WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:
539. Order restricting publication of evidence taken at preliminary inquiry.
(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused,
make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.
(3) Failure to comply with order.
Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Date: September 8, 2015
Court File No.: Central East Region (Oshawa)
Between:
Her Majesty the Queen
— And —
Sahilan Surendran & Andrew Reece
Before: Justice F. Javed
Heard on: July 23, August 17, 19, 2015
Reasons for Judgment released on: September 8, 2015
Counsel:
- F. Stephens — counsel for the Crown
- J. Prince — counsel for the accused Sahilan Surendran
- J. Collins — counsel for the accused Andrew Reece
F. Javed J.:
I. Ruling on Committal for Trial
A. Introduction
[1] The defendant Sahilan Surendran is charged with the following criminal offences:
(1) Possession of a Schedule II Substance (under) – s.4(5) CDSA;
(2) Escape lawful custody – s.145(1)(a);
(3) Dangerous Driving, s.249(1)(a)
(4) Dangerous Driving, s.249(1)(a);
(5) Fail to stop for police – s.252(1.1);
(6) Fail to comply with undertaking – s.145(3);
(7) Trafficking in persons – s.279.01;
(8) Sexual assault – s.271;
(9) Forcible confinement – s.279(2);
(10) Material benefit – s.279.02;
[2] The co-defendant Andrew Reece was jointly charged with Mr. Surendran in respect of count 9 and charged separately with procuring contrary to s.212 (h) of the Criminal Code.
[3] The parties elected to have a trial in the Superior Court of Justice with a preliminary hearing before me. At the conclusion of the proceedings, the Crown invited the Court to discharge Mr. Reece on all counts. The Crown also invited the court to discharge Mr. Surendran on count 1.
[4] This case involves an allegation of human trafficking. The Crown theorizes that Mr. Surendran did not, in the traditional sense, forcibly confine P.E. forcing her into prostitution but rather, exploited a crack addict who was highly vulnerable into committing and offering acts of prostitution for profit.
[5] Upon completion of the preliminary hearing proceedings, Ms. Prince on behalf of Mr. Surendran applied pursuant to s.515 of the Criminal Code for judicial interim release. The Crown opposed the application on the secondary grounds. I intend to address both issues in my judgment, as in my view, the strength of the Crown's case is one of many factors that a Court must consider in addressing the secondary grounds.
[6] Prior to commencement of the proceedings, the defendant applied to have his restraints removed while in custody. The Crown opposed the application. After hearing evidence from Sergeant Tudor of the Durham Regional Police Service (DRPS), I ruled that the Crown had not met its onus that there were any safety concerns requiring the defendant to have his restraints on during the presentation of the evidence. [1]
B. The Positions of the Parties
[7] Mr. Stephens on behalf of the Crown asks the court to commit on all the remaining counts and in addition, seeks committal on the offence of assault arguing that the offence arose in respect of the same transaction as that of the forcible confinement allegation.
[8] Ms. Prince on behalf of the defendant contests committal on all counts except:
- Count 6 – Fail to comply with undertaking; and
- Count 8 – Sexual assault.
[9] Accordingly, the court is left to consider the fate of Mr. Surendran on the following counts:
- Count 2 - Escape lawful custody – s.145(1)(a);
- Count 3 - Dangerous Driving, s.249(1)(a)
- Count 4 - Dangerous Driving, s.249(1)(a);
- Count 5 - Fail to stop for police – s.252(1.1);
- Count 7 - Trafficking in persons – s.279.01;
- Count 9 - Forcible confinement – s.279(2);
- Count 10 - Material benefit – s.279.02;
[10] For reasons that I will develop below, I find that on this record, the Crown has met its burden with respect to committal on all counts except for count 2 (escape lawful custody) and count 5 (fail to stop for police). In addition, I find that the defendant has met his burden pursuant to s.515 of the Criminal Code and thus, should be released to a surety (his father) with stringent conditions addressing the secondary grounds.
C. The Applicable Principles
[11] Before I examine the factual record, it is helpful to summarize the applicable legal principles that govern my jurisdiction sitting as a preliminary hearing justice. The combined effect of section 548(1) of the Criminal Code and the test in USA v. Sheppard, [1977] 2 S.C.R. 1067 (SCC), require a committal where there is any evidence upon which a reasonable jury, properly instructed, could convict. It is not a question of whether a properly instructed jury, acting reasonably, would infer guilt from the evidence adduced at a preliminary inquiry, only whether they could do so.
[12] Campbell J. described the task of a preliminary hearing judge in Sheppard, supra, in his decision in R. v. McIlwain (1988), 67 C.R. (3d) 393 (Ont.H.C.J.) at 399: "to weigh or balance in the scales or to measure or to ponder and examine the force of evidence to determine whether or not it is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty." This is the sole purpose for which the evidence is to be weighed or scrutinized at the preliminary inquiry.
[13] It is not my function to weigh competing inferences or to choose one over another: R. v. Campbell (1999), 140 C.C.C. (3d) 164 (Ont. C.A.) at 165 (see also R. v. Martin, [2001] O.J. No. 4158 (Ont. C.A.); R. v. Tuske, [1978] O.J. No. 1253 (Ont. C.A.); R. v. Manickavasagar, [2004] O.J. No. 600 (Ont. C.A.). Indeed, any doubt as to the inferences to be drawn from the evidence must be resolved, at the preliminary inquiry stage, in the Crown's favour: R. v. Sazant, 2004 SCC 77, [2004] S.C.J. No. 74 (S.C.C.); R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601; R. v. Magno, [2006] O.J. No. 2590 (Ont. C.A.) at para. 15; R. v. Foster, [2008] O.J. No. 827 (Ont. Sup. Ct. J.); R. v. Coke, [1996] O.J. No. 808 (Sup. Ct. J.).
[14] Consequently, the weighing of the evidence for competing inferences, frailties or contradictions has no place in the Sheppard test. Neither can a preliminary hearing judge assess the dubious nature of the Crown's case or the reliability of the evidence or concerns about its weight: Dubois v. the Queen, [1986] 1 S.C.R. 366; Mezzo v. the Queen, [1986] 1 S.C.R. 802.
[15] The Supreme Court of Canada has reformulated the Shephard test in R. v. Arcuri, (2001), 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.). While the test is the same, the Court explained that the nature of the judge's task varies according to the type of evidence that the Crown tenders, whether the evidence at the preliminary inquiry is direct or circumstantial. Where the Crown has not presented direct evidence as to every element of the offence, the question becomes whether the remaining elements of the offence may "reasonably be inferred" from the circumstantial evidence. McLachlin C.J.C. in Arcuri at p. 31 held that answering this question, "inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established - that is, an inferential gap beyond the question of whether the evidence should be believed."
[16] The Court went on to note that while the judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences the Crown asks the jury to draw, this weighing, however, "is limited". The judge does not ask whether he or she would conclude that the accused is guilty; neither does the judge draw factual inferences or assess credibility. The question to be addressed is "whether the evidence, if believed, could reasonably support an inference of guilt": R. v. Arcuri, supra, p. 32.
[17] In the final analysis if there is sufficient evidence upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit the accused to stand trial. Guilt or innocence is to be determined at trial, not the preliminary hearing: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635 (S.C.C.) per Major J. at paras. 14-16.
