WARNING

The court hearing this matter directs that the following notices be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) of the Criminal Code. This subsection and subsection 517(2) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

517. ORDER DIRECTING MATTERS NOT TO BE PUBLISHED FOR SPECIFIED PERIOD

(1) If the prosecutor or the accused intends to show cause under section 515, he or she shall so state to the justice and the justice may, and shall on application by the accused, before or at any time during the course of the proceedings under that section, make an order directing that the evidence taken, the information given or the representations made and the reasons, if any, given or to be given by the justice shall not be published in any document, or broadcast or transmitted in any way before such time as

(a) if a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or

(b) if the accused in respect of whom the proceedings are held is tried or ordered to stand trial, the trial is ended.

(2) FAILURE TO COMPLY

Everyone who fails without lawful excuse, the proof of which lies on him, to comply with an order made under subsection (1) is guilty of an offence punishable on summary conviction.

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.5(1) or (2), read as follows:

486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES

(1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) JUSTICE SYSTEM PARTICIPANTS

On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) OFFENCES

The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) LIMITATION

An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: August 29, 2019

Between:

Her Majesty the Queen

— AND —

A.N.

Before: Justice of the Peace J. Scarfe

Heard on: August 21, 2019

Reasons for Judgment released on: August 29, 2019

Counsel:

Santora P. — Counsel for the Crown

Mergler P. — Counsel for the accused, A.N.

Reasons for Judgment

JUSTICE OF THE PEACE J. SCARFE:

Introduction

[1] A.N. is before the Court seeking an order of Judicial Interim Release.

[2] His current charges include two counts of Failing to Provide the Necessaries of Life to a person under the age of sixteen, two counts of Criminal Negligence Causing Bodily Harm, two counts of Forcible Confinement, three counts of Assault, twelve counts of Assault Causing Bodily Harm and twelve counts of Assault with a Weapon.

[3] A.N. has no criminal record and no outstanding charges.

[4] The onus in this hearing is on the Crown.

[5] The Crown seeks A.N.'s detention on the primary, secondary and tertiary grounds.

The Allegations

[6] The allegations speak to a lengthy period of child abuse directed at A.N.'s two sons, now aged thirteen and sixteen. The allegations span a period of approximately three years, beginning shortly after A.N. and his sons arrived in Canada on August 31, 2016 until the date of his arrest on June 12, 2019.

[7] With the consent of defence counsel, the Crown filed a four page summary of the allegations which are now an exhibit in these proceedings.

[8] When A.N. came to Canada from Mexico during August of 2016, he was sponsored by his second wife, A.V.J. She is a Canadian Citizen. She is also his co-accused.

[9] A.N. brought his two sons from a previous marriage. They were thirteen and ten years old, respectively, when they arrived in Canada. The three of them joined A.V.J., along with two of her children, also from a prior marriage. They have since had a fifth child together, who was approximately five months old on the date of their arrest.

[10] The matter came to the attention of the police as a result of the older of A.N.'s sons escaping the home one evening. This occurred after A.N. and A.V.J. attempted to hang him from the rafters in their basement by his ankles as a form of punishment.

[11] He saw an opportunity to escape and left the house around midnight on June 11, 2019. He hid under a car until the morning at which time he took a bus to a library and waited for it to open. From the library, he made contact with his biological mother in Mexico through Facebook. She then contacted her mother (the older son's grandmother) who lives in Toronto. The grandmother picked him up at the library and brought him to the police.

[12] The older son provided two statements to the police. His younger brother provided at least one statement. They both explained that upon their arrival from Mexico, they moved in with their father's new wife, A.V.J., along with two of her children. Within a short period of time, A.V.J. became very controlling in respect of the household. She labelled both of A.N.'s children as "lazy" and "bad children."

[13] In response, she and A.N. began assaulting both of his sons. These assaults included hair pulling and slapping. Soon, the assaults escalated to beatings with a belt and several other weapons.

[14] Over time this escalated to the point that both boys were regularly punished by their father and their stepmother. The physical and psychological abuse was significant, and very cruel.

[15] On more than one occasion, A.N. is alleged to have used pliers to pinch the skin of both sons, including the fingers. He would pull at the skin until the boys thought that their skin would tear off. On one occasion, and with the encouragement and prompting of A.V.J., the accused used the pliers on his older son's penis, albeit over his clothes.

