was charged with accessory after the fact to murder and was detained pursuant to s. 515(11) of the Criminal Code in November 2011. After she had been in custody for a year, the applicant applied for bail for the first time. At that hearing, the Crown said that if a responsible surety came forward it would consent to bail. The bail judge denied the application on the secondary ground in s. 515(10)(b) of the Code, namely, that the accused's detention was necessary both for the protection or safety of the public and to ensure that she did not interfere with the administration of justice. The first bail judge found that one-to-one supervision of the accused was essential if she were to be released and that no such surety had come forward. No trial date has been set for the accused but it was agreed that her trial would not take place until after that of M, the alleged murderer, whom she was said to have assisted following the murder. M's trial was set to commence in January 2015 and was estimated to last for about four months. In May 2013, the accused brought a second bail application before a Superior Court judge, seeking interim release on the basis of a change in circumstances, namely, the passage of time during which she had been in custody. The second bail judge dismissed the application for lack of jurisdiction, holding that a renewed application for bail based on change of circumstances could only be by way of review by the Court of Appeal under s. 680 of the Code. The accused brought an application for bail review under s. 680 during which her counsel noted that the maximum sentence the accused was facing was five years and that it was unlikely that the accused would be sentenced to more than three years' imprisonment. Hoy A.C.J.O. ordered that a full panel of the court hear the application, noting in her ruling that if one considered credit for pre-trial custody, the accused would likely serve the equivalent of the five-year maximum sentence prior to the commencement of her trial. [page306]

Held, the application should be allowed.

The appropriate procedure for challenging the s. 515(11) denial of bail turns on the nature of the applicant's grievance. Where the applicant disputes the correctness of a bail decision of a Superior Court or Court of Appeal judge, the proper course is to seek review by the Court of Appeal under s. 680. Where an applicant concedes the validity of the bail decision but seeks a review on the basis of a change in circumstances, the normal course is to bring a second bail application in Superior Court. The Superior Court and the Court of Appeal have concurrent jurisdiction to consider an application based on change in circumstance.

There had been material changes in the accused's circumstances since she was first arrested two and a half years ago that made it more likely that she would, in her own best interest, abide by her bail terms and not engage in activity contrary to the public interest and the due administration of justice without the involvement of a surety. The accused no longer had a relationship with M and was not proposing to return to the residence in which the witnesses to the offence resided. In addition, it was now expected that M's trial would start, at the earliest, in May 2015. Moreover, her trial was not imminent and she would have served the sentence she was likely to receive if convicted long before her trial started. Further, the Crown agreed that if the accused were to plead guilty immediately it was likely that she would receive a sentence of time served. With these changes in circumstances, it was appropriate to release her even in the absence of a responsible surety being available.