D. The Factual Record
(i) Evidence of Police Constable Ryan Shaw
[18] The Crown called Police Constable Ryan Shaw of the DRPS and two civilians, one of which was the complainant, P.E. In addition, several exhibits were tendered including records of the defendants cell phone and photographs. In addition, surveillance video, capturing the attendance of P.E. at an Ontario Works office in the company of the defendants was also tendered.
[19] PC Shaw testified that on November 24, 2014, he was dispatched to the location of a methadone clinic at 777 Simcoe St. South in Oshawa. Police Constables McQuat and Webster had also been dispatched to the scene. Information from dispatch was received that P.E. was being held against her will at the clinic. Based on prior dealings with her, he was familiar with who P.E. was. He also received the license plate of the vehicle involved in the matter.
[20] When he arrived, two police cruisers, including Constable McQuat were on scene. One of the cruisers was angled in such a way to partially block a silver ford focus. He was unsure if the license plates had been matched with the information he received, only that he understood that the vehicle in question was involved. On foot, he moved towards the front window of the vehicle which was parked nose in. The passenger window was up while the driver's side window was down. From his position, he noted that the interior of the vehicle was foggy. Constable McQuat approached the driver's side while he approached the passenger side. From there, he was able to see that the defendant was seated in the driver's seat. The defendant uttered something, ostensibly to Constable McQuat who was speaking to him and then quickly reversed the vehicle.
[21] As he reversed, the vehicle made contact with his knee spinning him off balance. He was unsure if the door of the vehicle or the front corner made contact with him. Regardless, he took a second to compose his balance to get on his feet. In the process, he had lost his pocket knife which went flying out of the pocket. Standing up, he pointed his pistol at the vehicle which was now in front of him. The vehicle quickly accelerated in his direction requiring PC Shaw to jump out of the way. The vehicle jumped the curb and landed on Simcoe St. and accelerated away.
[22] He described that this was taking place in the afternoon on a major street in Oshawa with moderate traffic. In his words it was "pretty busy" at the time. In addition, the methadone clinic has both vehicular (including bicycles) and foot traffic. He recalled that there were people "out and about".
[23] He got in his cruiser, activated his emergency lights and followed the defendant's vehicle which he said was accelerating on Simcoe St. towards Wentworth. The vehicle using its right hand indicator made a quick turn on Wentworth, then abruptly performed a u-turn to head south on Simcoe. He indicated that many cars were swerving around him and stopping their vehicles as a result of the defendant's driving.
[24] He followed the vehicle for some time, possibly getting as close as 75 meters. He eventually stopped following the vehicle and returned to the methadone clinic. There, he met with P.E. who provided a brief narrative of what happened. She did not appear to have any injuries. She was eventually transported to the police station where she provided a videotaped statement.
[25] P.E was known to the police and in particular, known to Constable Shaw who had contact with her 3-5 times. He wasn't personally aware of any reports made by her that subsequently turned out to be untrue.
[26] Two days later (November 26, 2014) information was received that the defendant's vehicle had been located near a bike path in Oshawa. Officers were dispatched to the scene. Constable Shaw arrived some time later only to find the defendant on foot attempting to run away. He saw him being tackled to the ground. The defendant was ultimately arrested.
[27] A search incident to his arrest revealed the defendant to have some money, a pre-paid Mastercard, keys to a ford vehicle, keys to a Volkswagen vehicle and a key fob to a building. The ford focus itself was towed to the police station wherein it was photographed. Constable Shaw testified that the towed vehicle was in in fact the vehicle involved with him two days prior.
(ii) Evidence of Paul Wedderburn
[28] The complainant, P.E. was living at Mr. Wedderburn's address at the time of the incident. He testified that on the date in question, he got a phone call from P.E. who asked him to get her from the clinic. When he arrived at the clinic, he saw that a grey ford focus which was "dented up" was sitting there. He went and talked to a nurse and ultimately saw P.E. He then called 911 to report the incident.
[29] While on the phone with the 911 operator, he observed the license plate of the ford focus, BKKZ 543 and called it in. He also made observations of the interaction between the police and the defendant. He testified that one officer positioned himself at the back of the car while the other went to the driver's side to talk with the driver. He was unable to hear the conversation as he was situated within the clinic. The driver didn't get out and instead quickly reversed the car and drove away.
[30] He noted that many people were present in the clinic at the time this happened.
[31] Mr. Wedderberg was cross-examined extensively. He stated that since the incident, he had not spoken with P.E. even though she continued to live with him, albeit briefly. She moved out some time in 2015.
[32] He added that he "always helped" young women who were permitted to stay in his home which had 3 bedrooms. He never charged rent and purchased groceries himself. He understood that at the time, P.E. had many health ailments and was taking 10-12 pills a day. He also knew that at the time, she worked as a prostitute even though he told the 911 operator that she was afraid to "come out" [referring to the clinic].
[33] In November 2014, P.E. wasn't living with him for some time, although he was used to her "coming and going" while keeping some clothes at his place. Mr. Wedderberg was shown several phone records and could not recall with great detail when P.E. was staying with him. He did recall that at some point, he received a text message from her that she "got away" and that "they" would not give her a winter jacket. She came to his house with Mr. Surendran and didn't have a winter jacket. He asked him for the jacket to which he refused. According to Mr. Wedderberg, P.E. didn't want to go back out. He went outside and told Mr. Surendran that she didn't want to come out so he left without her.
[34] P.E. did not own a cell phone. She would either use his phone or when she was out, would use somebody else's phone to send him text messages. When confronted with phone records relating to his phone, which he shared with the police, he testified that he could not recall having a conversation with her on November 24, stating "it's possible". He did recall receiving several text messages from her from the period of November 20-24, 2014.
[35] On November 21, 2014, he recalled P.E. being at his house and taking her to Tim Horton's, ostensibly, to purchase drugs.
(iii) Evidence of P.E.
[36] P.E. testified over the course of two days. Mr. Collins applied to the court to conduct an inquiry into her capacity to testify as information had been received that prior to attending court, she had used crack cocaine. After conducting a brief voir dire on the issue, I was satisfied that given her evidence that she had taken her prescribed medication, received her methadone in the morning and otherwise was able to communicate her evidence, she was capable to testify as required by s.16 of the Canada Evidence Act. In addition, she confirmed that while "extremely tired", she had some recollection of the events in question.
[37] Her evidence, including her cross-examination took place on a separate day. I should pause to note that, while I cannot comment on her credibility as doing so would exceed my jurisdiction as a preliminary hearing justice, I found her to present her evidence in a much more reliable manner on the second day of her evidence. In my view, she was much more lucid and responsive during her evidence. She was quick to answer questions and offered details when warranted.
[38] P.E. testified that she met the defendant while she was prostituting on Simcoe St. in Oshawa. The defendant was in a car and picked her up. They had a brief conversation about her fiancée and daughter and then discussed drugs. He indicated that he could "help" her and then took her to get "dope" which she referred to as crack cocaine. After getting some dope, the defendant took her to Toronto and stayed at a hotel called the Roycroft Inn. The defendant then told her that she needed to pay him back for the drugs she smoked. She understood this to mean that she would have to go on "sexual dates" for this purpose. The defendant wanted her to "work" on the streets of Toronto but she was reluctant as she only knew the streets in Oshawa. In cross-examination she disagreed with the suggestion that she would "do anything" to get a half ball (of drugs).
