Court File and Parties
Court File No.: CR-19-468-00BR Date: 20190312 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Athrin Deko Applicant/Defendant
Counsel: Melissa Montemurro, for the Crown R. Roots Gadhia, for the Applicant/Defendant
Heard: March 7, 2019
Dawe J.
Endorsement
[1] The Applicant Athrin Deko was arrested on January 15, 2019, and charged with various gun and drug offences. On January 30, 2019, following a contested bail hearing, he was ordered detained by Justice of the Peace K. Walker. He has brought a bail review application to this court pursuant to s. 520(1) of the Criminal Code.
[2] The Applicant’s bail review application was made returnable before me on March 7, 2019. However, when the hearing began Crown counsel indicated that she wished to cross-examine the Applicant’s proposed sureties on their affidavits filed in support of the bail review application. Both sureties – the Applicant’s parents – require the assistance of an Arabic interpreter, but no interpreter was available when the hearing began and it soon became clear that there would be insufficient time to complete the bail review hearing that day once an interpreter arrived. In these circumstances, the parties agreed that I should first hear submissions and rule on the threshold question of whether the Applicant has established sufficient grounds to allow me to conduct a de novo review of his detention under the principles established by the Supreme Court of Canada in R. v. St-Cloud, 2015 SCC 27.
[3] In his reasons for the Supreme Court of Canada in St-Cloud, Wagner J. (as he then was) held (at para. 6):
Since a decision whether to order the pre-trial release of an accused involves a delicate balancing of all the relevant circumstances, the power of a judge hearing an application under s. 520 or 521 Cr. C. to review such a decision is not open-ended. I conclude that exercising this power will be appropriate in only three situations: (1) where there is admissible new evidence; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate.
[4] In the case at bar, the Applicant’s primary argument is that the Justice of the Peace misapprehended the evidence concerning the details of the bail plan that was being proposed at the original bail hearing. The Crown disagrees that the Justice of the Peace made this error.
[5] In brief, the proposed release plan at the original bail hearing was for the Applicant to be released on a house arrest bail with his parents as his sureties. His parents both work, but at different times of the day: his father works an evening shift, from 5:00pm to approximately 2:00am, while his mother works during the day, from 7:00am to 3:00pm. It was suggested at the bail hearing that the Applicant might be able to find employment working alongside his father, whose job involves cleaning car washes, but that it was not yet clear whether this job would be available. However, if the Applicant was not able to join his father at work the proposed bail plan would have required him to stay home with his mother, who got home from her own job several hours before her husband had to leave for work.
[6] In her submissions to the Justice of the Peace at the bail hearing, Crown counsel (not Ms. Montemurro) stated:
[I]mportantly, this plan – it’s not a plan, because [the Applicant’s father] said that he hasn’t gotten approval to take his son to work for him, that he’s left it with his boss, and his boss is going to get back to him in a week or so about whether he can do that. He doesn’t have an okay for it. So if Mr. Deko’s released tonight or on another occasion, he can’t necessarily go to work with his dad. So if he can’t go to work with his dad, he’s going to be home alone during the day when his mom’s at work. [Emphasis added]
[7] The Justice of the Peace appears to have accepted this argument, stating in her reasons:
With regards to the plan for Mr. Deko, [^1] Mr. Deko’s parents presented themselves as potential sureties. Again, what is proposed is essentially house arrest except in the presence of his sureties, allowing the accused to go to work with his father. Because Mr. Deko’s father and mother work opposite shifts, if you will, it is submitted by the defence that the accused will have around the clock supervision. The flaw, in my view, in that argument is that based on Mr. Deko Senior’s testimony, it remains unknown whether or not the accused could, in fact, go to work with his father. When asked by [Crown counsel], in cross-examination, if his boss had given him the okay, Mr. Deko Senior stated no, he says I will let you know in one or two weeks. If released in those particular circumstances the accused would not be supervised for essentially half the day. [Emphasis added.]
