WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection 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 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

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

Ontario Court of Justice

Date: 2023-12-13

Municipality of Toronto

Court File Numbers: 4810 998 23 48116313-00 4810 998 22 40004300-00 4810 998 22 40005691-00 4810 998 22 40005690-00 4810 998 23 48123955-00

Between:

HIS MAJESTY THE KING

— AND —

S.E.

Before: Justice of the Peace R. Shawyer

Heard on: December 6 and 8, 2023.

Reasons for Judgment released on: December 13, 2023

Counsel: P. Leishman, for the Crown C. Alexander, for the accused S.E.

Introduction

JUSTICE OF THE PEACE SHAWYER:

This was a Judicial Interim Release hearing (“hearing”), to determine whether S.E. is releasable while awaiting resolution of his matters before the Courts. The proceedings were heard over 2 days; December 6 and 8, 2023.

[1] S.E. is a 32-year-old black male. He has no criminal record as of the date of this bail hearing. The mother of S.E.’s five-month-old child and her mother, his child’s grandmother, have come forward as proposed sureties.

[2] At the conclusion of S.E.’s hearing, I reserved my decision and indicated I would likely be providing written reasons. These are my written reasons, which I have provided to Crown counsel, defence counsel and the Clerk of the Court, via email.

Crown Synopsis

[3] At the start of the Hearing a synopsis of the Crown’s case was provided by the Crown to the Court and entered as Exhibit One on consent of counsel for S.E. I did not take this as an admission of the facts but simply an agreement that they were the allegations before the court which had yet to be proven: See R v. John, 2001 CarswellOnt 2948.

Initializing

[4] Throughout the course of these Reasons for Decision, I will be referring to the accused before the Court, S.E., and the complainant(s) in this matter by their initials to reduce, to the extent possible, the psychological or other harm that may occur to the complainant if their name were published during any reporting on the facts of this case: See: X. v. Y. et al, 2004 YKSC 45, 2004 Y.K.S.C. 45. Further, I am referring to the accused by their initials because of what occurred before the accused was arrested as will be discussed later.

[5] At the commencement of the hearing at the request of the Crown, I granted a publication ban pursuant to s. 486.4(1) of the Criminal Code thereby prohibiting the publication of any information that could identify the complainant or witness where a sexual offence is alleged. This is sufficient authority for a Court in and of itself to initialize the names of the parties in a criminal law proceeding before a Court in Canada.

[6] If 486.4(1) is not sufficient authority in and of itself to grant a publication ban, I further rely on Justice Perkins decision in S.(C.) v. S.(M.) 2007 ONSC 6240, 37 RFL 6th 373 (Ont.SC):

This court possesses the jurisdiction to use initials or pseudonyms to protect the identity of parties pursuant to Rule 2.03 of the Rules of Civil Procedure, which enables the court, in the interests of justice, to dispense with the general rule that the names of parties be identified in the title of the proceeding (Rule 14.06): S.T. v. Stubbs, [1998] O.J. No. 1294, (1998), 38 O.R. (3d) 788. The use of initials to identify the parties was ordered in R. (J.) in the absence of submissions on the point. In this case, the identification of the parties by initials is entirely appropriate, given the privacy interests that the parties and E.D. have in this matter. M.D. v. L.L..

[7] The Court is choosing to initialize the names of the complainant and S.E. while keeping in mind the open court principle that governs all proceedings in courts across Canada. While the open court principle is extremely important, so important in fact, that the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25 at paragraph 30 citing Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at para. 23 and Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 23‑26) stated that the “[c]ourt openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy, there are exceptions to the principle. One of those exceptions is the initialing of party’s names in reported decisions. As noted in B.G. v. H.M. T.Q. in Right of B.C., 2004 BCCA 345, 2004 B.C.J. 1235 the use of initials is a minimal impairment to the openness of judicial proceedings.

Charges and Allegations

a) Police Synopsis

[8] The charges that bring S.E before the Courts are as follows:

1. Trafficking Persons Under 18
2. Procuring - Person Under 18yrs
3. Trafficking In a Substance
4. Fail To Comply Release Order
5. Public Mischief (X3)
6. Personate With Intent (X3)
7. Obstruct Peace Officer (X3)
8. Fraud Under $5000.00 (X3)
9. Public Mischief (X3)
10. Fail To Comply Release Order (X3)

[9] The allegations that led to S.E. facing the above noted charges are outlined in the following paragraphs.

[10] On August 30, 2022, S.E. met with investigators from the Toronto Police Service. He was charged with various offences on that date and released pursuant to a Form 10. The reasons that S.E. met with investigators on that date are as follows:

1. A complainant by the name of K.E. contacted Toronto Police Personations Investigative Office regarding traffic conviction notices that he received in the mail. The complainant reported to police that he was not responsible for several sets of traffic tickets that were now appearing on his driver’s licence abstract.
2. The complainant attended Traffic Services Toronto Police station and was interviewed by investigators. The complainant was shown body camera footage of the vehicle stops in which the tickets were written by members of Toronto Police Service in his name. The complainant readily identified his brother S.E. as the suspect that was seen falsely giving his name to the officers.
3. The three traffic stops that S.E. received provincial offence tickets in the complainant’s name were as follows: a. On March 14th, 2020, at 8:08 pm S.E. was operating a motor vehicle bearing the Ontario licence plate CDYJ545 on Falstaff in the City of Toronto. It was at this time that the driver of the vehicle was stopped by Police Constable Gholami #11583 for disobeying a stop sign. The officer requested that the driver surrender his driver’s licence, permit and insurance card for the motor vehicle. The driver falsely identified himself verbally to the officer and was charged under the Highway Traffic Act. The charges were Disobey Stop Sign - Fail to Stop HTA 136(1)(a) and Driver - Fail to Surrender Driver’s Licence HTA 33(1). The total payable for the two offence notices was $220.00. b. On September 11th, 2020, at 8:10 am S.E. was operating a motor vehicle bearing the Ontario licence plate CPYP123 on Keele Street in the City of Toronto. It was at this time that the accused's vehicle was stopped by Police Constable Makarenko #10590 for disobeying a posted street sign. The officer requested that the driver surrender his driver’s licence, permit and insurance card for the motor vehicle. The driver falsely identified himself verbally to the officer and was charged under the Highway Traffic Act. The charges were Disobey Sign HTA 182(2)(a) and Driver - Fail to Surrender Driver’s Licence HTA 33(1). The total payable for the two offence notices was $220.00. c. On May 22, 2021, at 12:55 am S.E. was operating a motor vehicle bearing the Ontario licence plate CPLK402 on Keele Street in the City of Toronto. It was at this time that the vehicle was stopped by Police Constable Beaudoin# 9638 for speeding. The officer requested that the driver surrender his driver’s licence, permit and insurance card for the motor vehicle. The driver falsely identified himself verbally to the officer and was charged under the Highway Traffic Act. The charges were Speeding 85km/hr in a 50km/hr zone HTA 128 and Driver - Fail to Surrender Driver’s Licence HTA 33(1). The total payable for the two offence notices was $375.00.

