Court and Parties
DATE: May 31, 2023 ONTARIO COURT OF JUSTICE Central West Region
Scottie Ryerson -and- His Majesty the King
Proceedings conducted: May 26, 2023 at: City of Hamilton, Ontario Decision and Reasons issued: 31 May, 2023
Appearances:
Counsel: Sweeney, C. for the Crown Daniels, E. for the defence
Statutes Considered or Cited:
- Criminal Code of Canada
Cases Considered or Cited:
- Canada (Attorney General) v. Horvath, 2009 ONCA 732
- R. v. Crawford, 2021 SKQB 325
- R. v. Desilva, 2022 ONCA 879
Decision of the Court
[1] Mr. Ryerson seeks release on charges before the Court. He was brought before the Court following arrest for an alleged breach of a prior release Order. The Crown has applied pursuant to s.524 of the Criminal Code to vacate his earlier release, and holds him to his burden of demonstrating that he can be released, and, if so, under what conditions.
[2] Having considered the circumstances, the proposed plan and surety, as well as the legal principles, I conclude he has not met his burden and order he be detained, on the secondary grounds.
Background and Evidence
[3] Mr. Ryerson comes before the Court with a lengthy criminal record. He has a total of thirty-two convictions, spanning at least a decade. These include weapons offences, property offences, assaults, a conspiracy conviction, as well as multiple probation and breach of release order convictions.
[4] By way of history, he was charged for breaching a reporting condition on a probation order. A warrant for his arrest was issued. In February, he was then implicated in a break and enter, which resulted in a possession of property obtained by crime charge. In conjunction with this, he was charged with assault a police officer, as well as four additional counts of breach probation.
[5] He was held for bail, and release with Mr. John Phillips as his surety.
[6] A little under three weeks later, he was alleged to have been involved in another break and enter, which pre-dated the one for which he was on release. Police attempted to locate him. According to the Crown synopsis, police reported:
While attempting to locate RYERSON police learned the address he and his surety John PHILLIPS provided was a lie. Police attended the listed address of 449 Upper Wellington St. and learned it was vacant. There were no persons at all residing there and the house was under renovation. Police contacted PHILLIPS who admitted that he did not know where RYERSON was and that he never lived at 449 Upper Wellington St. PHILLIPS lied in the information he provided to courts
[7] Mr. Ryerson was eventually located, arrested and held for bail. A new surety was approved, and he was released, with the addition of a curfew condition. The Court record establishes that the earlier release was vacated pursuant to s.524 of the Criminal Code, and the new release bound Mr. Ryerson for all then outstanding charges.
[8] Mr. Ryerson was again investigated and arrested on April 23, 2023, now for a breach of the latest release, as Mr. Ryerson was out of the surety’s residence after the curfew time. This arose from an investigation into a suspicious vehicle suspected to have been stolen. As the investigation unfolded, Mr. Ryerson was found in the company of a number of others. He is not charged in relation to the stolen vehicle, however, on its face, he would be in breach of his curfew condition. He was again held for bail.
[9] The bail hearing commenced more than a month after the latest arrest. I have no record of any application by the surety on the March release having made an application for relief of surety.
[10] In the course of the hearing, Mr. Phillips, who had been surety as a result of the February release Order, presented as a prospective surety.
[11] He gave the expected evidence as to his awareness of his duties, responsibilities and peril as surety.
[12] Under cross examination, he was asked about his residence upon Mr. Ryerson’s release. He assured the Court it was in fact the address set out on the Judicial Interim Release document. He further explained that the day after Mr. Ryerson was released, there was a burst pipe in the residence, compelling him to move, along with the accused.
[13] He acknowledged receiving a call from someone “saying they were Hamilton Police”, but was skeptical. As a result, he provided no more than perfunctory information. In contrast to the Crown synopsis, he assured the Court he knew exactly where Mr. Ryerson was, specifically that they were together. He expressed a belief he had no obligation to go beyond that level of information. He took the position he had no duty to contact Hamilton Police to determine if indeed they were looking for Mr. Ryerson for any reason.
[14] Further, he testified he had attended the March bail hearing, as he was prepared to present himself again as a surety. He explained he was never told why, but that the matter proceeded with a different surety. Further, he explained he left the proceeding, which he was attending remotely, once it became clear he would not be offered as a surety.