Cases referred to

R. v. Baltovich (1991), 1991 7308 (ON CA), 6 O.R. (3d) 11, [1991] O.J. No. 2031, 55 O.A.C. 238, 68 C.C.C. (3d) 362, 14 W.C.B. (2d) 377 (C.A.); R. v. Baltovich (2000), 2000 5680 (ON CA), 47 O.R. (3d) 761, [2000] O.J. No. 987, 131 O.A.C. 29, 144 C.C.C. (3d) 233, 33 C.R. (5th) 188, 46 W.C.B. (2d) 28 (C.A.); R. v. Boyle, [2006] O.J. No. 5094, 2006 42662, 72 W.C.B. (2d) 54 (C.A.); R. v. Daniels (1997), 1997 3670 (ON CA), 35 O.R. (3d) 737, [1997] O.J. No. 4023, 103 O.A.C. 369, 119 C.C.C. (3d) 413, 11 C.R. (5th) 331, 36 W.C.B. (2d) 102 (C.A.); R. v. Hall, [2002] 3 S.C.R. 309, [2002] S.C.J. No. 65, 2002 SCC 64, 217 D.L.R. (4th) 536, 293 N.R. 239, J.E. 2002-1881, 165 O.A.C. 319, 167 C.C.C. (3d) 449, 4 C.R. (6th) 197, 97 C.R.R. (2d) 189, 54 W.C.B. (2d) 599; R. v. Klymchuk, 2007 15804 (ON SC), [2007] O.J. No. 1799, 220 C.C.C. (3d) 439, 78 W.C.B. (2d) 355 (S.C.J.); R. v. Kuol, [2013] A.J. No. 1209, 2013 ABCA 380, 561 A.R. 332; R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, [1998] O.J. No. 2990, 111 O.A.C. 25, 127 C.C.C. (3d) 57, 17 C.R. (5th) 1, 54 C.R.R. (2d) 189, 39 W.C.B. (2d) 217 (C.A.); R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711, [1992] S.C.J. No. 98, 144 N.R. 176, J.E. 92-1761, 51 Q.A.C. 161, 77 C.C.C. (3d) 91, 17 C.R. (4th) 74, 12 C.R.R. (2d) 31, EYB 1992-67825, 17 W.C.B. (2d) 580; R. v. Robinson (2009), 95 O.R. (3d) 309, [2009] O.J. No. 1284, 2009 ONCA 205, 265 O.A.C. 69; R. v. Saleh, 2007 11727 (ON SC), [2007] O.J. No. 1375, 252 C.C.C. (3d) 521 (S.C.J.); R. v. Seti-Mayinga, [2001] O.J. No. 6335 (S.C.J.); R. v. White, [2010] O.J. No. 2269, 2010 ONSC 3164 (S.C.J.)

Statutes referred to

Canadian Charter of Rights and Freedoms, s. 12

Criminal Code, R.S.C. 1985, c. C-46, Part VI [as am.], ss. 469, 515(10)(b), (11), 522(1), (4), 680 [as am.], (1) [as am.]

Authorities referred to

Sharpe, Robert J., and Kent Roach, The Charter of Rights and Freedoms, 5th ed. (Toronto: Irwin Law, 2013) [page307]

APPLICATION for bail review of the order of Speyer J. of the Superior Court of Justice dated October 31, 2012 denying release of the applicant on bail pending her trial on a charge of accessory after the fact to murder; and the ruling of O'Marra J. of the Superior Court of Justice dated May 10, 2013 dismissing the application for lack of jurisdiction, pursuant to the order of Hoy A.C.J.O. dated October 31, 2013.

Marcus Bornfreund, for applicant.

Christine Bartlett-Hughes, for respondent.

The judgment of the court was delivered by

TULLOCH J.A.: —

A. Overview

[1] The applicant, Tassandra Whyte, brought an application for a bail review in this court under s. 680(1) of the Criminal Code, R.S.C. 1985, c. C-46 (the "Code"). She seeks review of the detention order made by Speyer J. of the Superior Court of Justice on October 31, 2012, which denied the applicant's release pending her trial on a charge of accessory after the fact to murder, and of the ruling made by O'Marra J. of the Superior Court on May 10, 2013, which dismissed her second bail application for lack of jurisdiction. For the reasons that follow, I would find the second bail judge erred in declining jurisdiction, set aside the detention order and impose an order granting the applicant bail.

B. Background

[2] I begin by briefly setting out the nature of the offence with which the applicant is charged and the procedural history of this matter.

(1) The nature of the alleged offence

[3] The applicant is charged with the offence of accessory after the fact to murder. Mark Moore is charged with -- among many other offences -- the murder of Jahmeel Spence on September 21, 2010. Sometime later, Mr. Moore became a suspect in the murder investigation. In August of 2011, the investigators sought and obtained a Part VI [of the Code] authorization to covertly intercept telephone communications between multiple targets. The applicant was Mr. Moore's girlfriend throughout 2010 and into the fall of 2011, and was also his surety for part of that time. As such, she was named as one of the targets in [page308] the application. Other targets included Mr. Moore, his mother, Hyacinth Moore, and the applicant's sister, Nadine Keen.