[11] On December 22, 2022, S.E. turned himself into Toronto Police Services 31 Division. On that date he was held for a show cause hearing for the following allegations:

1. Sometime in May 2020, the complainant began frequenting an area of Toronto known as "The Gully." The Gully includes the area of Black Creek Drive and Clearview Heights.
2. On one occasion, while hanging out in The Gully, the complainant was approached by one of S.E.’s co-accused. She lied about her age; she told him she was 19. They began flirting with each other, and later that evening, they had sex.
3. On another occasion, one of S.E.’s co-accused contacted the complainant and asked her if she wanted to have a threesome. She originally declined, claiming she was not into threesomes, but he persisted until she agreed. The complainant, one of S.E.’s co-accused, another teenage girl, and an unknown male had sex together. The complainant learned that the other girl also partied at The Gully.
4. The complainant and the other female youth started attending after-hour parties on Shoreham Drive. At one of these parties, the complainant met the second of S.E.’s co-accused in this matter.
5. At one of the Shoreham after-parties, the complainant was asked to return to The Gully after the party ended. One of S.E.’s co-accused drove her and two other teenage girls. One of the girls was the same one she frequented the after-hours parties.
6. While driving, one of S.E.’s co-accused asked them if they wanted to go to a motel. The girls agreed. En route, he asked them if they wanted to do "Molly" (MDMA)and proceeded to remove what looked like a white crystal rock wrapped in plastic. He then told the complainant to lick the rock and drink a Heineken. She did it.
7. When they arrived at the Pinecrest Motel at 2641 Highway 7, Vaughan, the complainant stated to feel the drug effects, which made her sexually aroused, and she proceeded to take her clothes off. Everyone else took their clothes off, too, until everyone in the room was naked.
8. At this point, one of S.E.’s co-accused asked the complainant and the other girls if they wanted to start working for him. He told them they could get paid for being naked around men or hanging out and talking to men, and having sex was optional. He also explained that he would be their "protector" and collect the money. He said he would pay for their motel, food, drugs, alcohol, and cigarettes. The complainant agreed to this originally, and he told her he would invite some guys over later. He paid for the motel for the entire week. He did not remain at the motel.
9. A short time later, approximately seven to ten men showed up at the motel. S.E. and one of his co-accused were among the group of males. The complainant and the other teenagers began having sex with the men that arrived at the motel, which continued throughout the night until they eventually went to sleep.
10. The next morning, one of S.E.’s co-accused arrived and was upset because the girls were supposed to get money before they had sex with the men. The complainant argued that he told them that he would be the one collecting the money.
11. Over the next few months, men would continue to attend the Pinecrest Motel to have sex with the complainant and the other teenagers. S.E. and one of his co-accused would be at the motel every day to ensure that they did not leave and to act as some type of security for the complainant and the other girls. If any of them requested something, such as food, one of S.E.’s co-accused would have to contact the other of S.E.’s co-accused to get his approval.
12. Over the entire period that the complainant was trafficked, she was not given any money by one of S.E.’s co-accused for providing services that she provided. The complainant would tell the men (clients) that they had to pay for the services. She was told to charge $100 for sex. The complainant was not sure how the money was exchanged because she would not get paid. Even though she told the men that it cost money for sex, they would not pay. She felt that if they paid, the money would have been taken from her anyway. Out of fear and feeling that she did not have a choice, coupled with always being under the influence of drugs, she still provided sexual services. She was vulnerable and had nowhere else to go.
13. The complainant described one of S.E.’s co-accused as being in charge, and the other co-accused as being second in charge and S.E. having a similar role to that of co-accused who was described as second in charge. The co-accused who was described as in charge would never stay at the motel and would only come occasionally, whereas S. E and the other co-accused were always at the motel when the complainant and the other girls were there.
14. On one occasion, while at the motel, one of S.E.’s co-accused approached the complainant and told her that she had to provide sexual services to a client because he had a lot of money. The complainant felt that she did not have a say in the matter.
15. There were times when the complainant was not always provided with a room at the motel. She would have to ask that a room be provided.
16. Due to how bad the complainant and the other girls' drug addictions were becoming, they fought over the drugs being provided. In response, one of S.E.’s co-accused told them that they would have to buy their own drugs and that they would have to buy from a male known as "Coolie." Coolie was described as a helper for one of S.E.’s co-accused and would sell drugs to the complainant and other girls. Coolie has been identified as being S.E. who would sell drugs to the complainant and on some occasions just give the drugs to her. S.E. would also transport the complainant and the other girls to and from the motel.
17. The complainant feared S.E. and his co-accused as she had seen them get physical with other girls before. On one occasion, one of S.E.’s co-accused pushed the complainant off the bed, which caused her to get angry and yell at him. He then pushed her into the corner and held a knife to her throat. Another male in the room, later learned to be S.E., had to pull one of his co-accused off her. The complainant felt S.E.’s co-accused would have seriously harmed her if the other male had not intervened.
18. The clients that attended the motel during the period in question were generally the same group that came the first night. These males came and went at all different times. Sometimes they would come together, sometimes a few would come, and sometimes only one or two would come.
19. Sometime in September 2020, the complainant's mother reported her missing. Learning of this S.E. and his co-accused asked the complainant about her age but apparently the complainant continued to lie to S.E. and his co-accused by telling them she was 19 years of age. S.E. and his co-accused then apparently decided that due to the potential attention from the police, that the complainant return to her mother. S.E. and his two co-accused contacted the complainant after she had returned home to ensure that she did not go to the police about what they had done. They told the complainant that they would kidnap her if she did go to the police.
20. On April 1, 2022, the complainant reported the events to the Toronto Police Service, causing a police investigation.

