ONTARIO COURT OF JUSTICE DATE: April 15, 2021

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KHISRAW SARAHANG

Before: Justice Susan Chapman Heard on: April 12, 2021 Reasons for Judgment released on: April 15, 2021

Counsel: Dimitra Tsagaris................................................................................. counsel for the Crown Carson Hurley...................................................................... counsel for Khisraw Sarahang

CHAPMAN J.:

Introduction

1This is an application brought by the Crown, and supported by the defence, seeking to vary conditions of an undertaking entered into by the Respondent on February 8, 2020, pursuant to s. 502(2) of the Criminal Code. The variation is sought to facilitate Mr. Sarahang’s participation in the Partner Assault Response (PAR) program.

Background

2Mr. Sarahang is charged with one count of assault. He was released on an undertaking, a condition of which was that he was to have no contact with his wife, the complainant. On March 18, 2021 a joint request from the Crown and the Defence was put before the Justice of the Peace seeking to vary the release such that he could enter the PAR program and have contact with the complainant with her consent. The anticipated resolution was that, upon the completion of the program, a peace bond would be signed and the charge withdrawn. The proposed release conditions include the following terms:

(i) Contact Family Service Toronto at 416 595-9618 before the end of business day of March 24, 2021 and make arrangements to attend the sessions at the date and time directed by them;

(ii) Attend, participate in, and complete each and every session and component of Family Service Toronto counselling program at the date and time directed by them, to the satisfaction of the Program Director;

(iii) Sign any necessary releases so that the Crown and the Program Director can confirm and monitor your attendance at the date and time, and your cooperation, participation and completion of the program;

(iv) Participate in and provide the requested financial information for financial assessment(s) of you by Family Service Toronto;

(v) Pay the fees for attendance of the Family Service Toronto counselling program.

3The Justice of the Peace, however, in this case (and apparently many others) declined to vary the bail conditions and referred both parties to the decision in R. v. Valentine (unreported, OCJ, February 17, 2021). In that case the Court, ex proprio motu and without a fulsome evidentiary record, held that the proposed bail conditions, similar to those at issue in this case, were not in keeping with the Supreme Court’s decision in the case of R v. Zora, 2020 SCC 14, [2020] S.C.J. No.14 in that they were not connected to a valid purpose for a release condition, were too onerous, and allowed for unnecessary potential criminal sanctions. Ms. Tsagaris informs me that the Crown had sought to review the Valentine decision but was unable to do so when the case was resolved. Accordingly, the Crown brought this application and has filed an ample evidentiary record in support. With great respect, and on the basis of the record before me, I disagree with my colleague’s analysis in Valentine and decline to follow it. Accordingly, I granted the Crown’s application on April 12, 2021, varied the bail terms and reserved my reasons for doing so. These are my Reasons.

Analysis

4All bail decisions, including those in cases of alleged intimate partner violence, are governed by the principles articulated by the Supreme Court of Canada in cases such as R. v. Antic, 2017 SCC 27 (Antic) and R. v. Zora, 2020 SCC 14, [2020] S.C.J. No. 14 (SCC) (Zora). The Supreme Court has been very explicit in its guidance to the lower courts: all participants in the bail system must be guided by principles of restraint when imposing or enforcing bail conditions. The principle of restraint, which has both a legislative and constitutional dimension, requires that any conditions of bail be clearly articulated, minimal in number, necessary, reasonable, least onerous in the circumstances, and sufficiently linked to the accused’s risks regarding the statutory ground for detention in s. 515(10). This jurisprudence provides the legal context in which to consider the central issue in this case, namely the appropriateness of the proposed terms of a consent bail variation.

5Any analysis of this issue must also take into account the dangers associated with intimate partner violence, the purpose and impact of the PAR program and the significance of the proposed bail terms to its effective operation. Of note is the voluntary nature of the early intervention stream, the benefits accruing to both the accused and the public, and the role that the proposed consent bail conditions play in helping safeguard members of the public, including the complainant, at a critical juncture in the process. It is in this context, where legitimate safety concerns must be balanced against unnecessary restrictions on the liberty of an accused and disruptions to his or her family, that bail decisions are made.

Intimate Partner Violence

6Intimate partner violence remains a serious and pervasive problem. According to a Statistics Canada report, Police-reported intimate partner violence in Canada, 2018, there were over 99,000 victims of intimate partner violence aged 15 to 89 in Canada in 2018. Six in ten of intimate partner homicides between 2008 and 2018 were preceded by a known history of family violence. Approximately 20% of solved homicides involved a current or former intimate partner (Statistics Canada, Homicide in Canada, 2018). Anecdotal evidence would suggest that the pandemic has only made matters worse.

