Court File and Parties
Court File No.: CR-17-361 Date: 2018-09-26 Ontario Superior Court of Justice
Between: Her Majesty The Queen, Crown Cynthia Nadler, for the Crown
- and -
A.G., Accused Michael K. Quigley and Amanda M. Somek, for the Accused
Heard: May 29, 2018
Before: Barnes J.
Reasons for Ruling (Application for Bail)
INTRODUCTION
[1] A.G. applies for bail pursuant to s. 523(2)(a) of the Criminal Code. He is charged with several Criminal Code offences. After a judge alone trial, I convicted A.G. on offences dated June 9, 23, 2016 and July 13, 2016. After conviction defence brought an application seeking a stay of proceedings on the basis of material non-disclosure by the Crown. Prior to the commencement of argument on the stay application, the defence requested the court to delay imposing any remedy, short of a stay of proceedings, until after A.G.’s 523(2)(a) bail hearing was commenced and completed.
[2] I dismissed the defence motion seeking a stay of proceedings due to non-disclosure of some information by the Crown and advised counsel of my intention to order a mistrial after the hearing of the defence’s bail application. The defence then filed an application for bail. In the interim, the Crown brought an application seeking leave to argue that the mistrial should be limited to the June 9, 23, 2016 offences. Prior to determining this new issue the bail hearing was conducted. I dismissed A.G.’s application for bail. These are my reasons for the dismissal of the bail application.
BACKGROUND
[3] A.G. and the complainant are divorced. There are two children from the marriage. Based on events arising from July 8, 2014, A.G. was charged with several drug offences contrary to the Controlled Drugs and Substances Act (CDSA). The offences were: the unlawful importation of ketamine into Canada, possession of Ketamine for the purpose of trafficking, conspiracy to commit an indictable offence, unlawful importation into Canada of Norephedrine and, conspiracy to unlawfully import Norephedrine into Canada. On July 23, 2014, A.G. was released on $100,000 surety bail. His older brother, S.S., pledged $75,000, and the complainant, his ex-wife, pledged $25,000.
[4] On September 25, 2015, A.G. was charged with threatening to kill the complainant contrary to s. 264 of the Criminal Code. On October 19, 2015, he was released on $5,000 bail. His sister in law, T.K.B, was his surety. The bail release contained a condition prohibiting him from contacting the complainant.
[5] In 2016, the complainant made another complaint. She alleged that in a phone conversation on June 9, 2016, A.G. threatened to kill her. She said that on June 10, 2016 he entered her residence and took their children away without her consent. Due to these allegations, the October 19, 2015 bail was revoked. A.G. was charged with additional Criminal Code offences, including uttering threats to cause death, and failure to comply with a recognizance. On June 14, 2016, A.G. was released on a $15,000 no deposit surety bail. His sister, H.K.S., was his surety.
[6] The complainant also alleged that on June 23, 2016, A.G. broke into her home with an unidentified male companion, confined her in a chair, and used a handgun to threaten to kill her. The police could not find A.G.. His surety, H.K.S., did not know where he was.
[7] On July 13, 2016, the police arrested A.G.. It is alleged that upon his arrest, A.G. was in possession of a handgun, two cell phones, and a loaded firearm magazine.
[8] As a result of the complainant’s June 9 and 23, 2016 allegations, A.G. was charged with uttering a death threat, break and enter with intent to commit an indictable offence, unlawful confinement, possession of a weapon for a purpose dangerous to the public peace, and threatening to cause death, all contrary to the Criminal Code.
[9] In relation to his arrest on July 13, 2016, he was charged with carrying a concealed weapon (handgun), possession of a handgun for a purpose dangerous to the public peace, possession of a restricted weapon without being the holder of a license, and careless storage of a handgun.
[10] The complainant made her allegations in a video-taped statement to the police on June 10 and June 23, 2016. On October 13, 2016, the complainant recanted those allegations in a sworn affidavit. On the same date, she recanted her allegations in her testimony at a bail review. At this bail hearing, A.G.’s October 19, 2015 bail was revoked. His application for a new bail on the old and new charges was denied based on secondary and tertiary grounds. A.G. made two unsuccessful attempts to have this decision overturned at the Ontario Superior Court of Justice. On March 20, 2017, the complainant testified at a preliminary inquiry and recanted her allegations.
[11] On November 14, 2017, a judge alone trial for the charges arising from June 9, 23, and July 13, 2016 began. The complainant did not attend and a material witness warrant was issued for her arrest. A Khan application to admit the complainant’s videotaped police statements, as well as her statements recanting her allegations, was granted. On December 4, 2017 the Crown closed its case. The defence called no evidence. On January 12, 2018 A.G. was convicted of all charges.