[39] She also explained that the defendant spoke to her about a back page advertisement which he said she should post online to get back on the streets. When she protested that she didn't want to, he insisted stating that she had smoked his drugs and needed to make his money back. She added that every day, the defendant spoke about money. She stated that "they" wanted to take pictures of her and she didn't want to. Instead, she told them [both defendants] that she had pictures of herself on her facebook account which was not private and could be accessed by them. In cross-examination, she agreed that she did not stop them from using those pictures in various back page ads.
[40] While she was with Mr. Surendran she did not have her own cellular phone but did have access to his. She recalled using it on two occasions to send Paul Wedderberg text messages. Some messages she would delete as she didn't want him to see them. The parties agreed pursuant to s.655 of the Criminal Code that an extraction report conducted by the DRPS revealed messages attributed to the defendant as well as videos and images found on a separate Samsung Galaxy cell phone, also attributed to the defendant. After reviewing the admissible portions of these records, which were the subject of argument and ultimately agreed to after a ruling on their limited use, I am satisfied that a reasonable inference arises that the user of the phone was soliciting sexual services of a prostitute. In other words, I'm satisfied that there is some evidence that links the defendant to the various cell phones and further that an inference arises that he was soliciting sexual services.
[41] P.E. recalled going on about ten "dates" while with the defendant. While she could not recall how much money she earned, she testified that she never got a penny while she was with him. On one occasion, she described an incident at a hotel where a date had been arranged but instead, the defendants robbed the customer while she waited in the bathroom of the motel.
[42] On November 24, 2014, she woke up in a hotel/motel with the defendant who she described as "OJ". She had spent the night with the defendant but testified that she wanted to leave. Until then, she had spent "all day and all night" with the defendant. She told the defendant "at least 20 times" that she wanted to go back to Oshawa but he wouldn't take her. She described an incident where she was taken to a Shoppers Drug Mart and ran out of the car, only to be grabbed by the defendant with his arms. She returned to the car and was angry at him.
[43] She advised him that she needed to cash her cheque that she received from Ontario Works. He was reluctant to take her to the office and instead told her that she "needed to make him money" as she had smoked his drugs. The parties decided to go regardless and picked up the co-defendant Mr. Reece on the way.
[44] Prior to arriving, they made a stop at the liquor store where she testified that the defendants told her to steal a bottle of liquor – which she did. Upon arriving at the Ontario Works office, P.E. went inside followed by the defendant and then some time later, Mr. Reece. This interaction was depicted on surveillance footage (exhibit 5) and shows P.E. walking in to the office followed by the defendant who proceeds to sit down. The parties stay at the office for about 10 minutes. During this time, the defendant does not leave the side of P.E. The only time P.E. is alone is during a five minute period when she went to the bathroom.
[45] After cashing the cheque at a nearby Money Mart with the defendant by her side, the parties traveled to a friend of the defendant's to buy more drugs. While there, the defendant asked her for the money which she refused to give. Instead, she loaned Mr. Reece $20.00 without telling the defendant. The only money she gave to the defendant was for crack cocaine which she purchased from him.
[46] She recalled that the defendant demanded on five occasions that she gave him her money. She refused to do so and instead said she would give him the money later because "I knew I was trying to get away again". She testified that she smoked his drugs and was "pretty sure" she did many sexual dates for him and never saw a penny. Whenever she did a sexual date she would hand over the money to the defendant immediately.
[47] After the defendant was arrested, she provided the police with photographs stored on her phone. She also described an incident when the defendant sat on her chest, holding her arms and forced his penis in her mouth for oral sex. As noted above, Ms. Prince conceded committal on this count.
[48] P.E. agreed that at no point did she tell anybody that she was being mistreated or abused. She acknowledged that there were opportunities to either leave or tell somebody about what was happening but she did not do so.
Analysis
E. Count 2 – Escape lawful custody
[49] Counts 2-5 all involve the defendant's interactions with Constable Shaw and indirectly, Constable McQuat who did not testify. The offence of escape lawful custody requires the Crown to lead some evidence that the defendant was lawfully in custody, or put differently, arrested and that he escaped.
[50] The Crown submits that Constable Shaw testified that he heard Constable McQuat tell the defendant that he was under arrest and that should be sufficient evidence to warrant committal on this count. It is not disputed that the defendant fled the scene prior to his arrest.
[51] The Ontario Court of Appeal discussed the meaning of arrest in R. v. Asante-Mensah, [2001] O.J. No. 3819 at paras. 56-57 as follows:
In R. v. Whitfield, [1970] S.C.R. 46 the Supreme Court of Canada adopted the following passage from 10 Halsbury's Law of England, 3rd ed. (1955), as the correct definition of arrest:
- MEANING OF ARREST. Arrest consists of the actual seizure or touching of a person's body with a view to detention. The mere pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer. An arrest may be made with or without a warrant.
[52] This definition of arrest has been accepted in subsequent cases: see R. v. Latimer, [1997] 1 S.C.R. 217 at p. 231; R. v. Delong (1989), 47 C.C.C. (3d) 402 at p. 417 (Ont. C.A.). In its study, Arrest (Working Paper 41, 1985) at p. 31, the Law Reform Commission of Canada, relying on Whitfield, supports a definition in which "physical restraint, or submission to physical restraint, is the essence of arrest and this concept is virtually synonymous with detention', custody', or imprisonment'".
[53] Here there is no evidence that Constable Shaw effected an arrest of the defendant within the meaning of the above-cited authorities. Because of their respective positions, the officer was not in a position to touch or otherwise take physical custody of the defendant. In addition, there is a paucity of evidence that Constable Shaw actually saw the defendant being arrested as opposed to simply hearing the subject of an arrest. There is simply no evidence that the defendant submitted to the custody of Constable McQuat. Accordingly, he could not have been escaping lawful custody. As a result, the defendant will be discharged on this count.
F. Counts 3, 4 – Dangerous Driving
[54] The offence of dangerous driving is set out in s.249 of the Criminal Code. The actus reus of the offence is driving in a manner dangerous to the public having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place.
[55] In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all the circumstances. The focus of that inquiry must be on the risks created by the accused's manner of driving and not the consequences, such as an accident in which he or she was involved. See R. v. Beatty, 2008 SCC 5, [2008] S.C.J. No. 5 (SCC).
[56] The mens rea requires that the degree of care exercised by the defendant was a marked departure from the standard of care that a reasonable person would observed in the accused's circumstances. The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. As noted by the law, in it is helpful to examine the question of mens rea with the following two questions:
I. In light of all the relevant evidence, would a reasonable person have foreseen the risk and taken steps to avoid it if possible;
II. If so, was the accused's failure to foresee the risk and take steps to avoid it, if possible, a "marked departure" from the standard of care expected of a reasonable person in the accused's circumstances.
[57] Mr. Stephens submits that there is sufficient evidence in respect of both counts as there is a separate body of evidence supporting both allegations. Ms. Prince submits that both dangerous driving allegations are part of the same transaction and thus a continuing offence. While I need not resolve this controversy at this stage, I am of the view that the evidence as disclosed is sufficient in respect of both counts and accordingly there should be committal on both offences.
