Court Information

Ontario Court of Justice

Date: March 13, 2017

Court File No.: Toronto

Between:

Her Majesty the Queen

— and —

Pawal Sledz

Before: Justice Nakatsuru

Heard on: March 8, 2017

Reasons for Judgment released on: March 13, 2017

Counsel:

• K. Beale, counsel for the Prosecution
• B. Petrouchinova, counsel for Pawal Sledz

Reasons for Judgment

NAKATSURU J.:

[1] Mr. Sledz is a Mohawk accused. He is facing some very serious charges. Along with two other men, he is alleged to have committed a gang sexual assault on a young woman late at night in downtown Toronto. Mr. Sledz has spent many months in jail waiting for his trial. On March 8, 2017, I was sitting in Gladue court. I released him on his own bail.

[2] At the time, I told you, Mr. Sledz, I would write this decision to explain more fully why I did this. I also hope this decision will explain to others why I believe your unique background as an indigenous accused made this the right thing to do.

[3] Before I do, I need to point out that there is no ban on the publication of the evidence heard at this bail hearing. No one asked for one. I did not make one. However, you and your co-accused have not yet had your trial. Therefore, I will not say anything in this decision that might prejudice your right to a fair trial. I will also say nothing that might identify the young woman.

Background and Procedural History

[4] First of all, I will talk about how you got to this bail hearing. It is different from the usual case. Right now, you and one of your co-accused are in the middle of your preliminary inquiry. The other co-accused who was arrested months before you, is set to face his trial before a judge and jury in May. The Crown intends to join all of you together at this trial, when you are committed to stand trial at your preliminary inquiry. As I understand from your lawyer, your defence will be an alibi.

[5] You have only asked for bail now. Within the past month, both your co-accused have received bail. I will say more of this later. Your lawyer argues that it would be unfair to keep you in jail while your co-accused have gotten bail.

[6] The onus is on the Crown to show why you must be detained in custody. She argues your detention is necessary for the protection and safety of the public and to maintain confidence in the administration of justice.

Personal Background and Circumstances

[7] You testified at this bail hearing. I learned more about who you are. You are 33 years old. Single. You have a difficult past. I will just say that you have a long history that is very relevant for a bail hearing. I will not say more about this for the reasons I have given before. The Crown naturally focused on this. The Crown also focused on the need to protect the young woman from you.

[8] Your father is Polish. Your mother was Mohawk. She died while giving birth to you. You do not have any brothers or sisters. From birth, you lived in an orphanage for 9 years. Then placed in a number of foster homes. You were adopted by a Polish couple. But you returned to CAS care. You only met your father a couple of times. When you were an adult. They were hard meetings. You have described him as a racist. It is clear to me that there is no relationship between you and him. I am not sure there ever will be. It is at one of those meetings, your father told you about your indigenous background. It explains your dark complexion. It explains why your face looks the way it does. Since then, you say you have found some aunts from your mother's family. But you are not ready to contact them yet. I can understand that.

[9] You get Ontario Disability Support Program payments for anxiety and depression. You have an apartment that the program pays the rent. You are not sure whether you still have that place. You hope you do. That is where you plan to return when released. You have issues. Any treatment or help you have gotten has not been a complete success.

[10] The plan your lawyer has given me is a Toronto Bail Program release. In other words, you would be released on your own bail with the Toronto Bail Program supervising and helping you. You have no one to act as a surety. Given your past, I can understand why you have no one in the world to come forward for you. It is sad. But it is your reality. I don't know much about you, but I get it. I get why you have no one willing to take on that job for you. Perhaps there would have been before. But not now.

Comparison with Co-Accused

[11] Your co-accused had very different bail hearings. Although the Crown argued against their release, they got it. I think this was because of the people who came forward for them. For one, his parents came forward. For the first time, this co-accused went to them with a changed attitude. He asked for their help. The family got on board. He was released to them under tight conditions. Including only being out in their direct company. Even then, the Crown reviewed the decision to release him. The Superior Court rejected the Crown review. It agreed with the decision to release.

[12] Your other co-accused's mother and aunt came forward. The aunt had a solid public service job. He was released on a house arrest bail. But the mother and aunt pulled the bail. This co-accused had gone to the gym without tell his sureties. However, the mother and aunt agreed to act again after a number of months served in pretrial custody. They were back on board. And he got released again. Even though the Crown argued against his release.