[12] On March 22, 2018, the defence applied for a stay of the proceedings on the basis that the trial Crown failed to disclose that she: a) had instructed the police to remove the material witness warrant from CPIC without first applying to the court to rescind it and; b) on December 7, 2017, the complainant had been arrested and released by the police pursuant to that material witness warrant.
[13] On May 22, 2018 I ruled that the nature and circumstances of the Crown’s non-disclosure amounted to an abuse of process, however, I dismissed the defence application for a stay of these proceedings and indicated my intention to impose a mistrial after my decision on A.G.’s application for bail.
[14] The Crown has applied to the court to consider limiting the mistrial to the June 9 and 23, 2016 offences, which relate only to allegations made by the complainant. The defence opposes the Crown’s application. A.G. remains convicted of the June 9, 23, 2016 and the July 13, 2016 offences. There is a pending Crown application seeking a restriction of the mistrial to the June 9, 23, 2016 offences. Should the Crown be successful A.G. will remain convicted of the July 13, 2016 offences. Should A.G. be successful the mistrial shall apply to all of the offences.
[15] A prudent course of action would have been to hear the bail application after the a decision was rendered on the application to restrict the mistrial to the June 9 and 23, 2016 offences, however, the current circumstance has been created due to the failure of the Crown, in the first instance, to raise the issue of restricting any remedy imposed, on a finding of abuse of process, to the June 9 and 23, 2016 offences. Under all the circumstances, it is unfair to penalize A.G. for decisions made by the Crown. Therefore, for the purposes of this bail hearing the fact that A.G. has been convicted of the underlying offences will be interpreted in a manner most favorable to A.G.. Only for the purposes of this bail hearing, A.G. is presumed innocent of all charges.
POSITION OF THE PARTIES
[16] Pursuant to Criminal Code section 524(4)(b), this is a reverse onus situation because A.G. was on a release at the time of these offences. The Crown opposes his plan for release on secondary and tertiary grounds. Given the gravity of the offences and previous surety releases, it is not disputed that any release contemplated shall be a surety release.
[17] A.G. proposes his parents, B.S.S., 67-years-old, and B.K.S., 65-years-old, and his brother-in-law, A.S.B., 37 years old, as sureties. The sureties pledge a total of $75,000.00, no deposit.
[18] The plan proposed is house arrest in A.G.’s parents’ residence. A.G.’s parents are the primary sureties. Mr. B. will call during the week to check on A.G., and is prepared to reside at Mr. and Mrs. S.’s residence on weekends to help supervise A.G.. A.G. will also be fitted with an electronic monitoring bracelet.
[19] Defence counsel submits that the Crown’s case is weak because the complainant has recanted and expressed a desire to reconcile with A.G.. A.G. respects and will listen to the proposed sureties. The sureties will be able to supervise A.G. 24 hours a day. Electronic supervision is an added feature to the 24 hour supervision plan. There is no evidence that A.G. has consumed heroin in the last 2 years while in custody. The prosecution’s failure to disclose resulted in a mistrial, and thus A.G. will spend additional time in custody due to the Crown’s breach of their disclosure obligations. Further, the September 2015 charges have been withdrawn. The plan of supervision should address any secondary or tertiary ground concerns.
[20] The Crown opposes A.G.’s release on secondary and tertiary grounds. The Crown submits that there has been no change in circumstances since the two previous unsuccessful bail reviews in the Ontario Superior Court of Justice. A.G. has shown a flagrant disregard for court orders by violating the terms of his release on at least three occasions, and on each occasion has demonstrated a disregard for the impacts of his actions on the monies pledged by his sureties, thus demonstrating that he cannot be supervised in the community.
[21] Crown counsel submits that detention is necessary to protect the complainant. Within 10 days of A.G.’s release on bail on June 14, 2016, he is alleged to have committed these offences. A.G. has demonstrated that he will not listen to his sureties. Electronic monitoring has limitations. Thus, there are serious concerns on the secondary grounds.
[22] The Crown further argues that the allegations are serious and the Crown’s case is strong. Despite recantations by the complainant, there are several pieces of evidence corroborating her allegations. A.G. is facing a potential lengthy penitentiary sentence. The offences are grave. For all of these reasons, detention on the tertiary grounds is necessary.