[58] In R. v. Bell, [1982] 2 S.C.R. 471 (S.C.C), the Supreme Court of Canada considered, in the context of an importing narcotics offence, the meaning of a "continuing offence" and said:
A number of judgments have referred to the crime of importing narcotics as a "continuing offence" defined in Black's Law Dictionary, 5th ed., as a "type of crime which is committed over a span of time as, for example, a conspiracy" and as a "transaction or a series of acts set on foot by a single impulse, and operated by an unintermittent force, no matter how long a time it may occupy". Words and Phrases (Permanent Edition, vol. 9) defines a continuing offence as, inter alia, a "breach of criminal law, not terminated by single act or fact, but subsisting for definite period and intended to cover or apply to successive similar obligations or occurrences". Whether the importation of narcotics falls within the ambit of these definitions, or any of them, may be open to debate. In my opinion, however, nothing turns on the definitional niceties. So far as the outcome of this appeal is concerned, it is of no consequence whether the importation of narcotics is or is not regarded as a continuing offence.
[59] There is certainly some appeal to the submission that in the circumstances of this case, the dangerous driving allegation is a continuing offence as the offence started in the parking lot of 777 Simcoe St. and then continued on Simcoe/Wentworth streets. However, the resolution of this issue is properly within the province of a trial not preliminary hearing justice. As stated above, my jurisdiction in these proceedings is limited by the Sheppard test which requires me to commit where there is some evidence on each essential element of the offences.
[60] Here, I am satisfied that viewed objectively, the defendant's driving both in the parking lot of 777 Simcoe St. South (the methadone clinic) and thereafter on Simcoe and Wentworth streets in Oshawa constituted a marked departure from the standard of care expected of a similarly situated observer. That is, there is at least some direct evidence that the defendant's driving resulted in the attendant risks to Constable Shaw and the public at large when he accelerated haphazardly out of the parking lot and then effected a u-turn in circumstances when it would be dangerous to do so. Accordingly, the defendant will be committed on both counts.
[61] In this case, the Crown chose to particularize the dangerous driving which inevitably means that they must lead sufficient evidence in respect of both offences. It may be that the Crown chose to do so to defeat any issues of this being a continuing offence. Regardless, a trial judge may view this as an issue which offends the rule against duplicity as opposed to a continuing offence. If so, the proper remedy would be a stay of the one of the charges if both are proven pursuant to the rule in R. v. Kienapple, [1975] 1 S.C.R. 729. That is not for me to decide at this juncture.
G. Count 5 - Fail to Stop
[62] This offence is particularized to read as follows:
On or about the 24th day of November in the year 2014 at the city of Oshawa in the Central East Region, did have the car or control of a vehicle on the parking lot of 777 Simcoe Street South that was involved in an accident with another person, and with intent to escape civil or criminal liability, fail to stop the vehicle and give his name and address, contrary to section 252, subsection (1.1) of the Criminal Code of Canada.
[63] Under s. 252(1) of the Criminal Code, a person who has care or control of a vehicle involved in an accident has a three-part obligation. The person must: (i) stop the vehicle; (ii) give his name and address; and (iii) if any person has been injured or appears to require assistance, offer assistance: see R. v. Romanowicz (1998), 14 C.R. (5th) 100 (Ont. Gen. Div.); affirmed on other grounds (1999), 26 C.R. (5th) 246 (Ont. C.A.)
[64] The actus reus of this offence is, therefore, that the accused:
(1) have the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident;
(2) failed in his duty to do any one of the following three things:
i. stop the vehicle;
ii. give his name and address; or
iii. offer assistance to any injured person
[65] Where the Crown has lead some evidence that the defendant failed to stop his vehicle, it is then necessary to consider whether there is some evidence that the accused had the intent to escape civil or criminal liability. Under this section, the statutory presumption in s. 252(2) automatically applies such that:
... evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability.
[66] The presumption of intent to escape liability applies if there is proof that the accused has failed to perform any one of the duties in sub-section (2). In R. v. Roche, [1983] 1 S.C.R. 491, 3 C.C.C. (3d) 193, at p. 197, the Supreme Court adopted the Court of Appeal's reasoning that:
... s-s. (3) should be interpreted to mean that presumption arises if the accused fails to do any one of the three things mentioned ... The presumption provision does not place any onus on the accused to establish his lack of intent. The onus remains on the Crown to prove the case beyond a reasonable doubt. The presumption provision simply assists the Crown in achieving that standard of proof and is applicable only in the absence of any evidence to the contrary.
[67] An essential element of this offence, which the Crown must lead some evidence of at a preliminary hearing is the defendant's knowledge of the accident: see R. v. Slessor, [1970] 1 O.R. 664 (C.A.). In R. v. Slessor, Laskin J.A. stated at para. 37:
Two things stand out. In so far as awareness of an accident is a precondition of the obligation of a person having care, charge or control of an involved car to stop the car, it is not enough in order to raise that obligation, to find that he should have known of the accident. More important, knowledge or awareness of an accident is an element of the offence of which proof must be made by the prosecution; a person in care, charge or control of a car cannot be found guilty of a failure to stop and do the other things required by s. 221(2) if he does not know that an accident had occurred [ ... ]
[68] Knowledge of the accident is an essential element of this offence. However, there is a role to be played by wilful blindness in the case of an accused who failed to turn his mind to the possibility of an accident in spite of awareness of the need for this inquiry. This principle is summarized in R. v. Duong, 39 O.R. (3d) 161, where Doherty J.A. reviewed the authorities with respect to the doctrine of wilful blindness.
[69] In this case, there is no dispute that the defendant was in care or control of a motor vehicle when he hastily left the methadone clinic after being investigated. The real issue is whether there is sufficient evidence that the defendant knew, ought to have known or was willfully blind to the fact that "an accident" involving Constable Shaw took place. It would appear that the second aspect of the offence which places positive duties on an accused only arises when and if it is proven that an accused knows an accident has taken place.
[70] Mr. Stephens submits that the word "accident" is not defined in the Criminal Code and here there was some evidence that Constable Shaw had to jump out of the way which would lead to a reasonable inference that the defendant knew or ought to have known that he was involved in an accident. With respect, I cannot accede to this submission.
[71] Here, the only direct evidence that the defendant was involved in an accident comes from Constable Shaw who said the vehicle made contact with him. However, in his evidence, he himself was unclear what part of the vehicle made contact with him – whether it was the corner of the vehicle or the door. There is no evidence that the door was open at the time, thus it would amount to speculation that it was the door that made contact with him. If it was the corner of the vehicle, without more, it would make knowledge that an accident occurred very difficult. Unlike an open door, where it might be obvious – or an inference would arise that it would be readily apparent a driver hit somebody, the same can't be said for the corner of a vehicle. Doing so would, in my view, tread into territory of suspicion.
[72] In R. v. Osborne, [2007] O.J. No. 5255 at para 17, Harris J. wrote about the differences between speculation and reasonable inferences:
Circumstantial inferences are ones which can be reasonably and logically drawn from a group of facts established by the evidence: R. v Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209. Most cases "will involve hiatuses in the evidence which can be filled only by inference" Lameman v. Canada (Attorney General), 2006 ABCA 392, [2006] A.J. No. 1603 (C.A.) at para 87. "The process of drawing inferences from evidence is not however the same as speculating even where the circumstances permit an educated guess". USA v. Huynh (2005), 200 C.C.C. (3d) 305 (Ont. C.A.) at 307.
