R. v. Birtchnell, 2019 ONCJ 198

DATE: January 17, 2019

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

and

YVAN BIRTCHNELL

Decision

HEARD BEFORE JUSTICE OF THE PEACE L. PHILLIPPS

on January 17, 2019 at KITCHENER, Ontario

Appearances

J. Caskie (appearing for S. McLean) Counsel for the Crown

THURSDAY, JANUARY 17, 2019

THE COURT: I am not anticipating that Mr. Birtchnell will be here. He was invited to attend today but not required to attend. And we don’t have the information and that’s fine. He’s been released. This doesn’t change anything.

Mr. Birtchnell was the subject of an arrest and appeared in bail court a couple of days ago. The Crown and defence counsel made a recommendation to me for his release. Ultimately he was released, the only issue became the terms. Following the request of Ms. McLean, Assistant Crown Attorney, these are my reasons concerning the release conditions of Mr. Yvan Birtchnell, following a joint recommendation for release and extensive submissions from the Crown concerning terms. Those two terms would have required that Mr. Birtchnell report to police if he changes his address and that he live at a place specified in the bail.

First, the terms applied in separate conditions are in contrast. The first term would order that Mr. Birtchnell live at an address specified by the court. He would be required to vary his bail prior to moving. The second term suggests that he must let the police know if he moves. While the two terms should be read as distinct and separate, it is the experience of the court that the terms are often read by those to whom the conditions apply as being the approval of the court to change addresses by merely letting the police know. The court could, however, have satisfied this contradiction in terms if the conditions were necessary to affect a release.

Let me be clear. The court was not rejecting the joint submission holus bolus. The form of release and the most significant terms were entirely satisfactory to the court. Duty counsel advised the court that Mr. Birtchnell would comply with the extra conditions, however Mr. Birtchnell cannot waive his rights when there are bail terms that offend the principles of release as set out by the Supreme Court of Canada.

The order is not the party’s for the making, it is the product of the court and it is the court that must carry the burden of assuring the release is in keeping with all of the applicable law.

Joint submissions are not rejected lightly. This court gives them great deference and recognizes that the proper and efficient function of the justice system depends on such resolutions. The Crown took umbrage with my disapproval of the term of the undertaking that would require Mr. Birtchnell to report changes in his address to the police. This term is, quite frankly, commonplace in release orders in this jurisdiction, although it should not be. No term of release should be routinely added to bail orders with the exception to attend court as required. The reasons for this were made clear by the Supreme Court of Canada in R. v. Antic, 2017 SCC 27, 2017, S.C.C. 27.

When the court questioned the necessity of the reporting term, oral submissions were received from the Crown and duty counsel. Both agreed that Mr. Birtchnell was releasable on an undertaking with conditions and the court was in concurrence. When the Court was still not persuaded with the submissions concerning the additional conditions, the Crown sought to hold a contested bail hearing later that day, following the lunch recess, in order for the Crown to prepare for the hearing. The court granted the request.

Upon resuming court, the Crown did not proceed with a bail hearing or bifurcated bail hearing of a contested nature. Instead, the Crown made further submissions on why the court should accept the terms. I cautioned, having heard the submissions of the Crown, that a bail hearing be it contested or an uncontested recommendation of release is in fact a bail hearing and should be treated as such.

After the court alerted the parties that the terms in question were not necessary, submissions were made and a ruling was delivered. To later argue that fulsome submissions were not made because the Crown was expecting that the terms would be accepted by the court is not acceptable or appropriate. Despite this, the Crown completed the additional submissions. Essentially at that point, the court was being asked to sit in appeal of its own decision.

Mr. Birtchnell comes before the court with no criminal record and one charge of criminal harassment involving his form girlfriend Ms. McGuire. Ms. McGuire was previously charged with assault causing bodily harm against Mr. Birtchnell and this was resolved by way of a Peace Bond.

Despite this, Mr. Birtchnell has sought contact with her, which she has rejected. Police on several occasions have cautioned him for this conduct but have never laid charges before this instance. There was no evidence before the court as to the form or content of these cautions or his understanding of them.