[16] Both boys were subject to numerous assaults perpetrated by their father and stepmother involving the use of various household items as weapons, including BBQ tongs, spoons and hammers. In addition, the boys alleged their father would whip them with cable TV cords and burn them with knives that had been heated up. The older son alleges that he was forced to place his hand on a hot stove element, causing significant burns.

[17] Both the accused and the boy's stepmother are alleged to have used several other severe forms of punishment. The children were forced to go outside during the winter months and do "laps" with nothing more than a pair of shorts on. They were hung from their hands or feet from the rafters in the basement with cable or rope, where they would be left for hours at a time. Both the accused and A.V.J. would heat water on the stove and make the children put their feet in it, causing significant burns to their skin.

[18] The children were deprived of food and sleep. They were threatened with violence. They were forced to lie about the cause of their injuries when confronted by school officials or Children's Aid workers. A.V.J. told the children that she had killed someone in Mexico, and that nobody ever got away from her.

[19] The summary of the allegations filed as an exhibit with the Court goes into substantially more detail than bears repeating here. To summarize, both boys were subjected to a campaign of physical and psychological abuse over a period of approximately three years at the hands of both A.V.J. and their father, A.N. They were threatened and manipulated to lie about the cause of their significant injuries to anyone who asked.

[20] A series of photos taken inside the home during the execution of a search warrant were filed with the Court. Another series of photos were submitted showing the physical injuries to A.N.'s older son. Those photos go a long way to corroborating the allegations of abuse.

[21] The photos taken of the home include photos of a lock on a kitchen cupboard, knives with burn marks and ropes with loops hanging from the rafters in the basement. The photos of the injuries to the older son show a series of burns, lacerations as well as ligature marks around the ankles consistent with being hung upside down with ropes.

[22] In fairness, the Crown advised the Court that when the older son gave his original statement, he attempted to exonerate his father to a limited extent, or at the very least, minimize his involvement. This included the suggestion that, at some point, A.N. attempted to stop the abuse.

[23] At one point, A.V.J. assaulted A.N. with a knife. At this point in the hearing, A.N. held up his arm and showed the Court a scar on his right forearm. The older son told the police that he had witnessed A.V.J.'s attack on A.N. with a knife.

[24] The Court also heard that A.V.J. threatened to have A.N. deported, suggesting that his inaction in stopping the abuse was, in part, related to him feeling vulnerable as a result of this threat. In fairness, the Crown pointed out that once A.N. was granted status as a permanent resident, as a matter of Canadian immigration law, he was no longer vulnerable to deportation simply as a result of A.V.J. withdrawing as his sponsor.

[25] When the older son was re-interviewed a second time, he was substantially more forthcoming about the extent of his father's direct role in perpetrating the abuse. The younger son gave at least one statement which, to a great extent, corroborated the second statement of his older brother.

[26] There were three other children residing in the home, that being A.V.J.'s two children from a previous marriage, and later, the now five-month old son they had in common. Neither the child in common, nor A.V.J.'s two children were subject to any of the abuse suffered by A.N.'s two sons.

[27] Since the date of their arrest, the children have been in the care of the Children's Aid Society, and A.N.'s sons are being cared for by their maternal grandmother, with the supervision of the Children's Aid Society. I am advised that while A.V.J. was initially released on bail, further investigation led to the laying of more charges. A.V.J. was re-arrested. She has since been ordered detained in custody pending the trial of these charges.

The Accused

[28] A.N. is forty years old. He first came to Canada in 2008 as a refugee claimant, along with his two sons. His claim for refugee status was eventually denied, and he and his sons were eventually deported back to Mexico in 2010. At some point after that, A.N. married A.V.J. in Mexico. He subsequently re-applied to immigrate to Canada with A.V.J. acting as his sponsor. On August 31, 2016, he and his two sons came to Canada. They retain their status as Permanent Residents.

[29] A.N. testified at his bail hearing. He advised the Court that in March of 2017, he commenced an education program with Trios College in Toronto studying web development, which he completed in August of 2018. He testified that the program ran five days per week (Monday to Friday) from approximately 8:00 a.m. until 2-3:00 p.m. each day.

[30] Following completion of the program, A.N. completed an internship program with a company called Tech Top. The daily schedule was very similar to that of the college program, running five days per week from approximately 8:00 a.m. until 2:00 p.m. The internship program ran from September to December, 2018.