[73] Applying the above principles, there is simply no evidence that the defendant knew or ought to have known that his vehicle made contact with Constable Shaw. Even on a limited weighing of the evidence to support the inference that the Crown asks me to accept, it does not amount to a reasonable inference that the defendant had the requisite mens rea for the offence and accepting as much would be nothing more than speculation. This is true for two reasons. First, the positioning of Constable Shaw before and after the incident is important. He testified that he positioned himself at the passenger side when Constable McQuat was at the driver's side speaking with the defendant. When reversing a vehicle, and doing so in haste, one would not have a view of the side of the vehicle – or at least in this case, no evidence was lead on this issue. Second, when the defendant saw Constable Shaw, he was on his feet, with a pistol pointed at him, not on the floor where the inference of being struck with a vehicle would be more reasonable. In other words, the speed at which Constable Shaw was able to rise from the floor and point his pistol at the defendant serves to negative any inference that the defendant ought to have known that he had hit him with his car.
[74] The inference of intention that Mr. Stephens asks me to accept doesn't necessarily flow from the awareness that the defendant knew he had just hit the officer with his car. In this case, the inference of escaping criminal liability flows from the interaction with Constable McQuat who was trying to arrest him for a separate criminal offence. In my view, the court would have to speculate that the defendant knew or ought to have known that he was involved in an accident. Doing so would be improper given the prevailing authorities which govern my jurisdiction in these proceedings. Accordingly, the defendant will be discharged on this count.
H. Counts 7 and 10: The "Human Trafficking" Counts
[75] I have coined these two counts as "human trafficking" given their respective placement in the Criminal Code. In this case, the information as particularized allege the following:
[The defendant] between the 17th day of November in the year 2014 and the 24th day of November in year 2014 at the City of Oshawa in the Central East Region and elsewhere in the province of Ontario did exercise control over the movements of a person, namely P.E. for the purpose of exploiting or facilitating the exploitation of that person, contrary to s.279.01, subsection (1) of the Criminal Code of Canada; and
[The defendant] between the 17th day of November in the year 2014 and the 24th day of November in year 2014 at the City of Toronto in the Toronto Region did receive a financial or other material benefit, namely a sum of money, knowing that it resulted from the commission of an offence under Section 279.01, subsection (1) or Section 279.011, subsection (1) of the Criminal Code, contrary to contrary to s.279.02 of the Criminal Code of Canada.
[76] Section 279.01 of the Criminal Code provides:
279.01. Every person who recruits, transports, transfers receives, holds, conceals or harbors a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence.
[77] Exploitation is defined in s.279.04 of the Criminal Code:
279.04 For the purposes of sections 279.01 to 279.03, a person exploits another person if they
(a) cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service...
[78] Subsection (2) of s. 279.04 provides that in determining whether an accused exploits another person under subsection (1) the court may consider, among other factors, whether the accused:
(a) used or threatened to use force or another form of coercion;
(b) used deception; or
(c) abused a position of trust, power or authority.
[79] In R. v. A.A., 2015 ONCA 558, [2015] O.J. No. 4016, Watt J.A. writing on behalf of the Ontario Court of Appeal, discussed the constituent elements of the offence(s) in great detail which are instructive in this case. At paragraph 81 he wrote:
81 The conduct requirement may be established in several different ways including exercising control, direction or influence over the movements of another person.
82 The fault element of the offence consists of two components. First, the intent to do anything that satisfies the conduct requirement in s. 279.011(1). Second, the purpose for which the conduct in relation to a member of the prohibited age group is done. Specifically, s. 279.011(1) requires that the accused act with the purpose of exploiting or facilitating the exploitation of that person. The purpose element in s. 279.011(1) extends beyond the intentional conduct that is the actus reus of the offence to what could be described as the object an accused seeks to attain, or the reason for which the conduct is done or the result intended.
83 A plain reading of s. 279.011(1) without any interpretive assistance would support the conclusion that the terms "exploiting" and "exploitation" would bear their normal, natural every day meaning of taking advantage of or using another person for one's own ends. However, what is meant by "exploiting" and "exploitation" in s. 279.011(1) is informed by s. 279.04, a provision that acts like a definition.
84 While s. 279.04 defines exploitation in the context of the offence of human trafficking, the fault element in s. 279.011(1) focusses on an accused's purpose in exercising control, direction or influence over the movements of a person in the proscribed age group. It is of no moment to proof of this ulterior fault element that an accused fails to achieve his purpose.
85 In other words, no exploitation need actually occur or be facilitated by the accused's conduct for an accused to be convicted of human trafficking. A similar point was made by the Quebec Court of Appeal in R. v. Urizar, 2013 QCCA 46, 99 C.R. (6th) 370, at para. 69.
86 Thus, where human trafficking is a charged offence, the Crown needs to prove -- along with conduct and the prohibited group -- that the accused acted with the purpose of exploiting the complainant or facilitating his or her exploitation. The Crown does not need to show that exploitation actually occurred. Both exploitation and facilitation of exploitation in s. 279.011(1) relate to an accused's state of mind, his or her purpose in engaging in prohibited conduct. Said in another way, exploitation and safety relate to an accused's purpose and not to the actual consequences of the accused's behaviour for the victim.
87 To reiterate, in considering whether the offence under s. 279.011(1) is established, the analysis does not end at whether there was actual exploitation. In cases where exploitation, as defined in s. 279.04, arises from the facts, inferring that the accused's purpose was to exploit the victim will usually be a relatively straightforward task. In cases where the facts do not lend themselves to a finding of actual exploitation, the definition of exploitation in s. 279.04 informs the court's analysis of whether the accused was acting with the requisite purpose when he or she committed one of the listed acts. However, it does not become an essential element of the offence.
88 Such an interpretation is consistent with a reading of ss. 279.011(1) and 279.04 in their entire context and in their grammatical and ordinary sense. The language of s. 279.011(1) is clear in that it only requires that the accused perform a certain act with the purpose of exploiting a person or facilitating their exploitation. This interpretation is also consistent with the object of the legislative provisions, which was to criminalize a wide range of intentional conduct that has, as its purpose, the exploitation of vulnerable persons. This is achieved by enjoining preliminary or preparatory conduct, such as recruitment, and by prohibiting the destruction or withholding of documents that facilitate control over others and the profiting from exploitative behaviour.
[80] He went on to note that three conclusions emerge from a "straight-up" reading of this definition of exploitation [in s.279.04] of the Criminal Code:
(i) the expectation of the specific belief engendered by the accused's conduct must be reasonable, thus introducing an objective element;
(ii) the determination of the expectation is to be made on the basis of all the circumstances; and
(iii) the person's safety need not actually be threatened.
[81] In addition, he stated "in essence, for there to be exploitation, an accused's conduct must give rise to a reasonable expectation of a particular state of mind in the victim." At paragraphs 71-73, he explained:
71 In addition, and applying the presumption of consistent expression, the term "safety" that appears in s. 279.04 is not limited to the state of being protected from physical harm, but also extends to psychological harm: see, for example, R. v. McCraw, [1991] 3 S.C.R. 72, at p. 81; and Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 62.
