R. v. Manning, 2024 ONCJ 386

Court Information

DATE: August 6, 2024 ONTARIO COURT OF JUSTICE Central West Region

His Majesty the King -and- Christopher MANNING

Judicial Interim Release Hearing conducted July 23, 2024 Decision and Reasons issued July 25, 2024

Appearances

Crown: R. Woloshyn-Chick, M. Moser Defence: A. James

Statutes and Cases Considered or Cited

Statutes Considered or Cited:

• Criminal Code, R.S.C., 1985, c. C-46, as amended (CCC)

Cases Considered or Cited:

• R. v. E.B., 2020 ONSC 4383
• R. v. Gaete, 2011 ONSC 28500
• R. v. Riaz, 2017 ONSC 3751
• R. v. White, 2010 ONSC 3164, [2010] O.J. No. 2269
• R. v. Whyte, 2014 ONCA 268

Decision of the Court

[1] I pronounced my decision to detain the accused on March 25th, the day following the hearing. I indicated that I needed additional time to prepare fulsome reasons. These are my reasons.

Background and Evidence

[2] Mr. Manning is just over nineteen years of age. He comes before the Court with no record and he seeks release on three counts: assault with a weapon, assault (simpliciter), and obstruct police. This arises out of events alleged to have occurred in a restaurant, on or about May 23, 2024. He has remained in custody since, electing not to run a show cause hearing until July 23, 2024.

[3] The Crown holds Mr. Manning to the burden of demonstrating why he should be released, pursuant to s. 515(6)(a)(i) of the Criminal Code. It is alleged and acknowledged that he was, at time of these alleged offences, on release for two prior sets of charges. The first in time of these was in August of 2023, in Brampton, ON, when he was charged with possession of property obtained by crime and possession of a dangerous weapon. He was released on a Form 10, Undertaking to an Officer, and with conditions relating to the complainant(s). His release in relation to these charges set out a residential address in Etobicoke. At the time of those charges, he was some four months over the age of eighteen.

[4] In relation to those charges, there was an endorsed warrant for his arrest, which had not been executed by the time he appeared before me, in spite of him having been in custody. This arose from an alleged failure to appear in court, in early July 2024.

[5] Other charges arose in Toronto in March of 2024. He was released on a Release Order without surety, but with a financial pledge of $500, and with conditions. These conditions include a weapons prohibition.

[6] That Release required him to advise police of his address as well as any changes to address.

[7] The new (Hamilton) charges arose within just over two months of his Toronto release.

Defence Position

[8] Counsel has now been retained on all outstanding matters. That said, counsel seemed to be unaware of the outstanding warrant in Peel Region, but did agree that the accused would attorn to the jurisdiction of the Court (noting in particular that while he has been in custody for some period of time, he was not arrested on the warrant and taken to the Peel Court, nor has counsel obtained a Judge’s Order to ensure he appears in relation to those matters).

[9] Defence proposes he be released again without surety, but with an additional financial pledge. There is nothing put before the Court to suggest that he could actually fulfill any financial pledge, if he were required to at a later time. The proposal includes him returning to a youth shelter where it is said he resided for a period (undefined) of time, but apparently sometime around the time of his arrest in Toronto. The Court received no information as to why “was transferred” from that shelter to one in Hamilton, or when. It is suggested that the shelter in Toronto has a youth social worker who is willing to work with the accused.

[10] In addition, defence proposes he be banished from the City of Hamilton, but for Court appearances, and that he report to Toronto police weekly.

[11] Defence further advises that Mr. Manning has arranged an assessment with the Canadian Mental Health Association, which, it says, it will also rely upon to assist the Crown in determining whether he might be in a position of having the charges withdrawn after some additional steps are taken. However, according to the defence, in the worst case scenario, Mr. Manning has been screened for a conditional discharge (at least with respect to the charges which bring him before this Court).

[12] Accordingly, defence submits that it is contrary to the interests of justice for him to be detained in custody until the charges are addressed, as he is unlikely to serve any further custody on a conviction.

[13] Finally, defence points out that Mr. Manning is a member of a group disadvantaged in obtaining release, as a member of a visible minority community, and, potentially, as a result of any as yet undiagnosed mental health challenges. Mr. Manning, I am told, has lived apart from any family “for a long period of time”, however, the reasons for that were not provided to the Court. I am told he has no available family to support him, and he clearly finds himself in what can only be understood to be tragic circumstances.

[14] Defence submitted four cases in support of its position. However, none were particularly helpful. The most recent Ontario case turned on the issue of time served complicated by health conditions and the COVID pandemic. The only aspect with which that case would be of assistance would be that further detention might adversely impact his mental health.

[15] The other cases were dated or from other Provinces. None addressed the issue of s.493.1, introduced into the CCC in 2019.

Crown Position

[16] The Crown argues that Mr. Manning is a clear danger to the community, a substantial risk to re-offend, and that the proposed plan, as it substantially mirrors the Toronto release, is not likely to assist in reducing the risk of re-offence below substantial. While it is clear Mr. Manning comes before the Court with no record, his behaviour since he turned eighteen is alarming, and shows no prospect of abating.