[15] As such, he further explained he was not made aware as to the status of any obligations he may have in respect of his status as surety. Specifically, he was not told, nor apparently did he inquire, as to whether his role somehow ended as a result of the new release.
[16] There is some suggestion he was aware of the curfew condition, however, he indicated that, since he was still under the impression he may still be surety, then there were no grounds to be concerned, as Mr. Ryerson was in his presence when he was arrested for the alleged curfew breach. It is unclear whether he knew of the curfew condition on the day Mr. Ryerson was arrested for the curfew breach, or simply relies on his presence to suggest that Mr. Ryerson may have been in compliance with the curfew condition.
[17] There is no information before me as to any interaction he had with the new surety, or any steps he may have taken to inform himself about whether the release for which he was surety was still in force and effect, and/or about any other terms that may have been imposed as part of the new release. Specifically, there was no evidence elicited as to compliance with the residential condition that was part of the subsequent release, which required Mr. Ryerson to reside with his new surety, or how Mr. Ryerson may have been satisfying both residential conditions, if indeed they were both in force and effect.
[18] In response to a question by the Court, Duty Counsel made additional submissions by which Mr. Ryerson joined in Mr. Phillips’ confusion as to whether Mr. Phillips continued to be a surety for Mr. Ryerson after the second show cause hearing. Duty Counsel represented that this was Mr. Ryerson’s position immediately following his arrest for the alleged breach (based on Duty Counsel’s intake information). However, there is nothing to suggest that Mr. Ryerson took any affirmative steps to clarify his understanding.
[19] Duty Counsel advocated that Mr. Phillips is a suitable surety in that he has promised to fulfill his duties faithfully, and he knows the accused, including elements of the accused’s life that may be described as criminogenic factors. Duty Counsel holds out that Mr. Phillips explanations of his responses and actions when contacted by police, or when Mr. Ryerson was implicated in additional criminal behaviour (such as the alleged breach) are forthright and credible.
[20] Crown holds that Mr. Phillips is not a suitable candidate to be surety, and that Mr. Ryerson has not met his onus and he ought be detained.
Analysis and Conclusions
[21] To start, I do not accept that Mr. Ryerson has met his onus.
[22] The Supreme Court of Canada has on numerous occasions commented on the approach to addressing those accused with committing breaches of release orders or criminal acts while on bail. The most recent case is R. v. Zora, 2020 SCC 11.
[23] I find it helpful to repeat many of the comments included in those reasons, as follows:
[63] In my view, despite high rates of criminal charges for failure to comply, Parliament did not intend for criminal sanctions to be the primary means of managing any risks or concerns associated with individuals released with bail conditions. The scheme of the Code illustrates that such concerns are to be managed through the setting of conditions that are minimal, reasonable, necessary, least onerous, and sufficiently linked to the accused’s risk; variations to those conditions when necessary through bail reviews and vacating bail orders; and bail revocation when bail conditions are breached, which may result in release on the same conditions with altered behaviour expected of the accused, changed conditions, or detention. Charges under s. 145(3) are not, and should not be, the principal means of mitigating risk.
[64] A bail review under ss. 520 and 521 is the primary way to challenge or change bail conditions which are not, or which are no longer, minimal, reasonable, necessary, least onerous, and sufficiently linked to risks posed by the accused (except for accused charged with very serious offences under s. 469). Conditions set in the bustle of a busy bail court with limited information can, and when necessary should, be fine-tuned through bail review. A bail review involves a hybrid process, rather than a de novo proceeding (St-Cloud, at paras. 92 and 118). A reviewing judge may intervene if the judicial official has erred in law, if the impugned decision was clearly inappropriate, or if new evidence shows a material and relevant change in the circumstances (para. 121). In addition, s. 523(2) allows for the judicial official, in certain circumstances, to vacate a previous release order and make a different order, including when the accused and the Crown consent to vacating the order (s. 523(2)(c)).