72 Further, on a plain reading of s. 279.04 as it was at the time of the offence, nothing in the language of s. 279.04 excluded deception or other forms of psychological pressure from the range of behaviour that satisfies the conduct requirement in s. 279.011(1), as well as the applicable portion of the definition of exploitation in s. 279.04. While the legislation was later amended to make this point more clear, this did not change the law.
73 This interpretation is consistent with the language of s. 279.04, as well as the intention of Parliament in enacting the trafficking provisions. A review of the Minister's remarks in introducing the original Bill and the ensuing debates about this Bill and subsequent amending Bills show that the trafficking provisions in the Criminal Code gave domestic effect to principles expressed in an international convention and protocol to which Canada was a signatory. The approach was intended to be broad-based, applicable equally to individual offenders and sophisticated criminal organizations, and to capture both physical and psychological forms of exploitation.
[82] Mr. Stephens seeks committal on both counts and submits that in this case, P.E. was exploited into prostitution to support her drug habit. She was not free to leave and had to prostitute herself to earn money for the defendant. Ms. Prince submits that there is no evidence that P.E. was being exploited as she was already involved in prostitution when she met the defendant, and in any event, could have left on her devices.
[83] Applying Watt J.A.'s analysis to the circumstances of this offence, there is no question that the defendant received a material benefit, namely a sum of money, that was destined for P.E. In her evidence, she testified that she gave the defendant all her money from her acts of prostitution and in addition, recounted an incident of a planned robbery of a would be customer, wherein the defendant obtained money which would have gone to her if she completed the intended sexual act(s) on her customer. In this sense, the defendant will be committed on count 10, provided there is some evidence that he controlled, directed or influenced the movements of P.E. and had the requisite mens rea in doing so. Put differently, it would be difficult to imagine circumstances in which a conviction under count 10 could flow separately from count 7. Although the opposite may be true if there is no evidence adduced of a material benefit. Regardless, on this record, I am satisfied that there is some evidence that the defendant did receive a material benefit and acted with the purpose of exploiting P.E. which reasonably caused her to fear for her safety if she failed to provide the service of prostitution.
[84] In arriving at this conclusion, I have considered the following evidence which lead to an atmosphere of exploitation over the course of the seven days or so which is set out in the information. Put differently, it is not just one day which leads to some evidence of exploitation but rather it's the entire circumstances of the time frame which leads me to conclude that P.E. was more psychologically as opposed to physically exploited:
P.E. testified that she was addicted to crack cocaine and smoked the defendant's drugs when she first met him. The defendant she said tried to get her to "work" in Toronto, ostensibly to repay him for smoking his drugs. Although there was no specific discussion about being "repaid" for the drugs, I find that it's a reasonable inference that it was implicit in the relationship that developed over the seven days or so that P.E. was dependent on the drugs and would have to repay him by earning money, through sexual services;
Over the course of the next few days, the defendant spoke to her about getting a back-page ad to advertise herself, ostensibly for sexual services. She testified that every day, the defendant spoke to her about making money. I find that a reasonable inference arises that the defendant's purpose in doing so was to facilitate her exploitation by marketing her services to the public;
The defendant drove her from various locations and according to her, never left her side for too long. This is borne out by the surveillance at the Ontario Works office where the defendant is seen entering the office and staying with P.E. in circumstances where it would be unnecessary for him to do so as she was tending her to personal affairs. This further reinforces the inference that the defendant's purpose was to control and direct her movements to advance his purpose of exploiting her;
The defendant asked her to steal a bottle of liquor for him which she testified she had to and apparently did so. Again, this is some evidence of his means to control and direct her;
The defendant demanded that P.E. perform oral sex on him, which she did not want to do. She testified that the defendant was insistent and she felt she had to;
The defendant physically restrained her at the Shopper's Drug Mart when she tried to get away. This furthers the inference that his purpose was to exert control and influence over her movements in an effort to exploit her to perform sexual services for profit;
[85] The defendant's cell phone was seized by the police. On consent, the parties filed as exhibit 10 several pages of the text messages which on a cursory review, reveal messages consistent with offering services of prostitution. I need not refer to all the messages but on more than one occasion, text messages are received by the defendant asking him about his "rates", whether the services are "covered or bare" and any restrictions on the sexual services offered. I find that during the relevant time frame as set out in the information, a reasonable inference arises that the defendant was involved in the services of offering prostitution. Juxtaposed with this are text messages taken from Mr. Wedderberg's phone, which was used to send messages to P.E. and captured her responses when contact was made. On more than one occasion, P.E. texted him that she was trying to get home or stating "I have no way home", which supports an inference that the defendant was controlling her movements.
[86] In my view, the above pieces of evidence, clearly support the position that there is at least some evidence the defendant committed the prohibited act and his intention in doing so was to exploit P.E. Ms. Prince ably submits that P.E. was not actually exploited in this case because she was prostituting before she met the defendant. While this may be true, this ignores the fact that the industry of prostitution often blurs the lines between freedom of choice, dependency, coercive control and exploitation. As noted by Justice Hill in R. v. Johnson, 2011 ONSC 644, [2011] O.J. No. 319 (Ont. Sup. Ct.), there are elements of emotional dependency, assaultive abuse and exploitation woven into the relationship that often develops between women and predatory men who direct them into prostitution. On this record, there is some evidence of this relationship that developed over the seven days between the defendant and P.E. While P.E.'s credibility may be challenged before a jury, relying on Watt J.A. in R. v. A.A., supra, at paragraph 87, at this stage of the proceedings, I am satisfied that there is some evidence of exploitation based on the direct evidence of P.E. from which I can infer the requisite state of mind of the defendant.
[87] Given that P.E. testified that she gave all her money from her "dates" to the defendant and also spoke of the robbery in which the money she received went to the defendant, I am also satisfied that the defendant received a material benefit from exploiting her into committing prostitution.
[88] Accordingly, the defendant will be committed on both counts 7 and 10.
I. Count 9 – Forcible Confinement
[89] The offence of forcible confinement requires the Crown to lead some evidence that the defendant (i) intentionally confined P.E. and (ii) that the confinement was without lawful authority. Intentionally confining somebody means to physically restrain that person contrary to her wishes thereby depriving her of her liberty to move from one place to another. Confinement is an unlawful restriction on liberty for some period of time. It need not be in one particular place.
[90] Watt J. (as he then was) discussed the constituent elements of the offence of unlawful confinement in the case of R. v. Fatima (2006), 42 C.R. (6th) 239, a case, of first degree murder rooted in an unlawful confinement at paras. 71-74:
71 Unlawful confinement is one of three offences created by s. 279(2) of the Criminal Code. The parenthetical reference to "forcible confinement" (a somewhat inaccurate description) is a descriptive cross-reference that forms no part of the provision and is deemed to have been inserted for convenience of reference only. See, Criminal Code, s. 3.
72 An unlawful confinement under s. 279(2) involves the confinement of another person without any lawful authority on the part of the accused to do so.
73 The external circumstances of the offence of unlawful confinement consist of the confining of another person. In ordinary usage, "confinement" means the state or condition of being confined, restriction or limitation. To confine another person is to keep that person in a place, within or to limits, or a defined area, to restrict or secure that person. In other words, confinement generally consists of restraining another person's liberty, though not necessarily the other's ability to escape.
74 Under s. 279(2) of the Criminal Code, an unlawful confinement also consists of restricting the victim's liberty, but not his or her ability to escape. The restriction need not be to a particular place or involve total physical restraint.
