Court File and Parties

Court File No.: Toronto

Date: 2014-05-06

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

B.L.R. Van

Before: Justice Fergus O'Donnell

Heard on: 22 April, 2014

Reasons for judgment released on: 6 May, 2014

Counsel:

Ms. A. MacPherson for the Crown

Mr. S. Scratch for the defendant, B.L.R. Van

Judgment

O'Donnell, J.:

Overview

[1] B.L.R. Van appeared before me charged with two offences that by their short-hand forms—threatening death and threatening damage to property—would usually be unremarkable. Countless times every day people in varying stages of impairment, anger, emotional upset or mental illness utter such threats to close friends and family and to complete strangers. Such threats have the potential to attract criminal liability, but most of the time they amount simply to intemperate comments in the heat of the moment and without any substance, giving little or no reason for serious concern.

[2] Threaten to shoot up your school and the people in it, however, and people understandably sit up and take notice. A decades-long history of school shootings, most frequently in the great republic to the south of us, but often enough in Canadian schools and further afield, evokes horrific imaginings whenever the topic of school shootings is raised. In this case, Mr. Van was not happy at school; Mr. Scratch tells me that he had been bullied by another student who wanted to copy his homework and who threatened to rape Mr. Van's mother when Mr. Van refused. The offences before the court arise from a telephone message Mr. Van left for his school social worker. In that message, Mr. Van told the social worker that he had tried to give the school a second chance, but that, unless the social worker could talk him out of it, he was going to bring two guns to school and shoot it up. The social worker called Mr. Van back, asked where he was (he was at a class at another high school he also attended), and sent the police to arrest him.

[3] Mr. Van had originally been detained. He pleaded guilty before me and, in reliance on my power as Mr. Van's trial judge under s. 523(2)(a) of the Criminal Code to reconsider his bail status, Mr. Scratch applied for bail after the plea was entered. I dealt with Mr. Van's bail hearing twelve days after his arrest. No guns had been located. It appears that no search warrant was ever executed, although it would appear from the material presented to me that Mr. Van's utterances would have given the police reasonable grounds to obtain a search warrant for his home (and his school locker if he had one). In response to my inquiry, the Crown told me that her file showed that the police had not even sought a delay in the bail hearing to allow for a warrant to be pursued, as one might expect to be the case wherever there was real concern of there being substance behind threats such as this.

[4] Mr. Van turned eighteen three weeks before his call to the social worker. He lives at home with his mother and two younger siblings. They share the house with an unrelated family composed of a father and his son. His mother and her housemate were proposed as sureties and I was generally impressed with their testimony. In terms of their capacity to supervise Mr. Van, his mother has flexibility over her hours and already tends to work close to home because she has two younger children. Her housemate generally works from home so would be available to supervise Mr. Van while his mother was absent. In the course of his mother's testimony there was reference to Mr. Van having a temper at times, but there was nothing to suggest that it was out of the ordinary. His mother recognized that Mr. Van had some emotional issues that should be addressed. Her housemate shared that view and testified to both a strong, fairly long-term relationship with Mr. Van and the flexibility in his business, which he runs from home, to play a meaningful role in Mr. Van's supervision if he were released. I recognize the Crown's concern that Mr. Van's mother did not know every detail about Mr. Van's life, but I suspect that is a test that almost every parent would fail; many a teacher has been frustrated by parents' detachment from their children's school lives and that problem would be exacerbated by the language barrier in this case.

[5] The plan for release also included Mr. Van attending weekly group sessions for impulse control as well as additional sessions with the courthouse mental health team pending his assessment and sentencing.

[6] To a large extent, the stumbling block in relation to Mr. Van's release related to the unavailability of a meaningful psychiatric assessment. Ms. MacPherson told me that she wanted to help Mr. Van but that she had to know what she was dealing with before she could make a responsible determination: was this the intemperate and meaningless utterance of a frustrated teen or was it a warning sign of a descent into mental illness and a possible genuine risk to the safety of the public and of Mr. Van himself?

Systemic Issues: Mental Health and the Criminal Justice System

[7] At least two broad issues arise in the circumstances of the present case. First, it is a striking indictment of the system's capacity to deal with mental health issues. Anyone with the slightest awareness of the realities of the street appreciates that mental health issues often fall through the cracks. It is often the police who are left to manage manifestations of mental illness when they become particularly florid, sometimes with tragic results. Those interactions between the police and the mentally ill that do not end up in coroner's inquests often end up in the criminal courts, which, like the police, are not particularly well-skilled or resourced to deal with what are at heart medical issues.