[31] A.N. began a second educational program with the Academy of Learning. This program commenced at the end of February 2019. He attended that program until his arrest in mid-June of 2019. He has been in custody since that time pending this hearing.

[32] In addition to the educational and internship programs, A.N. advises he worked most nights as a washroom attendant at various nightclubs in downtown Toronto. He listed a number of nightclubs that he worked for. According to him, this work would typically run from Wednesday to Sunday, commencing at approximately 7:30 p.m. until 3:00 a.m. each night. He advises he began this work approximately two months after he arrived in Canada, and continued until his arrest on these charges.

[33] A.N. was asked by his counsel if he ever possessed keys to the family home where he and his sons resided with A.V.J. and her children. He responded that he was never given any keys. Sometimes his wife would leave the door unlocked, and at other times he would have to knock to get in.

[34] He was also asked by his counsel if he ever left the home with his two sons. He responded that sometime during the summer of 2017, his wife kicked them out, and they spent a weekend in a homeless shelter.

[35] A.N. told the Court that during the time he lived with A.V.J., there were many occasions where his wife would pick a fight with him, get angry and refuse to let him in the house. On many of those occasions he would simply leave and go to a place such as a twenty-four-hour McDonald's restaurant until such time as his wife was prepared to let him back into the house.

The Plan of Release

[36] A.N. has been approved by the Toronto Bail Program. He has no surety. He asks the Court to release him on his own recognizance. He advises he has no savings, as all the money he earned was given to his wife. As a result, he proposes I release him on a recognizance in a very modest amount.

[37] If released, he would be required to report to his bail supervisor as directed and reside at an address approved of by his bail supervisor. He would be required to attend for an assessment, counselling or rehabilitative programs as directed, and sign any necessary releases that would allow his bail supervisor to monitor his progress in said programs.

[38] A.N. has been in custody for over two months now. He advised the Court that he has nobody in his life here in Canada willing to come forward and sign bail for him.

[39] If released, he indicates that he would spend the first two nights at a shelter. Following that, he hopes to move into an apartment with someone who he met in jail. He believes that the friend who helped him obtain employment at various nightclubs would be able to help him find similar work again.

[40] He understands that if released, he would not be permitted to have contact with any of his children, A.V.J. or anyone providing care to any of the children. He promised that he would immediately surrender his passport or any travel documents to the police, and not apply for a new passport or travel documents. He indicated that he would not return to the address, except once in the company of a uniformed police officer to obtain his belongings.

General Principles

[41] The guiding case in this Crown onus bail hearing is R v Antic, 2017 SCC 27, 1 S.C.R. 509. As Justice Wagner so eloquently stated in the opening paragraph:

The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons.

[42] While the appeal in Antic, supra, arose out of the incorrect imposition of a cash bail, the Supreme Court of Canada took the opportunity to clarify the general approach to be taken in a contested bail hearing when the onus is on the Crown. For ease of reference, paragraphs 64-67 of the decision reads as follows:

D. Proper Approach to Bail Moving Forward

64 Settling the proper interpretation of s. 515(2)(e) and the scheme governing the forms of release does not resolve one concern that underlies this case. The bail review judge's errors appear to be symptomatic of a widespread inconsistency in the law of bail. One commentator, Kent Roach, observes an element of incongruity in the bail system: "although the Charter speaks directly to bail, the bottom line so far has been that remand populations and denial of bail have increased dramatically in the Charter era": K. Roach, "A Charter Reality Check: How Relevant Is the Charter to the Justness of Our Criminal Justice System?" (2008), 40 S.C.L.R. (2d) 717, at p. 727.

65 Despite the fact that the Code applies uniformly across the country some have suggested that courts are applying the pre-trial forms of release differently in different provinces and territories. For instance, Rosenberg J.A., writing for a unanimous five-judge panel of the Court of Appeal for Ontario, recognized that "[t]here may now be an over reliance on sureties" in that province: Mirza, at para. 47; see also Canadian Civil Liberties Association and Education Trust, Set Up to Fail: Bail and the Revolving Door of Pre-Trial Detention, by A. Deshman and N. Myers (2014) (online), at p. 36 ("CCLA Report"); M. L. Friedland, "The Bail Reform Act Revisited" (2012), 16 Can. Crim. L.R. 315, at p. 321; R. v. Rowan, 2011 ONSC 7362 (Ont. S.C.J.), at para. 16. Surety release may also be relied on heavily in Yukon: CCLA Report, at pp. 35-36. In Alberta, some judges and justices are improperly imposing cash bail without seeking the consent of the Crown even though doing so is prohibited by the Code: R. v. Folkes, 2007 ABQB 624, 430 A.R. 266 (Alta. Q.B.), at paras. 2 and 13; Brost, at para. 32; N. L. Irving, Alberta Bail Review: Endorsing a Call for Change (2016) (online), at p. 20. These examples suggest a divergence in the law of bail across this country.