7As pointed out by the Government of Canada website reports and publications on criminal justice, “Best Practices where there is Family Violence (Criminal Law Perspective) 4. Arrest and Bail”:

4.1 Introduction

The dangers faced by victims of domestic violence at the time of separation are well-established. According to psychologist Peter Jaffe, director of the Centre for Research on Violence Against Woman and Children at the University of Western Ontario and a member of the Ontario chief coroner’s Domestic Violence Death Review Committee, 80% of domestic homicides happen at the point of separation or shortly thereafter. Actual or imminent separation is one of the most common risk factors present in cases of domestic homicides. The abused spouse may be at risk even where a complaint has been made to police and the perpetrator is subject to bail conditions. Indeed, the risk of harm may increase on external intervention by police and/or the criminal courts (Ministry of the Attorney General (BC), 2011:1)

“The inquests into the deaths of Gillian Hadley and Arlene May and the Commission of Inquiry into the death of Rhonda Lavoie provide but three of many horrific examples of what can happen when the cycle of violence is permitted to spin out of control. All three cases involved murder-suicides. All three cases involved a history of domestic violence leading up to the catastrophic even where various anemic bail conditions on release and re-release did not provide appropriate protection to the female spouse. In each case, the recommendation identified the failures of the bail systems as a major component in the criminal justice system’s failure to adequately address the dynamic apparent in these relationships.” (Sault, 2008:10-11).

8We should not lose sight of the fact that children are also often deeply negatively impacted by intimate partner abuse. Even if they are not the specific target of the violence, being within sight or sound of violence between their parents is enormously harmful to their psychological well-being and risks the repetition of the cycle of abuse in their latter lives.

9Clearly, public safety grounds are of significant concern in the context of allegations of domestic violence. These concerns have informed policies and directives to Crown prosecutors to exercise caution in consenting to the release of an accused charged with an offence involving family violence. Nonetheless, most individuals accused of intimate partner abuse are released pending trial, usually on consent. The most common terms of release include: “no-contact” conditions in respect to the complainant; a “no-go” term restricting the accused from attending within a specified distance of the complainant’s home and work place, and a weapons prohibition.

10Generally, Crown policy is not in favour of withdrawing domestic assault charges or resolving them by way of a peace bond apart from cases where there is little prospect of conviction. However, the Early Resolution Stream often facilitates such a resolution and is therefore beneficial to defendants who choose to avail themselves of it and obtain a bail variation permitting contact with the complainant with her consent and a non-criminal conviction related resolution. The participant in the program agrees to bail conditions that require them to promptly attend and complete relationship counselling with professionals trained specifically to deal with the unique dynamics of family violence, as distinct, for example, from generic anger management counselling.

11In its report, “Best Practices where there is Family Violence (Criminal Law Perspective) 4. Arrest and Bail” the Government of Canada seeks to identify best practices and recognizes the viability of an early intervention approach such as the one proposed in this case. In the context of discussing bail variations, the report refers to the three principle ways that cases of alleged family violence are resolved: (1) a guilty plea, where the defendant is prepared to admit guilt; 2. Resolution through a peace bond, diversion or withdrawal; or (3) a trial. Bail variations will often form part of a plan to resolve these cases. The report states as follows:

Where the case is dealt with through a guilty plea in association with participation in a treatment program, bail variations are generally standard graduated variations that are tied to progress in the counselling program. Often, a client will plead guilty and have their sentencing adjourned to proceed after the completion of the program. In these cases, a bail variation is often granted that allows full contact between the defendant and the complainant subject to the “written, revocable consent” of the complainant.

12Historically, the justice system’s response to the complex problem of domestic violence has been wanting. It has been over thirty years since the Supreme Court of Canada’s seminal decision in R. v. Lavallee and the justice system in Ontario is still struggling to deal with the overwhelming number of domestic violence cases that flow through the courts every day. However, our understanding of the complex dynamics associated with family violence are evolving and improving. Prior to the decision in Lavallee intimate partner violence was often approached by the criminal justice system as a private family matter with no societal response deemed appropriate. Then, following the high-profile deaths of a number of women by their intimate partners, some of whom were on bail at the time, the justice system moved closer to a multi-faceted public response to family violence which in Ontario has included specialized courts and programs. The jury’s recommendations in the May/Isles Inquest, discussed further below, gave rise to a more informed approach to family violence. The PAR program is a direct result of this, arguably more nuanced, approach to intimate partner violence. In appropriate cases, it has benefits for both those who are charged with a crime of domestic violence and their partners who are complainants.

The PAR Program’s Early Intervention Stream

13On this application the Crown filed the Affidavit of Hindy Ross (“Ross Affidavit”). She is the Senior Manager at Ontario Victims Services, Victims and Vulnerable Persons Division, part of the Ministry of the Attorney General. The PAR program is one of the programs she is responsible for overseeing. In her affidavit she usefully outlines the nature and objectives of the program. I will set out the content of the affidavit in a fulsome manner as it provides the important context to the central issue in this case, namely the appropriateness of the proposed bail variation.

14The early resolution stream for intimate partner violence cases in Ontario generally takes two forms: 1. The Early intervention Stream – which requires a guilty plea, PAR counselling and depending upon successful completion of the counselling sessions, the imposition of (most often) a conditional or absolute discharge; 2. The Peace Bond Stream – which does not require a guilty plea, but does require that the defendant agree to take responsibility for his or her actions by agreeing to enter the program, and upon successful completion of the counselling sessions, a peace bond is agreed to by the Crown. It is noteworthy that either way, the bail conditions are generally varied such as to permit contact with the complainant, with written consent. Further, regardless of which of these two streams are followed, the conditions that relate to the PAR program are essentially extinguished upon its completion – which in the ordinary course should occur within approximately four months’ time.