[8] The eighteen year old who appeared before me had been in custody for twelve days. In that time, he had very briefly seen a psychiatrist who offered a preliminary opinion that there were no signs of major mental illness, and that the threats were an immature form of lashing out. The Crown said that Mr. Van was not releasable without a more detailed psychiatric assessment and the only concrete commitment was that a doctor at the Centre for Addiction and Mental Health could see him in June, i.e. some two months hence. When I sent the Crown and defence out to see if anything better could be achieved, they came back with the news that they had been given a list of names of doctors and they were welcome to call them all directly to see what could be done. Mr. Scratch advised that he had already called several of the names on the list with no positive results as of the date of the bail hearing.

[9] It would be presumptuous for any branch of public administration, in any economic climate, to expect that the resources available to it would be infinite. This is no less true of the courts, even recognizing that the courts deal with issues of tremendous important to the parties and to the broader society. The reality is that public resources are finite and for every need there are many competing needs: potholes must be repaired, sewers must be built, mass transit must struggle to keep up with population growth, hospitals must grow to serve the needs of an aging population and gas plants cost money. These are the realities of life and it is not realistic to expect any of these systems to be as perfect as they might be if public resources were infinite.

[10] At some point, however, service levels fall below what is reasonable: if every TTC trip home took four hours or if the city took four days to clear the roads after a snow-storm, people would sit up and take notice. Likewise, if a substantial liberty interest of an eighteen year old with no criminal record is dependent on a detailed psychiatric assessment, people will sit up and take notice if the time required to obtain that assessment is unreasonable. It is not necessary for me to define what is reasonable in the present circumstances; it suffices to observe that two months is patently unreasonable in relation to a defendant in detention whose bail status could change depending on the outcome of the assessment. In this case, not only was the Crown unwilling to consent to release without the psychiatric assessment; in addition the Crown was unable to take a position on sentence without that assessment. Mr. Van has thus pleaded guilty without knowing the potential jeopardy he faces.

The Bail System and Risk-Aversion

[11] Section 523(2) of the Criminal Code grants me the authority to release Mr. Van upon cause being shown. Mr. Van has no previous criminal record. As I have said, he was a whisker past his eighteenth birthday at the time of the offence. The Crown opposed his release based largely on the "what if" concern. What if he does have access to guns? What if he made this threat as a prelude to a "suicide by cop" attempt? What if this telephone call was the first sign of a descent into schizophrenia, a disease that often shows its first signs around this age? What if it is a sign of some brooding major depression on Mr. Van's part?

[12] That brings me to the second issue that arises on this bail hearing. Decisions about whether or not to release defendants pending trial, and, if so, on what conditions, are among the most significant decisions made in the criminal process. With a few exceptions, that decision could be made by any of a number of actors: the constable at the scene, the officer in charge of the station, the Crown Attorney at a bail hearing (who strictly speaking does not order release but whose consent to release will generally be accepted), the justice of the peace or provincial judge at the bail hearing (in those courthouses where judges do bail hearings) or the judge on a bail review. In certain cases, and this is one of them, fear looms large in the decisions made by the various actors and detention, or passing off the decision on release to someone further up the chain, becomes the default outcome. In this case, "what if" Mr. Van does have guns and goes and kills people if released? In many domestic cases, the individual decisions and general culture surrounding bail decisions are dominated by long and enduring systemic memories of cases in which defendants have been granted bail, only to go out and threaten, harm or even kill their partners. Present memory often forgets, however, that there is not necessarily any warning sign in relation to a defendant who commits an outrage while on bail. Present memory also forgets the thousands of defendants who are released and who do not proceed to commit outrages.

[13] Bail decisions, like life itself, are an exercise in risk management. The management of that risk will be inherently imperfect. The only way to guarantee that a defendant does not commit an outrage at a school or terrorize a complainant upon release or victimize more vulnerable victims through a fraud, for example, is to detain every defendant until trial. That would be very effective but would tend to ignore a few other considerations. Instead of taking the "safe" route of detaining every defendant until trial, the balancing process required for risk management in the bail context is defined in the Criminal Code, which sets out the various steps on the "bail ladder", defines who has the onus and sets out what grounds can be relied upon to justify detention.

[14] It seems inescapable that the approach to bail as defined in the Criminal Code and the approach to bail in real life have parted paths. The Criminal Code dictates that an arresting officer or the officer in charge of the station has the authority to release many defendants and, while that still happens in many cases, experience suggests that it is an under-used power, especially in relation to certain classes of offence. The Criminal Code goes on to dictate that the presumed form of release for a detainee in bail court is an undertaking without conditions, unless (in Crown onus cases) the Crown can demonstrate why a step further up the ladder (undertaking with conditions, own recognizance, recognizance without sureties, etc.) is justified.

