WARNING
The judge hearing this motion directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Court of Appeal for Ontario
Date: 2022-02-16 Docket: M53180 (C69815)
Before: Thorburn J.A. (Motions Judge)
Between: Her Majesty the Queen, Applicant (Respondent) and J.R., Respondent (Appellant)
Counsel: Stephanie A. Lewis, for the applicant/respondent James Lockyer, for the respondent/applicant
Heard: February 10, 2022 by video conference
Endorsement
Relief Sought
[1] There are two applications before me: the Crown’s application to revoke the order to release J.R. on bail pending his appeal, made October 28, 2021, pursuant to s. 679(6) of the Criminal Code, R.S.C. 1985, c. C-46; and J.R.’s new application for release on bail pending appeal.
[2] J.R. concedes that there are reasonable grounds to believe he has contravened his October 28, 2021 release order, and that his release order should therefore be cancelled.
[3] He submits however, that he has shown cause why a new release order should be issued. During oral submissions, J.R. brought a new application for bail pending appeal. The Crown takes the position that J.R. has failed to show cause why his detention is not justified pursuant to s. 524(4) of the Criminal Code.
[4] The Crown further submits that even if J.R. satisfies this court that his detention is not justified, the Criminal Code requires that he be taken into custody before being released.
[5] J.R. was charged with sexual assault with a weapon, forcible confinement and extortion in April 2018. Shortly thereafter, he was released on bail.
[6] He was convicted of these offences on May 3, 2021. On October 28, 2021, he was sentenced to 6 years in custody less 21 days for pre-sentence custody.
[7] On September 8, 2021, he sought leave to appeal his convictions. On November 17, 2021, he filed a supplementary notice of appeal and sought leave to appeal his sentence.
[8] On October 28, 2021, on the consent of both parties, Trotter J.A. granted J.R. bail pending appeal. One of the terms of his release was: “You must remain in your residence daily between the hours of 10:00 p.m. and 6:00 a.m. except … when you are in the presence of your surety.”
[9] J.R.’s only surety was his fiancée, who pledged $10,000.
[10] On January 19, 2022, shortly after 1:00 a.m., J.R. was driving alone outside his residence and was pulled over by a police officer. J.R. claims he was on his way to buy a pizza for his ill fiancée. Because he was out after 10:00 p.m., and not with his surety, he was charged with failing to comply with the terms of his release order, contrary to s. 145(5)(a) of the Criminal Code.
[11] He was released at the scene on his own undertaking and ordered to appear in the Milton courthouse on February 16, 2022.
[12] This is the first breach of his bail conditions since he was released on bail in April 2018.
The First Issue: Revocation of Bail
[13] This court’s jurisdiction to revoke an appellant’s bail pending appeal is found in s. 679(6) of the Criminal Code. Section 679(6) provides that s. 524 applies “with any modifications that the circumstances require”. Subsection 524(3) provides:
(3) The judge or justice who hears the matter shall cancel a summons, appearance notice, undertaking or release order in respect of the accused if the judge or justice finds that (a) the accused has contravened or had been about to contravene the summons, appearance notice, undertaking or release order; or (b) there are reasonable grounds to believe that the accused has committed an indictable offence while being subject to the summons, appearance notice, undertaking or release order.
[14] The onus is on the Crown to establish contravention of the release order pursuant to s. 524(3).
[15] J.R. concedes that he contravened his release order, so the condition in s. 524(3)(a) is met. Therefore, as required, I order the revocation of his October 28, 2021 release order.
The Second Issue: J.R.’s New Application for Release
The Test for Detention after Breach of a Bail Condition
[16] By virtue of s. 524(4), the onus is on the appellant to demonstrate that he should be released again pending appeal. The appellant has the onus of showing that his release is justified on a balance of probabilities, and specifically, that: (a) the appeal or application for leave to appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest: s. 679(3).
[17] There is no dispute that J.R.’s appeal is not frivolous, and that J.R. will surrender himself into custody in accordance with the terms of the order.