66 It is time to ensure that the bail provisions are applied consistently and fairly. The stakes are too high for anything less. Pre-trial custody "affects the mental, social, and physical life of the accused and his family" and may also have a "substantial impact on the result of the trial itself": Friedland, Detention before Trial, at p. 172, quoted in Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857, at para. 24; see also Hall, at para. 59. An accused is presumed innocent and must not find it necessary to plead guilty solely to secure his or her release, nor must an accused needlessly suffer on being released: CCLA Report, at p. 3. Courts must respect the presumption of innocence, "a hallowed principle lying at the very heart of criminal law... [that] confirms our faith in humankind": R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 119-20.

67 Therefore, the following principles and guidelines should be adhered to when applying the bail provisions in a contested hearing:

(a) Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutional right to bail.

(b) Section 11(e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms.

(c) Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1).

(d) The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, "release is favoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerous grounds": Anoussis, at para. 23. This principle must be adhered to strictly.

(e) If the Crown proposes an alternative form of release, it must show why this form is necessary. 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.

(f) Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms.

(g) A recognizance with sureties is one of the most onerous forms of release. A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.

(h) It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are able to pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and has the same coercive effect. Thus, under s. 515(2)(d) or 515(2)(e), cash bail should be relied on only in exceptional circumstances in which release on a recognizance with sureties is unavailable.

(i) When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectively amounts to a detention order, which means that the amount should not be beyond the readily available means of the accused and his or her sureties. As a corollary to this, the justice or judge is under a positive obligation, when setting the amount, to inquire into the ability of the accused to pay. The amount of cash bail must be no higher than necessary to satisfy the concern that would otherwise warrant detention and proportionate to the means of the accused and the circumstances of the case.

(j) Terms of release imposed under s. 515(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 can be released. They must not be imposed to change an accused person's behaviour or to punish an accused person.

(k) Where a bail review is applied for, the court must follow the bail review process set out in St-Cloud.

[43] The presumption of innocence, the right not to be denied reasonable bail without just cause, the ladder principle and the principles set out in the above passage guide me in my approach to this hearing.

Primary Ground

[44] The Crown argues that A.N. ought to be detained on the primary ground. She suggests that a release on his own recognizance with the assistance of the Toronto Bail Program is insufficient to address the very real primary ground concerns.

[45] She points out that A.N. was already removed from Canada in 2010. He is a Mexican citizen and could likely return there, even without a passport or travel documents. She points out that these are serious charges and submits that the evidence against A.N. is very strong. If convicted, he would likely face a lengthy period of incarceration, followed by immediate deportation from custody once he became eligible for parole. She suggests that anyone in A.N.'s position would be highly motivated to flee the jurisdiction of the Court to avoid such an outcome.

[46] Interestingly, the Crown submits that given his lawful return to Canada as a Permanent Resident, he is more likely to abscond the jurisdiction of the Court, but remain in Canada, given his demonstrated determination to live here as opposed to Mexico.

[47] She points out that A.N. has few, if any friends here in Canada. If found guilty, he is unlikely to ever see his children again. This, combined with his lack of any real ties to the community, is a strong factor weighing in favour of detention on the primary ground.

[48] Defence counsel argues that A.N. has no criminal record or outstanding charges. He came here lawfully in 2016. There are no antecedents or history that would suggest he would not attend Court as required should he be released. While someone in A.N.'s position might be motivated to flee the jurisdiction to avoid prosecution and deportation, this amounts to nothing more than unfounded speculation. He argues that the Crown has not met its onus on the primary ground.

[49] While I agree in principle with the submissions of defence counsel, I find that due to the serious nature of the charges, a release on his own recognizance to the Toronto Bail Program is insufficient to address the Crown's legitimate primary ground concerns. If there was a friend or relative who knew him well, and who was willing to pledge a significant sum of money as part of a recognizance with sureties, he would be releasable on the primary ground.