[8] On their face, both Crown counsel and the Justice of the Peace’s comments can be understood as reflecting a misunderstanding of the details of the proposed bail plan. Contrary to what Crown counsel asserted in her submissions, if the Applicant could not go to work with his father he would not “be home alone during the day when his mom’s at work”. Rather, he would be at home with his father, who would not have to leave for work until several hours after the Applicant’s mother returned home from her day shift. Similarly, the Justice of the Peace’s suggestion that the Applicant “would not be supervised for essentially half the day” if he could not go to work with his father can be read as reflecting this same misunderstanding of the evidence.
[9] However, Ms. Montemurro, for the Crown, disputes this interpretation of the Justice of the Peace’s reasons. In her submission, the Justice of the Peace was actually expressing her concern that the Applicant would be effectively unsupervised during the times when he would be at home with one or the other of his parents – whichever one was not working at the time – but when that supervising parent would be sleeping.
[10] In my view, there are a number of difficulties with the Crown’s proposed interpretation of the Justice of the Peace’s remarks. First, if the Justice of the Peace had actually meant to express her concern about the Applicant’s parents’ ability to supervise their son during the times when they would have to sleep, it is reasonable to expect that she would have said this expressly, as she did when critiquing the Applicant’s co-accused’s bail plan. Second, if this was actually the Justice of the Peace’s concern it makes little sense that she would have tied it to the uncertainty about whether the Applicant would be able to accompany his father to work, since the proposed bail plan required the Applicant to be at home with his (presumably sleeping) father during the day regardless of whether that Applicant also accompanied his father to work. Third, it is in my view significant that the Justice of the Peace’s comments closely parallel Crown counsel’s stated objection to the proposed bail plan, which was that the Applicant would be “home alone during the day when his mom’s at work”. Since a person who is at home with a sleeping parent would not ordinarily be referred to as “home alone”, Crown counsel’s submission strongly suggests that she, at least, misunderstood the details of the proposed bail plan and mistakenly believed that both of the Applicant’s parents worked during the day.
[11] In my view, the most plausible construction of the Justice of the Peace’s comments is that even though she recognized that the defence was characterizing the proposed bail plan as involving “around the clock supervision”, she accepted the Crown’s argument that this was incorrect and that the Applicant would actually be left home alone and entirely unsupervised during the day unless he could go to work with his father. As discussed above, the Crown’s argument appears to have been based on a misapprehension of the evidence.
[12] In any case, it is not open to me to speculate that the Justice of the Peace might have actually meant something different from what she actually said. A corollary of the judicial duty to give reasons is that judicial reasons, when given, should be taken seriously as an accurate reflection of their author’s thought processes. On balance, I am satisfied that Crown counsel misapprehended the evidence and probably led the Justice of the Peace to make the same factual error.
[13] Although St-Cloud does not expressly list misapprehensions of the evidence by the original decision-maker as a basis for intervention by a reviewing court, I am satisfied for several reasons that this type of error should be understood as meeting the St-Cloud threshold. First, the Supreme Court of Canada in St-Cloud expressly endorsed the prior line of cases that had treated bail reviews as a “hybrid remedy” that provided somewhat “greater scope than an appeal for varying the initial order”. [^2] Misapprehension of the evidence is a well-established basis for appellate review generally, [^3] and the prior cases establishing the “hybrid” approach to bail reviews had expressly recognized that intervention by the reviewing court would be justified when the original decision maker “made an error in law or a serious error in his appreciation of the facts.” [^4] Second, as Trotter J. (as he then was) noted in R. v. Dang, 2015 ONSC 4254 at para. 36, “[w]hile recognizing the significant differences between sentencing and bail law, the standard of review established in St-Cloud has clear analogues in the sentence appeal jurisprudence”. In the sentence appeal context, it is well-settled that a sentencing judge’s material misapprehension of evidence will disentitle his or her decision from receiving the usual appellate deference (see, e.g., R. v. McLeod, 2003 ONCA 4393; R. v. Dooley, 2009 ONCA 910 at para. 179; R. v. Oladimeji, 2012 ONCA 19 at para. 2).