15The PAR program’s Early Intervention stream has been designed to address domestic violence at an early stage in a prosecution with the intention of protecting the complainant and the public at large while providing a means for individuals, both the accused and those they offend against, to move out of a cycle of abuse. The intention of the program is described in paragraph 2 of her affidavit as follows:

The PAR Program can be offered to individuals charged with domestic assault offences on the lower end of the spectrum as part of the Early Intervention stream. As such, it deals with individuals who are out of custody and the decision to participate in PAR programs (and consent to new bail terms) is not a bar to release. The program requires the consent of the accused and no one has to participate if they choose not to do so. Furthermore, all of this is explained to the accused prior to entry to permit them the opportunity to make an informed decision in regard to whether they wish to participate.

16Bail terms are generally varied upon the accused’s decision to enter into the program. The purpose of the bail variation depends on the individual but usually focuses on ensuring that the accused enters and participates in the program in a timely and structured way. The bail terms are critical to the overall regime as generally the other allowance that is permitted by the bail variation during the Early Intervention Program is to permit revocable contact between the accused and the victim/partner (should the parties wish) while the accused completes the program. Without the corresponding conditions requiring the accused to complete the program, unmonitored contact between the accused and the victim/partner provides a forum for re-offence. As the Crown points out in its factum, this is a different scenario than where a PAR program is ordered as a condition of a probation order. There, the offender is monitored by a Probation Officer.

17The program is designed to benefit the accused, the complainant and society at large. Upon a successful completion of the program, the hope is that the relationship is healthier or, if the relationship is at an end, the accused will be able to apply his or her new insights to future relationships. Further, the criminal charge(s) are usually resolved without prosecution and often without the need for a criminal sanction. This is an obvious benefit to the accused. As noted in the supporting affidavit at para. 5:

The PAR program is an integral component of Ontario’s Domestic Violence Court Program, which is a specialized process for dealing with cases involving domestic violence between intimate partners. It provides an alternative to prosecution and/or incarceration for eligible accused persons who wish to participate in the program, thereby reducing pressures on the Ontario Court of Justice.

There are 63 PAR programs that are delivered by 53 community agencies across the province, 10 of which programs are in Toronto.

Approximately 12,000 accused and offenders are referred to PAR program providers each year, approximately 2000 of which are referrals to PAR program providers in Toronto.

18The PAR program consists of two components: counseling/education and victim/partner outreach and support services. The two components work together to achieve the success of the program.

Education/counselling

19The PAR program is a 12-session counselling/education program covering nine mandatory topics to help those who commit violence against an intimate partner understand abuse and abusive behaviours, healthy relationships and respectful communications. Each two-hour session includes an education and skill building component to provide participants with strategies to behave differently and avoid future violence and abuse. The education/counselling program is provided in a group format, normally 15 participants per each group. However, individual sessions are offered in exceptional circumstances, although due to the pandemic, more individual sessions have been offered during this time in order to accommodate participants. There are as well a small number of PAR program providers that deliver either specialized language or cultural groups, or exist in jurisdictions with low populations, who are funded to serve four PAR groups per year regardless of group size. Smaller groups have been operating during the pandemic to accommodate a virtual session format. Attendance at all 12 PAR program sessions is mandatory to successful completion. However, participants are provided with an opportunity to make up missed sessions when the absence is beyond their control and they may be offered make-up sessions for culpable absences at the discretion of the PAR program provider following consultation with the referral source (Crown or Probation Office).

Victim/partner outreach and support:

20The second component to the program involves victim/partner outreach support services. One of the crucial objectives of the PAR program is to improve the safety and security of the victim/partner. While an accused or offender is in the PAR program, program staff offer the victim/partner help with the development of a safety plan, support and referrals to community resources, and information about their former or current partner’s progress throughout the program. A 2006 report on Ontario’s PAR program by Katreena Scott, Attitudinal Change in Participants of Partner Assault (PAR) Programs: Phase II, indicated that “one third of the women contacted by the PAR program expressed some concerns for their safety, with 15 to 20% clearly indicating that they felt unsafe.” PAR program providers are required to have at least four contacts with each victim/partner throughout the duration of the program where those individuals wish to have ongoing contact.

21As indicated, often one of the release conditions that accompanies a court ordered condition to attend the PAR program is to change the no-contact condition with the complainant and to allow for contact to occur with the written revocable consent of the complainant. The first contact with the victim/partner regarding the program and their safety needs occurs proximate to the intake/assessment process and within two weeks of the accused/offender attending their first group session. Following first contact, the PAR program provider will continue to update the victim/partner of their current or former partner’s progress towards completing the program. The PAR program provider will also notify the victim/partner of any threats made by the participant towards the victim/partner, their children or any other individual as well as inform them of any safety concerns the program may have based on comments or behaviours observed regarding the participant. The program provider will also notify the victim/partner of the participant’s discharge from the program and, in those instances, offer assistance to plan for their safety. Failure to comply with program expectations is also shared with the victim/partner. All of these measures, particularly when individuals enter into PAR as part of the early intervention program soon after the underlying offence occurs, helps to ensure and give the public confidence that the victim/partner’s safety is placed at the upmost importance when his or her safety is potentially most at risk.