[12] On December 30, 2022, S.E. appeared before HW Justice B. Fatsis for a bail hearing. On that date Justice Fatsis released S.E. on the following terms:

a. $5,000 No Deposit; b. Reside w/ Surety (G.E.) at 1617 – 2777 Keele St.; c. Remain in your residence except in direct continuous presence of your surety; d. GPS Monitoring by Recovery Science; e. Do not have any contact w/ S.H. or any of her family members; f. Do not be within 500 metres of place S.H. lives, works, attends school or happens to be; g. Do not have any contact with females under the age of 18 unless they are a family member h. Do not possess any weapons and do not apply for or possess a PAL (Possession and Acquisition License) or any other firearms acquisition license; i. Do not possess drug paraphernalia; j. Do not possess any pagers; k. Do not possess any cell phones, tablets, or computers that internet capable unless in presence of your surety; l. Do not have any contact with your co-accused unless for the purposes of preparing a defence; m. Do not have contact with any known to you to have a criminal record; n. Present yourself at your door within 5 minutes of a police request unless your absent pursuant to a permitted exception in this bail order.

[13] On September 21, 2023, S.E. was arrested and released pursuant to a form 10 that same day. S.E. was released after being arrested pursuant to a warrant in the first that was issued on the strength of the following allegations:

a. On Sunday June 4th, 2023, at about 2:05 P.M. recovery science received an alert that the accused had left his residence without his surety from the hours of 2:05 pm to 02:26 pm. The accused was showing as being in the general vicinity of 8 Westmore Drive in the city of Toronto at that time. Recovery science had contacted the surety who apparently initially advised that the video link was not working. The surety later advised that the accused had left without her therefore breaching his conditions. b. The investigating officer has made several attempts to locate the accused without success.

[14] Finally, on November 21, 2023, S.E. was arrested and held for a bail hearing by the Toronto Police Service, which is why S.E. is before this Court today. The allegations that led to S.E.’s arrest on November 21, 2023, are as follows:

a. On Monday November 13th, 2023, at approximately 11:06 AM, officers from Toronto Police - Public Safety Response Team attended the accused's address of 2777 Kipling Avenue for the purpose of conducting a bail compliance check. There was no answer at the accused's door. At 11:10 AM, officers contacted the accused's surety on her cell phone. The surety advised she was not at home and that the accused could be sleeping. b. At 11:15 AM, the surety called officers to advise that the accused was doing laundry in the basement. Officers attended the basement level of the building where they were met by the accused. The accused was out of breath and breathing heavily. When asked why the accused was apparently out of breath and told the officers that he had run across the street to get soap. Officers then cautioned the accused regarding saying anything incriminating and advised that a follow up investigation would be conducted. c. On November 16th, 2023, officers were provided the accused's GPS download by Recovery Science for November 13th. On that date the accused's GPS was showing at 2700 Kipling Avenue from 10:24 AM to 11:15 AM. The address of 2700 Kipling Avenue is a strip mall containing several businesses. d. On November 21st, 2023, officers reviewed the surveillance cameras from the property of 2700 Kipling Avenue and observed the following: a. At 10:24 AM the accused is seen pushing a shopping cart containing bags of clothes across Kipling Avenue toward the strip mall and entering Kipling North Laundry. S.E. was not in the presence of his surety. b. At 11:14 AM the accused is seen on camera exiting the laundry mat while speaking on a cell phone. S.E. is then seen running back toward his apartment building.

b) Additional Facts presented by the Crown during the Hearing

[15] During the bail hearing the Crown, on consent of counsel for S.E. advised the Court of recently obtained evidence in support of the Crown’s case. The new evidence is as follows:

[16] The officer in charge Ryan Beatty (hereinafter “OIC”) advised the Crown that:

a) On May 30, 2020, the room at the Pinecrest Motel was being used by S.E. and his co-accused to traffic the complainant and other young girls was alleged rented by S.E. b) The complainant, S.H. was shown 3 photo lineups by the OIC and she picked only S.E. and his co-accused out of each of the 3 lineups. c) The police are in possession of text messages between the complainant, S.H. and S.E. The police are in possession of a total of 358 such messages that allegedly covers conversations about sex trade offences, and corroborates the relationship between the complainant, S.H. and S.E. d) The text messages in the possession of the police allegedly capture texts between the complainant, S.H. asking S.E. if she could get food, and S.E. replying that his money is on hold, with the complainant, S.H., responding by asking if money can be e-transferred to S.E. through his email, [name removed] @GMAIL.COM, as payment. e) Some of the text messages in the possession of the police allegedly have the complainant, S.H. telling S.E. that she has a customer that wants to pay and S.E. asking S.H. where she is by asking her for the motel room number where she is located; and f) The police are in possession of a video that is alleged to show S.E. and the complainant, S.H., having sex but in the video the face of male is not clearly visible.

[17] During the first day of the hearing the Crown advised the Court that the Crown had secured a direct indictment to the Superior Court of Justice (“SCJ”), which means that all the charges noted above will be heard by the SCJ. The Crown also advised the Court that S.E. will also be facing an additional charge of sexual assault when the direct indictment is filed with the SCJ. The Crown took the position that while the charge of sexual assault was not properly before this Court, this Court could take this charge into consideration when determining the issue of bail because the charge was included in the direct indictment.

[18] The news of a direct indictment prompted the Court to query whether the direct indictment had been filed with the SCJ and if so, whether the Ontario Court of Justice retained jurisdiction to conduct S.E.’s bail hearing if the direct indictment had been filed. In answer to the Court’s question, after a short recess, the Crown advised that the direct indictment had been secured but would not be filed until December 18, 2023, or later.

[19] Had the direct indictment been filed with the SCJ before the bail hearing began, it would have required the Court to make a finding as to whether the Ontario Court of Justice still had jurisdiction to conduct S.E.’s bail hearing. While the Court was no longer required to consider the issue of jurisdiction, it is still useful and instructive to know the answer to the second question.

[20] The answer appears to be found in s. 523(2)(a) of the Criminal Code of Canada (“523(2)(a) CCC”) and in the decision of R v Durrani, 2008 ONCA 856 (“Durrani”). Section 523(2)(a) CCC states:

523(2) Notwithstanding subsections (1) and (1.1),

(a) the court, judge, or justice before whom an accused is being tried, at any time,

may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted. [Emphasis added]

[21] The term “trial” was explained by Martin J.A. in R. v. Hertrich (1982), 67 C.C.C. (2d) 510 (Ont. C.A.) at 527 where he stated:

”[T]rial” for the purpose of the principle that an accused is entitled to be present at his trial clearly includes proceedings which are part of the normal trial process for determining the guilt or innocence of the accused such as arraignment and plea, the empaneling of the jury, the reception of evidence (including voir dire proceedings with respect to the admissibility of evidence), rulings on evidence, arguments of counsel, addresses of counsel to the jury, the judge’s charge, including requests by the jury for further instructions, the reception of the verdict and the imposition of sentence if the accused is found guilty.