[4] As a means of stimulating discussion over the monitored phone lines, the police held a press conference on the one-year anniversary of Mr. Spence's death, at which they announced that they believed that the getaway car for the murder was a blue Honda, and that they were continuing to search for that vehicle. The police knew that Mr. Moore was operating a blue Honda at the time of Mr. Spence's homicide. The vehicle, which Mr. Moore had subsequently painted black, was registered in the applicant's name.

[5] The Crown alleges that, while in custody on firearms and drug charges, Mr. Moore called the applicant on several occasions to discuss the press conference and to urge her to amend the registered colour of the car from blue to black at the Ministry of Transportation ("MTO"). Eventually, the applicant attended at the MTO to change the vehicle's colour on the registration form. The change applied retroactively to the entire history of the vehicle. During a subsequent intercepted call, the applicant told Mr. Moore that she had left the vehicle documents with Mr. Moore's mother, Hyacinth Moore, so that they would not be found if a search warrant for her premises was executed.

[6] During this period, the applicant lived in the same building as and across the hall from two of the Crown witnesses. During a number of the applicant's intercepted calls with Mr. Moore, police heard them speaking about harming one of the witnesses. On one call, the applicant was intercepted engaging in an intimidating manner with one of the witnesses in the building's elevator.

[7] Mr. Moore's preliminary hearing for the firearm-related offences was held during the time frame of the wiretap authorization. The applicant attended the hearing on several occasions. During one of the applicant's visits to the preliminary hearing, the Crown adduced surveillance evidence that showed an individual wearing a baseball hat. The Crown alleges that during the course of this evidence, the applicant made a note demonstrating a suggestion that she should ask Mr. Moore if she could throw away his hat because "they may try to come over to [his] house and retrieve that item".

(2) Procedural history

[8] The applicant was arrested on November 10, 2011 and detained pursuant to s. 515(11) of the Code. The date for her trial has not yet been set, and her trial will not commence until after the completion of Mr. Moore's trial. Mr. Moore's trial is [page309] currently set to commence on January 7, 2015, and is estimated to last for approximately four months.

[9] On October 31, 2012, the applicant applied for bail for the first time before Speyer J. of the Superior Court. At the time of her bail hearing, the applicant had already been in custody for a year.

[10] The bail judge denied the applicant's application for bail on the secondary ground in s. 515(10)(b) of the Code -- namely, that the applicant's detention was necessary both for the protection or safety of the public and to ensure that the applicant did not interfere with the administration of justice. The bail judge noted that, if the underlying charge of murder was successful, the applicant "could be facing, in all probability, a significant penitentiary term of imprisonment". The Crown was willing to consent to bail with a responsible surety ? an unusual concession where an accused is charged with a s. 469 offence. The applicant failed to produce a surety, and the bail judge -- who concluded that one-on-one supervision of the applicant was indispensable -- was unwilling to release her without one. The bail judge invited the applicant to renew her application if she found an appropriate surety and conveyed his willingness to consider even sureties with a dated criminal record.

[11] On May 10, 2013, the applicant brought a second bail application before O'Marra J. of the Superior Court, seeking interim release on the basis of a change in circumstances. She still did not have a surety, but argued that the passage of time itself constituted a material change in circumstances. The second bail judge dismissed the application for lack of jurisdiction, holding that a renewed application for bail based on change of circumstances could only be by review of this court.