PAR program referrals

22To be eligible for admission into the PAR program, all referrals of accused/offenders must meet the following requirements:

• must have been 18 years of age or older at the time of the offence;
• must be ordered by the court to attend a PAR program or counselling as directed by a probation officer, as a condition of a release order, conditional sentence order, probation order or section 810 peace bond; and
• must plead guilty, be found guilty, or must acknowledge responsibility for causing a current or former spouse or intimate partner to fear for their safety.

23There are two streams for the PAR program, the Early Intervention (EI) and the Coordinated Prosecution (CP) streams. The EI stream is available to the accused pre-sentence who choose to enter the PAR program and who:

• have not been previously convicted of a violent offence;
• did not use a weapon during the commission of the intimate violence offence before the court;
• did not cause significant harm to the complainant; and
• enter a plea of guilty or are willing to acknowledge responsibility for causing a current or former spouse or intimate partner to fear for their safety.

24The Coordinated prosecution stream is the process by which accused who are ineligible for or who decline to participate in EI, are prosecuted. In the case of a finding of guilty, attending the PAR program may be a condition on a probation order. In these cases, the accused will be monitored by a probation officer.

Initial intake:

25Given the volume of referrals in Toronto and the number of providers, there is a PAR Centralized Intake and Referral Service to assist with coordinating those referrals. This service is unique to Toronto. The John Howard Society of Toronto (JHST) runs Toronto’s PAR intake and referral service and is also a PAR program provider. For EI referrals, JHST is normally present at court, formerly in person but during the pandemic JHST staff have attended virtually on EI court dates to receive referrals.

26An information session about the PAR program, led by a Crown with duty counsel present whenever possible, is held for those who have been screened by the Crown’s office as potentially eligible for an EI referral to the PAR program. If the individual expresses an interest in attending the PAR program, they are advised that they can meet with John Howard Society who will explain the PAR program conditions to them and, if they are still interested, complete an initial intake. If the accused is interested in completing the PAR program and agrees to the conditions, they will go back to court and their release order will be varied to reflect the PAR program conditions. If they are not amenable, they can decline entering into the PAR program and their case will continue to proceed.

27In her affidavit, Ms. Ross makes clear that timely entry into the PAR program is critical to its effective operation and that for that reasons and that the Centralized Intake and Referral Service attempts to avoid any significant delay in getting interested participants into a group. The purpose of the initial intake is to review the program format and content and the program expectations with the accused/offender. This includes having the accused sign an acknowledgment of responsibility where applicable. As well, during intake it is determined whether the participant required a specialized group, such as a group in a certain language, and which Toronto PAR program provider is best suited to meet the needs of the individual (e.g., considering the timing and location of the groups and the individual’s work and other commitments), taking into consideration the providers capacity to serve the individual in a timely manner.

28Once the intake process is complete, and the release order with the condition to attend the PAR program has been obtained, the John Howard Society of Toronto will refer that individual, normally within two business days of the receipt of an EI referral, to the selected Toronto PAR program provider. A copy of the release order is sent to the PAR program provider and his is required for the provider to process the intake and further assessment of the individual.

Further Intake/Assessment by Toronto PAR Program Providers:

29For EI referrals it is the responsibility of those who are ordered by the court to attend a PAR program to initiate contact with the PAR program. The court order specifies that the contact with the provider must happen within 48 hours so that a further assessment can be arranged as soon as possible. Toronto PAR program providers have advised that the contact within 48 hours is a critical part of the PAR program provider’s operational planning. PAR program providers are funded per education/counselling group, for a minimum of 15 participants per group, so the JHST and other Toronto PAR program providers need this information to plan the group and find a space available for the new participant in a timely fashion. The contact within 48 hours also assists PAR program providers to ensure that timely first contact is made to the victims/partners of the individual referred in order to address their safety needs as victim/partner contact information is received as part of the intake/assessment process. Again, part of the purpose of the intake/assessment process is to evaluate the participants eligibility for the program including ensuring that they understand and agree to follow program expectations and they are able to fully participate in the program. Upon successful completion of the intake process and acceptance by the PAR provider in an EI referral, individuals sign a client agreement to confirm that they have been informed of all program expectations and policies, including discharge policies, and they provide their consent to allow the program to share information about their attendance and participation in the program with the Crown and their current or former partner.

Participation Fees:

30Also, as part of the intake/assessment process, the PAR program provider reviews the financial information of the individual to assess whether a participant fee is appropriate. Where a fee is appropriate, the individual will be required to enter into a client fee agreement and pay the agreed upon fee. PAR program providers require that fees be paid by participants who can afford to do so in order to operate the education/counselling sessions. Fees are charged according to a sliding scale. If the participant’s financial situation is such that they are unable to pay a fee, no fee will be charged. PAR program participants are advised up front that should their financial circumstances change, the fee can be re-negotiated and the PAR program provide will waive any further payment of fees if the participant is no longer able to pay, for instance due to a loss of income. PAR program providers are not allowed to discharge a participant for non-payment of fees where the participant lacks the ability to pay them. In the event an individual is discharged for non-payment of fees, the Crown is advised in EI cases. It is up to the Crown to decide that follow-up actions if any, should be taken; the PAR program provider is not involved in this decision making. Importantly, no individual referred to the PAR program is refused admission or discharged from the program because of an inability to pay.