[22] As stated by J.C. MacPherson J.A. in Durrani at paragraph 11 “[t]his description was approved of by the Supreme Court of Canada in R. v. Côté and R. v. Barrow.

[23] Based on the foregoing, in the present case, the Crown has not filed the direct indictment with the SCJ. Even if the Crown had already filed the direct indictment with the SCJ this Court would retain jurisdiction until such time as S.E. is tried by a judge and/or jury of the SCJ. Support for this proposition is found in Durrani where while a trial judge had been assigned but the accused had not been arraigned or entered a plea, which J.C. MacPherson J.A. found meant that the accused in Durrani was not “being tried” for the purposes of s. 523(2)(a) “ at least for purposes of the bail provisions of the Code ”: See R v Durrani, 2008 ONCA 856, at paragraph 11.

Onus and Crown’s 524 Application

[24] The Crown in their opening submissions took the position that S.E. was in a reverse onus position pursuant to s. 515(6)(d) of the Criminal Code of Canada, i.e., the burden is on S.E. to prove on a balance of probabilities that he is releasable while waiting for his charges to be resolved. Counsel for S.E. agreed that with the Crown’s position.

[25] S. 515(6)(d) states that “unless the accused, having been given a reasonable opportunity to do so, shows cause why the accused's detention in custody is not justified, the justice shall order, despite any provision of this section, that the accused be detained in custody until the accused is dealt with according to law, if the accused is charged with having committed an offence punishable by imprisonment for life under any of sections 5 to 7 of the Controlled Drugs and Substances Act or the offence of conspiring to commit such an offence.” Therefore, it is S.E.’s onus to demonstrate why he should be released on bail.

[26] In addition to advising the Court that S.E. was in a reverse onus situation the Crown advised that they were bringing a s.524 application for the purposes of having all of S.E.’s previous forms of release vacated. Counsel for S.E. advised the Court that the Crown’s application was on consent. Therefore, the Court granted the s.524 application and vacated S.E.’s previous releases on consent at the start of the hearing.

[27] In terms of onus S.E. must demonstrate that his continued detention, pending trial, is not required. S.E. must demonstrate this on a balance of probabilities. In arriving at a determination, the Court must start from the standpoint, as found in the Charter, that an accused is presumed innocent until the final disposition of all outstanding charges. Further, that an accused has the corollary right, also found in the Charter, not to be denied reasonable bail without just cause. As Chief Justice Wagner observed in R. v. Myers, 2019 SCC 18, the right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system and must especially be borne in mind in the pre-trial context, and release—at the earliest opportunity and in the least onerous manner, is the default presumption in Canadian criminal law. The charges S.E. is facing are, for the most part very serious as admitted by his counsel during closing submissions. Nonetheless, I must bear in mind release is the norm and detention are the exception—and this is so even when the Crown appears to have a strong case: R. v. Doucette [2016] O.J. No. 852 (S.C.J.). Moreover, while an accused faces serious charges, it is settled law bail is possible in connection with all offences or category of offences: R. v. Lafromboise, [2005] O.J. No. 5785.

Grounds and Analysis

[28] In this proceeding the Crown seeks S.E.’s detention pursuant to the secondary and tertiary grounds.

[29] S.E. is required to satisfy me, on a balance of probabilities, that his continued detention is not required on any of the grounds raised by the Crown—that is the standard of proof associated with his onus. Saying something is proven on a balance of probabilities simply means that it is more likely than not to be the case. It means that it is probable, not to the standard of beyond a reasonable doubt, the accused’s detention is not necessary on the grounds raised by the Crown. As such, an accused in a reverse onus situation does not have to show that they are unlikely to ever reoffend under any circumstances or for all time, but only to establish that the risk of their reoffending in a way that would jeopardize public safety can be reduced to tolerable levels during the time he will on bail by the restrictions and supervision he will be under as provided in the bail order: See R v. Tully, 2020 ONSC 2762 at paragraph 23.

[30] When determining whether an accused is releasable a Court must weigh up the evidence and submissions presented and decide which version is most probably true and, consequently, the appropriateness of release after weighing factors is never known at the conclusion of a bail hearing. All that can be done is to decide, based on the evidence and submissions, which is the most probable version of future events, and it is trite to say perfection is not expected in any plan of release and the weight of the caselaw is a proposed surety need not be more than adequate: See R. v. Ofori-Mensah 2021 ONSC 90, [2021] O.J. No. 79 SCJ.

[31] When determining whether an accused is releasable on bail this Court must also bear in mind the principle of restraint referred to in R. v. St.-Cloud, 2015 SCC 27, [2015] S.C.J. No. 27, and since reaffirmed by the Supreme Court of Canada in R. v. Zora, 2020 SCC 14, at para. 83; R. v. Antic, 2017 SCC 27, at para. 29; Myers, at para. 25, and which has been recently codified in s. 493.1 of the Criminal Code:

In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.

[32] To determine whether your detention is necessary for the protection or safety of the public or the complainants involved in this case, I must apply a legal test. That test is set out by the Supreme Court of Canada in R. v. Morales at paragraph 39 (hereinafter “Morales”). The Morales test involves two parts:

a) First, I must determine if there is a substantial likelihood, considering all circumstances, that you will, upon release from custody, commit a criminal offence, or interfere with the administration of justice and whether this substantial likelihood’ endangers ‘the protection or safety of the public or the complainants involved in this case. b) The second part of the test requires me to determine if the proposed plan of release reduces the substantial likelihood below the threshold.

[33] When considering the test in Morales no single circumstance is determinative. All the relevant circumstances before a Court must be balanced.

[34] In this case the Crown did not allege the accused will, if released, interfere with the administration of justice. Rather the Crown argued that if released on bail there is a significant likelihood that S.E. will breach the conditions of any bail order made by this Court. The Crown’s argument was that S.E. while he was subject to the order of Justice Fatsis’, which was the strongest possible judicial release order that could have been fashioned in the circumstances, a submission which S.E.’s counsel agreed with, S.E. is alleged to have done the following:

1. On June 4, 2023, S.E. was outside of his surety’s residence without her for a period of 21 minutes and was located by Recovery Science, who was monitoring the ankle bracelet that S.E. was required to wear while on bail, in the area of 8 Westmore Drive, which the Crown stated multiple times during the hearing was the address of a well-known business in Toronto named Dr. Fleas.
2. On November 13, 2023, S.E. was found out of breath and breathing heavily in the basement laundry room of his surety’s residence by officers from Toronto Police - Public Safety Response Team. S.E. was found in this location and in this state because when the officers were doing a bail compliance check they knocked on the surety’s door and when no one answered. They called the surety who advised that S.E. was sleeping. Five minutes later, the surety called the officers back and told the officers that S.E. was not sleeping but instead was doing laundry in the basement of the building where she resided. This led the officers over the course of the next week to review security footage from the area as well as Recovery Science data to determine S.E.’s true whereabouts when they knocked on S.E.’s sureties’ door for a bail compliance check. As a result of that investigation, S.E. was charged with failing to comply with two conditions of his release order; first, for failing to remain in his residence except in direct continuous presence of his surety and secondly for being in possession of a cell phones, tablets, or computers that are internet capable unless in presence of his surety.

