Court Information
Ontario Court of Justice Date: 2020-07-09 Toronto Region
Between: Her Majesty the Queen — and — Clifton Ling
Before: Justice L. Feldman
Heard on: June 25, July 2, 2020
Reasons for Judgment released on: July 9, 2020
Counsel:
- D. Steinberg, counsel for the Crown
- G. Igbokwe, for the defendant Clifton Ling
Judgment
Background and Charges
1Clifton Ling applies for bail on charges of Break, Enter & Theft, Robbery and Take Auto without Consent. It is his onus because at the time of alleged commission of these offences he was released on an undertaking on charges of Operation Impaired, Refuse Breath Sample, Operation while Prohibited, x 2, Drive Disqualified x 3, Dangerous Operation x 2, Attempt Theft, Flight from Police, offences said to have occurred Dec. 15-18, 2018.
2On Feb. 6, 2019, he failed to appear on these charges. The day before, he escaped lawful custody when police attempted to arrest him on allegations of Assault (domestic), Break & Enter, Theft of Motor Vehicle, Fail to Stop, Drive Disqualified x 5, Theft under $5000 and Uttering Threats x 3.
3Mr. Ling was arrested on the escape lawful custody on March 22, 2019 and charged with all of these more recent offences alleged to have been committed on Jan. 14, Feb. 4 and March 3, 2019. He was ordered detained.
4On Dec 18, 2019, his application for a review of his detention was dismissed. On Feb. 11, 2020, he entered guilty pleas to Refuse Breath Sample, Dangerous Operation, Drive Disqualified, Assault and Unlawfully in a Dwelling. He was sentenced to 3 years, less the equivalent of 622 days of pre-trial custody. He was eligible for parole on July 8.
5As part of his plea, Mr. Ling acknowledged guilt on one count of assaulting Jessie Burnell, the complainant on one of the remaining charges. They have been in a long-term off-and-on relationship. They have one child together.
Allegations on Remaining Charges
6The allegations on the remaining charges include the following. On Feb. 22/19, Jessie Burnell's mother saw the accused in her daughter's car outside her apartment. She confronted him. She said the defendant demanded to know where Jesse was. The apartment's door had been smashed in and its deadbolt broken. Mr. Ling's DNA was found on the door. He had no permission to be there.
7Ms. Burnell told the police that her apartment had been broken into a few times since Feb. 11. She said she moved out because she feared the accused. Ms. Burnell's mother told the police that the defendant called her demanding to know Jesse's whereabouts and threatening her daughter's life if she failed to call him the next day.
8On Feb. 25, Mr. Ling robbed a food delivery worker of his cell phone, threatening him with a firearm. The victim identified the license plate of the car his assailant drove. It belonged to Ms. Burnell.
9On Feb. 26, Mr. Ling broke into Ms. Burnell's apartment. He had breached the police seal installed after the prior break-ins. He was seen there by one of the building's cleaners.
10On March19, Danielle Fiume, a former girlfriend, agreed to loan the defendant her car. He failed to return it. He was arrested on March 22.
11No date for trial has been set on one of the counts. There is no disclosure on the other two counts.
Criminal History
12Mr. Ling is 38. His has a lengthy criminal record. It indicates he is criminally inclined and has not been deterred by previous sentences. The record since 1998 includes: Assault x 5, Forcible Confinement, Weapons Dangerous, Break & Enter, Unlawfully in a Dwelling x 3, Dangerous Operation x 5, Fail to Stop x 2, Flight from Police x 5, Unlawfully at Large x 4, Drive Disqualified x 2, Fail to Comply with Recognizance x 7, Fail to Comply with Probation x 7, Fail to Appear x 4.
13Mr. Ling has over 50 convictions. He is bound by a Weapons Prohibition Order. He is prohibited indefinitely from driving anywhere in Canada. He has served 3 penitentiary sentences.
14Through his sureties, Mr. Ling offers a plan of release that includes house arrest and GPS ankle monitoring, but one that would permit him to work.
The Sureties
15Penycher Ling is the applicant's younger sister. She is 30. She is pregnant but not working as a nurse because of the coronavirus. She says she is close with her brother and his 4 children. She knows he has had a cocaine addiction for 10 years. She says it has been hard for her brother in detention because of his anxiety and PTSD and, more particularly, because of an ankle injury and recent loss of his father. It is a positive sign that he has commenced telephone counselling with Break Free Family Centre for his emotional burdens.