[50] While the Toronto Bail Program is, in some cases, more effective than many proposed sureties that come before this Court, this is not one of those cases. While the Toronto Bail Program can assist him in finding a new residence, once he is settled he will likely be required to report to his bail supervisor weekly, or even bi-weekly. There is nothing about his antecedents that suggest he would benefit from any of the rehabilitative programs that would be available to him as a client of the Bail Program beyond his need for immediate housing. A weekly "check-in", with nothing more, would provide little in the way of motivation for him to remain within the jurisdiction of the Court.

[51] If, as the Crown suggests, he were to flee to another province and start a new life there, any condition requiring him to surrender his passport and travel documents would do little to stop him. Given his lack of ties to the community, the seriousness of the charges and the possibility of a lengthy term of imprisonment followed by immediate deportation, as well as the lack of any financial incentive to remain within the jurisdiction of the Court, I find that the Crown has met its onus on the primary ground.

[52] Again, if A.N. had come before the Court with a proposed surety prepared to pledge a significant sum, and willing to provide a more thorough plan of supervision, applying the ladder principle as set out in Antic, supra, I would have found that the Crown had not met its onus on the primary ground.

Secondary Ground

[53] Any concerns on the secondary ground arise solely from the nature of the current allegations before the Court. The victims in this case were particularly vulnerable because they are his children. They are now being cared for by a family member, with the involvement and supervision of the child welfare authorities. There is nothing in A.N.'s history or antecedents to suggest that he would be likely to victimize anyone else. Any danger that he might be tempted to interfere with the prosecution of these charges, or somehow intimidate his children to change their story, can be addressed with appropriate conditions.

[54] In the case of R v M.B. and D.L., 2012 ABPC 198, a decision of S.E. Richardson Prov.J. of the Alberta Provincial Court, reported at 2012 ABPC 198, and upheld on review by T.D. Clackson J. of the Alberta Court of Queen's Bench at 2012 ABQB 692, a case with many factual parallels to the case at bar, Justice Richardson stated at paragraphs 29-32:

Secondary Ground

29 The secondary ground contains a number of considerations. Under s. 515(10) it relates to:

• Protection or safety of the public,
• Protection or safety of any victim,
• Protection or safety of any witness,
• Protection or safety of minors,
• Any substantial likelihood that the accused will commit a criminal offence if released, and
• Any substantial likelihood that the accused will interfere with the administration of justice if released.

All these considerations must be made "having regard to all the circumstances".

30 These offences are alleged to have occurred over a lengthy period of time, under the cover of domestic privacy, with both adult accused having control over the life sustaining care giving required for pre school aged children.

31 If released they propose to resume living together and avail themselves of access to their son as permitted by Child Welfare authorities.

32 Although the Crown opposed release on the secondary grounds, I cannot find that they have met their onus of demonstrating that any of the enumerated secondary ground considerations exist. These allegations are domestic in nature, directed toward the children of the accused. The accused have not had any previous involvement with law enforcement. They have no criminal records. Given the Child Welfare involvement and the apprehension of the three children, any secondary ground concerns about protection or safety of victims, witnesses or minors can be satisfactorily addressed.

[55] The onus on the Crown respecting the secondary ground is a high one. For reasons similar to Justice Richardson's set out above, I find that the Crown has not met that onus based on the evidence before me.

Tertiary Grounds

[56] The modern approach to the proper application of the tertiary grounds in a contested bail hearing was clarified by the Supreme Court of Canada in R v St-Cloud, 2015 SCC 27 at paragraphs 87 and 88. Justice Wagner summarized the essential principles as follows:

87 I would summarize the essential principles that must guide justices in applying s. 515(10)(c) Cr.C. as follows:

• Section 515(10)(c) Cr.C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.

• Section 515(10)(c) Cr.C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.

• The four circumstances listed in s. 515(10)(c) Cr.C. are not exhaustive.

• A court must not order detention automatically even where the four listed circumstances support such a result.

• The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.

• The question whether a crime is "unexplainable" or "unexplained" is not a criterion that should guide the analysis.

• No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.

• This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).

• To answer this question, the court must adopt the perspective of the "public", that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.

