minicounsel

Ontario Court of Justice Toronto Region

Date: July 12, 2017

Her Majesty the Queen v. Schaun Odoherty

Application to Revoke Bail Pursuant to Section 524: Anticipatory Breach

Before: Justice of the Peace M. Brihmi

Heard: July 10, 2017 Judgment: July 12, 2017

Ms. A. DeGrace – Counsel for the Crown

Ms. S. Shartel – Counsel for Mr. Odoherty

(32 paragraphs)

Court Summary:

The Crown brought an application to revoke the bail of Schaun Odoherty pursuant to s. 524. The revocation of the defendant's bail is not justified as the Crown failed to meet the onus regarding the anticipatory breach. Therefore, the defendant was released on his previous recognizance.

Introduction

1Mr. Schaun Odoherty's matter was before the court on Monday July 10, 2017. The Crown brought an application to revoke his bail pursuant to section 524 of the Criminal Code.

2For the reasons which follow, I conclude that the application from the Crown for the revocation of the bail of Mr. Odoherty is not justified. Therefore, the Crown hasn't met its onus and I dismiss this application.

3Allow me to preface that this is a very rare application and to my knowledge there is no case law that I was able to put my hand on that dealt with the anticipatory breach of a summons, appearance notice, promise to appear, undertaking or recognizance. However, I was able to find a few decisions involving the revocation of bail under Section 523. In particular, the 2006 decisions of Justice Ducharme of the Superior Court of Ontario in R. v. Green and the 2012 decision of Justice Gilles Renaud of the Ontario Court of Justice in R. v. Yassin.

4For the Court, this matter is a Crown onus and it is up to the Crown to show the court why I should revoke the recognizances of Mr. Odoherty. The test here is on a balance of probabilities. The Crown indicated that they are relying on both the primary and the secondary grounds set out in ss. 515(10)(a) and 515(10)(b). In particular, the Crown argued that the Court should have concerns on the secondary ground regarding the safety of the public and the officers at 52 Division who believed that their safety is at risk.

The Allegations Mr. Odoherty is Facing

5The allegation that Mr. Odoherty is facing today stems from May 18, 2017 at around 10:15 am at 25 Grosvenor St., the Coroner Building parking garage that was monitored by a CCTV and the OPP officers observed the defendant remove from his backpack what appeared to be an imitation firearm resembling an UZI. It is alleged that the officers believed it to be a real weapon at the time and Mr. Odoherty was arrested at gunpoint and taken into custody.

6For this charge, he was released on May 18, 2017 under his own bail with, among others, two conditions:

Do not possess any weapons, as defined by the Criminal Code of Canada;
Do not possess any knives except while in your residence or at a restaurant for the purpose of eating.

7The second allegation involves Mr. Odoherty attending Metro Hall at 55 John St. on March 27, 2017. It is alleged that he was asked 4 times to leave and he held on to a desk. It is alleged that when the police attended, he had a knife in his pocket. The court heard that he was released on March 28 by Justice Hogan with among other conditions, that he not possess any firearms or weapons as defined by the Criminal Code.

8Furthermore, the Crown alleges that on June 8, 2017, Mr. Odoherty sent an email to the Provincial Guns and Gangs Operations Centre and it indicates among others and I read:

"I'm fucking telling you right now. You have until tomorrow morning.

I want my IPhone 7, 128 GB

I want both my fucking Mac book pros. A 2017 Japanese 507….PS. I'll stop by 52 tonight at 10pm. Make sure my shit is ready

I Want MY FUCKING KNIFE

I WANT MY FUCKING AIRSOFTFUCKING UZI

I WANT ALL MY USB STICKS AND SD CARDS EVERYTHING ON THEM

I WANT MY FUCKING MEDICATION AND IWANT MY FUCKING LIVING ALLOWANCES.

PS. I'll stop by 52 tonight at 10pm. Make sure my shit is ready".

9It is further alleged that on June 24, 2017, Mr. Odoherty went to the front desk of 52 Division at 5:20 pm and it is alleged that he demanded that his UZI imitation weapon be returned to him. In addition, it is alleged that on June 25, 2017, the defendant sent another email to the general email address of 52 Division in which he demanded that his property be returned to him.

10The Crown alleges that it was the opinion of the investigating officer that Mr. Odoherty was unwilling or unable to respect his bail conditions which resulted in a Warrant in the First on June 26, 2017 to revoke his bail. The Court heard that he turned himself in at 52 Division.