[12] In a decision dated October 31, 2013, Hoy A.C.J.O. directed a review of the applicant's application by a full panel of this court, pursuant to s. 680 of the Code. Counsel for the applicant argued before her that the sentence for an offence of accessory after the fact to murder ranges from a conditional sentence to five years' incarceration. Counsel further submitted that on these facts, the maximum possible sentence that could reasonably be imposed is three years. The associate chief justice observed that if the applicant is given credit for her pre-trial custody at a rate of 1.5:1, the applicant will have served the equivalent of a five-year sentence by the time her trial commences. Hoy A.C.J.O. held that the applicant's claim, while novel, had a reasonable prospect of success. [page310]

C. Discussion

[13] Pursuant to s. 680 of the Code, the applicant seeks review of the detention order initially imposed by the bail judge and the dismissal of her second application by the second bail judge. The applicant attacks these decisions on effectively two grounds.[^1]

[14] First, she submits that the second bail judge erred in law in finding that he lacked jurisdiction to review the application. Second, she contends that her continued detention is not warranted, considering the amount of time she has spent in jail and the sentence she faces if convicted. She also points to her current personal circumstances, which have lessened the risk that she will interfere with the administration of justice. These two sets of changes, she argues, are material changes in circumstance that justify her release pending trial.

[15] I address these issues in turn.

(1) The second bail application in Superior Court

[16] Section 522(1) of the Code provides that anyone charged with a s. 469 offence, which includes accessory after the fact to murder, may be granted judicial interim release only by a Superior court judge. Section 522(4) adds the following: "An order made under this section is not subject to review, except as provided in section 680."

[17] Section 680 of the Code provides the legal mechanism for review, by the Court of Appeal, of an order of a Superior Court judge that grants or refuses a judicial interim release order for a s. 469 offence.

[18] In R. v. Seti-Mayinga, [2001] O.J. No. 6335 (S.C.J.), Campbell J. canvassed the jurisprudence of other provinces and concluded the following, at paras. 27-30:

The authorities in other provinces, although perhaps divided, favour a purposive interpretation of s. 522(4) which permits a new hearing or motion to vary on the basis of changed circumstances.

From a practical point of view, it does not make administrative sense to funnel through the Court of Appeal, before trial, every variation in the terms of a bail order necessitated by changed circumstances. Changes in reporting conditions, changes in the identity of sureties or the form or quantum of their recognizances, changes in employment and similar matters are minor administrative issues that should not require the full panoply of the Court of Appeal machinery contemplated by s. 680. [page311]

It is not unusual for the circumstances of the accused or the sureties to change during the months or even longer between the release order and the trial. As the Newfoundland Court of Appeal pointed out in R. v. T. (G.J.), the circumstances that give rise to the release are not necessarily static throughout the pretrial period. Changes in circumstances may give an entirely new complexion to the continued reasonableness of the release conditions, and it is difficult to think that Parliament intended to complicate or delay the opportunity to respond appropriately one way or the other, to changed circumstances.

As Doherty J.A. said in a different context in R. v. Daniels (1997), 1997 3670 (ON CA), 35 O.R. 737, 119 C.C.C. (3d) 413 (Ont. C.A.), a fresh application based on a material change in circumstances makes more practical sense than does a full appeal by way of review. A purposive interpretation of the bail provisions suggests that a fresh hearing or motion to vary based on changed circumstances is preferable because it provides greater flexibility and greater access to judicial remedies for both the Crown and the accused, than a full blown appeal by way of review.

[19] Recently, the Alberta Court of Appeal arrived at the same conclusion in the case of R. v. Kuol, [2013] A.J. No. 1209, 2013 ABCA 380. The court stated the following, at para. 10:

We favour the weight of the authorities from Ontario, Alberta, Nova Scotia and Manitoba referred to above and find that we, as a Court of Appeal, do have jurisdiction pursuant to s. 680 to consider applications for release of detention based solely on a change of circumstance. However, we also think it best that such applications ordinarily be returned to the initial court for reconsideration.

[20] After reviewing the relevant authorities, I am of the view that the second bail judge erred in dismissing the applicant's application for lack of jurisdiction.