16Ms. Ling has been surety for him in the past but sought relief when he failed to comply with conditions. She says it is open to him to stay with her and her husband in their Whitby apartment. She would monitor his calls so that he would have no contact with Jesse Burnell. If released, she would accompany him to counselling sessions. She pledges $2000 as surety. She says it is his last chance with her. I accept that she would take her responsibilities seriously and call the police in the event of a breach.
17Ms. Ling would like her brother to be able to work in his roofing business. He could be driven to work each day by his friend, Patricia Mahon, who is his bookkeeper and has also offered to be a surety and to have him live with her, her child and her boyfriend.
18Ms. Mahon is 27 and a close friend. She sees him every day he is at work. Should the applicant live with her, she would drive him to the office and have him in her presence all day. She says she will do everything she can to ensure he complies with terms of his release. She feels he needs ongoing psychological and substance abuse treatment.
19Ms. Mahon appears to be a hardworking and responsible individual. Although she tends to minimize the defendant's criminal behaviour, I believe she would take her obligations seriously and seek relief as a surety should the defendant not follow her rules.
Positions of the Parties
20Ms. Igbokwe, for the applicant, points out that but for 3 remaining counts, for which there are triable issues, all other charges have been dealt with. She submits that the plan of release answers any secondary ground concerns. She says that with regard to the tertiary ground, the reasonable member of the community who accepts the values inherent in the Charter would understand that the plan of release, the risk of COVID-19 spread in congregate institutional living and the fact a trial date has not yet been set would not lead him or her to lose confidence in the administration of justice were Mr. Ling to be released on bail.
21Mr. Steinberg, for the prosecution, submits that there is a risk Mr. Ling will breach this court order, as he has often done in the past, because he does not care about consequences. He says the defendant is untrustworthy by nature and, given the gravity of some of his offences, dangerous. He highlights the fact that Ms. Burnell was driven out of her home because she was in fear of him.
Has the Applicant Met his Onus?
22In considering this application, I am mindful that"in Canadian law, the release of accused persons is the cardinal rule and detention, the exception"[1]. As well, release is favoured at the earliest reasonable opportunity and on the least onerous grounds[2]. Additionally, in Myers[3], the Chief Justice noted the principle that individuals in pre-trial custody be given a certain priority in scheduling trials. That has been made more difficult in this case because of delays caused by the pandemic.
23Mr. Ling was detained in custody for 11 months before entering guilty pleas on Feb. 11, 2020. He is serving a sentence for which he was eligible for parole yesterday. He has psychological and substance abuse issues. He has committed violent offences. He is dangerous when behind the wheel of a car. He has shown little propensity to respect court orders. He is capable of harming or intimidating Jesse Burnell.
24Nonetheless, on the secondary ground, the applicant satisfies me that the proposed plan of release will answer the concern that there is a substantial likelihood of re-offence or interference with witnesses. Under house arrest and with electronic monitoring, the likelihood of re-offence is diminished. That would apply as well to the tertiary ground, in addition to other factors, including the risk of COVID-19 spread[4] and the delay in setting a trial date.
Decision and Conditions of Release
25Mr. Ling will be released. He requires two sufficient sureties, both to be named, Penycher Ling, in the sum of $4000, Patricia Mahon, in the sum of $6000. Mr. Ling will reside with his sister, Penycher, in Whitby, and be subject to house arrest and his surety's rules. He will require GPS ankle monitoring that must be implemented prior to his release. I will not permit him to attend for work during the day. I would not trust him with that degree of freedom.
26Mr. Ling may leave his sister's residence in the company of one of his sureties in the event of a medical emergency or to receive medical attention, to attend for counselling or to meet with counsel to prepare for trial. He is to have use of a phone or computer only in the presence of one of his sureties who is to monitor the content of his calls and his use of the internet. He is to have no access to social media.
27As well, Mr. Ling is to have no contact or communication directly or indirectly with either Jesse Burnell or Danielle Fiume, nor is he to be within 200 metres of any place he knows them to live, work or happen to be. He is not to possess any weapon as defined by the Criminal Code.
Signed: Justice L. Feldman
Footnotes
1R. v. St-Cloud, 2015 SCC 27, [2015] 2 SCR 328, at para. 70
2R. v. Antic, 2017 SCC 27, [2017] SCR 509, at para. 29