[91] A number of cases have dealt with the length of time of confinement required to make out the offence. See R. v. Velauthan (1997), 117 C.C.C. (3d) 477 at para. 6 (Ont. C.A.) and R. v. Mullings. It is clear that the period of confinement, while unable to be definitively defined, must be "significant", more than "de minimus" but that brief periods of confinement can still qualify as confinement so long as there was a clear restriction of the person's movements. It is also possible that the existence of initial liberty can in the individual circumstances of a case develop into a state of forcible confinement.
[92] It is also clear from the case law that the actual confinement or restraint need not be by way of the application of physical force or bindings. That the physical restraint be "total" in order to constitute the offence was rejected by Cory JJ.A. (as he then was) in the decision of R. v. Gratton, [1985] O.J. No. 36 (Ont. C.A.). As Cory JJ.A. indicated in that decision at paragraph 115, "confinement generally consists of restraining another person's liberty, though not necessarily the other person's ability to escape."
[93] Furthermore, while "confinement" requires that there be some sort of physical restraint, such restraint need not be necessarily effected by physical means. The case law recognizes that the physical restraint required for "confinement" within the meaning of the section "may also be effected by non-physical or psychological means, such as by threats, intimidation or imposition of fear", which may result from an unequal power dynamic between two persons. See R. v. Kematch, 2010 MBCA 18, [2010] M.J. No. 58 (Man. C.A.)
[94] Lack of consent to the confinement is a requisite element of the offence. In the case of R. v. McIlwaine (1996), 3 C.R. (5th) 76, Proulx J.A. of the Quebec Court of Appeal at para. 15 indicated that,
15 ... forcible confinement is inconsistent with consent: if one consents to be physically confined or submits himself willingly to be restrained, there cannot be a crime of forcible confinement.
[95] In this case, Mr. Stephens submits that the incident at the Shopper's Drug Mart wherein P.E. testified that she was grabbed by both arms by the defendant in circumstances where she was trying to get away from him, provides some evidence of the offence. Ms. Prince submits that the defendant did not exert complete control over her as there were periods of time when she could have got away but didn't.
[96] Having considered the evidence, I am of the view that there is some evidence that P.E. during the time frame as set out in the information was physically restrained. As noted above, this restraint need not be completely physical rendering P.E. completely immobile. Second, P.E. testified that that this restraint was contrary to her wishes and thus the submission to the restraint was unwilling. She testified that she "never wanted to stay at all" and "always wanted to go back home [to Oshawa]" but "they wouldn't take me". While P.E.'s subsequent actions may weaken this position at trial, it is not for me at this stage to weigh her credibility on this issue. I must commit provided there is some evidence, no matter how weak or strong on this issue. I am also satisfied that there was some evidence that her liberty was also deprived rendering her unable to move from one place to another. P.E. testified that both defendants were with her "all the time". Again, while there were some breaks in the confinement, that is an issue that goes to trial, not my jurisdiction which is to commit if there is some evidence on each element of the offence.
[97] I have also considered the submission of Mr. Stephens that the defendant be committed on the assault offence based on his contact with her at the Shopper's Drug Mart. While it is possible for a set of circumstances to support both convictions, the rule in R. v. Kienapple, supra, will prevent a conviction for both offences in factual situations where the unlawful confinement was no more than required to commit the other offence. In this case, I am satisfied that the non-consensual touching of the defendant restraining P.E. as she attempted to flee at the Shopper's Drug Mart was incidental to the commission of the unlawful confinement. In other words, the incident at the Shopper's Drug Mart was simply one part of the unlawful confinement which spanned a number of days given the evidence of P.E. Accordingly, given that I am satisfied that there is some evidence on the unlawful confinement count, I will not commit on the included offence of assault as the mens rea component is lacking. I find that the defendant's intention was to confine her in the broad sense as opposed to on that one occasion.
II. Ruling on Judicial Interim Release
A. Introduction
[98] At the conclusion of the preliminary hearing, the defendant applied for bail pursuant to s. 523(2) (b) of the Criminal Code. In this sense, the onus would be on him to show cause why the detention order previously made, should be vacated. However, in this case, there was no previous bail hearing as the defendant never applied for bail. As a result, the parties agreed that the provisions of s.515 of the Criminal Code should prevail, and by virtue of the charges, the onus was still on the defendant to show why he should be released.
[99] Mr. Stephens, quite fairly submitted that the circumstances of the case did not give rise to any concerns either on the primary or tertiary grounds. Instead, he argued that the defendant should be detained on the secondary grounds as the case against him hasn't gotten any weaker and in any event, the proposed surety (his father) would not be in a position, notwithstanding his good intentions, to adequately supervise him. Ms. Prince submits that a stringent plan of release that will keep the defendant out of the jurisdiction and under the care of his father and would allay any concerns of him reoffending.
[100] For reasons that I will develop below, I agree with Ms. Prince that in the circumstances of this case, a very strict plan of release can address any concerns on the secondary grounds to ensure that the defendant does not commit any criminal offences while on release.
[101] The evidence lead on the application for bail (apart from the preliminary hearing evidence) involved the testimony of the defendant's father, Sam Surendran. Overall, I was impressed with him as a proposed surety. In my view, he not only understood his role as a surety but the plan of release proposed by him, which the defendant agreed to abide by, was one that was reasonable as opposed to fanciful.
[102] Mr. Surendran is employed by Royal Bank of Canada and does business financing for the bank. He's held this position since 1995. Importantly, he has flexible hours and has the ability to work from home when he is not attending the branch in Scarborough and Ajax, Ontario. He testified that his regular work hours are 8:00 am to 6:00 pm. He does not work on the weekends and tends to his other business, which is a Laundromat in Scarborough. That business is open 7 days a week. It's proposed that the defendant would work at this business.
[103] The defendant's father was aware of his criminal antecedents as he was a surety for him in the past. On that occasion, he pledged $10,000 in support of his release and testified that he assisted in his supervision while he was on a strict plan of release. It appeared that he did not breach a term of that bail. In particular, the defendant was bound by a curfew of 11:00 pm but was allowed to work. More importantly, the defendant's mother and ex spouse of Mr. Surendran was the principal surety and the defendant was required to reside with her – not his father. The defendant has a criminal record which on agreement of the parties was made an exhibit at the bail hearing. It has the following entries:
| Date | Entry | Sentence |
|---|---|---|
| 2009-12-23 | Armed Robbery | 2 years less 1 day (9 months pre-sentence custody), probation 3 years |
| 2009-09-03 to 2010-12-02 | Paroled Recommitted | |
| 2012-06-05 | Robbery x2 Fail to Comply with Probation Order Robbery | 2 years (9 months pre-sentence custody) 3 months concurrent 2 years concurrent |
[104] There is also a youth entry from 2007, which involved a crime of violence which I have not given considerable weight given that it's a youth entry and it's quite dated. However, I have considered his criminal record in its entirety and while not lengthy, it does cause me significant concern, especially from the period of 2009-2010 when his parole was revoked and he was recommitted to custody. Clearly, this is an important factor on whether he poses a substantial likelihood of reoffending if released. Having said this, I agree with Ms. Prince who submitted that otherwise, the record is not a complete obstacle to a release order and does not contain many entries of breaching court orders.