I note that on one occasion the contact was said to be incidental. Ms. McGuire was swimming and the accused was there by chance. He said hello, they chatted about the water and the weather. This garnered a call to the police.

I don’t disagree that Mr. Birtchnell’s actions are disturbing, if the allegations are true. Things like leaving large sums of money for her, contact with her neighbours, electronic messages, especially given whatever warnings he received.

The issue is only the necessity of the conditions sought by the parties.

Rejecting a Joint Submission

The Crown relied on cases from the Superior Court which predated the decision in R. v. Antic. Essentially, the decision R. v. Findlay, 2004, O.J., No. 3263, sets out that it is “incumbent” upon the Justice hearing the joint submission at a bail hearing to impose the conditions. The decision then applies the standard, as it was at that time, “unless he or she determines that those terms are either unlawful or that they would bring the administration of justice into disrepute.”

The suggestion of a “rubber stamp” approach is rejected in the decision of Baron v. Canada, 1993 154 (SCC), 1993, 1 S.C.R. 416 at paragraph 29. It is further rejected in R. v. Antic at paragraph 68, which sets out:

Of course it often happens that the Crown and the accused negotiate a plan of release and present it on consent. Consent release is an efficient method of achieving the release of an accused and the principles and guidelines outlined above do not apply strictly to the consent release plans. Although a justice or judge should not routinely second-guess joint proposals by counsel, he or she does have the discretion to reject one. Joint proposals must be premised on the statutory criteria for detention and the legal framework for release.

I also refer to R. v. Singh, 2018 ONSC 5336, 2018, O.J. No. 4757. Quoting from paragraph 24 of that decision:

Too often, as is evidenced from some transcripts of show causing hearings coming before this court, counsel conduct themselves as though a consent bail governs the release/detention result with all that is required of the Court is a signature. At times, outright hostility is exhibited toward a presiding Justice of the Peace who dares to make inquiries, to require more information or to reasonably challenge the soundness of the submission. This is fundamentally wrong.

That was the case here. And further quoting from R. v. Singh at paragraph 25:

Exercise of the judicial function of deciding the issue of bail requires an independent and impartial judicial determination. The show cause judge is not a rubber stamp. Put differently, consent or agreement of the detainee’s counsel and the prosecution does not constitute a judicial adjudication. The court maintains a residual discretion to discharge the important obligation of balancing the liberty and public safety considerations.

That is a quote relied on by Justice Hill in that decision from R. v. Hilderman, 2006 ABCA 249, 2006, A.B.C.A 249, paragraph 17.

Referring to paragraph 26 of the R. v. Singh decision:

Undoubtedly in an era of active case management by courts and sensitivity to contribution to the collaborative effort of all system participants to reduce delay, a grievance between the parties that an arrestee is releasable furthers these objectives. That said, narration of a cryptic summary of the relevant criminal allegations, the tendering of a bald statement of consent and dictation of conditions of release by counsel to the court for sign off, without more does not generally found a judicially considered determination of bail. Indeed, this approach risks abdication of judicial responsibility.

And the court goes on to make some references to R. v. Anthony-Cook, 2016, 2 S.C.R. 2004 at paragraph 54.

In that decision the Supreme Court sets out:

Counsel should, of course, provide the court with a full account of the circumstances of the offender, the offence and the joint submission without waiting for a specific request from the trial judge. As trial judges are obliged to depart only rarely from joint submissions, there is a corollary obligation upon counsel to ensure that they amply justify their position on the facts of the case as presented in open court.

Martin Committee Report at page 329.

Sentencing, including sentencing based on a joint submission, cannot be done in the dark. The Crown and defence must provide the trial judge not only with the proposed sentence but with a full description of the facts relevant to the offender and the offence in order to give the judge `a proper basis upon which the detainee, whether the joint submission should be accepted.

The court in that case quoting R. v. DeSousa 2012 ONCA 254, 2012, O.J. No. 1709 at paragraph 15. Also see R. v. Sinclair, 2004 MBCA 48, 2004, M.J. No. 144 at paragraph 14.