• This reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

88 In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered.

Apparent Strength of the Prosecution's Case

[57] Before detention can be ordered, the Court must consider all the circumstances of the case paying special attention to the four enumerated factors set out in section 515(10)(c). The presumption of innocence must be kept at the forefront regardless of the strength of the Crown's case, the gravity of the offences charged, the circumstances of the offence and the likelihood of a lengthy period of incarceration.

[58] When considering the apparent strength of the prosecution's case, a justice presiding at a bail hearing or bail review must be mindful of the fact that the hearing is not a trial. While the justice must assess the apparent strength of the prosecution's case based on the evidence before it, including any potential defences, the Court must be mindful that the expeditious and informal nature of the bail hearing makes the assessment of the apparent strength of the Crown's case particularly difficult.

[59] Due to the relaxed rules of evidence at a bail hearing, there is a substantial risk that the case may appear stronger than it is at this early stage. As Justice Jackson of the Saskatchewan Court of Appeal stated in the decision of R v Blind, 139 C.C.C. (3d) at paragraph 87:

There are also many cases where the strength of the Crown's case appears, at the pre-trial stage, to be overwhelming only to have it unravel as the trial progresses.

[60] In A.N.'s case, there is some possibility that with time, there will be some unravelling of the kind referred to by Justice Jackson. Special considerations apply when dealing with child witnesses. Children recall details differently than adults because their brains are not as developed as those of adults. The differences between the first and second statements provided to the police by the older son is, to use the words of Mr. Mergler, defence counsel for A.N., "fertile ground for cross-examination."

[61] A.N. told the Court that during much of the three years he was living with A.V.J., he was absent from the home attending school or working. Defence counsel also pointed out that, as the two boys were not A.V.J.'s biological children, she was more likely to bear animus towards them than he was.

[62] While these are important factors, the court must be mindful not to engage in unwarranted speculation, or to conclude that these facts, on their own, would be sufficient to raise a reasonable doubt as to A.N.'s culpability.

[63] Both children have implicated A.N. in their statements to the police. In many important respects they corroborate each other's versions of events. Those versions are also corroborated by physical evidence, including the photos of the injuries and the photos taken inside the home.

[64] The children are now ten and thirteen years old. Their ability to recount events at that age is significantly better than in the case of a child aged five to ten years, or younger. That the older child initially attempted to minimize his father's role is understandable, given the relationship of trust and dependence. The fact that he was more forthcoming, and willing to implicate his father in specific instances of abuse during his second statement to the police is also understandable.

[65] Given the extent of the injuries depicted in the photos of the older son, it is difficult to imagine that A.N. was absent and generally unaware of any of the abuse, especially given that it is alleged to have been perpetrated for a period of almost three years.

[66] While I cannot predict what will ultimately happen at trial, at this early stage, even considering the facts raised by defence, I find the Crown has laid a solid foundation to support a finding that the case against A.N. is very strong. While I stop short of characterizing it as an overwhelming case, I find the Crown has successfully demonstrated it has a very strong case.

Gravity of the Offences

[67] A.N. is charged with two counts of Failing to Provide the Necessaries of Life to person under the age of sixteen. Each count carries a maximum sentence of five years. That is understandable given it is essentially a crime of omission.

[68] With respect to the two counts of Criminal Negligence Causing Bodily Harm, the maximum sentence available on each count is ten years. A.N. is also charged with two counts of Aggravated Assault. The maximum sentence available on each count is fourteen years.

[69] He also faces twelve counts of Assault with a Weapon, and twelve counts of Assault Causing Bodily Harm. Each count carries a maximum sentence of ten years.

[70] While he is not charged with causing the death of another human being as a result of criminal negligence or culpable homicide, the offences he is charged with, in the context of the allegations, are extremely grave.

Circumstances Surrounding the Commission of the Offences

[71] The circumstances disclosed by A.N.'s two sons are horrific. The nature of the abuse is extremely violent and can be fairly characterized as torture. The prolonged nature of the abuse is extremely aggravating. A.N.'s sons are extremely vulnerable. They were dependent on A.N. and A.V.J. for their day to day livelihood and safety. They were threatened and intimidated to keep the fact of their ongoing nightmare a secret.

[72] As Justice Wagner noted in St-Cloud, supra:

(iii) Circumstances Surrounding the Commission of the Offence, Including Whether a Firearm Was Used

61 Without drawing up an exhaustive list of possible circumstances surrounding the commission of the offence that might be relevant under s. 515(10)(c), I will mention the following: the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account.