[21] The relevant practice in Ontario can be summed up as follows: Where an applicant is detained pursuant to a charge for an offence listed in s. 469 of the Code, the appropriate procedure for challenging the s. 515(11) denial of bail turns on the nature of the applicant's grievance. Where the applicant disputes the correctness of a bail decision of a Superior Court of Justice or Court of Appeal judge, the proper course is to seek review by a court of appeal under s. 680 of the Code: R. v. Daniels (1997), 1997 3670 (ON CA), 35 O.R. (3d) 737, [1997] O.J. No. 4023 (C.A.), at p. 746 O.R. Where an applicant concedes the validity of the bail decision but seeks a review on the basis of a change in circumstances, the normal course is to bring a second bail application in Superior Court: R. v. Robinson (2009), 95 O.R. (3d) 309, [2009] O.J. No. 1284, 2009 ONCA 205, at para. 5; R. v. Klymchuk, 2007 15804 (ON SC), [2007] O.J. No. 1799, 220 C.C.C. (3d) 439 (S.C.J.), at pp. 447-48 C.C.C.; R. v. Saleh, 2007 11727 (ON SC), [2007] O.J. No. 1375, 252 C.C.C. (3d) 521 (S.C.J.). This second avenue reflects the "considerable common sense in returning to the originating court, creating an evidentiary record [page312] and obtaining the views of a judge of first instance on the impact of the new or changed information on the issue of interim release": R. v. Boyle, [2006] O.J. No. 5094, 2006 42662 (C.A.), at para. 3.

[22] The availability of this second procedure does not foreclose consideration of a change in circumstances on a s. 680 application, however: see Daniels, at p. 747 O.R.; Boyle, at paras. 3-4. In other words, the Superior Court of Justice and the Court of Appeal have concurrent jurisdiction to decide whether there has been a material change of circumstances warranting judicial interim release.

[23] In attributing exclusive jurisdiction to this court and dismissing the applicant's bail application for lack of jurisdiction, O'Marra J. erred. He stated that "if there is to be a renewed application for bail based on change of circumstance, it will be by review of the Ontario Court of Appeal". As explained above, this misstates the law: both the Superior Court and Court of Appeal have jurisdiction to consider an application based on change in circumstance.

[24] I will now address the substance of the application pursuant to the order of Hoy A.C.J.O. For the reasons below, I would grant the application.

(2) A material change in circumstances

[25] Courts have recognized that a material change in circumstances will warrant judicial interim release where, for example, in the bail pending appeal context, additional sureties become available (R. v. Baltovich (2000), 2000 5680 (ON CA), 47 O.R. (3d) 761, [2000] O.J. No. 987 (C.A.)), or where the applicant offers a new legal argument and rearticulates existing arguments in a more comprehensive form (Daniels, supra).

[26] In my view, the assessment of whether a material change in circumstances exists in a particular case depends on the actual considerations that underpinned the first bail judge's refusal of bail. In other words, the issue is whether the change in circumstances is relevantly material.[^2]

[27] This application raises two competing principles: the liberty interest and the need to maintain the integrity of the trial process. In balancing these two principles, I am satisfied that [page313] based on the unique factual situation of this case, a release order can be fashioned to satisfy the secondary ground considerations.

[28] Our society places a high value on the liberty of each individual, and the loss of that liberty should not be taken lightly. As noted by Iacobucci J. in dissent in R. v. Hall, [2002] 3 S.C.R. 309, [2002] S.C.J. No. 65, 2002 SCC 64, at para. 47:

At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.

[29] The judicial interim release provisions of the Code strongly favor affording accused persons bail pending their trial: R.J. Sharpe and K. Roach, The Charter of Rights and Freedoms, 5th ed. (Toronto: Irwin Law, 2013), at p. 291. "[P]re-trial detention is extraordinary in our system of criminal justice" (R. v. Morales, 1992 53 (SCC), [1992] 3 S.C.R. 711, [1992] S.C.J. No. 98, at p. 728 S.C.R., Lamer C.J.C.), and "to pretend that pre-sentence imprisonment does not occasion a severe deprivation and that it is not punitive, would result in the triumph of form over substance": R. v. McDonald (1998), 1998 13327 (ON CA), 40 O.R. (3d) 641, [1998] O.J. No. 2990 (C.A.), at p. 658 O.R.