ANALYSIS
[23] Section 523(2)(a) of the Criminal Code confers a power on a trial judge to vacate any order on cause being shown for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that a court, judge, or justice considers to be warranted. As the accused was not sentenced at the time I heard the bail application, and a mistrial had not yet been entered, I was still the trial judge and retained jurisdiction under s. 523(2)(a) to hear this application: see R. v. Green, 210 C.C.C. (3d) 543 (Ont. S.C.).
[24] B.K.S. and B.S.S. are A.G.’s parents. It is clear that they are well intentioned and understand their role as sureties. They are retired and in their sixties. They have the time and opportunity to supervise A.G.. The couple live with their son, A.G.’s brother, S.S., in Guelph. S.S. was one of A.G.’s sureties on the July 2014 drug charges. He owns the residence in Guelph.
[25] A.S.B. is married to A.G.’s sister, H.K. A.S.B. was the surety on A.G.’s June 14, 2016 bail. It is apparent from the proposed plan that A.S.B. is a “secondary” surety. He lives in Brampton. He will check on A.G. via phone on weekdays, and will reside in the Guelph residence on weekends to help with A.G.’s supervision. He also understands his role as a surety. I am satisfied that the sureties will carry out their responsibilities in a responsible fashion.
[26] In July 2014, A.G. was placed on bail with the complainant (his wife) and his brother, S.S., as sureties. A.G. is alleged to have breached the July 2014 bail by threatening the complainant in September 2015. He was placed on the October 2015 bail. The September 2015 charges have since been withdrawn. He is alleged to have breached the October 2015 bail by threatening to kill the complainant on June 9 and June 10, 2016. He was released on bail on June 14, 2016 and is alleged to have breached the June 14, 2016 bail by committing the June 23, 2016 charges. There are a total of 3 consecutive breaches, all with family members as sureties, with the latest allegation stemming from incidents occurring less than ten days after his last release, with a majority of the offences relating to the same complainant.
[27] A.G. has demonstrated a pattern of persistent and flagrant violation of judicial interim releases. His conduct illustrates a determination and commitment to non-compliance regardless of who the surety is or what the release plan is.
[28] In addition, electronic monitoring technology cannot “prevent a subject who is determined to flee from fleeing, prevent a subject from breaching conditions, or ensure an immediate police response to a violation in progress”. The technology is a monitoring tool aimed at reducing the likelihood of breaches by providing early detection of non-compliant behaviour: R. v. Palijan, [2012] O.J. No. 6549, at paras. 24 to 26.
[29] Electronic monitoring will be ineffective against a person such as A.G., who has demonstrated a particular determination to be non-compliant. A.G.’s detention is warranted on the secondary grounds because there is a substantial likelihood that, if released, he will commit further offences: s. 515(10)(b) of the Criminal Code.
[30] Even if the detention of A.G. is not warranted under the secondary grounds, his detention is necessary to maintain confidence in the administration of justice: s. 515(10)(c) of the Criminal Code; R. v. St-Cloud, 2015 SCC 27.
[31] In respect to s. 515(10)(c)(i), the prosecution’s case remains strong despite the complainant’s recantations. In an affidavit and in previous testimony, the complainant has stated that her allegations against A.G. were false. She explained that A.G. and members of her family, her father in particular, engaged in a failed business deal. As a result, her family pressured her to make false allegations against A.G.. The complainant also said she experienced police pressure and intimidation, which led her to make the false allegations.
[32] Despite her recantations, however, there is other evidence which, when considered cumulatively, provide overwhelming evidence that the complainant’s recantations are false.
[33] First, there is evidence from the police that on June 10, 2016, the complainant was found locked outside her house and was upset. Her children were not in the house and the rear door was closed but unlocked. In her June 10, 2016 statement to the police, the complainant demonstrated genuine concern and fear for her children. During that interview, the complainant spoke to an unidentified person in Punjabi. In that conversation, she said that she did not have her house keys, did not know where her children were, and demonstrated genuine concern for their safety. A.G.’s sister-in-law confirmed that on June 10, 2016, at 4:30a.m., A.G. dropped the children at her home for child care. This was sudden and unannounced. On June 10, 2016, the police retrieved the complainant’s house key from A.G.’s truck. The complainant had told the police that A.G. took her keys.