And still with the decision in R. v. Singh, at paragraph 31, at the end of that paragraph the court sets out:

A show cause hearing record is ordinarily sparse. A joint submission in a bail hearing is an important consideration for the exercise of judicial discretion but rejection of the submission can occur on a principled and reasonable application of the law to the facts, without the court asking itself whether a joint submission is unhinged or whether it would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the bail system.

And the court goes on to say at paragraph 32:

I do agree, however, that when the judicial officer presiding at a show cause hearing is inclined to reject a consent bail recommendation, the court should alert the parties so that counsel can decide what further information, explanation, evidence or submissions might meet the express concerns of the court. This may necessitate an adjournment before the court provides a final decision.

And that is what we’ve done here. So, while the Crown relies on the test in R. v. Anthony-Cook, the Superior Court in the decision that I have referred to in R. v. Singh, has clarified the test to be that of a principled and reasonable application of the law to the facts. Simply, the function of this undertaking is to order Mr. Birtchnell to stay away from the complainant and not to communicate with her. That is what is necessary.

And when considering other terms proposed by the parties, I must also be satisfied that they are necessary to address concerns related to the statutory criteria for detention and to ensure that the accused is released. Bail conditions must not be imposed gratuitously or for punitive purposes.

It is insufficient in law for Mr. Birtchnell to simply acquiesce to the suggested terms. If it was, accused persons would be faced with all kinds of superfluous terms which they would agree to simply to garner release. Herein lie the reasons for the Supreme Court’s edict in R. v. Antic.

Referring to R. v. Antic 2017 SCC 27, 2017 S.C.C. 27 at paragraph 67, the court sets out at paragraph J:

Terms for release under s.215(4), may only be imposed to the extent that they are necessary to address concerns related to the statutory criteria for detention and to ensure that the accused is released. They must not be imposed to change an accused person’s behaviour or punish an accused person.

And at paragraph E:

The more restrictive the form of release, the greater the burden on the accused, thus a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention.

At paragraph 42 of that decision:

But it is the justice or judge who ultimately decides which form or release to order in a given case. And he or she also has discretion under s.515(4) of the Code to impose terms that are specific to the circumstances of the accused.

And at paragraph 44:

The ladder principle requires that the form of release imposed on an accused be not more onerous than necessary. This principle is set out in s.515(1) to (3) of the Code. Although these provisions are more strictly applicable in a contested bail hearing, they also provide the legal backdrop that should guide plans of release to which parties consent.

The Crown submits that the terms would be necessary so that the police could monitor Mr. Birtchnell. Firstly, it is not essential for the court to assist the police to monitor Mr. Birtchnell. In fact, police are granted an array of legal means to monitor people, subject to the limits of a free and democratic society.

If the police were of the belief that Mr. Birtchnell needed monitoring, they could undertake that. There was nothing in evidence to indicate that the police were of such an opinion. If there was, I would anticipate that the Crown would have opposed bail or sought a much higher form of release and would have provided the court with the necessary evidence to support the rejection of a lesser form of release as they are required to do.

Bald-faced statements, that it is important for the police to know the whereabouts of Mr. Birtchnell to facilitate the protection of the victim or public or that there was an “amount of police involvement” on prior occasions, serves of little assistance to a court considering bail conditions.

The Crown submits it is necessary to keep Mr. Birtchnell away from the complainant. I agree. Terms preventing contact or communication, directly or indirectly with her serve to prohibit contact in any way. Terms preventing Mr. Birtchnell from going within 200 metres of any place he knows the complainant to live, work, attend school or any place he knows her to be, serve to prevent him from being near her or places she might regularly be found.

A weapons prohibition is mandatory and is applied to his release. He is further prohibited from applying for authorizations or licences for weapons. Having made these orders, where does the necessity for further conditions come from? There is no record of conviction upon which such conditional terms can be justified. Nothing substantiates a finding of substantial likelihood that he will re-offend while on bail or interfere with the administration of justice.

Absent a record of breaches or other compelling evidence, I cannot assume that Mr. Birtchnell will breach my order and build in methods for the police to find him. There are absolutely no primary grounds and no suggestion of primary grounds that would require an order requiring a specific residence or reporting an address to police. In fact, the submission of the duty counsel tells the court that he has lived at his current address for many years and has no plans to move from there. There is nothing to suggest the police had experienced trouble finding him in the past.