[30] As Gonthier J. noted in dissent in Morales, supra, at p. 753 S.C.R.:

[T]he purpose of a denial of bail is neither punishment, nor is it retribution or reform. Rather, it is better understood as a part of the process by which those aims of the law may eventually be achieved by safeguarding the proper functioning of the justice system. Far from obscuring the importance of liberty, a consideration of the administration of justice in these broader terms is necessary for the due recognition of the ways in which the administration of justice allows liberty to be properly respected.

[31] An important countervailing principle, however, is the need to maintain the integrity of the trial process, by ensuring that witnesses are not deterred from participating in the trial process by intimidation and interference. In this case, an important aspect of the allegations against the applicant was her alleged attempt to intimidate and interfere with Crown witnesses.

[32] With these observations in mind, I now turn to the material changes in this case that the applicant identifies as warranting her release.

(a) Changed circumstances that reduce the need for a surety

[33] First, the applicant points to a set of significant changes in the applicant's personal circumstances that reduce the risk of [page314] her interfering with the administration of justice, and consequently reduce the need for a surety.

[34] One aspect of this is the applicant's proposed living arrangements if she is released. She intends to reside in community housing in York Region or Brampton and to complete her studies in early childhood education at Seneca College in North York. While waiting to be accepted into community housing, she could reside with her mother in Scarborough, although that is not her preference, or in a women's shelter in Toronto. The witnesses resided in a building in Scarborough. The applicant would not be returning there.

[35] Counsel also advised the court that the applicant no longer has any relationship with the co-accused.

[36] The applicant agrees to abide by all terms that require reporting, supervision and compliance with all bail terms and not to have any communication with the witnesses. She has served an extended period in Vanier Institute and in her affidavit points to that circumstance as a motivating factor for her to abide strictly by any bail terms that may be imposed.

[37] In R. v. Baltovich (1991), 1991 7308 (ON CA), 6 O.R. (3d) 11, [1991] O.J. No. 2031 (C.A.), a previous s. 680 application before this court where bail had been initially denied on the secondary ground, Doherty J.A. acknowledged, at p. 14 O.R., that the time an accused has spent in custody awaiting trial diminishes the chance that the accused will interfere with witnesses and evidence, and is relevant to these concerns:

In our view, the chances that the applicant will interfere with witnesses or evidence, if released, have substantially diminished over the last year. He will obviously be aware if released that he will be the subject of police attention and he must know from prior experience that any effort to contact witnesses or to deal with potential evidence can operate to his detriment. I am sure his counsel will impress that point on him.

Similar considerations apply in the instant case.

[38] There have now been material changes in the applicant's circumstances since she was first arrested two and a half years ago that make it more likely that she will, in her own best interest, abide by her bail terms and not engage in activity contrary to the public interest and the due administration of justice, without the involvement of a surety.

(b) The post-bail hearing trial delay

[39] Second, the applicant argues that the passage of time and the probable outcome of sentencing together constitute a material change in circumstances entitling her to changed bail conditions on the facts of this case. [page315]

[40] Although the bail judge anticipated that the applicant's trial might not be held before September 2014, it is now not scheduled and will not be held before May 2015, at the earliest.

[41] The applicant was arrested on November 10, 2011 and has been held in custody since that date. Crown counsel agreed at the review hearing that if the applicant were to plead guilty now, she would most likely be released on the basis of time served because the appropriate sentence is three years. I note that if she were released after pleading guilty, she would not be under any supervision.