[13] Your situation Mr. Sledz is different. Due to your life circumstances, there is no one on board for you. You are taking this journey alone. That is the key difference between you and your co-accused. The crimes you are alleged to have committed are the same. You all share similar backgrounds in a certain relevant way. Indeed, one co-accused who is alleged to have taken a greater role in the gang sexual assault, has a background that is even more relevant than yours. The evidence against you and your co-accused is similar. Indeed, for one co-accused, it is stronger. When I look at this case, I am struck by this key difference. Your co-accused have people. They are out on bail. There is no one for you. You remain in jail.

Legal Analysis: The Surety Question

[14] Now Mr. Sledz, in bail cases, sometimes this happens. A person has no surety. This can be important in deciding if I can make a release order. If the only way I can be satisfied that the test for bail is met is that there is a surety, then there can be only one right decision. No surety. No bail. It does not matter whether the accused is indigenous or not.

[15] But when an accused is indigenous, I must think carefully about what having no surety available means to my decision. I have no doubt that your childhood has led to where you are now in life. You had no stability. You were taunted. You were subject to racism. You had no true identity of who you were. No doubt, there were some good and kind people who did their best for you. But I think you did not receive the love and nurturing needed. To grow up straight. To have good people in your life. Who took the time. Who meant something to you. Then and now.

Indigenous Context and Systemic Factors

[16] As an indigenous person, you share a history. A common history with others. A history of being here on this land before the settler. A history of broken promises. Of illness and death. The loss of land. The indignity of colonization. Then there is the history of some deliberate state policies that tried to commit cultural genocide of indigenous people. Said crudely but accurately, policies that tried to kill the Indian in the Indian. As Canadians, we are all becoming more knowledgeable and sensitive to this history. And what it means.

[17] This common history sometimes has greater meaning when it comes to the personal history of someone like you. That history has led to too many children in care of the state. Too many children divorced from their indigenous identity. Too many children who find themselves going from care to crime. Some of those children grow up to be adults who live at the margins of society. In poverty. Without much opportunity or connection. They are not embraced by the community. They do not have the friends and the family that the luckier of us take for granted. These are the friends and the family that can come forward to help. Like when you are accused of a serious criminal offence. This is you, Mr. Sledz.

[18] There is a disproportionate number of indigenous persons in jail. That means sir that too many indigenous persons compared to their overall population in this country find themselves behind bars. Too often this starts at the pretrial stage when they cannot get bail. Finding a solution means we must start at the bail stage. We must look at each case. We must carefully look at the unique situation of each indigenous person. And we must try to find an answer. Even when that answer is hard to find. Just as a surety may be hard for you to find.

[19] In this case, the difference between you and your co-accused is stark. They have family. You do not. Their family bailed them out. No one is here for you. They are out. You are in.

Application of Bail Test

[20] So when I look at your case and ask myself whether detention is the only answer, I must be mindful that I do not want to become part of the problem. Of course, it would be perfect if you had perfect sureties. But I believe there is a way you can be safely released. You and the young woman do not know each other. There was a period of some seven months after the alleged attack and before you were identified and arrested that you were out, free in the city. At no point during this time, did you bother this woman or try to seek her out, let alone cause her any harm. There is nothing in your personal history related this type of alleged sexual offence. No one suggests that you are some form of serial sexual predator. The Toronto Bail Program is willing to supervise you. They will offer you help as well. You will only be on bail for three months before you face trial along with your co-accused. Your indigenous identity has meaningfully contributed to the situation where you have no surety. No one to stand beside you. Given all this, I find that Crown has not shown why you must be detained. The Crown has not shown it to be necessary for the safety and protection of the community. To give you this release will further the goal of solving the evil that is the over-incarceration of indigenous people without sacrificing the goals of the bail law.

[21] The final test is whether the Crown has shown your detention is necessary for the public confidence in the administration of justice. This is a test that sounds very lawyerly. I don't need to explain it any further to you. This is because your co-accused met this test. They are the same as you in many ways. One co-accused met this test even though his situation in some ways was worse than you. That person's bail was confirmed by a higher judge than me. I find that the Crown has not shown why you must be detained for this reason.

Disposition

[22] So Mr. Sledz, I released you on your own bail with the Toronto Bail Program watching you and with some tight conditions including a curfew. I hope this written decision sheds more light into why. I hope this decision also tells others why in some cases, the indigenous accused must be treated differently than other non-indigenous accused. I believe this is the right thing to do.

Released: March 13, 2017

Signed: Justice S. Nakatsuru