[15] When I became a judge, I did so after having practised law for twenty-three years, the last twenty-two of them as a prosecutor. The nature of my work as a Crown, however, was such that I had spent a relatively small amount of my time in provincial court and less still in bail court other than at the beginning of my career. One of the earliest and greatest shocks after my appointment was the realization that a surety bail had at some point in the previous two decades become the new normal. "House arrest" bails were also fairly commonplace. It appeared as if while I had been off blithely doing other things, hooligans had come along under cover of darkness and kicked the first few rungs off the bail ladder. If those hooligans were ever caught, I wondered, would they be granted bail?

[16] I had a lingering recollection that my first-year criminal law small group professor, Martin Friedland, Q.C., had written a book titled "Detention Before Trial"[1], which had in turn played a significant role in the enactment of the Bail Reform Act in 1971. The Bail Reform Act, since modified in various ways, is the system of bail that appears in the Criminal Code today. I occasionally wondered what Professor Friedland would have thought of the strange new reality I found upon being appointed to the bench and, in the preparation of these reasons I discovered that he was singularly unimpressed. Indeed, as I turned my mind to these reasons I discovered that two years ago, to mark the fiftieth anniversary of the start of his groundbreaking work on bail, Professor Friedland had written an article in the Canadian Criminal Law Review that ended with the comment: "It is clear that pre-trial release practices across Canada require careful re-examination".[2]

[17] What does all this have to do with Mr. Van, one might ask? The answer is this: Mr. Van finds himself one of many caught in the real world divergence between what the Criminal Code dictates and what really happens in bail court. At a time of declining crime, the number of people in pre-trial detention is astonishing. Mr. Van finds himself in the cross-hairs of that trend. The bail system has found itself captive to a spreading sense of risk-aversion on the part of the decision-makers. Will the constable be criticized if the person he releases at the scene goes on to commit another offence, especially a serious one? Better, perhaps, to pass the buck up to the next level. And so on. And so on. The fear of being called as a witness at the coroner's inquest infects the process and punts the responsibility upward. And thus, bail courts are filled with defendants, many of whom should not be there, and sureties, many of whom should not have been required to have dragged themselves away from their jobs but for the clandestine systemic re-writing of the bail provisions. And the buck comes to rest with the judge or justice who has nobody to pass it on to.

[18] This bears little or no similarity to the presumption of releasability, risk-assessment criteria (primary, secondary and tertiary), and system of tiered restraints on liberty in the Criminal Code. If the effective starting point is a surety release, it is conceptually much easier to persuade oneself that detention is justified than if one has firmly in mind that the real starting point is release on a promise to appear or an undertaking without conditions. The risk-management function in the Criminal Code, in common with any decision-making process in a legal system, must necessarily be a rational and evidence-based process. There will inevitably be a significant number of defendants for whom detention is the only outcome that accords with the dictates of the Criminal Code, or for whom a surety release or house arrest is appropriate but those outcomes are only legitimate outcomes if they are the product of a faithful application of the law as set out in the Criminal Code. In this case, however, the evidence establishes that an eighteen year old boy, being bullied at school, made a threat to shoot up the school and there is no evidence whatsoever that he is or was in possession of firearms or even that the state was concerned enough to pursue available means of inquiry to determine if he was in possession of them. The spectre of horrific possibilities reflected in the Crown's series of "what if?"s is nothing more than speculation on this record and none of those "what if?"s is any more compelling than the question: "What if Mr. Van's threat to the social worker was no more consequential than an upset twelve year old telling his parent: 'I hate you. I wish you were dead.'?" Decisions to detain defendants in such cases may be the "safest" decision from one perspective, but if that "safety" comes at the cost of the detention of a defendant who was not objectively a risk under s. 515(10) of the Criminal Code, it comes at a high price indeed.

[19] I accept the genuineness and pure motivation of the Crown's concern, but I cannot follow the Crown down the path it wants me to take, to Mr. Van's detention pending sentence which is dependent upon a psychiatric assessment some months hence (and obviously the doctor's report, which often takes some significant time beyond the interview date).

Application of the Bail Grounds

[20] The Crown asks for a detention order pending Mr. Van's assessment and sentencing. On what bases can a judge detain a defendant under the Criminal Code? The primary ground requires me to consider the likelihood of Mr. Van absconding. On the record before me, there is no basis for concern on this ground. Mr. Van is a young first offender, with no history of failure to attend court. He is in high school. He lives at home. He has accepted responsibility for his offences at a very early stage, not even knowing what penalty the Crown will seek. I do not even have a basis to conclude that he has the resources to flee.