[18] The only issue is whether J.R. has shown that his detention is not necessary in the public interest, despite the fact he breached his bail conditions by leaving his residence unaccompanied by his surety after 10 p.m. to buy a pizza for his ill fiancée.
[19] The public interest criterion has two components: public safety and public confidence in the administration of justice: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 23.
[20] Public safety relates to the protection and safety of the public: Oland, at para. 24. To be denied bail for public safety considerations: (i) an individual must pose a “substantial likelihood” of committing an offence or interfering with the administration of justice; (ii) the “substantial likelihood” must endanger the “protection or safety of the public”; and (iii) the individual’s detention must be “necessary” for public safety: R. v. Morales, [1992] 3 S.C.R. 711, at pp. 736-37; R. v. Stojanovski, 2020 ONCA 285, at para. 18. Public safety considerations alone can justify refusing bail in the public interest: Oland, at para. 27. As noted in Morales, at p. 738:
[T]he bail system also does not function properly if individuals commit crimes while on bail. One objective of the entire system of criminal justice is to stop criminal behaviour. The bail system releases individuals who have been accused but not convicted of criminal conduct, but in order to achieve the objective of stopping criminal behaviour, such release must be on condition that the accused will not engage in criminal activity pending trial.
[21] An assessment of public confidence involves balancing the enforceability interest (that judgments should be immediately enforceable) and the reviewability interest (that a person is entitled to a meaningful review process before having to serve all or a substantial part of their sentence): Oland, at paras. 25-26, 37-46. These interests are measured through the eyes of a reasonable member of the public who understands our bail system, and the facts of the case: Oland, at para. 47.
The Positions of the Parties
[22] The Crown points out that J.R. has been convicted of serious violent offences and a lengthy sentence has been imposed. The Crown claims that given his breach of a bail condition, public confidence in the administration of justice requires his detention. The Crown submits that the breach indicates that the bail plan is no longer reasonable as the surety is no longer appropriate, and in the balancing analysis, the enforceability interest now outweighs the reviewability interest. Alternatively, if this court determines that J.R.’s detention is not justified, the Crown proposes a new pledge from J.R. of $10,000, and a new weekly reporting term in addition to the terms that were in force in the October 28, 2021 order for bail pending appeal.
[23] J.R. claims that the circumstances under which this breach occurred do not require his detention in custody pending appeal.
[24] He claims there are no new public safety concerns resulting from his breach. He says he had no intention to contravene his bail terms, and that with his own illness and his worry about his fiancée’s more serious illness (discussed further below), he was “a bundle of nerves” and simply forgot that his fiancée had to be with him if he left his home at that time of night. J.R.’s account of the reason for his whereabouts is corroborated by his fiancée and by the cellphone records. He also notes that at the time of his breach, his fiancée was extremely ill.
[25] J.R. further claims that under these circumstances, his release pending appeal would not shake public confidence in the administration of justice. In addition to the requirements imposed on him in the bail terms set out in the October 28, 2021 bail order, if this court orders release, J.R. proposes a weekly reporting term (rather than a monthly reporting term), and agrees to pledge the sum of $10,000.
The Circumstances of this Breach
[26] J.R. concedes that he breached his bail conditions by leaving his home without his fiancée after his 10 p.m. curfew. He claims, however, that he was under serious stress as his fiancée had been ill and had not eaten for three days with what they believed to be COVID-19 (although she was later diagnosed with thrush), and he himself was unwell with a nasal infection. In his affidavit in support of this bail application J.R. notes, “I was very worried because [my fiancée] had not been eating for days, and we thought she might have Covid.… [N]either of us were thinking of the bail condition when I drove to get the pizza. We were both rather scared by [my fiancée]’s condition.”