[65] Parliament also enacted two tools to address breaches of bail conditions: bail revocation under s. 524 and criminal charges under s. 145(3). These two provisions work together to promote compliance with conditions of bail, along with forfeiture provisions for monetary amounts set out in a recognizance (see Part XXV of the Code). However, these two mechanisms serve distinct and different legislative purposes. Whereas revocation under s. 524 fulfills a risk management role, criminal liability under s. 145(3) exists to punish and deter.
[66] Revocation of bail occurs under s. 524. An accused may be arrested where there are reasonable grounds to believe that the accused has contravened or is about to contravene any summons, appearance notice, promise to appear, undertaking, or recognizance issued to them or has committed an indictable offence after being released (s. 524(1) and (2)). The Crown can then decide whether to proceed with a revocation hearing before a judicial official (Trotter, at pp. 11-9 to 11-10). Where the judicial official finds, on a balance of probabilities, that the accused contravened or was about to contravene the relevant order or that there are reasonable grounds to believe that the accused committed another indictable offence while on bail, the judicial official must cancel the order and detain the accused (s. 524(4) and (8); see R. v. Parsons (1997), 161 Nfld. & P.E.I.R. 145 (N.L.C.A.), at para. 21; R. v. Morris, 2013 ONCA 223, 305 O.A.C. 47, at para. 18). The accused then has the onus to show why their detention is not justified. If the accused establishes that the detention is not justified, the judicial official can order release with any of the options available under s. 515, including changing the conditions of the undertaking or recognizance (s. 524(4) to (9)). This means that the judicial official has the ability to consider the appropriateness of the original release order and may remove or narrow conditions from the release order where the accused shows that they are no longer necessary, reasonable, least onerous, or sufficiently linked to the statutory criteria in s. 515(10) (Trotter, at p. 11-1).
[67] Revocation under s. 524 ensures that those who do not follow bail conditions can be arrested to re-assess whether, and on what conditions, they should be released into the community, where it becomes apparent that the accused will not or cannot abide by the conditions originally set. Revocation provides the court with greater flexibility in determining whether, despite a contravention of bail, the accused has shown cause that they should be released again either on the same conditions or different conditions (see, e.g., R. v. Badgerow, 2010 ONCA 236, 260 O.A.C. 273, at para. 36; R. v. T.J.J., 2011 BCPC 155, at paras. 57-59; R. v. Mehan, 2016 BCCA 129, 386 B.C.A.C. 1). Conditions can be revised to address the risk of further breach while ensuring the accused can reasonably comply.
[68] If detention is the proportionate result for the accused’s breach of bail then revocation under s. 524 is the appropriate avenue. Bail revocation was the process designed for determining whether a person’s risk factors are such that their failure to abide by bail conditions means they ought to be detained rather than released on different conditions. Revocation can therefore address negligent and careless breaches of bail conditions without creating additional criminal liability. While revocation carries the threat of detention and should be sought only when the negative impacts that can arise from detention are justified, it can address risks arising from breaches of bail conditions without adding offences against the administration of justice to the criminal record of the accused.
[24] The simple existence of an alleged breach may not be grounds for finding an accused ought not be re-released. That point is particularly relevant in this proceeding in which there are no new alleged substantive offences, but rather, administration of justice offences.
[25] However, the question must arise, as directed by the Supreme court, as to whether this is an “accused will not or cannot abide by the conditions originally set”. This is not a bail review, in which the Court could consider amending the conditions if appropriate. It is proceeding by way of s.524 and an application to vacate the earlier Order. I again remind myself of the words of the Supreme court stating “Revocation can therefore address negligent and careless breaches of bail conditions without creating additional criminal liability.”
[26] Finally, as part of this analysis, I must consider “Bail revocation was the process designed for determining whether a person’s risk factors are such that their failure to abide by bail conditions means they ought to be detained rather than released on different conditions.”
[27] Candidly, the sequence of events leading to Mr. Ryerson’s recent arrest leads me to the conclusion that he is unwilling or unable to abide by bail conditions. Of course, it would be improper for me to infer any criminal liability for any possible involvement with the alleged stolen vehicle.
[28] Mr. Ryerson fails to satisfy me that he is respecting the judicial interim release Order and its terms, which were specifically crafted to reduce the risk of re-offending below substantial. There is no suggestion that the terms were improper, over-reaching or unenforceable.