11The Court heard from the Crown's witness from 52 Division, Sergeant Bennett who testified regarding the emails sent by Mr. Odoherty that were entered as exhibits and that he sent to Guns and Gangs on June 8 as well as to 52 Division on June 25 and when he attended 52 Division on Saturday June 24, 2017.

12In addition, the witness testified regarding Exhibit 1 A, B, C and D involving the Uzi Submachine Replica gun, the knife, the magazine, the screw and the cartridge.

13Under cross-examination and when asked if there is any condition in Mr. Odoherty's bails not to attend 52 Division or if he confronted or threatened any officer, Sergeant Bennett testified in the negative.

The Criminal Record

14The court was told about Mr. Odoherty's criminal record. It involves one single conviction of Mischief-Damage to property under for which he received a conditional discharge on June 17, 2016 and three months' probation. Therefore, Mr. Odoherty has no other convictions of assault or violence or guns or drugs.

15The court is aware of the various principles set out by the Supreme Court of Canada and the different levels of courts regarding pre-trial detention which is extraordinary in our system of criminal justice and that there are no offences known to Canadian law for which a person is not eligible to be considered for a reasonable bail.

16In addition, every person who appears before a bail court or a hearing like this one, except in cases of bail pending appeal, is presumed to be innocent until such time as the matter has been dealt with by a court of competent jurisdiction and their innocence or guilt has been determined.

The Testimony of Mr. Odoherty

17In regard to Mr. Odoherty's testimony, he told the court that he shouldn't have wrote those emails and that he was upset. In addition, he told the court that he had no intention to harm anyone and that he has no history of violence.

18Furthermore, he testified that when he went to 52 Division, his intention was to get back his laptop and IPhone, as well as that he fully understands the concerns regarding his emails.

19Under cross-examination, he clarified that his emails were written in anger and that he never asked for the replica UZI or the knife when he attended the station. In addition, he testified that he was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when he was 15 years old.

20When asked by the Crown if he has any addiction to any substances, he testified that he had quit pain medication abuse and lowered the dosage as well as that he had quit "cold turkey" with the assistance of a doctor. In addition, he told the Court that he works with Dr. Gupta, whom he sees once a month to help him with his pains.

Analysis of the Application of the Crown to Revoke Mr. Odoherty's Bails

21On the issue of the application of the Crown, I accept that I am not dealing with a bail hearing per se at this stage. Therefore, I am not going to entertain the question regarding his bail or his release with a plan, or the need for a surety or sureties or the need for his supervision in the community.

22The question I am asking myself on this matter is whether there is enough evidence, on a balance of probabilities, that Mr. Odoherty had been about to contravene his recognizances according to Section 524(4)(a) as asked by the Crown and defence.

23However, after having the time to review this section, I find that it is not the proper one because it deals with a matter that should be before a judge of the Superior Court. I think that the proper section here should be Section 524(8)(a).

24In analyzing the evidence before me, it is clear to the Court that Mr. Odoherty hasn't been charged with a new offence and there is no new charge before the Court.

25I accept that he sent the concerning emails to the Guns and Gangs, however, I find in reviewing the whole email that he not only wanted his replica Uzi, he wanted also his iPhone, laptop, and his medication.

26The Court notes that it is extremely serious and aggravating that you are alleged to have sent those two emails. However, when Mr. Odoherty went to 52 Division he asked for his belongings but never asked for his replica Uzi or his knife.

27In addition, when he was told that he can't get them back because they are part of the evidence, he left the station without insult, confrontation, threat or any violence.

28For the court, if Mr. Odoherty wanted to have access to a knife or a weapon, he could have done it while under his second recognizance of May 18, 2017.

29Even when he went to 52 Division, there is no evidence that the officers were going to give him back his knife and his imitation firearm. As they told him, those are part of the evidence and they will keep them until the end of this trial.

30For me, Mr. Odoherty hasn't shown any behaviour of violence or threat when he attended 52 Division, the emails alone, in this circumstance are not enough evidence to constitute an anticipatory breach. I accept that no further actions where made after the email to convey to the Court that he was about to contravene the conditions of his bails.

31Mr. Odoherty appears before me with no prior conviction of violence. He testified that he is not a violent person and his criminal record speaks to that. He understands that he is not going to get his imitation Uzi and his knife until the end of his trial. However, I hope that he can get his medication if they are not part of the evidence.

Conclusion

32After reviewing all of the evidence before the Court, including the exhibits, the submission of both parties and taking into consideration all the circumstances, I find that the Crown failed to meet the onus. I order that Mr. Odoherty be released on his previous recognizance.

R. v. Odoherty, 2017 ONCJ 837

Case Summary

Introduction

The Allegations Mr. Odoherty is Facing