[27] There is evidence to support this account of J.R.’s whereabouts and his reasons for leaving his home after 10 p.m. J.R.’s fiancée’s cellphone records corroborate his assertion that he called Pizza Pizza’s general number, 905-527-1111. At 12:51 a.m, he called for Hamilton Pizza Pizza locations and was told they were closed. Then, at 1:05 a.m., J.R. called the same number and was informed that the outlet in Burlington was still open but that they would not deliver. It is approximately 13.3 miles from his home. At 2:22 a.m., Pizza Pizza left a voicemail message on his fiancée’s phone asking why he had not picked up the pizza he had ordered.
[28] The following day, J.R. and his fiancée attended a walk-in clinic. His fiancée was not allowed to enter the clinic in case she had COVID-19, and told a nurse her symptoms over the phone. J.R. was allowed into the clinic to pick up a prescription for his sinus infection.
[29] The Crown does not dispute this account.
Analysis of the Public Safety and Public Confidence Factors
[30] Breach of a bail condition is a very serious matter. For the purposes of maintaining public safety and public confidence, it is important that applicants released pending appeal comply with the conditions of their release.
[31] In rare cases, where extenuating circumstances exist, persons that have failed to adhere to a bail condition may nonetheless satisfy their onus to justify their release on bail pending appeal. Those cases should be exceptional and should not involve otherwise illegal activity.
[32] This is one such case. Against the backdrop of the coronavirus epidemic, J.R. was ill and very worried about his fiancée (and surety’s) more serious medical illness. J.R. left to get food for her. While it was wrong not to adhere to the condition that he remain in the home, I accept that J.R. was scared and not thinking clearly. I do not believe he set out to breach his bail. Moreover, while J.R.’s surety was in the home when he left, she was very ill. I do not take this isolated act, when viewed in the context of her illness, to necessitate a change in surety.
[33] J.R.’s breach was not intended to, nor did it result in, an otherwise wrongful or illegal activity, nor did it pose a “substantial likelihood” of J.R.’s committing a further offence or interfering with the administration of justice. It is therefore distinguishable from the two cases cited by the Crown which resulted in revocation of bail.
[34] Specifically, unlike the accused in R. v. Manasseri, 2015 ONCA 3, 329 O.A.C. 156, J.R. did not breach his bail conditions by impermissibly contacting a witness and suggesting he needed someone to contradict the witness’s evidence at trial. Nor, like the accused in R. v. Castellano, 2021 ONCA 272, did he breach his bail order by possessing such items as ammunition, break-in instruments, stolen property and an explosive substance and being charged with offences related to the offence for which he had been convicted. Moreover, there is no suggestion, as there was in Castellano, that the first bail pending appeal application was a “close case” as to whether the applicant had established that the reviewability interest outweighed the enforceability interest in the public confidence analysis. In this case, the bail pending appeal order was issued on the consent of both parties.
[35] As such, from the perspective of an informed member of the public who understands our bail system, reviewing the facts of this case, and considering the need to respect the general rule of enforceability of orders, I do not believe public confidence in the administration of justice would be impaired if J.R. were granted bail pending appeal on new terms, given the unusual circumstances in which J.R. breached his bail conditions.
[36] Moreover, given the reasons for the breach, the nature of the breach, and the fact that this is the only breach of a bail term while J.R. has been on bail for four years, I am satisfied that there is no “substantial likelihood” of him committing an offence or interfering with the administration of justice, such that J.R.’s bail pending appeal would jeopardize “the protection or safety of the public”.
[37] There must, however, be some adjustment to the release terms in light of the breach in order to further support compliance, and I agree with the new terms proposed by the parties. J.R. shall report weekly to the authorities instead of monthly, as he was required to do pursuant to the order of October 28, 2021, and he shall personally pledge $10,000. This is in addition to the terms the parties agreed to in the order of October 28, 2021.
[38] For these reasons, I find that J.R. has satisfied his onus to show cause why his detention is not justified notwithstanding his breach of his bail condition: s. 524(4).