[29] I have considered Mr. Ryerson’s submission that he himself was confused, and was unaware that the February Release Order had been vacated. Of course, the record is clear that he signed the new Release Order, which included reference to then all outstanding charges, including those from his earlier release.
[30] I am also mindful that Mr. Ryerson is no stranger to judicial interim release. As indicated above, he has an extensive criminal record, including multiple convictions for breaches of terms of release. He would or should understand the need for strict compliance. To suggest that he is not sufficiently familiar with court proceedings and any ensuing Release Orders strains credulity and leaves the Court with stronger reasons to believe he cannot or will not comply with release terms.
[31] In terms of the proposed surety and plan, I will observe that Mr. Phillips portrayed an air of defensiveness bordering perhaps on testiness. There was an element of challenge by which he held that all his actions were reasonable and do not impugn his ability to be a surety.
[32] I disagree completely.
[33] There is no clear case law that would assist me in circumstances like those he proposes. However, I suggest that to accept his approach would effectively render surety supervision a hollow and meaningless gesture.
[34] He asserts that he was not sure whether it was in fact police who called him in search of Mr. Ryerson. However, he fails to establish that he took any steps to follow up.
[35] In terms of his cooperation with police, his actions seem derelict. In Canada (Attorney General) v. Horvath, 2009 ONCA 732, the Ontario Court of Appeal considered a Crown forfeiture application, under s.771 of the Criminal Code.
[36] The Court found:
[51] On the other hand, the diligence of the surety is only one factor relevant to a forfeiture hearing. In the end, the judge must attempt to balance various considerations in exercising the discretion conferred by s. 771(2). I do not think it is helpful or even possible to develop an exhaustive list of the factors that the judge should take into account in exercising this discretion. Further, not all factors will be of equal relevancy or weight in all cases. A review of the cases does, however, show that there are categories of factors that the courts regularly take into account, including: the amount of the recognizance; the circumstances under which the surety entered into the recognizance, especially whether there was any duress or coercion; the surety’s diligence; the surety’s means; any significant change in the surety’s financial position after the recognizance was entered into and especially after the breach; the surety’s post-breach conduct, especially attempts to assist the authorities in locating the accused (emphasis mine); and the relationship between the accused and the surety.
[37] In that case, the Court concluded that the accused’s surety’s (his wife’s) action “on the date of Mr. Horvath’s surrender is highly suspect. While she claims to have driven the accused to the jail, she admits that she did not actually see him enter the jail and surrender. She made no effort to assist the authorities in locating her husband.”
[38] Later, the Court stated at para. 61, “The circumstances surrounding Mr. Horvath’s apprehension strongly suggest that Ms. Horvath was culpably acquiescent, if not complicit, in Mr. Horvath’s attempt to defeat the course of justice.”
[39] I find both comments relevant to the case before me.
[40] Again, in this case, I recognize there was not yet an alleged breach specifically made known to the surety at the time police contacted Mr. Phillips. However, he certainly took no steps to inquire into the reason for the police contact, nor to assist the police in locating the accused. While this may not have amounted to an active attempt at obstruction, it certainly was an effort at frustrating the process.
[41] In R. v. Desilva, 2022 ONCA 879, the Ontario Court of Appeal addresses the role of surety as follows:
[62] An accused person on bail is “in the constructive custody of his/her sureties” and therefore, “the law contemplates some measure of physical control by the accused’s sureties (emphasis added)”: Gary T. Trotter, The Law of Bail in Canada, 3rd. ed. (Toronto: Thomson Reuters, 2017), at § 7:6. Sureties are legally required and authorized to exercise some measure of supervision over accused persons on bail to ensure that they abide by their conditions of release: The Law of Bail in Canada, at §§ 7:4-7:6. The requisite degree of control and supervision varies with the context. Where, as in the case at bar, an accused is on house arrest and required to reside in the surety’s residence or be accompanied by her at all times (except in medical emergencies), the expectation of control and supervision is more exacting: R. v. Smith, 2013 ONSC 1341, at para. 16.