Discharge from the program:

31Each PAR program participant is made aware of the program requirements and expectations as well as the circumstances that may lead to a discharge from the program. PAR program providers do not discharge an individual from the program lightly. Where a participant is not meeting program expectations (e.g. attending sessions late, non-completion of assignments, exhibiting disruptive behavior affecting other group participants) progressive actions are taken depending on the nature of the failure to comply with program expectations. It will typically start with a verbal warning and then follow up with a written warning if the non-compliance continues. Immediate discharge is only pursued where the participant has been threatening or abusive toward PAR program staff or other participants. Where the PAR program provider does discharge a participant from the PAR program, they will notify the Crown’s office in EI cases and complete a report noting the reason for the discharge.

32It is up to the Crown to decide what follow-up actions, if any, should be taken; the PAR program provider is not involved in this decision making.

Completion report:

33A participant successfully completes the PAR program upon attendance at and participation in all 12 sessions. Although all 12 sessions are mandatory, participants are offered make-up sessions where they miss a session due to unforeseeable circumstances of circumstances beyond their control. Where the participant misses sessions for other reasons, PAR program providers will often offer a make-up session following consultation with the Crown in EI cases. The PAR program provide will notify the referral source and the victim/partner when a client has completed or has been discharged from the PAR program.

34In the case of EI referrals, a final completion report must be forwarded to the Crown’s attorney’s office before any sentencing or resolution date. The report sets out the program start and completion date, the number of sessions and make-up sessions attended, information concerning acceptance, self-disclosure, attendance, group participation and completion of homework assignments, any safety concerns identified by group facilitators or partner contact staff and any suggestions for other counselling that may be beneficial (e.g. parenting, individual, substance abuse, mental health, etc.)

Research Supporting Partner Assault Intervention Programs:

35There have been a number of research studies regarding partner assault intervention programming. While findings vary between studies, there are two factors that have been consistently cited as contributing to the success of the programs: swift entry of participants into the program and completion of the program. A 2003 research study by Edward W. Goldolf, Evaluating batterer counselling programs: A difficult task showing some effects and implications, demonstrates the importance of moving those who have accepted responsibility for committing an offence against an intimate partner swiftly into programing for abusive partners. The report notes that “the effectiveness of these programs is apparently undermined by long delays between arrest and court disposition and by the large number of program no-shows and dropouts.” A 2007 research study by Larry Bennet et al., Program Completion and Re-arrest in a Batterer Intervention System notes that the research shows that the recidivism rates for offenders who drop out are greater than for offenders who complete the program. Successful completion of all sessions reduced the likelihood of re-arrest.

36A 2006 report on Ontario’s PAR program by Katreena Scott, Attitudinal Change in Participants of Partner Assault (PAR) Programs: Phase II, found that “on average, men who completed a PAR program showed significant positive change in all attitude and knowledge domains assessed. Specifically, men increased their level of personal responsibility for their abusive behaviour, reduced their negative and blaming attitudes towards their intimate partners and were less likely to deny relationships difficulties.” The study also found that “rates of dropout are lowest for clients referred through the Early Intervention Court system (10%) and considerably higher for men attending voluntarily (57%)”. The researcher notes that: “The 74% rate of program completion found across PAR programs in Ontario exceeds that typically reported int the literature for similar programs where dropout rates typically reported in the literature for similar programs where dropout rates typically vary from 50 to 75% … This high program completion rate, along with excellent awareness of reasons for men’s non-completion, are a very positive indicator of effectiveness of coordination of the justice system and of PAR programs across Ontario.”

The Legal Principles that Govern

37“Bail is a dynamic, ongoing assessment, a joint enterprise among all parties involved to craft the most reasonable and least onerous set of conditions, even as circumstances evolve”: R. v. Zora, at para. 93.

38In R v. Valentine, Justice Moore rejected the consent bail conditions sought by the Crown and the Defence for a number of reasons. The concerns raised in the judgment may be summarized as follows:

(i) The conditions are not required to ensure attendance in court, the protection or safety of the public, or to maintain confidence in the administration of justice.

(ii) Rehabilitation is not an appropriate goal of a release condition.

(iii) The conditions delegate the creation of bail rules to the PAR program provider.

(iv) By design, these boilerplate conditions are not tailored to the individual risks posed by a particular defendant.

(v) The “standard” conditions are exacting and inflexible and the opposite of the requirements that they be the “least onerous”.

(vi) The “standard” conditions (d) and (e) use bail condition and the threat of criminal sanction to enforce a civil debt.

39Ultimately, the Court in R. v. Valentine granted a variation but rejected the consent terms and, instead, imposed the following terms:

(i) Be amenable to completing the PAR program offered by Family Service Ontario;

(ii) Sign any necessary releases so that the Crown and the Program Director can confirm and monitor your attendance at the date and time, and your cooperation, participation and completion of the program. (para. 11)

The Consent Bail Conditions are Necessary for the Protection of the Public

40In Valentine, Justice Moore rejects the consent bail conditions and states that:

“The conditions are not required to ensure attendance in court, the protection or safety of the public, or to maintain confidence in the administration of justice. Mr. Valentine has been on release for almost three months now without incident, so there is ample evidence that the existing release conditions are satisfactory”.

