Ontario Court of Justice

Her Majesty the Queen v. Q.M.

Show Cause Proceedings

Before: His Worship, Justice of the Peace P. Kowarsky Date: March 30th, 2015 Location: Toronto, Ontario, Courtroom 301

Publication Ban Notice

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO S.486.4 AND 517.1 OF THE CRIMINAL CODE OF CANADA

BY ORDER OF THE HONOURABLE JUSTICE OF THE PEACE P. KOWARSKY

DATED MARCH 30TH, 2015

Appearances

J. Tupper, Esq. Counsel for the Crown

R. Karrass, Esq. Counsel for the Accused

Ruling

KOWARSKY, J.P. (Orally):

Background and Procedural History

[1] Prior to the lunch break I heard the allegations, the synopsis, and submissions from counsel, and I indicated that I would deliver my decision after the lunch break.

[2] Q.M. is a 23 year old man from China who came to Canada on a student visa for the purpose of studying economics at York University in Toronto. He seeks Judicial Interim Release with respect to an Information charging him with eight criminal offences. And he is being assisted by the Mandarin Interpreter.

[3] By virtue of his charge of failing to comply with his recognizance, the onus of persuasion is reversed. Consequently he is required to satisfy the court on a balance of probabilities on all three grounds, the primary, the secondary and the tertiary grounds, why he should not be held in pre-trial custody, or why it is not necessary that he be held in pre-trial custody pending the outcome of these charges against him in a court of law.

[4] It is conceded by both the crown and defence counsel that the accused is not ordinarily resident in Canada, and that a plan of release would include a cash component.

Publication Bans

[5] At the commencement of these proceedings, at the request of both counsel, I imposed a publication ban pursuant to Section 486.4 of the Criminal Code, as well as a further publication ban under Section 517(1) of the Criminal Code. Consequently the publication ban under Section 486.4 restricts the publication, broadcasting or transmission in any way of evidence that could identify a complainant or witness, and remains in force indefinitely until otherwise ordered.

[6] The publication ban under Section 517(1) of the Criminal Code mandates that the evidence taken, the information given, or the representations made, and the reasons given or to be given at this bail hearing shall not be published in any document or broadcast or transmitted in any way before such time as the accused is discharged after a preliminary inquiry, or if the accused is tried or ordered to stand trial before the trial is ended.

Crown's Case

[7] With the consent of defence counsel the crown read the police synopsis into the record.

[8] The accused was in a dating relationship with the complainant in June 2014. After the relationship ended the accused was charged with numerous offences allegedly committed against the complainant, including criminal harassment times two, threaten bodily harm, assault, and sexual assault times two.

[9] After being released on bail with conditions, including no contact or communication with the complainant, the accused was charged with various offences including breaching his recognizance by communicating with the complainant.

[10] After a second bail hearing he was ordered detained. Subsequently, after spending 74 days in pre-trial custody, he was released on a bail review subject to numerous conditions. The accused's father came from China and a new plan of release was presented to the Superior Court, including his being supervised by his father. The Superior Court released him on a recognizance subject to certain conditions.

[11] On February the 11th, 2015, the accused pleaded guilty to assault and mischief, which defence counsel advised was spilling a milkshake on the complainant and tearing up her passport. The disposition was a suspended sentence and a probation order for two years which contained conditions comprising no contact or communication with the complainant.

[12] On February the 19th, 2015, the accused's father left Canada and returned to China. Shortly thereafter it is alleged that the accused continued to call the complainant and told her to contact his lawyer to say that nothing had happened. He is alleged to have sent her an email stating "If I die, you die."

[13] On February the 28th, 2015, some two weeks after being convicted and sentenced, the accused was once again charged as the complainant reported to the police that the accused had come to her residence, forced his way into the apartment, held onto her, fondled her, pulled her into another part of the residence and prevented her from leaving.

[14] She told the police that he wanted to get back together with her again and that when she refused, he is alleged to have picked up a kitchen knife and threatened to kill himself. Subsequent to his leaving, the complainant again called the police who located the accused at his residence, arrested him and charged him with the charges before the court, harassment, criminal harassment, fail to comply with recognizance, fail to comply with probation, break and enter with intent, assault, sexual assault, unlawful confinement, and possession of a weapon; namely a knife.

Legal Framework

[15] The foundation of our criminal justice system is the presumption of innocence, which means that the accused must be treated as though he were innocent throughout the passage through the criminal justice system until such time as he has been found guilty by a court of competent jurisdiction of committing the offences.

[16] Section 11(e) of the Charter of Rights enshrines an accused's constitutional right not to be denied reasonable bail without just cause. And Section 7 of the Charter, accords to an accused his right not to be deprived of his liberty or security, except in accordance of the principles of fundamental justice.

[17] The abundant jurisprudence, with respect to these rights, clarifies that imprisonment prior to trial should be the last resort. Pretrial detention is extraordinary in our system of criminal justice. There are no categories of offences for which bail is not a possibility, and bail will be denied only in a narrow set of circumstances.