[21] The tertiary ground requires that I assess whether Mr. Van's detention is necessary to "maintain confidence in the administration of justice", having regard to criteria, some of which are set out in s. 515(10)(c) of the Criminal Code. As with all legal standards, the application of this test presumes that one is assessing "confidence in the administration of justice" from the perspective of a fully-informed and reasonable member of the public. Applying the criteria in s. 515(10)(c), it is self-evident that the Crown's case is strong since Mr. Van has pleaded guilty. The gravity of the offence is a matter yet to be determined, but I note that the call was not made in circumstances that required the school to be locked down or that created any general panic. Mr. Van told the social worker where he could be found. No actual firearm was used and it appears improbable that there ever was any firearm. In terms of the "potential for a lengthy term of imprisonment", the meaning of "lengthy" must be assessed in light of the following words in s. 515(10)(c) that refer to mandatory minimum sentences of three years or more that might be attracted by certain firearm provisions of the Criminal Code (or that were until recently applicable in Ontario). In this case, the likely sentence to be imposed would not appear to come anywhere close to the type of sentence envisaged by s. 515(10)(c)(iv). All things considered, this is not one of those rather rare cases in which the detention of Mr. Van could be justified under the tertiary ground.

[22] What, then, of the secondary ground? Section 515(10)(b) of the Criminal Code refers to detention being necessary "for the protection or safety of the public…having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence…" The spectre of various "what if?"s listed by the Crown is particularly germane to this ground. However, the basis to conclude that Mr. Van is substantially likely to commit another offence on bail or that his detention is necessary for the protection of the public for other reasons is very, very tenuous on the material before me. Mr. Van had a melt-down. He left a threatening message for his social worker, but even that threat was conditional. He told his social worker where he was. There is absolutely no basis to conclude that Mr. Van possesses, has access to or is even familiar with guns or has the means or connections to acquire them. The Crown suggests that the act of making the phone call to the social worker may presage a decent into irrationality or major mental illness, but, as has been noted at least since the writings of Aristotle, a single swallow does not a spring-time make. Given the entirely plausible alternative explanation for Mr. Van's outburst, i.e. an immature reaction to teenage frustrations, it would be folly indeed for me to elevate Mr. Van's one utterance to the substantial likelihood of re-offending. Indeed, while I recognize it as a very preliminary assessment, the only professional opinion on that point is to the contrary.

Conditions of Release

[23] All that being said, I was satisfied that, in light of the proposal for release presented to me, Mr. Van had shown cause for his release. That proposal was for his mother to act as surety and for her and her housemate, the father in the other family that shared their house, to share responsibility for Mr. Van's supervision pending sentencing under a form of house arrest.

[24] The question then became, what form of release would be appropriate? I stress that although I have elsewhere in these reasons expressed concern about the under-use of release by arresting officers and officers in charge of stations to release defendants in certain circumstances, no such criticism would apply here. Given the nature of the threat and the lack of time for consideration in the making of those decisions, passing Mr. Van up the decision-making chain in this case was entirely appropriate. Now that we are here, governed by s. 515(2) of the Criminal Code, however, having decided that detention is not justified, what form of release is called for?[3]

[25] While appropriate bail decisions always call first for consideration of an undertaking and then release on one's own recognizance, it does not require long introspection to determine that those would not be appropriate forms of release in this case. While there is a very real question here about whether Mr. Van's threats were reflective of an actual plan as opposed to a mere lashing out, the very making of the threats in that particular context is genuinely concerning. There was some concern about anger management issues and even though their extent was not made out particularly forcefully, those are issues that require external supervision when they arise in the person of an eighteen year old boy who is still living at home and attending school. The plan of release also envisaged Mr. Van attending a group anger management session weekly as well as other mental health supports pending completion of the detailed psychiatric assessment. Those components of the overall appropriate plan of release call for monitoring by a surety. Finally, the supervising presence of a surety and Mr. Van's awareness of that supervision and of the financial risk to his mother and her housemate if he failed to comply with the terms of release have the potential to imprint the seriousness of his bail terms on Mr. Van. He may have acted immaturely in the present offences, but he did not strike me as stupid. Indeed, the evidence about him, as the eighteen year old "man of the family" chastising his younger siblings for spending too much time on video games and too little time on homework, suggests that any "immaturity" may be contextual.

[26] As a general rule, house arrest conditions should not be imposed lightly. However, in this situation, given the nature of the words used, the fact that Mr. Van was not going to be allowed to return to school in the short-term in any event and the relatively short time period involved (pending sentence rather than pending trial and sentence), a house arrest term with appropriate exceptions was appropriate.

Released: 6 May, 2014

Footnotes

[1] Detention Before Trial: A Study of Criminal Cases Tried Before the Toronto Magistrates Courts (University of Toronto Press, 1965).

[2] The Bail Reform Act Revisited, 16 C.C.L.R. 315, Martin Friedland, Q.C.

[3] Practically speaking, the risk assessment process of a bail hearing involves the simultaneous assessment of the nature of the risk, the available bases upon which detention might be justified and the realistic potential of various forms of release satisfactorily to respond to those concerns. If the primary, secondary and tertiary grounds cannot be responsibly addressed by some available form of release, then detention will be justified.