[35] A determination of whether S.E. should be detained based on secondary ground concerns clearly involves a risk analysis, with the protection or safety of the public at its core. The proper risk analysis on the secondary ground was explained by the Supreme Court of Canada in the decision of R. v. Morales, [1992] 3 S.C.R. 711, in part, as follows:

Danger or likelihood that an individual will commit a criminal offence does not in itself provide just cause for detention. In general, our society does not countenance preventative detention of individuals simply because they have a proclivity to commit crime. [Emphasis added.]

[36] The Supreme Court then reaffirmed the two factors vital to a determination if there is just cause for detention under s.11(e) of the Charter:

First, the denial of bail must occur only in a narrow set of circumstances. Secondly, the denial of bail must be necessary to promote the proper functioning of the bail system, it must not be undertaken for any purpose extraneous to the bail system.

Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a substantial likelihood of committing an offence or interfering with the administration of justice, and only where this substantial likelihood endangers the protection or safety of the public. Moreover, detention is justified only when it is necessary for the public safety. [Emphasis added.]

[37] In this context, a substantial likelihood means "a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely": See R. v. Manasseri, 2017 ONCA 226, at para. 87.

[38] The Crown concerns in this care on the secondary grounds are as follows:

a) if S.E. was not willing to abide by the terms of Justice Fatsis’ release order, when he told Justice Fatsis on December 30, 2022, that he would, and not willing to listen to his own mother who was his surety, there is no reason to trust that S.E. will abide by any conditions imposed by this Court in a release order. b) If S.E. didn’t listen to his mother who was his surety pursuant to Justice Fatsis’ order what gives the Court confidence that S.E. would listen to the mother of his newborn child (“hereinafter “primary surety”) who was proposed as his primary surety during if this Court released him. c) S.E. proposed primary surety is not a suitable surety because she has a blind spot that prevents her from being able to adequately supervise S.E. as she already has 3 children at home that she is responsible for caring for. d) S.E.’s secondary surety, the paternal grandmother of S.E.’s newborn child (hereinafter “secondary surety”), is not a suitable surety because: I. she has a blind spot when it comes to the intentionality required to commit the offence of trafficking in persons under the age of 18 by exercising control and the safety of her 13-year-old daughter who lives with her full time and would be in her home when S.E. would be in her home. II. she has not turned her mind to the types of offences that S.E. is charged with committing. e) Monitoring an accused who is the subject of a judicial release order is more complex when there are multiple sureties and multiple residences where the accused can be while on release.

[39] The plan of release that S.E. proposes and argues will ensure that the probability of certain conduct occurring, i.e., breaching the terms of any release order made by this Court, is less than significantly likely is as follows:

a. $2,500 No Deposit financial pledge; b. Reside w/ his primary surety C.G. at 1014-2000 Sheppard Avenue in Toronto and her three children (ages 5-month-old, 8, and 10) and sometimes reside, if she is not available, with his secondary surety, S.G. at her residence 2004-170 Chalk Farm Drive in Toronto together with S.G.’s 13 year old daughter; c. Remain in the residence of sureties except and unless in direct continuous presence of your suret(ies)y; d. Abide by and be subject to the terms and conditions of GPS Monitoring by Recovery Science; e. Do not have any contact w/ S.H. or any of her family members; f. Do not be within 500 metres of place S.H. lives, works, attends school or happens to be; g. Do not have any contact with females under the age of 18 unless they are a family member h. Do not possess any weapons and do not apply for or possess a PAL (Possession and Acquisition License) or any other firearms acquisition license; i. Do not possess drug paraphernalia; j. Do not possess any pagers; k. Do not possess any cell phones, tablets, or computers that internet capable unless in presence of your surety; l. Do not have any contact with your co-accused unless for the purposes of preparing a defence; m. Do not have contact with any known to you to have a criminal record; n. Present yourself at your door within 5 minutes of a police request unless your absent pursuant to a permitted exception in this bail order.

[40] In the alternative, S.E. argues, should this Court not agree that the above plan is suitable, the plan can and should be amended so that S.E. would have to always reside while on bail in his primary surety’s residence unless accompanied by either his primary or secondary surety while outside of his primary surety’s residence.

[41] During closing submissions counsel for S.E. was candid with the Court about S.E.’s plan. Specifically, he admitted that the plan being proposed by S.E., as per the Supreme Court decision in Antic, is at the highest level possible on the bail ladder: see R v. Antic, 2017 SCC 27 at paragraph 67 (d). However, so was the original bail plan that S.E. presented to Justice Fatsis for consideration when he was originally released on December 30, 2022. The only difference now is that S.E. is proposing two sureties instead of one and the quantum being proposed between the two sureties is $2,500 instead of the $5,000 proposed by one surety.

[42] This Court heard that the quantum being proposed by the two sureties proposed by S.E. is lower because:

1. S.E.’s primary surety is currently at home looking after S.E.’s 5-month-old child and her 2 other children by another father(s) and is currently in receipt of Ontario Works in the amount of $995 per month; and
2. S.E.’s secondary surety is not working because of a spinal injury suffered while working and the $1,000 no deposit pledge she has offered is the same amount of her monthly rent and she would have to save up to be able to pay the $1,000 should the Crown seek to escheatment.

[43] The Court takes no issue with the quantum being proposed by the two sureties. In fact, the Court has great sympathy for the financial circumstances the sureties find themselves in and finds it commendable that despite their circumstances, one surety is on Ontario Works and raising 3 children and the other is off of work due to an injury sustained at work, these proposed sureties are willing to risk what is a significant amount of money to them if it means that S.E. can be released.

[44] Turning now to the second difference in the plan being proposed to this Court, while the Court believes that the sureties are well meaning, the Court does not find them to be suitable sureties. Therefore, S.E. has failed on a balance of probabilities to demonstrate that his continued detention, pending trial, is not required, and must be detained.