The court when imposing bail conditions should limit the rights of persons which have been guaranteed under s.6 of the Charter of Rights and Freedoms, only in the clearest of circumstances and certainly not as a routine or as a “good to have” adjunct to necessary bail conditions. I cannot comment on his links to the community further since I have not been provided with information concerning his citizenship, employment, children or family in the area. But again, the Crown was not relying on the primary grounds, only the secondary grounds.

Section 515(10)(b) of the Criminal Code sets out where the detention is necessary for the protection and 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 these circumstances, including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.

In Ontario, the law already requires holders of driver’s licences to report their address to the Ministry of Transportation within six days of any change. I can infer from the submissions of the Crown concerning Mr. Birtchnell driving a car that he has a driver’s licence. The police have easy access to the Ministry database to check to see if Mr. Birtchnell has moved, if they were so inclined. Again, making the condition unnecessary for the monitoring of his chosen address.

There was no suggestion that an ankle-monitoring device was appropriate. It was not suggested that he report periodically to the police station. In fact, the geographic radius to stay away that was requested by the Crown, of 200 metres, was less than the court might have ordered in similar circumstances.

There was no request for or a necessity for a curfew. Had there been, terms requiring a specified address or police notification might have been necessary to enable enforcement of a curfew. And there are various other instances where the ordering of an address or notification of police terms are appropriate, many more than which can be catalogued here.

The Crown failed to show the court why the more restrictive terms of the release, those being ordering Mr. Birtchnell to live at a certain location or ordering that he notify the police of any change in his residence were necessary to accomplish the goal of this bail, which is the protection of Ms. McGuire.

Referring to R. v. Antic at paragraph 29:

Release is favoured at the earliest reasonable opportunity and on the least onerous.

And further at that paragraph:

The ladder principle generally requires a justice not to order a more onerous form of release unless the Crown shows why a less onerous form is appropriate.

The Crown, having been given ample opportunity to make submissions, failed to show the court why the more restrictive terms of the release are necessary to address the secondary ground concerns and thus I cannot impose these terms, having regard to the statutory criteria for detention.

In addition, and aside from the issue of terms, I note the following. The Crown alleged that 11 domestic occurrences had been reported to police between Mr. Birtchnell and his ex-wife, and three with Ms. McGuire. These reports were not substantiated in any way initially. Later in the day the Crown provided details on the incidents reported by Ms. McGuire, but never provided any details regarding the 11 other occurrences. The law is clear on this and is set out in the Superior Court decision in R. v. Downey, 2018, O.J. No. 6133. That decision sets out, starting at paragraph 16:

In his reasons, the justice of the peace referenced 2012, 2013, 2014 and 2015 occurrence reports. With respect to any of those reports, there was simply no basis upon which they were admissible. Those conducting bail hearings should be cautious about admitting occurrence reports with no indication regarding the source of the information and nothing to indicate why no charges were laid. The effect here was to add more fuel to the Crown’s fire that these occurrence reports did not merit.

And further at paragraph 20:

As indicated, this synopsis is a considerable way along the road from an occurrence report.

I appreciate that s.518 also refers to other relevant information but many of these occurrence reports were irrelevant. To ask the justice of the peace to consider the applicant’s pattern of abuse of women is to elevate occurrence reports to convictions where there were no charges.

And at paragraph 21:

Accused person facing a bail hearing should be prepared to address the admissible evidence, his or her criminal record and outstanding charges. In some cases, where there is some indication of an admission or the basis of the report, it may be that uncharged incidents will be linked to the offence or complainant, as occurs in some domestic assault cases. And that they may be admitted provided there is an opportunity to assess what weight can be given to them as opposed to bald statements. But, they should not be routinely admitted simply because they are occurrence reports and nothing more.

And at paragraph 22:

They would never be admissible for the truth of their contents at a trial. The reliability is suspect and cannot be tested. Indiscriminate use of occurrence reports provides a real risk that the bail hearing gets skewed by allegations that cannot be tested at the hearing.

The inclusion of these at Mr. Birtchnell’s hearing was improper and prejudicial. This completes the decision of the court.