[73] In his reasons for upholding Justice Richardson's decision to detain the accused on the tertiary ground in R v M.B. and D.L., supra, Justice Clackston of the Alberta Court of Queen's Bench stated as follows:

14 In my view, another factor to be considered is the vulnerability of the victims. In cases where the victim is a child or otherwise particularly vulnerable, I would suggest that detention is more likely than not. That is particularly so where the crime is not the result of an emotional explosion or loss of control, but rather is a product of reflection, considered action or action over a protracted period. A reasonable man might consider that despite lack of concern under ss. 10(a) or 10(b), one who victimizes the vulnerable should not be given freedom pending trial. It is the vulnerable, the weak and our children who are most in need of our protection. Those persons are particularly vulnerable when their caregivers treat them violently. Refusing release in such circumstances is a declaration that such abhorrent behaviour cannot be tolerated and must be discouraged even if it means incarcerating the presumed innocent. Depriving the accused of his freedom pre-trial in such cases can be seen as a societal declaration that the protection of the weak is a fundamental, or core value of a just society.

[74] When I consider the prolonged nature of the physical and psychological abuse, as well as the injuries inflicted on these two vulnerable children at the hands of their own father and stepmother, I am left with the inescapable conclusion that the circumstances surrounding the commission of these offences are extremely aggravating.

[75] The decision in St-Cloud, supra, corrected the misapprehension of this branch of the test erroneously held by many courts. Prior to St-Cloud, many courts were of the view that before detention could be justified on the tertiary grounds, there must be a finding that the circumstances surrounding the commission of the offence are "inexplicable", "unexplainable" and that "something more" was required.

[76] The circumstances of this case easily clear the hurdle of the post St-Cloud test. For what it is worth, I find that they also satisfy the pre St-Cloud test.

Potential for a Lengthy Period of Incarceration

[77] While A.N. is not charged with murder, and does not face a life sentence, given the sheer number of counts and the serious nature of each of the offences with which he is charged, even with the principle of totality being considered, he faces a very lengthy period of incarceration.

Is Detention Necessary to Maintain Confidence in the Administration of Justice?

[78] As Justice Wagner stated in St-Cloud, supra:

At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).

To answer this question, the court must adopt the perspective of the "public", that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.

[79] Any justice presiding at a bail hearing must, in reaching the ultimate conclusion on the tertiary grounds, put themselves in the position of a reasonable member of the public. This "reasonable person" is not a legal expert, but is one who is educated and cognizant of the philosophy of our enlightened justice system and the values it promotes.

[80] Justice Ducharme grappled with this concept in a pre St-Cloud decision of R. v. B. (A.), 2004 C.C.C. (3d) 490. His summary of the characteristics of this reasonable member of the public bears repeating:

19 Thus, at minimum, the reasonable member of the community in assessing the propriety of granting bail to an accused person would understand and appreciate the following factors:

(a) The importance of the presumption of innocence, the golden thread that runs through our system of criminal law and is guaranteed in section 11(d) of the Charter. She or he would understand that the presumption of innocence attaches to any person charged with a criminal offence and that it is not displaced until the Crown has satisfied an independent and impartial tribunal of the accused's guilt beyond a reasonable doubt. She or he would understand that the person seeking bail is only alleged to have committed an offence. The reasonable member of the public would expect to be presumed innocent if charged with a criminal offence and would want anyone else charged to be treated in a similar fashion. She or he would understand that pre-trial detention of a person who is merely accused of a criminal offence is inconsistent with the presumption of innocence and must therefore be justified with care;

(b) The significance of the liberty of the subject and the constitutional guarantee of a right to bail in section 11(e) of the Charter. She or he would understand that s. 11(e) leaves judges with only a strictly circumscribed discretion to refuse bail and that a denial of bail must be confined to a "narrow set of circumstances" related to the proper functioning of the bail system;

(c) The granting of bail must be assessed on a case-by-case basis, and an accused person should be released if none of the grounds set out in s. 515(10) is satisfied. The reasonable person would understand that there are no offences for which bail is automatically prohibited and that persons charged with offences as serious as sexual assault and murder are often granted bail. Equally important, she or he would understand that the vast majority of those who are charged with criminal offences are granted bail and do not abscond or commit further offences while on release;

(d) The actual nature of the allegations against the accused person, and the fact that these may or may not be proven at their eventual trial;