The Secondary Ground

[18] The crown's concern, and the Court's concern, is on the secondary ground. The secondary ground is set out in Section 515(10)(b) of the Criminal Code. It provides as follows:

"For the purposes of this section, the detention of an accused in custody is justified only where the detention is necessary for the protection or safety of the public, including any victim or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice."

[19] It is noteworthy that section 515(10)(b) of the Criminal Code mandates that in considering the need for the protection or safety of the public, regard must be had to all the circumstances of the case, including any substantial likelihood of the accused's reoffending or interfering with the administration of justice.

[20] In R. v. Morales (1992), 17 C.R. (4th) 74, Chief Justice Lamer, as he then was, speaking for the Supreme Court of Canada, expressed the difficulty of evaluating "substantial likelihood" within the meaning of Section 515(10)(b) of the Criminal Code as follows:

"While it is undoubtedly the case that it is impossible to make exact predictions about recidivism and future dangerousness, exact predictability of future dangerousness is not constitutionally mandated."

[21] It must be remembered that it is not the role of the bail justice to punish the accused. Rather the overwhelming jurisprudence mandates that no matter how serious the allegations are, if a plan of release can reasonably be crafted so as to reduce the Court's concerns on the secondary ground to an acceptable level, the accused must be released on bail.

Concerns Regarding Interference with Administration of Justice

[22] It is alleged, however, that the accused asked the complainant to contact his lawyer in an attempt to have the charges withdrawn. That, in and of itself, is a suggestion that the accused was attempting to interfere with the administration of justice.

[23] There is no issue with respect to the identity of the accused. The ongoing propensity of the accused to communicate with the complainant is compelling, and although as always there will be some triable issues with respect to some of the charges, at this early stage of the proceedings I find that the crown's case against the accused appears to be rooted in a strong evidentiary foundation.

Proposed Release Plan

[24] The plan of release does not involve any surety. However defence counsel presented R.N.Q., a friend of the accused's father, who testified that she had been the accused's surety on a prior bail and he had resided with her and her family. However, she is not prepared to be his surety now, although she would permit him to reside with her, her husband, and two adult children, in Ontario.

[25] Defence counsel proffers that this address is a significant distance away from the residence of the complainant, and thus it would be easier for the accused to comply with the no contact condition with respect to the complainant, which was difficult previously because they lived close to one another.

[26] Defence counsel submits that because of the cultural differences, the accused was unsure of the severity of concern in the event of his breaching his no contact condition with respect to the complainant.

[27] The plan of release is a Bail Program supervision as well as conditions suggested by COTA. The Bail Program suggests that the accused report to the Toronto Bail Program at 1000 Finch Avenue West on his release and thereafter as directed, and be under the direction and supervision of the program and be amenable to its rules and regulations. He is to reside at an address approved of by the Bail Program and not move from that address without obtaining the approval of a new address from the Bail Program, and it is noted that the accused may reside with his friend, A., who is the person who testified earlier on, at ……… Ontario.

[28] Additionally, the mental health facility in this building, COTA, suggested that the accused attend at the COTA office tomorrow, March the 31st, between 9:00 a.m. and 2:00 p.m., and thereafter as requested by COTA and that he be referred to a psychiatrist for a psychiatric assessment through the COTA office. That he be referred for counselling through the assistance of COTA. That he attend all scheduled appointments as directed by medical professionals and COTA, and that he sign releases and authorizations so that COTA can monitor his progress.

Court's Analysis

[29] Up to this point there has been no suggestion that the accused is suffering from any mental health condition. I agree with defence counsel that perhaps the accused's behaviour vis-a-vis the complainant may well be rooted in cultural differences. However, my role as the bail justice is to consider all the circumstances, including whether the plan presented would reduce my concerns on the secondary grounds to a reasonable level, vis-a-vis the safety and protection of the public, and in particular the safety and protection of the complainant in this case.

[30] Past behaviour is a relatively reliable source with which to predict future behaviour. While I cannot precisely predict whether the accused will commit further criminal offences if released on the proposed plan, exact prediction of future dangerousness is not what is constitutionally mandated as indicated by Justice Lamer, the then Chief Justice of the Supreme Court of Canada in R. v. Morales (supra).

[31] The accused has been on recognizance on previous occasions with sureties, and has been charged with breaching his bail conditions more than once. The proposal now is that he be released subject to the supervision of the bail program and adherence to the requirements of the mental health office.

[32] The accused is prepared to pledge $5,000 by way of a no-deposit pledge and a cash deposit of $2,000, making the total of $7,000 to secure his release. However, my task is the protection and safety of the community and not to determine whether release would benefit the accused more than pre-trial detention would.

Decision

[33] Unfortunately, I am not satisfied that the plan of release is adequate to reduce my concerns on the secondary ground to an acceptable level. The defendant has failed to persuade me on a balance of probabilities that he should be released on bail, having regard to all the circumstances and the plan that is being proposed. Consequently I order that he be detained on the secondary ground.

MR. TUPPER: Thank you Sir.

P. Kowarsky J.P.