[45] S.E. must be detained because the Court believes and agrees with the Crown that the nature of the two breaches of the order of Justice Fatsis, allegedly on June 4, 2023, and November 13, 2023, are such that if released S.E. would likely breach any order made by this Court. The Court says this because the Court does not believe that S.E. believes he has to follow Court imposed conditions as evidenced by the allegation that he was found quite a distance from his surety’s residence in the vicinity of 8 Westmore Drive in Toronto without his surety on June 4, 2023 and was allegedly out of his residence for a period of 51 minutes on November 13, 2023 without his surety again. Therefore, the Court believes that there is a substantial likelihood that S.E. would try and reoffend even though, as noted by his counsel, that S.E. comes before this Court with no criminal record, which means that he does not have a history of breaching previous court orders.

[46] Moving on the second branch of the test in Morales the Court must determine whether the plan being proposed by S.E. would lessen the likelihood of S.E. potentially reoffending to below the level of more likely than not. In the Court’s opinion the plan being proposed by S.E. would not. It would not because this Court believes that S.E.’s proposed sureties are not suitable, and the lack of suitable sureties puts the protection/safety of the public at risk.

[47] Starting with S.E.’s proposed primary surety, in the court’s opinion she is not suitable for the following reasons:

1. While S.E. is a stay-at-home mother, as she testified while being examined by S.E.’s lawyer, she is the mother of three children ranging in ages from 5 months to 10 years old. She has a full-time job already raising all 3 children on her own. It is not very likely that she will be able to supervise S.E. 24 hours a day, 7 days as week (hereinafter “24/7”) and act as the Court’s eyes and ears, as was submitted by S.E.’s counsel during closing submissions. Given this the Court has no confidence that S.E. will not try to breach any conditions imposed by this Court because while he was out on bail pursuant to the order of Justice Fatsis and subject to his mother’s supervision 24/7 S.E. is alleged to have been out of his surety’s residence without his surety on 2 separate occasions and on one of those occasions alleged to have been using a cellphone, which if true is a also a breach of Justice Fatsis’ order;
2. In answer to the only question asked of her by S.E.’s counsel, which was “what would be different if S.E. were released and living with her”, during reply examination S.E.’s primary proposed surety answered as follows: she is home 24/7, there is no where for S.E. to go, and she will make sure that she is supervising S.E. at all times and doesn’t breach. However, as pointed out by the Crown during closing submissions this was in essence the same thing S.E.’s original surety, his mother, told Justice Fatsis she would do but it didn’t stop S.E. from allegedly disobeying his mother and breaching Justice Fatsis’ order on two separate occasions.
3. S.E. testified, while being questioned during examination in chief, that she does not know when she is going back to work. This presumably means that she has plans to go back to work but she did not elaborate on her answer further during her testimony. This left the Court with the unanswered question of whether, during the next year or more while S.E. would be on bail if released, she was going back to work. This unanswered question supports the position that S.E.’s proposed primary surety is not suitable.
4. S.E.’s primary proposed surety, despite having a newborn child with S.E. that she is raising was asked during cross examination about what S.E. did for work. In response S.E.’s primary proposed surety stated that at the start of their relationship she knew he was in landscaping and moving because she saw him with a truck, tools, and his boss, but that she did not know what he was doing for work at the time of his initial arrest for trafficking persons under the age of 18, trafficking, etc. This suggests that S.E.’s proposed primary surety does not know him well enough even though she has a child with him. This further suggests that she has a blind spot when it comes to S.E. because he is the father of one of her children, which would allow for the possibility of S.E. being able to breach any bail conditions imposed by this Court. And as the Crown persuasively argued if S.E. was not willing to listen to his mother what assurance can this Court have that he will listen to the mother of his child?
5. When asked by the Crown about her relationship with S.E. during cross examination S.E.’s primary proposed surety told the Court that she has known S.E. since March of 2020 or for approximately 4 years. This tells the Court that she does not know S.E. very well because shortly after she initially met him S.E. allegedly became involved in human trafficking and yet while this is going on she is becoming closer to S.E. because as she told the Crown a few questions later she began an intimate relationship with S.E. in February of 2021. This again suggests that S.E.’s primary surety has a blind spot when it comes S.E.,
6. When asked if she knew where 8 Westmore Drive in Toronto was, allegedly the sight of S.E.’s alleged breach on June 4, 2023, S.E.’s primary proposed surety answered that she does not know where that was. When told it was the address of Dr. Fleas Flee Market, she answered that she heard of it, she’s not been there in a couple of years, and doesn’t know if S.E. has been there. This answer again suggests that she does not know S.E. very well, which makes her a less than suitable surety because surety’s need to know the person they are proposing to supervise while on release to have confidence in them and for the Court to have confidence in the proposed surety. Therefore, as S.E.’s primary surety does not seem to know S.E. very well, the Court is not satisfied that she has confidence that S.E. will abide by any conditions imposed by either the Court of her.
7. In answer to a question from S.E.’s lawyer about whether she was aware of the allegations that S.E. is facing S.E.’s primary proposed surety told the Court that she had heard about the allegations and was aware of them but doesn’t find the allegations concerning. When cross examined by the Crown about her answer and asked about when she first heard that S.E. was charged with human trafficking, she answered that she doesn’t find him guilty until proven guilty, gives him a chance to prove himself, and is giving him the benefit of the doubt until the charges are proven. However, to be fair to her she did tell the Court in answer to a question from the Crown later during cross examination that allegations of human trafficking are concerning, which while an appropriate answer to the Crown’s question under cross examination was not her initial answer when asked about the allegations S.E. is facing during examination in chief. This leads the Court to suspect that S.E.’s primary surety does not truly find the allegation of human trafficking as concerning as the answer to Crown’s question about human trafficking would suggest.
8. During examination in chief S.E.’s primary surety was asked if she has laundry facilities in the building where she lives. In response she answered that sometimes the laundry machine(s) in her building do/does not work and that there is a laundry mat beside her building. She was then asked, on examination in chief, if she knew about the allegation that S.E. left his original surety’s residence without his surety being present on June 4th. In response S.E.’s primary proposed surety told the Court that she was aware of the allegation that S.E. had left his original surety’s residence without his surety to do laundry. What was left out of her answer and gives rise for concern to the Court is that the allegation is that he was also outside his surety’s residence for nearly one hour, is alleged to have been on a phone during this period, and is alleged to have been found by police officers while doing a bail compliance check out of breath and breathing heavily in the laundry room of his original surety’s building, which suggests that his primary proposed surety did not seem to be aware of these facts. Rather she understood the allegation to be simply that he left his surety’s residence to do laundry, which she seems will not be a problem if he is under her supervision because if the laundry machine in her building is not working there is a laundry mat right next store.