(e) Pre-trial detention can last for many months before trial, a fact that can have a significantly adverse affect on the life of the accused person and her or his family — resulting, for example, in loss of employment or interruption of education. As Rosenberg J.A. observed in R. v. McDonald (1998), 127 C.C.C. (3d) 57 (Ont. C.A.), at 77, "to pretend that pre-sentence imprisonment does not occasion a severe deprivation and that it is not punitive would result in the triumph of form over substance." Indeed, as Arbour J. observed in R. v. W. (L.W.) (2000), 2000 SCC 18, 143 C.C.C. (3d) 129 (S.C.C.), at 142, pre-sentence custody is often served "in harsher circumstances than the punishment will ultimately call for."

(f) The poor may be more likely to be detained than those accused persons with greater financial resources. The reasonable person would want all persons to be treated equally in terms of pre-trial release regardless of their socio-economic class;

(g) Pre-trial detention can significantly complicate the ability of an accused person to prepare their defence. As discussed by Iacobucci J. in Hall at 470-1, this can lead to a number of undesirable results. Persons who are detained may, as a result, abandon their right to be tried and plead guilty. On the other hand, persons released on bail are more likely to be acquitted and, if convicted, they are more likely to receive lighter sentences. The reasonable person would not want the results of our criminal justice system to be skewed by pre-trial detention, a factor unrelated to demonstrated guilt;

(h) In our system of justice, incarceration is imposed as punishment only after a person has been convicted of an offence and the sentencing judge has heard submissions as to the appropriate sentence in the circumstances. As Rosenberg J.A. put it in McDonald at 77, "In a free and democratic society accused persons are not denied bail to punish them before their guilt has been determined." Therefore, to paraphrase Professor Friedland, the bail process must not be "subverted into a form of punishment before trial";

(i) The personal circumstances of the accused person. That is, they would assess the propriety of the person's release in light of their antecedents and the support available to them from family, friends and the broader community; and

(j) The terms imposed by the judge granting bail and how these are designed to prevent the accused from absconding or committing further crimes while awaiting trial.

[81] Even the most liberal-minded member of the public, faced with allegations of prolonged abuse on one's own child, would find these allegations to be inexplicable. "How can someone do that to their own child?" This would be a fair question any reasonable person would ask themselves when presented with a case such as the one before this Court. In that sense, the allegations are also unexplainable.

[82] In most cases, concerns on the secondary ground go hand-in-hand with the concerns on the tertiary ground. There is often a real risk that the justice presiding at a bail hearing risks conflating the two grounds. In this case, that danger is absent. I have already found that there is no basis to detain A.N. on the secondary ground as he represents only a minimal risk to the protection or safety of the public, including his two sons. As I have already noted, if he had a significant surety and appropriate conditions were imposed, the Crown would not have met it's onus on the primary ground.

[83] This is really a case that engages the tertiary ground, almost exclusively. The Supreme Court of Canada had occasion to consider situations such as this in R v Hall, 2002 SCC 64. I rely on the following passage from that judgment in reaching my ultimate conclusion:

Section 515(l0)(c) sets out specific factors which delineate a narrow set of circumstances under which bail can be denied on the basis of maintaining confidence in the administration of justice. As discussed earlier, situations may arise where, despite the fact the accused is not likely to abscond or commit further crimes while awaiting trial, his presence in the community will call into question the public's confidence in the administration of justice. Whether such a situation has arisen is judged by all the circumstances, but in particular the four factors that Parliament has set out in s. 515(l0)(c) — the apparent strength of the prosecution's case, the gravity of the nature of the offence, the circumstances surrounding its commission and the potential for lengthy imprisonment. Where, as here, the crime is horrific, inexplicable, and strongly linked to the accused, a justice system that cannot detain the accused risks losing the public confidence upon which the bail system and the justice system as a whole repose.

[84] When I contrast my conclusions in respect of the four enumerated factors set out in section 515(10)(c) against the relatively weak plan of release put forward by A.N., I find that any "reasonable member of the public" would be left to conclude that there was a substantial failure on the part of the administration of justice if A.N. is released. In the final analysis, I find that A.N.'s detention is necessary on the tertiary ground in order to maintain confidence in the administration of justice.

Disposition

[85] A detention order will issue on the primary and tertiary grounds.

Released: August 29, 2019

Justice of the Peace J. Scarfe