41The proposed consent bail terms, however, are directly related to the protection and safety of the public, and to some extent the overall maintenance of confidence in the administration of justice. The PAR program’s Early Intervention stream has been designed to address domestic violence at an early stage in a prosecution with the intention of protecting the complainant and the public at large while providing a means for individuals, both the accused and those they offend against, to move out of a cycle of abuse. The intention of the program is summarized in the Ross Affidavit as follows:

The PAR program is a court-ordered sanction that provides those found guilty or who accept responsibility for an offence committed against an intimate partner with an opportunity to examine their beliefs and attitudes towards domestic abuse, and to learn non-abusive ways of resolving conflict through group education/counselling.

42The PAR program can be offered to individuals charged with domestic assault offences on the lower end of the spectrum as part of the Early Intervention stream. As such, it deals with individuals are out of custody and the decision to participate in PAR programs (and consent to new bail terms) is not a bar to release. The program requires the consent of the accused. No one has to participate if they choose not to. Furthermore, all of this is explained to the accused prior to entry to permit them the opportunity to make an informed decision in regard to whether they wish to participate. I would contrast this with the scenario the Supreme Court of Canada was understandably concerned with in Zora, a “consent” to certain bail terms by an accused person anxious to secure early release from custody. The potentially coercive nature of those circumstances may render suspect any apparent consent to certain terms of release. That is not the case here. The accused is already at liberty on an undertaking. Further, the accused has been fully informed of the expectations of the PAR program and the bail terms are generally varied upon the accused’s decision to enter into the program. The purpose of the bail variation depends on the individual but usually focuses on any number of the following purposes:

• To ensure that the accused enters into the program in a timely way;
• To ensure that the accused continues to participate in the program; and
• To ensure that the Crown and the Program Director can properly monitor the accused’s participation in and completion of the program.

43Again, these terms are critical to the purposes of bail as generally the other allowance that is permitted by the bail variation (such as in this case) is contact between the accused and the victim/partner (should the parties wish) while the accused completes the program. Without the corresponding conditions requiring the accused to complete the program, unmonitored contact between the accused and the victim/partner just provides a forum for re-offence. This is a different scenario than where a PAR program is ordered as a condition of a probation order. There, the offender is monitored by the Probation Officer.

44The program is designed to benefit the accused, the complainant and society at large. Upon successful completion of the program, the hope is that the relationship is healthier or, if the relationship is at an end, the accused will be able to apply his or her insights to future relationships. Further, the criminal charges are usually resolved without prosecution and often without the need for a criminal sanction. This is an obvious benefit to the accused. As noted in the supporting affidavit at para.5:

The PAR program is an integral component of Ontario’s Domestic Violence Court Program, which is a specialized process for dealing with cases involving domestic violence between intimate partners. It provides an alternative to prosecution and/or incarceration for eligible persons who wish to participate in the program, thereby reducing pressures on the Ontario Court of Justice.

45The relevance of the proposed bail conditions to the objectives of bail were considered in R v. Gierscher (unreported decision, dated May 22, 2018, SCJ) where the Superior Court reviewing a similar case, issued a Writ of Mandamus as against the refusal of the lower court to order the accused to complete the PAR program. Similar to the case at bar, the impugned term was also sought as a variation put before the Court on consent. In issuing the Writ, the Honourable Mr. Justice G.E. Taylor stated:

At paragraph 67 of Antic, the Court specifies that the 11 principles and guidelines which it set out apply to contested bail hearings. At paragraph 68 the Court recognizes that the principles and guidelines which it established in the previous paragraph “do not apply strictly to consent release plans”.

And later:

In my view, the proposed variation in the present case is consistent with the overall objectives as discussed in Antic. The proposed term is not being imposed on the applicant against his will. The proposed term is designed to facilitate resolution of the charge which the applicant is facing without the necessity of the court making a finding of guilt. This is a laudable goal.

46As set out in some detail above, the PAR program consists of two components: counseling/education and victim/partner outreach and support services. The two components work together to achieve the success of the program. Critical to the success of the program, and the reduction in domestic violence associated with it, is timely intervention and successful completion of the program. The bail conditions sought and agreed to in this case are designed to facilitate that purpose.

47The bail conditions proposed in this case are directly tied to the objectives of protection and safety of the public as the terms assist the accused to enter into and complete the PAR program which focuses on both reducing the risk of recidivism and increasing the safety of the complainant. One of the main goals of the program is to prevent the re-occurrence of violence. The program seeks to meet this goal by:

• increasing a participant’s understanding of domestic violence and abuse;
• increasing a participant’s understanding of non-violent strategies and skills to engage in healthy relationships;
• reducing a participant’s likelihood of reoffending by increasing their self-awareness of personal triggers/warning signs that contribute to violent behavior;
• assisting victims/partners by reducing their isolation and providing information that will help them to make informed decisions about their safety and their relationships with their current or former partner.