[48] Looking then at S.E.’s proposed secondary surety, the Court also believes that she is not suitable because:

a) While the Court finds that given her forthrightness, the matter-of-fact way she testified, and because during her testimony the secondary surety told the Court she would search S.E., strip him naked if it came to it, to ensure he doesn’t have a phone on him while at her residence, the Court can have every confidence that she would do all that is required of a surety and would have absolutely no hesitation to call the police the minute she caught a whiff of S.E. potentially or actually breaching his bail. However, she is being proposed as S.E.’s secondary surety and not his primary surety. Confidence in the secondary surety only gives the Court confidence that when S.E. is with his proposed secondary surety that it is less than significantly likely on a balance of probabilities that S.E. will not potentially breach the terms of any release order fashioned by this Court. It does not give the Court confidence that S.E. will not potentially breach the terms of any release order fashioned by this Court while under the supervision of his primary proposed surety even if she is the daughter of the secondary surety. b) S.E.’s proposed secondary surety testified while being cross examined by the Crown that she proposed herself as a surety for S.E. because she loves her daughter, S.E.’s proposed primary surety, and wants her to have help raising her 5-month-old son she has with S.E. She told the Court this in her words it is good to have a father in the home. Further, S.E.’s secondary proposed surety when asked if she had spoken to S.E. about the charges that he is facing answered that she had never spoken to him about the charges but will now. This is of concern to the Court because as the Crown argued in closing submissions the proposed secondary surety hasn’t even turned her mind to the types of offences that S.E. is accused of committing. The answer that S.E.’s secondary surety gave suggests that S.E.’s secondary surety is not coming forward as a surety for S.E. but as a support for S.E.’s primary proposed surety. This is simply not good enough in the circumstances. For a person to act as surety they need to come forward because they want to assist the Court with supervising an accused, not because just because they want to assist another proposed surety or because it is good for a child to have there father around. Finally, if I am wrong in my characterization of the answers provided by S.E.’s secondary surety in this regard, the Court still has concerns about the secondary surety in this regard because during closing submissions S.E.’s counsel told the Court that S.E.’s secondary surety’s top priority is her daughter, S.E.’s primary proposed surety, and her granddaughter, S.E.’s child with his proposed primary surety, and would ensure the rigid application of any conditions imposed by the Court on S.E. as a condition of his release. c) S.E.’s proposed secondary surety has a 13-year-old daughter who lives with her full time. Because the charges that S.E. are facing before this Court involve allegations that he allegedly sexually assaulted and trafficked a person under the age of 18 when they were 15 years of age the Court has grave concerns with S.E. being at his proposed secondary sureties residence at anytime even if his secondary surety, as she testified, would never let S.E. be around her 13 year-old-daughter, unless she was around. Further, the Court agrees with the Crown that S.E.’s proposed secondary surety has a blind spot as a surety. That blind spot is her 13-year-old daughter who lives with her and the intentionality of the type of conduct it takes to commit the type of offences S.E. is alleged to have committed (i.e., trafficking a person under the age of 18). While the court is mindful that at this stage the charges that S.E. are facing are only allegations, the fact remains that it is too large a risk in the Court’s opinion to allow S.E. to be in his secondary surety’s home with a 13-year living in the home at it would put the safety of the 13 year at risk, which is a risk this Court is not willing to take.

[49] In short, the Court’s concern about S.E.’s proposed sureties are best summed by by Nordheimer J in R. v. Beaulieu, 2007 ONSC 5682 when he said:

“I do not doubt the sincerity of the proposed sureties or of their devotion to [the accused]. Each of them clearly cares for the gentleman. Each of them clearly trusts that he will follow their directions. Each of them clearly believes that he will not do anything to put them at risk. It is a reality, however, that most friends and family members who offer themselves as sureties share the same level of devotion and trust regarding their loved ones. That is not the same thing, however, as establishing that they can, in fact, control a person that they care so much about. Their love and faith in the person may very well operate as a blind spot regarding the realities of the situation”.

[50] Even if the Court had found S.E.’s sureties’ to be suitable the plan presented would have been somewhat problematic. It would have been problematic because having 2 surety residences where an accused can be at anyone time makes doing bail compliance checks harder for the police. It makes it harder for the police because it essentially doubles the work of the officers responsible for doing bail compliance checks. In the instant case not only would S.E.’s plan doubles the amount of work police must do when doing a compliance check it would also afford S.E. twice as much opportunity to potentially breach any bail conditions imposed by this Court. Further, since S.E. allegedly wasn’t willing to abide by the previous bail conditions imposed by Justice Fatsis and listen to his last surety, his mother, giving S.E. double the amount of chances to potentially breach any conditions imposed on him by the Court were he to be released on almost the identical set terms as imposed by Justice Fatsis is a risk to public safety that this Court is unwilling to take.

[51] While the Court finds that neither of S.E.’s sureties are suitable it is still necessary to address S.E. proposed alternative bail release plan. That plan, as outlined above except with just one surety and not two, is the exact same plan of release as proposed by S.E. on December 22, 2022, when he was released by Justice Fatsis. The only difference between S.E. original release plan presented to Justice Fatsis and S.E.’s alternative plan is that a presumably stronger surety, S.E.’s mother, is being swamped out for a weaker surety, which is the mother of S.E.’s 5-month-old child. The reasons the mother of S.E.’s 5-month-old child is a weak surety are outlined above. Therefore, S.E. cannot be released in accordance with this alternative bail plan either as it would not bring the likelihood of S.E. potentially breaching his bail conditions and putting the protection/safety of the public at risk below the level of substantial. In fact, in this Court’s opinion S.E.’s alternative plan would make it more likely, not less likely that he would potentially breach his bail conditions thereby potentially putting the safety of the public at risk.