[14] The Crown argues that even in cases where it is shown that the judge or justice who conducted the original bail hearing materially misapprehended the evidence, a reviewing court should not interfere unless it is satisfied that the original decision-maker would have reached a different decision if he or she had not made the error. Crown counsel relies primarily on R. v. Bonito, 2015 ONSC 4928, where the reviewing judge arguably took this approach when assessing the impact of fresh evidence on a detention order. However, the justice at the original bail hearing in Bonito had not herself committed any reviewable error. In my view, different concerns are raised when the original decision-maker has materially misapprehended relevant facts. As Trotter J. noted in Dang, supra, “the standard of review established in St-Cloud has clear analogues in the sentence appeal jurisprudence” (at para. 36). In the sentencing context, it is well-established that:
Where a trial judge commits an error in principle, the sentence imposed is no longer entitled to deference and it falls to the appellate court to impose the sentence it thinks fit. [^5]
In other words, in the sentence appeal context an appellate court that identifies a reviewable error on the part of a sentencing judge does not have to try to reconstruct what the sentencing judge would have done had he or she not erred, but simply considers the question of a fit sentence afresh. By parity of reasoning, in my view, once a reviewing court is satisfied that the justice at a bail hearing materially misapprehended the evidence, the decision on review is no longer entitled to deference and the reviewing court must decide for itself whether bail should be granted or denied based on the evidence now before it.
[15] The final question I must consider is whether the Justice of the Peace’s apparent misunderstanding of the details of the proposed bail plan fatally undermines her conclusions on both the secondary and tertiary grounds. In her reasons, the Justice of the Peace only expressly linked her finding that the proposed bail plan did not provide for adequate supervision of the Applicant to her conclusion that he had “not adequate[ly] address[ed] the secondary ground concerns”. In my view, however, the adequacy of the release plan was also a relevant consideration in relation to the tertiary ground. As Trotter J. explained in Dang, supra (at para. 58):
An accused person’s plan of release may be relevant to whether public confidence in the administration of justice can be maintained when an accused person is released: see R v. B.(A.) (2006), 2006 ONSC 2765, 204 C.C.C. (3d) 490 (Ont. S.C.J.), at p. 501. This is explicitly recognized in the newly enacted amendment (S.C. 2012, c. 1) to s. 29(2)(c) of the YCJA. A reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused. The plan goes to the core of s. 515(10)(b), but it may also impact on the application of s. 515(10)(c). The bail decision does not involve a stark choice between absolute freedom on one hand, and detention on the other. Realistically, it is a choice between release on conditions and detention. I see nothing wrong with this reality being reflected in s. 515(10)(c).
[16] As the St-Cloud Court noted, “a justice dealing with an application for detention based on s. 515(10)(c) must consider all the relevant circumstances”, and a justice’s decision can be challenged as “clearly inappropriate … if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another.” [^6] If the Justice of the Peace had found that the Applicant’s proposed bail plan was sufficient to justify his release on the secondary ground, it would arguably have been incumbent on her to consider whether the terms of the proposed release plan also addressed the concerns the Crown was raising under the tertiary ground. At the very least, the strength of the release plan would have been a relevant factor in this analysis. Since the Justice of the Peace’s dismissal of the proposed release plan as inadequate was based at least in part on her apparent misunderstanding of its details, it cannot in my view be said that this latter error had no potential impact on her tertiary ground analysis. Accordingly, I consider the St-Cloud review threshold to have been satisfied in relation to both the secondary and tertiary grounds.
[17] At the conclusion of the first day of the bail review hearing the matter was adjourned to March 18, 2019 to await my ruling on this threshold issue. In light of my ruling, the hearing will resume as scheduled and I will hear further evidence and consider the parties’ submissions on whether the Applicant should be detained or released on bail.
Dawe J. Released: March 12, 2019