[105] Mr. Surendran testified that he was aware of his son's criminal record, although not all the details. When asked about the defendant's response to some of his convictions, he responded that he accepted responsibility for his crimes and on one occasion telling him "it's something that happened, I took the fall". While the defendant may have been playing down the significance of his convictions, it did not appear to me that Mr. Surendran did the same. Instead, he testified that he was disappointed with his son and realized the seriousness of the current charges he was facing. Despite this, he had visited his son while in custody and got a commitment from him that he wanted to "find his way" if released on bail. He suggested various conditions of release, which involved both a house arrest and curfew component as it was his desire to have his son work at the laundromat while living with him.
B. The Applicable Principles
[106] In R. v. Hall (2002), 2002 SCC 64, 167 C.C.C. (3d) 449 (S.C.C.) Justice Iacobcucci (in dissent) at paragraph 467 said the following about the principles of judicial interim release:
At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.
This view of liberty is reflected in s. 11(e) of the Canadian Charter of Rights and Freedoms which provides that "[a]ny person charged with an offence has the right . . . not to be denied reasonable bail without just cause". In R. v. Pearson (1992), 77 C.C.C. (3d) 124 (S.C.C) Chief Justice Lamer held that s. 11 (e) contained two distinct elements. The first is the right to bail that is "reasonable" in terms of quantum of any monetary component and other applicable restrictions. The second element, the right not to be denied bail without "just cause", means that bail can only be denied in "a narrow set of circumstances" where denial is necessary to promote the proper functioning of the bail system. Consequently, s.11(e) makes it clear that "pre-trial detention is extraordinary in our system of criminal justice." Section 11(e) guarantees a fundamental right that requires any person who is merely accused of a crime be granted bail on reasonable terms unless the Crown can demonstrate that there is just cause to do otherwise. In cases such as this, where this onus is reversed, the burden falls on the defendant.
[107] The secondary grounds for detention, which is the area of dispute in this case was discussed in great detail by the Supreme Court of Canada in R. v. Morales, [1992] 3 S.C.R.711. In that case, the Supreme Court made it clear that bail is not to be denied for individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Rather, it is to be denied only for those who pose a "substantial likelihood" of committing an offence, and only where that substantial likelihood endangers the protection of the safety of the public: see R. v. Morales, supra at para. 39. The question put another way is whether there exists a reasonably manageable risk that if the accused is released into the community under a proposed plan, that the likelihood of re-offending is not substantial: see R. v. Walton, [2005] O.J. No. 48 at para. 11 (Sup. Ct. J.).
C. Analysis
[108] On the secondary ground, I'm concerned about the overall allegations that portray the defendant as being imbedded in a pro-criminal lifestyle. I'm also concerned about his criminal record which seems to confirm this lifestyle. However, what happened in the past will be determined at his trial, should he elect to testify and be cross-examined on his record. At this stage under Section 515(10)(b), the focus is on the future. The real question is whether the defendant has demonstrated that a proper supervision plan can establish that there is no substantial likelihood that he will reoffend if released on bail. On this record, it would be difficult to conclude that there is no plan at all that could reasonably manage this risk.
[109] Overall, I was satisfied that Mr. Surendran would make a suitable surety. While Mr. Stephens submitted that there is only "faint hope" that the defendant will be effectively supervised, I find that the proposed surety has taken steps to make this hope more realistic. First, I am impressed that he attended at the detention centre and met with his son to obtain his assurances that he would follow his rules. This seems to fill the emptiness of this "hope". Second, there is a concrete plan which would involve the defendant working at the laundromat under the supervision of his father and other employees. Third, the defendant will be living with his father, as opposed to his mother who did not appear to have a firm grip on his whereabouts. Fourth, the proposed surety appears to take his role seriously. This is not only evidenced by his previous stint as a surety but also his response to finding out his son was wanted by the police. When he found out from the police that his son was being investigated for these offences, he immediately called his ex spouse (with whom his son was to supposed to be living with) to advise her. He directed her to contact the police to report that their son was not returning to her home when required to do so. On his direction, she did so. The defendant was arrested subsequently. In my view, this shows that he would take his role as a surety seriously and wouldn't hesitate to call the police if necessary. Fifth, the proposed surety indicated that he was prepared to police his son's use of a phone (both in and out of the home) and monitor his use of the computer. I accept his genuineness of his evidence in this regard which would reduce the likelihood of re-offending given the nature of these allegations. Sixth, the proposed plan would take the defendant out of Oshawa, the community in which it's alleged he's offended as he would be living in Markham.
[110] I've also considered the change in circumstances from the existing record that would have existed had the defendant applied for bail at first instance. In this sense, I've considered the strength of the Crown's case. While the case may not have weakened considerably after the preliminary hearing, there is no question that the evidence of P.E. at trial will be challenging. There very well may be issues touching upon her credibility and in some cases, her reliability. There did not appear to be any issues that impacted her safety or security while on bail and in any event, orders prohibiting contact would achieve this purpose. It didn't appear to me that P.E. would succumb to any pressures brought to bear on her while pending trial which isn't to say that there issues were raised about interfering with her evidence – as no such issues exist.
[111] I've also considered the fact that the defendant has been in custody for over 9 months, which if credited on an enhanced basis would amount to approximately 14 months. While the charges before the court are very serious, I would be remiss if I didn't consider the length of pre-trial custody as a factor, especially in light of the presumption of innocence at the stage of bail. While this presumption has to be displaced by the defendant in cases such as this involving a reverse onus, I am mindful of the dicta in Morales, supra which requires me to consider the Charter values implicit in our system of bail.
[112] Overall, I am satisfied that the defendant has met his onus and has shown cause why he should be released. Accordingly, I will order that he be released to his father, who I will name as his surety. The amount of the recognizance will be $50,000. Mr. Surendran testified that he has sufficient equity in his home. In my view, a sufficient amount is required to ensure that Mr. Surendran effectively monitors his sons' whereabouts while on bail. A meaningful amount such as $50,000 will send the message to both him and his son that any transgressions could result in estreatment proceedings with significant consequences to both of them. To address the concern on his criminal record of violating his parole, in my view, a reasonable response would mean that the defendant's liberty ought to be restricted by house arrest.
D. Conclusion on Judicial Interim Release
[113] I therefore order that the defendant be released upon signing a recognizance with Sam Surendran as his surety in the amount of $50,000 but without deposit of money or other valuable security with the following conditions:
(1) you shall keep the peace and be of good behavior
(2) appear before the court when required to do so
(3) reside with your surety each and every night;
(4) report any change in your surety's residential address within 24 hours to the Durham Regional Police Service (or designate)
(5) remain in your surety's residence daily except:
a. unless you are in the presence of your surety
(6) you are to remain in the province of Ontario unless you are in the direct company of your surety
(7) you are to deposit your passport with the Durham Regional Police Service within 72 hours of release;
(8) do not contact directly or indirectly with P.E. and Andrew Reece except as it relates to Mr. Reece only in the presence of counsel to prepare a defence; and
(9) do not possess any cell phone, pager or smartphone device.
[114] I would like to thank counsel for their assistance in this matter.
Released: September 8, 2015
Signed: "Justice F. Javed"
[1] Where reference is made to "the defendant", I am referring to Mr. Surendran given that Mr. Reece will be discharged on all counts, unless reference is made to "defendants" in plural where I'm referring to both parties.