Publication Ban Warning
WARNING The President of the panel hearing this appeal 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: 20200429 DOCKET: M51506 (C67525)
Brown J.A. (Motions Judge)
BETWEEN
Her Majesty the Queen Respondent
and
J.J. Appellant (Applicant)
Counsel: Colleen McKeown, for the applicant Elena C. Middelkamp, for the respondent
Heard by Teleconference: April 24, 2020
REASONS FOR DECISION
OVERVIEW
[1] The applicant, J.J., applies for bail pending appeal. This is his second application; the initial order granting him bail pending appeal was revoked.
[2] On April 18, 2019, the applicant was convicted of one count of sexual assault. On October 7, 2019, he was sentenced to three years in custody, in addition to four months’ credit for pre-sentence custody.
[3] The applicant applied for bail pending appeal. The Crown consented to his release. Bail pending appeal was granted by order of Fairburn J.A. dated October 18, 2019. The applicant entered into a recognizance in the amount of $7,500, with two sureties: his mother pledged $6,000; his sister $1,500. The terms of release required the applicant to live with his mother under house arrest.
[4] Notwithstanding that requirement, on November 28, 2019, the applicant was arrested and charged with several new offences, including firearms offences, drug offences, and breaches of a probation order and of the recognizance signed on October 18, 2019 (the “November Charges”).
[5] The Crown thereupon sought and obtained a revocation of the applicant’s bail pending appeal, by order of Miller J.A. dated December 16, 2019.
[6] On December 19, 2019, the applicant’s bail hearing on the November Charges proceeded in the Ontario Court of Justice in Hamilton. Bail was set but not met. The Justice of the Peace determined that the applicant could only be released with a new surety who could establish his or her financial viability, to be approved in bail court. The terms set by the Justice of the Peace included 24/7 supervision and ankle monitoring.
[7] On April 15, 2020, the applicant proposed two new sureties: D.T.D., who has been the applicant’s friend since elementary school; and his father, D.C.D. As sureties, D.C.D. pledged $14,000; his son pledged $1,000. Both proposed sureties were cross-examined by the provincial and federal Crowns and approved by a Justice of the Peace. A release order was granted.
[8] The applicant remains in the Hamilton-Wentworth Detention Centre and brings this second application for bail pending appeal.
POSITIONS OF THE PARTIES
[9] The Crown opposes the application on the basis that the applicant has not demonstrated that his detention is not necessary in the public interest: Criminal Code , R.S.C. 1985, c. C-46, s. 679(3)(c). In particular, the Crown relies on the public safety component of the public interest criterion: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 23. The Crown submits that the applicant’s failure to comply with the terms of his October 2019 release signifies that a risk exists that he will commit further offences if released on bail pending appeal.
[10] The applicant submits that the strictness of his bail plan attenuates any such risk. The new sureties were found satisfactory by the Justice of the Peace who granted interim release on the November Charges. As well, the applicant’s bail plan requires that he: reside with his sureties; be in the visual presence of one surety at all times; remain in their residence at all times except for medical emergencies or when he is in the direct visual presence of a surety; wear an electronic ankle bracelet provided by Recovery Science Corporation (“RSC”); and enter into a monitoring agreement with that firm, which includes a requirement that the applicant provide photo verification of a surety’s presence each time he leaves the residence.
ANALYSIS
[11] I am not persuaded that the applicant has established that his detention is not necessary in the public interest.
The public safety component
[12] The public safety component of s. 679(3)(c) of the Criminal Code essentially tracks the requirements of s. 515(10)(b) governing an accused’s release pending trial: Oland, at para. 24. Bail is denied only for those who pose a "substantial likelihood" of committing an offence or interfering with the administration of justice, where this "substantial likelihood" endangers "the protection or safety of the public" and when it is "necessary" for public safety: R. v. Morales, [1992] 3 S.C.R. 711 at p. 737. As was 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.
[13] Several reasons lead me to conclude that even under the applicant’s new bail plan there exists a substantial likelihood that he will commit a criminal offence that would endanger the safety of the public.
[14] The first involves the November Charges. The October 2019 order of Fairburn J.A. required the applicant to reside with his sureties – his mother and sister – and remain in their residence at all time except for medical emergencies or “unless you are in the presence of either of your sureties.”