[42] After that contact by police, Mr. Phillips was aware that Mr. Ryerson had been arrested, returned to custody and held for bail. I have no evidence as to any steps he took to inquire as to the outcome of that bail hearing, either of Mr. Ryerson, or of any new surety, or through the Court. I have no evidence that he took steps to ensure that, if he were still surety, Mr. Ryerson was abiding by the conditions of either the previously existing conditions or any new ones. Specifically, I have no evidence as to where Mr. Ryerson was residing. While it may be possible he was residing with both sureties, I have no evidence that would provide me any comfort or satisfaction that that was the case. In fact, I have no evidence of any discussions between Mr. Phillips and Mr. Ryerson’s subsequent surety.
[43] I have no basis for being satisfied that any condition that may have allowed Mr. Ryerson to be outside his residence during any curfew period was crafted to include Mr. Phillips as a “surety”, since he was not named on the subsequent release. To read that Order in such as way as to include Mr. Phillips as a person authorized to accompany Mr. Ryerson outside the other surety’s residence during a curfew period is an overly and inappropriately generous interpretation not supported by the Release Order itself.
[44] And, of course, I have no idea as to whether Mr. Phillips’ assertion that Mr. Ryerson was with him, so as to satisfy the curfew condition amounts to an after-the fact justification for Mr. Ryerson’s actions.
[45] Finally, as to the proposition that Mr. Phillips may have remained a surety had the earlier release not been vacated, his assertions as to the level of supervision fail to satisfy me that he is a competent, cooperative and effective surety. The Court often talks about sureties as “jailers in the community”, or “the eyes and ears of the Court”. Mr. Phillips failed to satisfy me that he approached his role with any measure of required diligence.
[46] The Saskatchewan Court of Queen’s Bench (as it was then) adopts the views of Trotter, and added the following in R. v. Crawford, 2021 SKQB 325:
[27] The duty of a surety is to ensure the good behaviour of the accused while on bail and surrender him or her upon non-compliance with a release condition. An accused is essentially released into the custody of his or her surety who is legally bound to ensure the accused's compliance with the release terms and the obligation to appear in court for trial: R v Patko, 2005 BCCA 183 at para 22, 197 CCC (3d) 192; Gary T. Trotter, The Law of Bail in Canada, loose-leaf (2021 - Rel 2) 3d ed (Toronto: Thomson Reuters, 2021) at 6-11.
[47] Again, while Mr. Ryerson may or may not have been involved in additional criminal acts, Mr. Phillips certainly took no steps to surrender him when the potential of the issue arose. He was not acting with sufficient diligence to satisfy me he is appropriate as a surety.
[48] Mr. Ryerson bears the burden of persuading me that in the circumstances of this alleged breach he ought to be released. Once again, I am reminded, he did not seek to vary the release terms based on them being un-necessary, inappropriate or unenforceable. To satisfy me that he ought once again be released, he would need to satisfy me that alleged breach does not lead me to the conclusion that the risk to the public was not elevated when viewed from the perspective of the new allegations, having regard to the entire history. Alternately, he could persuade me that a new release could again be fashioned to address any elevated concerns, with a suitable plan, including a suitable surety.
[49] I am satisfied that neither condition exists. Apart from the apparent alleged breach, Mr. Ryerson was investigated in the context of additional possible criminal acts. At that time, he was in apparent breach, the avoidance of which would indeed reduce the risk of re-offence.
[50] The surety is sorely wanting.
[51] Mr. Ryerson has spent significant time in custody and this appears to be the “best foot forward”. It is not enough.
[52] Finally, Duty Counsel also advances a final submission that Mr. Ryerson cannot resolve these matters by way of a guilty plea, in particular to the latest charge, given his proposal that there may exist a mens rea defence. As such, if detained, he will likely spend far more time in custody than he would attract on conviction for all matters. While that is a relevant consideration, it is not enough to persuade me that there exist conditions on which he could be released that would reduce the risk of offence below substantial. Mr. Ryerson has counsel. His matters could be moving toward trial as quickly as possible. Accordingly, the amount of time he spends in custody is a function of his ability to get trial times, which factors in considerations such as available resources. In this case, this is not a sufficiently compelling ground for release.
[53] For these reasons, I order his detention.
Issued at City of Hamilton, Ontario, May 31, 2023
His Worship Donald Dudar Justice of the Peace