The Third Issue: Whether J.R. Must Be Arrested Before Being Released on Bail Pending Appeal
[39] J.R. was arrested for failing to comply with a release order. He was, however, released by the arresting officer on an undertaking. Accordingly, J.R. is currently out of custody.
[40] The Crown submits that whether or not J.R. may be ultimately released on a new bail pending appeal, this court does not have jurisdiction to revoke the October 28, 2021 order until it issues a warrant for arrest and committal and J.R. is in custody. The Crown relies on this court’s decisions in R. v. U.(F.J.) (1995), 95 C.C.C. (3d) 408 (Ont. C.A.), and R. v. La, 2018 ONCA 85, in support of its submission. In these cases, this court held that it did not have jurisdiction to revoke a bail order where the appellant had not been arrested and brought before a judge.
[41] In my view however, where an appellant is not in custody and a new application for release on bail pending appeal is heard at the same time as the Crown’s application to revoke bail, the “modifications that the circumstances require” envisaged by s. 679(6) may, in exceptional circumstances, allow for the revocation of bail pending appeal pursuant to s. 524(3), and the ordering of a new bail pending appeal under s. 524(5), without having to first issue an arrest warrant.
[42] Although the bail revocation sections of the Criminal Code were amended in 2019, s. 679(6), which, then and now, incorporates these sections into the bail pending appeal regime, continues to use the “with any modifications that the circumstances require” wording. Specifically, s. 679(6) now provides that “Sections 495.1, 512.3 and 524 apply, with any modifications that the circumstances require, in respect of any proceedings under this section.”
[43] Section 524(1) addresses the situation of bringing an accused person “before a justice” where the accused person is believed to have contravened an order. In the case of bail pending appeal, ss. 524(1) and (2) are typically engaged when the Crown brings an application to a Court of Appeal judge for an arrest warrant.
[44] If J.R. were in custody, this court would have jurisdiction to revoke his bail order without the need to issue an arrest warrant.
[45] This is because in R. v. Dallaire (2001), 141 O.A.C. 65 (C.A.), at para. 13, Laskin J.A. held that when an appellant is in custody and is represented by counsel on the Crown’s revocation application, the appellant is “before the court” for the purpose of the revocation application, and a further arrest warrant is not necessary. In coming to this conclusion, Laskin J.A. relied on the wording of s. 679(6), which stated that the bail revocation sections applied “with such modifications as the circumstances require”. He held that, “In the circumstances of this case, I modify the applicable provisions of s. 525 [now s. 524] by dispensing with the need to issue an arrest warrant” before cancelling the bail order.
[46] I find that the circumstances of this particular case are exceptional and warrant this modification. In other words, I am of the view that J.R. should not be required to be arrested and held in custody before this court can cancel his current bail pending appeal order and make a new release order. This is because, first, J.R. has had notice of the application to revoke his bail pending appeal. He was arrested and charged for failing to comply with the bail pending appeal order and was then released on his own recognizance. He has been represented by counsel on the applications before the court. Second, J.R. conceded that he contravened his release order, his new bail hearing took place at the same time as the bail revocation hearing, and I came to the decision that his detention was not justified. Third, the new bail pending appeal order will come into effect forthwith. And importantly, fourth, in these exceptional times of COVID-19, it is in the public interest to avoid, if possible, unnecessary time in custody.
[47] For these reasons, I find it is not necessary for J.R. to be taken into custody before his release on new terms of bail pending appeal.
Conclusion
[48] For these reasons, the release order of October 28, 2021 is revoked, the current bail pending appeal order is cancelled, and J.R.’s release is ordered on a fresh bail pending appeal order with the new terms set out above.
[49] The Crown and J.R. have agreed on the proposed terms of bail if J.R. is to be released and have provided a draft release order (and these terms include the terms of the October 28, 2021 order save for a change in reporting from once per month to once per week and the addition of the $10,000 pledge from J.R.).
[50] An order is therefore issued in accordance with the terms of the draft Release Order filed. J.R. is to enter into this new release order forthwith.
“J.A. Thorburn J.A.”