[15] The police synopsis of the November Charges states that on the evening of November 28, 2019 members of the Hamilton Police Service were monitoring a known drug house when a car parked in front of the house. A person left the house, entered the car, and the car went on its way. The police pulled the car over at 10:49 p.m. Five persons were in the car. The applicant was in the front passenger seat. A glass pipe with suspected cocaine residue was observed in plain view in the vehicle. A clear baggy of white powder fell to the ground from the back seat when the occupants left the car. A search of the vehicle disclosed a backpack on the back seat that contained a loaded handgun. Baggies containing what was believed to be fentanyl and heroin were also found.
[16] The police synopsis states that the applicant was bound by two firearms prohibitions and two probation orders. He was charged with two counts of possession contrary to order, two counts of breach of recognizance, and two counts of failure to comply with a probation order. He was also charged with drug offences.
[17] As applicant’s counsel points out, the applicant is presumed innocent of committing the new charges until proven guilty. However, as the December 16, 2019 endorsement of Miller J.A. records, at that time applicant’s counsel conceded that the test for revocation of the release order and cancellation of the recognizance had been met by reason of the November Charges.
[18] The terms of the October 2019 release order of this court required the applicant to be in presence of a surety if he left his residence for a non-medical emergency. The evidence strongly indicates that the applicant was not on the evening of November 28, 2019.
[19] Second, evidently the financial consequences to his mother and sister of breaching his recognizance were not sufficient to dissuade the applicant from leaving their presence. Notwithstanding the assurances given by the applicant in his most recent affidavit to abide by the directions of his sureties, his track record does not give me confidence that he will do so.
[20] I come to this view not only based on the events underlying the November Charges, but also on the basis of the applicant’s criminal record. In his affidavit, he acknowledges that he has a criminal record in addition to the sexual assault conviction that is the subject of his appeal. As a youth, the applicant was convicted of assault (2011), theft under $5,000, failure to comply with an undertaking, and possession of stolen property (under $5,000) (2013). As an adult, he was convicted of simple drug possession (2016), and he pleaded guilty to breaking and entering and was sentenced to four months in jail (2019). For purposes of assessing the public safety factor, the existence of a conviction for failure to comply with an undertaking is troubling.
[21] Third, the police synopsis records that a loaded handgun was found in the car on the evening of November 28, 2019. Whether the Crown can establish that the applicant had the knowledge and control required to prove possession of the handgun is a matter for a later trial. But, for purposes of this application, it is a relevant factor that the applicant, who was to be in the presence of a surety, apparently was in a car with others where a loaded handgun was present.
[22] Fourth, the younger of the proposed sureties, D.T.D., was convicted five years ago of mischief under $5,000 and failure to comply with an undertaking. I accept the Crown’s submission that while those convictions do not tip the scale against the suitability of D.T.D. as a surety, the conviction for failure to comply with an undertaking should be of concern to the court.
[23] Fifth, I have read the materials filed by the applicant from RSC. The monitoring service it offers uses a GPS ankle bracelet attached to the applicant and provides real-time information about the applicant’s location, as well as periodic compliance reports.
[24] There are limits to the practical effectiveness of the RSC service. In a document titled, “Overview of Criminal Programs”, the company states:
In our view, monitoring ought not to be relied upon if the required standard is to prevent violations or to ensure an immediate police response. Rather, monitoring is best thought of as a risk management tool - it cannot prevent an accused from fleeing nor can it guarantee police intervention in a breach or offence in progress.
[25] RSC makes a similar point in a document titled, “Radio-Frequency (RF) & GPS Monitoring for Criminal Cases – Program Summary”, which states:
While the system can and does deliver violation alerts very quickly, typically in 1-10 minutes, we do not encourage reliance on rapid police response time as a factor in making a decision to release rather than detain an accused. This is for two reasons: firstly, because there are many factors that create the potential for delay in the chain of communications that lead from a violation event to the ultimate police response and, secondly, because even when there are no such delays and the police response is immediate, that may still not be sufficient to prevent an accused from fleeing or committing an offence.
These considerations regarding response time lead us to encourage decision makers to view monitoring not as a prevention tool but as a risk management tool that, in some cases, can have a significant impact on a plan’s ability to meet the applicable legal requirements…
[26] In R. v. Fleming, [2015] O.J. No. 4380 (S.C.J.), Trotter J. (as he then was), pointed out at para. 18 that GPS monitoring only reveals where a person is, not what he is doing. As observed by Hourigan J. (as he then was) in R. v. Palijan, [2012] O.J. No. 6549 (S.C.J.), at para. 25, a company such as RCS focuses on gathering evidence of compliance, not preventing non-compliance.