48The PAR program is designed to improve the safety and security of the victim/partner who is an important member of the public that judicial interim release orders seek to protect. The program offers services to the complainant to address the issues of risk; offers the victim/partner help with the development of a safety plan, support and referrals to community resources, provides the complainant with information about their former or current partner’s progress through the program and requires providers to have at least four contacts with each victim/partner throughout the duration of the program where those individuals wish to have ongoing contact, to obtain information about the health of the relationship and to provide support (see Ross Affidavit, paras. 4, 16 and 18).

49Justice Moore noted that Mr. Valentine had not re-offended in his time on bail up to the point of the request for variation. However, with respect, a three-month period is a very short time upon which to ground the assumption that there is no risk of the commission of further offences, especially where has been no counselling. Through education, contact and monitoring of compliance, the PAR program can substantially lessen the risk to the complainant. In order to benefit from the program, the accused must fully participate. In order to ensure the accused fully participates, the consent bail terms are requested. As such, these bail terms are required for the protection of the public. I would also observe that the consent conditions are essentially extinguished once the program is complete, which in the ordinary course takes approximately 4 months. They therefore are tailored not only in nature but duration to a valid objective of bail.

Rehabilitation is not a Proper Objective of Bail Conditions

50As for Justice Moore’s related concern, that the goal of rehabilitation is not generally a central objective of bail conditions, that is of course true. However, as stated by the highest Court in Zora, at paragraph 85, “although a condition may be suitable for sentencing purposes, like rehabilitation, it will not be appropriate for bail unless it is directed towards the risks in s. 515(10)” (emphasis added). In cases of domestic violence the protection of the public (including the complainant) falls squarely within s. 515(10)(b). Given that PAR counselling is directly tied to the judicial interim release objective of protection of the public, and the accused has agreed to the term as part of a process of voluntarily accepting responsibility, there is nothing inappropriate about a bail term that has an added benefit of rehabilitation.

The Proposed Bail Conditions are not Generic

51In Valentine, Justice Moore determines that the “standard” conditions are exacting and inflexible and the opposite of the requirement that they be the least onerous. He points out that when similar terms are a condition of probation, they are less onerous. Justice Moore concludes that by their very design, these boilerplate conditions are not tailored to the individual risks posed by a particular defendant.

52However, the proposed conditions are not generic. These terms are available for specific offences charged in specific circumstances where it is believed that a specific type of counselling may help to protect the complainant and reduce the risk of reoffence. The terms are proposed where an accused has agreed to enter the PAR program. They are designed to ensure that the individual accused participates fully in a specific program to address the issue of domestic violence within his or her relationship. As such they are tailored to ensure the individual accused gets the full benefit of the program offered. In my view, the conditions imposed in Valentine, namely “that the accused be amenable to completing the PAR program offered by Family Service Toronto” are overly broad and risk creating uncertainty around compliance and enforcement. In Zora, the Supreme Court states that release conditions must be clearly articulated. At paragraph 75 in Zora, the Court warns that broad conditions prevent an accused from understanding what they must do to avoid violating their conditions and impairs compliance.

The Terms are not Onerous

53The bail terms sought in this case are not onerous. They simply direct compliance with the PAR program and specify what that means. Further, in the case at bar the conditions were explained to the accused and he consented to be bound by them. The requirement to enroll within 48 hours is a reasonable and easily complied with condition that ensures the process is commenced promptly. The enrollment process is not involved and, as such, this condition is not onerous. The need to enroll as soon as possible stems from the concern that, there has been a without-prejudice acknowledgment that domestic violence has taken place and there is a significant risk of re-offence due to the upheaval in the relationship. Further, if contact has resumed between the parties (as part of the consent bail variation process and input from the complainant) the program can provide critical guidance to navigating that contact. As well, there is a practical component to quick registration. The group nature of the sessions results in scheduling issues best addressed as soon as possible (Ross affidavit, para. 11).

54The terms are specific and clearly articulated as they should be. The accused was already released on an undertaking. He has agreed to participate in a counselling program as part of an agreed-upon resolution of the charges he is facing. The conditions are added only to facilitate the counselling the accused has agreed to participate in. Further, other conditions may be relaxed (such as allowing contact with the complainant should he/she agree) as part of the same release. The analysis of how onerous the conditions are should include an appreciation of the goal that the conditions seek to achieve as well as the voluntary nature of the accused’s agreement to the variation. If an accused person does not agree to abide by the service provider’s requirements for GPS monitoring the accused faces a high likelihood of remaining in custody. In contrast, if an accused on a release for domestic assault charge does not wish to avail him/herself of the counselling offered by PAR, he/she continues to remain on release on the least onerous conditions already in place.

The Proposed Bail Conditions do not Amount to an Abuse of Process either by Improper Delegation or Enforcement of a Civil Debt

55As set out in paragraph 30 above, each PAR program participant is made aware of the program requirements and expectations as well as the circumstances that may lead to a discharge from the program. Where the PAR program provider does discharge a participant from the PAR program, they will notify the Crown’s office in EI cases and complete a report noting the reason for the discharge. It is up to the Crown to decide what follow-up actions, if any, should be taken; the PAR program provider is not involved in this decision making. Accordingly, I find that the authorities do not delegate responsibility either to make or enforce release terms to program providers. The PAR program provider, in Toronto most often the John Howard Society, is not usurping the function of the Court or any other party. The terms and conditions are set by the Court and the police and the Crown are still responsible for the decision to lay charges and prosecute any serious breaches. There has been no delegation of those duties. The provider is not the jailor in the community; the provider simply monitors and administrates compliance with the program. The program is actually set up to reduce the potential for future charges. The structure of the program permits the provider to internally address missing a session or failure to participate fully at any given time and thereby reduce the risk of expulsion from the program or a subsequent criminal charge.