[34] Second, in her June 23, 2016 statement to the police, the complainant demonstrated raw and genuine emotions of distress during the interview. There is evidence that the front door to her residence was forced open. There was a visible footprint on the door - examination of the doorframe revealed a hurried attempt at repair of the door frame. There was the presence of zip ties with human male and female DNA in evidence, and there was a mark on the complainant’s wrists depicted in pictures of her injuries taken by police. Further, there was evidence that the complainant was found on June 13, 2016 distraught, shaken and hysterical, with her vehicle parked in a live lane of traffic, with her children in the back seat of the car. The complainant said she was threatened with a firearm similar to the firearm alleged to be in A.G.’s possession upon his arrest on July 13, 2016. Thus, despite the recantations, the Crown’s case remains strong for the charges arising from the June 2016 incidents.
[35] Short of engaging in the fanciful speculation suggested by the defence, the Crown’s case on the July 13, 2016 allegations is strong. There is evidence of a violent struggle between Constable Cutler and A.G. upon his arrest. There is uncontradicted evidence that Constable Cutler did not search A.G. prior to placing him in the back seat of the unmarked police cruiser. Constable Cutler did not see any object in the back seat when placing A.G. in the cruiser.
[36] Constable Bothman, had custody of the unmarked police vehicle used to transport A.G., immediately preceding its use by Constable Cutler. He and Constable Cutler met at an agreed location and he transferred the vehicle to Constable Cutler. Constable Bothman has a practice of placing his police gear in the back seat of unmarked police vehicles he drives. He remembers the day he transferred the vehicle to Constable Cutler because he was not happy to make the transfer. He said he did not see any objects in the rear of the vehicle when he placed his police equipment in the rear seat area of the vehicle.
[37] Constable Cutler did not check the rear passenger area of the vehicle when he received the vehicle from Constable Bothman, however, he looked in the rear of the passenger seat when he placed A.G. in the back seat and saw no objects. He had not used the vehicle to transport anyone else prior to A.G.. Constable Cutler did not search A.G. prior to placing him in the police vehicle.
[38] Back up police officers arrived on scene and removed A.G. from the vehicle to search him. Once A.G. was out of the vehicle, one of the police officers saw a firearm under the front seat where A.G.’s feet were placed, two cell phones and a firearm magazine with ammunition on the back seat near where A.G. had been sitting. Phone logs from the cellphones show phone calls to and from the complainant. A.G. had opportunity to discard the firearm and cell phones from his person while seated in the back seat of the unmarked police vehicle with tinted windows, at the very minimum, while Constable Cutler was out of the vehicle. The cumulative effect of all of this is a strong Crown case.
[39] With respect to s. 515(10)(c)(ii), there is no doubt that the offences alleged are grave. The accused was charged with uttering a death threat, break and enter with intent to commit an indictable offence, unlawful confinement, possession of a weapon for a purpose dangerous to the public peace, and threatening to cause death, in respect to the June 9 and June 23 allegations. He was also charged with carrying a concealed weapon (handgun), possession of a handgun for a purpose dangerous to the public peace, possession of a restricted weapon without being the holder of a license, and careless storage of a handgun, in respect to his arrest on July 13, 2016.
[40] In respect to s. 515(10)(c)(iii), the circumstances surrounding the commission of these serious offences as alleged are violent. They occurred in a domestic context. They involve the use of a firearm to unlawfully confine and threaten to cause death to the complainant, breaking and entering a private dwelling for the purpose of committing the offence, and actively resisting arrest while in possession of a firearm.
[41] The primary target of all the alleged breaches of recognizance has been the complainant. The complainant suddenly recanted in the face of significant overwhelming evidence. The complainant did not obey a court order to testify at trial. She could not be found. The police responded to a tip about her whereabouts. During this activity, the police saw two men observing the complainant at her children’s school. The men are A.G.’s relatives. They told the police that the complainant called them to come. The complainant denied this.
[42] In February 2018, the complainant told a Victim Services Program representative that she was not afraid of A.G. and wanted to reconcile with him. It is unclear whether the complainant’s comments about reconciliation are sincere, however, at the moment it is reasonable to be concerned about her safety.
[43] Lastly, in respect to s. 515(10)(c)(iv), A.G. faces a possible lengthy penitentiary sentence if convicted after trial. The Crown is seeking a global sentence of 8 years. The jurisprudence supports a penitentiary sentence if convicted.
[44] Therefore, an objective assessment of the St-Cloud factors, i.e. strength of the prosecution’s case, gravity of the offence, the circumstances surrounding the commission of the offences, and the potential lengthy period of imprisonment, leads me to conclude that A.G.’s detention is necessary to maintain confidence in the administration of justice. Thus, A.G.’s detention is also necessary on the tertiary grounds.
[45] The application for bail is dismissed.
Barnes J. Released: September 26, 2018