[27] The weight to be given to an applicant’s willingness to enter into a GPS monitoring program with a company such as RCS will depend on the specific circumstances of a case: R. v. Sotomayor, 2014 ONSC 500, at para. 41, fn. 1. In the present case, I am not persuaded that the proposed GPS monitoring program significantly reduces the likelihood of the applicant committing an offence that will endanger the safety of the public. While a GPS monitor can record the presence of the applicant at a specific location, such as the one where the events of November 28, 2019 are alleged to have occurred, it cannot provide a quick response that would prevent such events. As well, the applicant does not have an unblemished record of complying with court orders.
[28] Taking the evidence as a whole, I am not satisfied that the applicant has established that his release plan would reduce the risk of him re-offending. On the contrary, I conclude that the evidence demonstrates that a substantial risk exists that the applicant would commit a criminal offence that endangers public safety if released pending his appeal. I conclude that the public safety considerations are sufficient to warrant the continued detention of the applicant in the public interest.
The public confidence component
[29] Although the Crown does not rely on the public confidence component of s. 697(3)(c), the applicant did file evidence about the merits of the appeal. He also filed some evidence regarding the COVID-19 pandemic. As stated in Oland at para. 27, the public safety and public confidence components are not to be treated as silos for a public interest analysis. I therefore will consider the evidence concerning the strength of the applicant’s appeal, as well as that concerning COVID-19: at para. 40.
[30] The applicant’s conviction for sexual assault concerned events that took place when he was 20 years old and the complainant 15 years old. Both had been drinking at a party. There is no dispute that sexual intercourse took place between them. The only issue is whether the intercourse was consensual. The complainant testified that it was not, and that she had screamed for the applicant to stop. The applicant testified that the complainant wanted to have intercourse.
[31] The applicant contends that there were inconsistencies and contradictions in the evidence of both the complainant and himself. His contends that the trial judge committed several errors: he discounted material inconsistencies and a deliberate falsehood in the complainant’s evidence; he improperly used post-offence conduct of the applicant, including a text the applicant sent to a friend about the incident; and he relied on impermissible stereotypical reasoning about the circumstances under which a 15-year old female would be interested in having sex in rejecting the applicant’s version of events as implausible.
[32] The record available to assess the strength of the applicant’s grounds of appeal is, at this point, limited to the trial judge’s reasons. Transcripts of the evidence of the complainant and the applicant are not yet available. As a practical matter, the absence of those transcripts makes it difficult to assess the impact of the inconsistencies and contradictions raised by the applicant within the context of the entirety of the witness’ evidence, especially in the circumstances of a “he said/she said” case like the present one.
[33] The applicant attempted to re-open his trial prior to sentencing, relying on evidence not led at the trial from a young woman who knew both the complainant and the applicant. The applicant submitted that the evidence would undercut that of the complainant. However, the applicant’s notice of appeal and argument on this application does not suggest that a motion for leave to adduce fresh evidence will be brought or that the trial judge erred in refusing to re-open the trial to admit such evidence.
[34] The Crown does not dispute that the applicant’s appeal is not frivolous. However, I am not persuaded that the merits of the applicant’s appeal are such that they tip the scale against continued detention in light of the substantial risk to public safety that I have identified.
[35] Finally, the applicant submits that his continued incarceration during the time of the COVID-19 pandemic is broadly relevant to the public interest analysis.
[36] The fact of the current COVID-19 pandemic is a factor that can be taken into account in considering the public interest criterion: R. v. Omitiran, 2020 ONCA 261, at para. 26. The weight played by that factor depends upon the particular circumstances of each case. For example, it might play a role where an applicant’s known or documented health conditions, including his age, place him within a vulnerable group that is more likely to suffer complications and require hospitalization if he contracts the virus: R. v. Kazman, 2020 ONCA 251, at para. 17.
[37] In the present case, the applicant is detained in the Hamilton-Wentworth Detention Centre. He is 23 years old. His affidavit does not disclose any medical condition that puts him in a group with increased vulnerability to the effects of COVID-19. While his counsel’s supporting affidavit states that in late March one employee at the Hamilton-Wentworth Detention Centre tested positive for the virus, the applicant’s record does not contain evidence of a significant COVID-19 outbreak at the facility.
[38] Consequently, I do not see the fact of the COVID-19 pandemic outweighing, on its own or in combination with the merits of the applicant’s appeal, the substantial risk to public safety that I have identified.
DISPOSITION
[39] For the reasons set out above, I dismiss the application for bail pending appeal.
“David Brown J.A.”
