Ontario Court of Justice
Date: 2021 02 17 Court File No.: Toronto 4817-898-20-75005257-00
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MICHAEL VALENTINE
Before: Justice Daniel Moore
Heard on: February 17 2021 Ruling on s. 502(2) Application [1] released on: February 17 2021
Counsel: C. Jenkins............................................................................................. counsel for the Crown R. Rawana....................................................................................... counsel for Mr. Valentine
D. Moore, J.:
[1] Mr. Valentine and the Crown have jointly submitted before me that Mr. Valentine’s release should be varied to allow for unrestricted contact with the complainant Ms. Kim and enter into a Ministry of the Attorney General-approved Partner Assault Response (PAR) program. Ms. Kim has indicated that she wishes to have contact with Mr. Valentine and a consent to that effect has been filed. I understand that if he completes the program the Crown will withdraw the charge of assault upon his entering into a s. 810 peace bond.
[2] Mr. Valentine has no criminal record. He was originally arrested on November 23 2020 and released that day from the police station on an undertaking to a peace officer with conditions. There is no suggestion that he has done anything other than abide by the conditions of his release.
[3] The proposed release conditions include the “standard” PAR conditions used in this jurisdiction and perhaps across the Province. The proposed conditions would require that Mr. Valentine:
a) Contact Family Service Toronto at 416-595-9618 before the end of business day of February 19, 2021 and make arrangements to attend the sessions at the date and time directed by them;
b) Attend, participate in, and complete each and every sessions and component of Family Service Toronto counselling program at the date and time directed by them, to the satisfaction of the Program Director;
c) Sign any necessary releases so that the Crown and the Program Director can confirm and monitor your attendance at the date and time, and your cooperation, participation, and completion of the program;
d) Participate in and provide the requested financial information for financial assessment(s) of you by Family Service Toronto
e) Pay the fees for attendance of the Family Service Toronto counselling program
[4] Domestic violence is a horrible scourge on our society, and the justice system in Canada has, historically, been complicit in enabling offenders to continue to perpetuate their abuse. PAR programs were developed in the late 1990s to attempt balance the interest in rehabilitating offenders, while at the same time protecting victims; in other words, the PAR programs’ overarching goal is to break the cycle of violence.
[5] PAR bail variations normally come about in one of two contexts: either the bail is proposed to be varied without a guilty plea in the hope that successful completion of the PAR program will result in a peace bond or similar resolution (as in this case), or after a guilty plea has been entered but before sentence is imposed in the hope that a more lenient sentence (usually a form of discharge) will be imposed following successful completion.
[6] This morning I invited submissions on the issue of the propriety of the “standard” conditions in light of the Supreme Court of Canada’s recent decision in R. v. Zora [2]. Even though Mr. Valentine is consenting to the variation I cannot impose any condition unless it is proper. As summarized recently by Goldstein J. in R. v. Skelly [3]:
I would also review the bail on the grounds that the justice of the peace erred in law in accepting the social media condition. Counsel may agree on conditions, but the judicial officer is not bound by that agreement. Ultimately, it is the obligation of the justice of the peace to ensure that the conditions are appropriate: R. v. Zora at para. 102 ; R. v. Antic at para. 56. As Hill J. noted, a justice of the peace at a bail hearing is not a rubber stamp: R. v. Singh , 2018 ONSC 5336 , [2018] O.J. No. 4757 (Sup.Ct.) at paras. 24-25 .
[7] In my view, the “standard” PAR conditions are inconsistent with Zora in a number of distinct ways:
(i) The conditions are not required to ensure attendance in court, the protection or safety of the public, or to maintain confidence in the administration of justice [4]. Mr. Valentine has been on release for almost three months now without incident, so there is ample evidence that the existing release conditions are satisfactory.
(ii) While rehabilitation is certainly an admirable goal, it is not generally an appropriate goal of a release condition. [5]
(iii) The conditions delegate the creation of bail rules to the PAR program provider. [6]
(iv) By their very design, these boilerplate conditions are not tailored to the individual risks posed by a particular defendant. [7]
(v) The “standard” conditions are exacting and inflexible and the opposite of the requirement that they be “least onerous”. [8] In a probation order all that is required is a condition to “Take counselling as directed, including the PAR program, and sign releases to allow your probation officer to monitor your progress”. It makes no sense for a bail condition to be more onerous than a probation condition when the end goal (completion of the PAR program) is the exact same.
(vi) “Standard” conditions (d) and (e) essentially use bail conditions and the threat of criminal sanction to enforce a civil debt.
[8] It is important to note that failing to comply with any of the “standard” conditions, were I to impose them, create criminal liability for Mr. Valentine should he decide not to comply with them. There are many perfectly legitimate reasons why a person might wish to terminate participation in the program despite his initial willingness to enter into the program. He might have personality conflicts with the program providers or other participants or he might find that the particular model of counselling is not a good “fit” for him. There are also many life circumstances that might make him unable to “complete each and every sessions” such as employment changes or medical issues. His financial status, as we know only too well during the current pandemic, is subject to change with little or no notice.
[9] During submissions I proposed that the conditions be varied to the following which in my view would be justified to attenuate Mr. Valentine’s risk in light of the variation to allow unrestricted contact with Ms. Kim (with her revocable consent) while still being the least onerous and least restrictive:
(1) Be amenable to completing the PAR program offered by Family Service Toronto
(2) Sign any necessary releases so that the Crown and the Program Director can confirm and monitor your attendance at the date and time, and your cooperation, participation, and completion of the program;
[10] Ms. Jenkins advised that Family Service Toronto was not willing to accept Mr. Valentine into their program without the “standard” terms being imposed. She further advised that the “standard” conditions were required due to a Memorandum of Understanding between the PAR providers and the Ministry of the Attorney General. While the Ministry is certainly free to enter into any agreements with PAR providers that it wishes to, and Family Service Toronto does not have to accept Mr. Valentine into its program if it does not wish to, I am not satisfied that such agreements can justify the imposition of conditions of release that are not authorized by the relevant sections of the Criminal Code as interpreted by the Supreme Court of Canada in light of the Charter rights of defendants.
[11] The application for a variation is granted with the substitution of conditions (1) and (2) above for the proposed PAR program conditions.
Released: February 17, 2021 Signed: Justice Daniel Moore
ADDENDUM: After I gave my ruling orally, Ms. Jenkins advised that Family Service Toronto would be willing to admit Mr. Valentine into their program if “standard” conditions (d) and (e) were added as release conditions. For the reasons stated above I declined to revise my ruling. Obviously PAR providers should be paid for their services if that is the arrangement agreed to, but the remedy for non-payment should be the discontinuation of services, not a criminal charge.
Footnotes
[1] Although not explicitly stated on the record, since the application sought to replace the existing undertaking with a release order with a financial obligation as opposed to varying the undertaking itself I understood the application to be pursuant to this section.
[2] 2020 SCC 14 , [2020] S.C.J. No. 14
[3] 2021 ONSC 555 at paragraph 12
[4] Zora, supra in particular paras. 1, 21, 49, 83-86, 89 and 100
[5] Zora , supra paragraphs 85 and 93
[6] Zora , supra paragraph 95
[7] Zora , supra paragraph 100
[8] Zora , supra paragraph 101