[42] The result is that -- counting pre-trial custody on a 1:1 ratio -- the applicant will have served the sentence she is likely to receive by November 2014, long before she will go to trial. If a 1.5:1 ratio (which Crown counsel conceded was appropriate) were applied to the applicant's pre-trial custody, she will have served a sentence at the upper limit of the sentencing range well before her trial commences in May 2015. Furthermore, as a result of her co-accused's imminent application for severance of his murder charges, it is not clear that her trial will commence even then.

[43] In my view, this is a material change in circumstances that, coupled with the reduced risks that the appellant poses of interfering with potential witnesses and thus obstructing justice, favours granting judicial interim release. The severance of the applicant's trial from her former co-accused's trial, and the change in the anticipated date of trial, occurred after the bail judge rendered his decision. The amount of time the applicant will now serve in pre-trial custody in excess of her anticipated sentence if convicted has increased significantly. As stated by Hill J. in R. v. White, [2010] O.J. No. 2269, 2010 ONSC 3164 (S.C.J.), at para. 10:

[P]ublic confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if convicted.

D. Conclusion

[44] I am satisfied that the applicant has established a material change in circumstances. In the circumstances, a judicial interim release can be fashioned to satisfy any public safety concerns that may have existed at the time of her initial detention. Accordingly, I would order the applicant released on the terms set out in Schedule A.

Application allowed.

[page316]

"Schedule A"

The applicant is

ORDERED RELEASED on her own recognizance in the amount of $500, without deposit, without surety and with conditions.

CONDITIONS OF RELEASE:

Attend the Superior Court of Justice at 361 University Avenue, Toronto, as required;

-- keep the peace and be of good behaviour;

advise the registrar of the Superior Court of Justice, 361 University Avenue, Toronto, M5G 1Y1, Room 241, of any change of address IN WRITING within 24 hours of the change.

Additional conditions:

-- Remain in the Province of Ontario;

report to the Toronto Bail Program, Room 162, Old City Hall, 160 Queen Street West, Toronto, forthwith upon release (between 8:00 a.m. and 4:00 p.m.) and thereafter as required by the Toronto Bail Program.

In addition to any reporting required by the Toronto Bail Program, report thereafter to the Reporting Centre, 2440 Lawrence Avenue East, Toronto, M1P 2R5 (416-808-5700), and thereafter twice weekly each Monday and Friday, except statutory holidays;

deposit her passport with the officer in charge, Officer Idsinga #6830, or designate, Toronto Police Service Homicide Squad, 40 College Street, Toronto, within 48 hours of release;

reside at an address approved in advance, in writing, by the Toronto Bail Program, not change addresses without the approval of the bail program, and advise the reporting officer of any change of address in writing within 24 hours in advance of the change;

seek and maintain gainful employment or continue to attend school;

-- observe a curfew from 11 p.m. to 6 a.m., seven days a week;

refrain from association or communication with: Kevin Williams; Guyvin July; Deah Reid (nee Huff); Barbara Marten; [page317] Nadine Keen; Mark Moore; Hyacinth Moore; Naseem Khan; Tafra Neil; Robert Hurdon; Neil Costello; Mark Costello; Shivonne Clarke; and any person known to the applicant as a member of the following families of the victims: the Spence family; the Facey family; the James family; and the Cole family.

Refrain from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance and surrender to a peace officer, a firearms officer or a chief firearms officer any such items currently in the applicant's possession, together with every authorization, licence and registration certificate relating thereto and held by the applicant.

Keep 500 metres away from 370 McCowan; 24 Hapley Ave; Greenbrae Circuit; and 50 Tuxedo Ave.

Answer the front door of residence upon the request of a police officer.

Notes

[^1]: The applicant, through her counsel, abandoned the argument in her factum that her prolonged detention constitutes cruel and unusual punishment within the meaning of s. 12 of the Canadian Charter of Rights and Freedoms.

[^2]: The Crown conceded from the first bail application that the applicant was releasable with appropriate supervision. There are no primary or tertiary ground concerns.