[52] Finally, given the weaknesses of both S.E.’s primary and alternative bail plans would the imposition of an ankle monitor strengthen either of S.E.’s proposed plans? Would it bring the likelihood of S.E. potentially reoffending below the level of more likely than not. In the Court’s opinion it would not. It would not because an ankle monitor was imposed by Justice Fatsis and that did not allegedly stop S.E. from breach the terms of Justice Fatsis’ order not once but twice. Further, as pointed out by Brown J.A. in R v. Jesso, 2020 ONCA 280 there are limits to ankle monitoring, which is a service provided by Recovery Science in Ontario:

a) There are limits to the practical effectiveness of the RSC service. In a document titled, “Overview of Criminal Programs”, the company states:

In our view, monitoring ought not to be relied upon if the required standard is to prevent violations or to ensure an immediate police response. Rather, monitoring is best thought of as a risk management tool - it cannot prevent an accused from fleeing nor can it guarantee police intervention in a breach or offence in progress.

b) RSC makes a similar point in a document titled, “Radio-Frequency (RF) & GPS Monitoring for Criminal Cases – Program Summary”, which states:

16. While the system can and does deliver violation alerts very quickly, typically, in 1-10 minutes, we do not encourage reliance on rapid police response time as a factor in making a decision to release rather than detain an accused. This is for two reasons: firstly, because there are many factors that create the potential for delay in the chain of communications that lead from a violation event to the ultimate police response and, secondly, because even when there are no such delays and the police response is immediate, that may still not be sufficient to prevent an accused from fleeing or committing an offence.
17. These considerations regarding response time lead us to encourage decision makers to view monitoring not as a prevention tool but as a risk management tool that, in some cases, can have a significant impact on a plan’s ability to meet the applicable legal requirements…”

[53] Further to Brown J.A.’s finding in Jesso in R. v. Fleming, [2015] O.J. No. 4380 (S.C.J.), Trotter J. (as he then was), pointed out at para. 18 that GPS monitoring only reveals where a person is, not what he is doing. As observed by Hourigan J. (as he then was) in R. v. Palijan, [2012] O.J. No. 6549 (S.C.J.), at para. 25, a company such as RCS focuses on gathering evidence of compliance, not preventing non-compliance. Therefore, in this Court’s view the imposition of an ankle monitor, given its limits and the fact that one was previously imposed but did not seem to deter S.E., would not bring the likelihood of S.E. potentially breaching any bail conditions imposed by this court below the level of substantial.

Tertiary Grounds

[54] In a tertiary ground analysis, the task is to determine whether detention is necessary to maintain the public’s confidence in the administration of justice. In R. v. St-Cloud, the Supreme Court of Canada instructs that the four enumerated factors set out in s. 515(10)(c) of the Criminal Code are not exhaustive, no single circumstance is determinative, a court must not order detention automatically even where the four listed factors support such a result and all the circumstances of each case must be considered, paying particular attention to the four listed factors.

[55] It is settled law that the tertiary ground is a stand-alone ground. That the tertiary ground should not be conflated with the secondary ground. However, the Court, in applying the Supreme Court of Canada’s (“Supreme Court”) explanation of the tertiary grounds in St-Cloud must consider the combined effect of all the circumstances of each case, which requires a broad interpretation of “ all the circumstances ”. In Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 the Supreme Court analyzed the ordinary and grammatical meaning of the phrase “all the circumstances” and noted, at paragraphs 29 and 30, where the matter involves the exercise of discretion (as is the case here), a consideration of the greatest possible number of relevant factors is required.

[56] As well, in a tertiary ground analysis, the Court must consider the perspective of the “public”. That is the perspective of a reasonable person who is properly informed about the philosophy of legislative provision(s), Charter values and the actual circumstances of the case before the Court. However, the Court must keep in mind that the “reasonable person” is not a legal expert and is not expected to appreciate the subtleties of the various defences that may be available to an accused before the Court.

[57] In the Court’s view a “reasonable person”, cognizant of:

a. the fact that counsel for S.E. admitted in closing submissions that the Crown has a strong case; b. S.E. is alleged to have breached the extremely strict terms of the December 30, 2022 release order of Justice Fatsis on two separate occasions and the allegations surrounding each of those respective alleged breaches; c. the gravity of the offence(s) allegedly committed by S.E., which in this case include procuring a person under the age of 18, sexual assault, trafficking, and trafficking of a person under the age of 18, amongst other charges, which the Crown drove home to the Court by reading a paragraph about human trafficking offences from the Supreme Court decision in R v. Downey, 1992 CarswellAlta 56; d. the circumstances surrounding the commission of the offence as outlined above in the section where the Court laid out the allegations that were provided to the Court on consent; e. the primary and alternative bail plans presented by S.E. as outlined above; f. the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment…as both the Crown and counsel for S.E. agreed S.E. is liable to receive should he be convicted; and g. the fact that S.E. comes before this Court without a criminal record,

would in the Court’s view, lose confidence in our system of justice if S.E. were to be released. This is something to be avoid. Therefore, the Court is detaining S.E. on the tertiary grounds as well.

493.2

[58] At the beginning of his closing submissions counsel for S.E. told the Court that S.E. is a person who is part of a member of a vulnerable population who is overrepresented in the criminal just system. Then counsel for S.E. went on to essentially articulate the proposition in R v. A.A., 2022 ONSC 4310 wherein the Court stated that:

[t]he section (493.2) was placed by Parliament at the beginning of the bail release sections in Part XVI of the Code. It must be given effect whenever a vulnerable, overrepresented accused is before the court for bail. Not to do so would constitute an error of law in circumstances where it could potentially make a difference to the decision: St. Cloud at paras. 121, 139.

[59] The Court agrees with counsel that S.E. is a member of a vulnerable population that is overrepresented in the criminal justice system. While the Court agrees with counsel and by extension the Court in A.A., the Court has to keep in mind what was stated by the Court in R. v. Okeke, 2020 ONSC 6417 at paragraph 48:

[48]…As Martin J. discussed in Zora, supra, at paras. 26, 79-80, ss. 493.1 and 493.2 are both directed primarily against “the imposition of excessive and onerous conditions” on disadvantaged persons that “effectively set the accused up to fail”. They do not change the requirements of s. 515(6), which provides that in a reverse onus situation the judicial officer “shall order, despite any provision of this section, that the accused be detained in custody” unless the accused has met his or her onus of justifying his or her release. The unfortunate reality is that even when the principle of restraint is properly applied, some disadvantaged and vulnerable people will still have to be detained because they are unable to present a release plan that adequately addresses the specific s. 515(10) concerns that arise on the facts of their particular cases….

[60] Therefore, as S.E. is in a reverse onus situation and the plan that he has proposed is such that he has failed to discharge his onus he must be detained despite s. 493.2 of the Criminal Code. So, while the Court is cognizant of the overrepresentation of black Canadians in the criminal justice system such as S.E. the fact is that, as the Court said in Okeke, “ some disadvantaged and vulnerable people will still have to be detained because they are unable to present a release plan that adequately addresses the specific s. 515(10) concerns that arise on the facts of their particular cases”. This is the circumstances in which S.E. finds himself before this Court.

Conclusion

[61] S.E. is detained pursuant to both the secondary and tertiary grounds. His matter will proceed before the Superior Court of Justice when the Crown files the direct indictment with the Superior Court.

Released: December 13, 2023 Signed: Justice of the Peace R. Shawyer