56As for any concern that the consent bail terms amount to the criminal law enforcement of a civil debt, I would again rely on the evidence on this application as summarized at paragraph 29 above (Ross Affidavit, para. 51). PAR program providers are not allowed to discharge a participant for non-payment of fees where the participant lacks the ability to pay them. In the event an individual is discharged for non-payment of fees, the Crown is advised in EI cases. It is up to the Crown to decide that follow-up actions if any, should be taken; the PAR program provider is not involved in this decision making. Importantly, no individual referred to the PAR program is refused admission or discharged from the program because of an inability to pay fees. These programs require funding to be able to run. Admission is not mandatory but is offered to accused who qualify. As is explained to the accused prior to entering the program, the requirement to pay is determined on a sliding scale, based on the ability to pay. No one will be discharged because of a change in circumstances that impairs the ability to pay.

57I therefore conclude that there is no improper delegation of bail rules to program providers in these circumstances and the consent terms do not amount to the criminal law enforcement of a civil debt.

Conclusion

58In response to the overarching concern in the Valentine decision, that failing to comply with these conditions would lead to needless criminal sanctions, the evidentiary record before me and my experience in two Toronto courthouses that have PAR programs, would suggest otherwise. There are measures in place that mitigate this concern. There are internal processes that are designed to address failures to participate or a failure or inability to pay, including: negotiation, make-up options and even expulsion and re-entry. This is a nuanced approach that puts a structure in place but also takes into account the circumstances of the individual and works with that person to allow for the best possible chance of successful completion of the program. Ultimately, any potential breach charges would have to be laid by police and prosecuted by the Crown. Given the internal processes and the obligations of the police and Crown, only the most serious of concerns would potentially result in criminal sanctions. On the other hand, the very real risks that domestic violence pose, are mitigated to some extent by the consent conditions proposed in this case. As Justice Moore rightly points out, “Domestic violence is a horrible scourge on our society and the justice system in Canada has historically been complicit in enabling offenders to continue to perpetuate abuse.” The PAR program, and the bail conditions often associated with it, represent a careful and balanced response to the competing interests at play in cases of alleged intimate partner violence and are directed to the circumstances of the individual accused. Balanced against the possibility of breaches charges is the likelihood that the predicate offence will be resolved in a manner beneficial to the accused.

59In R v. Bates, [2000] OJ No 2558 at paragraph 30, the Ontario Court of Appeal highlighted the serious nature of domestic violence offences and the very real risk of repeated commission. There the Court stated:

The court have been made increasingly aware of the escalation of domestic violence and predatory criminal harassment in our society. Crimes involving domestic relationships are particularly heinous because they are not isolated events in the life of the victim. Rather, the victim is often subjected not only to continuing abuse, both physical and emotional, but also experiences perpetual fear of the offender.

60The Court in Bates emphasized the “critical” role that undertakings and bail orders play in mitigating risk in domestic offences and ensuring the safety of the alleged victim.

61The jury recommendations in the Inquest into the Deaths of Arlene May and Randy Iles, returned on July 2, 1998, bring into sharp focus the importance of the bail system and the early intervention program in domestic assault cases. In fact, the early intervention program developed from these recommendations and provides what appears to be an effective and rapid method of response, in appropriate cases, to the complexity of domestic violence offences in the criminal justice system. The bail system, where the terms have been explained to the accused and the accused has consented to them, is a vital component of the early intervention program, ensuring the safety of the complainant and the mitigation of the risk of re-offence while the accused completes the program.

62Restricting the utility of the bail terms only destabilizes this program, reduces the chance for individual success and increases the risk to the complainant. This was not the result intended by the Courts in Antic and Zora. Overall, the bail conditions required for the accused to enter the Early Intervention Program are necessary, reasonable and sufficiently linked to the grounds of detention under s. 515 and therefore comply with the principles outlined in the case of Zora.

This Case

63Mr. Sarahang was released on an Undertaking with one condition, namely that he have no contact with the complainant directly or indirectly. This is the usual condition for release in cases of this nature for obvious reasons. For various causes, primarily related to the pandemic, this case has since been in limbo for a considerable period of time. However, the case was screened by the Crown as being eligible for early intervention, and in particular the PAR program/peace bond stream. Mr. Sarahang agreed to take part in the PAR program including being amenable to the standard bail terms that apply. The terms and the PAR program had been explained to Mr. Sarahang, prior to his agreeing to the variation of his bail. Mr. Sarahang is represented by experienced counsel. Further, he was already out of custody on a release order. As such, his liberty was not contingent upon his acceptance of the proposed bail conditions. Therefore, the variance of the bail was requested of the Court on the consent of both parties and I granted it accordingly.