Analysis

[17] To address the primary issue of detention where a time served disposition is indicated, defence offered no cases. Clearly, there is appeal to the notion that someone who would serve no more time after conviction has some allure.

[18] The Court is aware of the more commonly known cases of R. v. White, R. v. Whyte, and R. v. Riaz.

[19] In R. v. White, Hill, J, wrote:

I am satisfied that, in all the circumstances, public confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if convicted.

[20] These cases were all bail review decisions. The Court of Appeal adopted these comments with affirmation, as did the Court in R. v. Riaz. In each case, time served played a significant role as a changed circumstance.

[21] I am also aware of R. v. Gaete, in which Corbett, J, stated:

…it is possible that continued detention of Mr. Gaete will lead to a situation where he is incarcerated for a longer period than the sentencing judge would have imposed after a finding of guilt. That concern is not relevant where detention is warranted on the primary or secondary grounds. But it does matter under the tertiary ground.

[22] It appears to be clear that the decision of Justice Hill ought be read more narrowly than first glance may suggest.

[23] This accords with the Crown position that the fact the accused may serve no more time on conviction than has been accrued to the time of the hearing does not offset the risk to the public, which must be addressed, if at all, through appropriate and effective bail conditions.

[24] The Court is alive to the issues of over-incarceration of individuals who are either members of culturally diverse communities and/or those who suffer with mental health challenges.

[25] The Court is aware of the decision in R. v. E.B. Schreck, J. offered the following:

[26] Indigenous people are not the only historically disadvantaged group to be over-represented in the criminal justice system. Racialized individuals, particularly those who are black, are also over- represented: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 83; R. v. Jackson, 2018 ONSC 2527, 46 C.R. (7th) 167, at paras. 40-48; R. v. Elvira, 2018 ONSC 7008, at para. 22; R. v. K.H., 2019 ONCJ 525, at paras. 59-60; R. v. Dykeman, 2019 NSSC 361, at para. 11. The same is true of those who suffer from mental illness: R. v. Ejigu, 2016 BCSC 1487, 340 C.C.C. (3d) 53, at para. 300; Hon. R. Schneider, “The Mentally Ill: How They Became Enmeshed in the Criminal Justice System and How We Might Get Them Out,” (2015), Department of Justice Canada Provocative Paper Series, at p. 3.

[27] The reasons why certain populations are overrepresented in the criminal justice system are complex. However, in my view it is beyond dispute that systemic racism in the justice system is part of the cause. Where the overrepresentation relates not to those who have been convicted of crimes, but those who are presumed innocent, the problem is all the more dire. This is a problem that must be remedied. Section 493.2 is clearly intended to be part of that remedy.

[28] While the purpose of s. 493.2 is clear, how it is to be implemented so as to achieve that purpose is less so.

[26] Justice Schreck was keenly aware of the need to protect the presumption of innocence to which an accused is entitled at the bail stage.

[27] With that context in mind, he further wrote:

[42] While s. 493.2 requires the court to consider the circumstances of Indigenous accused and members of vulnerable groups, it does not supersede s. 515(10) of the Criminal Code. What this means is that regardless of the accused’s circumstances, if his detention is necessary on the primary, secondary or tertiary ground, then he cannot be released. If there is a substantial likelihood that the accused will commit further offences if released and thereby compromise public safety, the fact that systemic or background factors contributed to that substantial likelihood does not change the result. A dangerous person is no less dangerous because he or she is a member of a vulnerable group: R. v. Sim, 2005 ONCA 37586, 78 O.R. (3d) 183 (C.A.), at para. 18.

[43] Where s. 493.2 comes into play, in my view, is in the court’s examination of the type of factors that are relied upon to make the determination of whether detention is necessary. For the secondary ground, which is at issue in this case, this usually consists of the accused’s criminal antecedents as well as the nature of the allegations. Making an accurate determination of whether those factors lead to the conclusion that detention is necessary requires that they be considered having regard to the unique circumstances of the accused, including any relevant systemic factors. This was the approach taken in R. v. Chocolate, 2015 NWTSC 28, at paras. 49-50: In my view, honouring the constitutional right to reasonable bail requires consideration of the socio-economic factors present in the life of any accused, regardless of whether they are Aboriginal. For many Aboriginal people who come before the courts, however, the factors identified in Gladue will form a large part of their overall socio-economic context. It would be unreasonable and unfair to conclude detention is justified based solely on an accused’s criminal record and/or the circumstances of the alleged offence without considering the role Gladue factors may have played in leading to that person committing criminal acts in the past, being charged again and, consequently, seeking bail. There simply must be more than a superficial review of an accused's past criminal conduct and/or the circumstances leading to the current charge. An examination of the intergenerational impact of the residential school system, cultural isolation, substance abuse, family dysfunction, poverty, inadequate housing, low education levels and un- or underemployment on an Aboriginal offender may inform questions about why an accused has an extensive criminal record and, if applicable, why that person has demonstrated an inability to comply with pre-trial release conditions in the past. They will also inform the decision about whether, given the accused's circumstances, there are release conditions which can be imposed so that future compliance is realistic and concerns about securing attendance at trial, public safety and overall public confidence in the justice system are meaningfully addressed.

[28] Once again, I remind myself, the burden to demonstrate that release should be granted falls to the accused. I am, as I indicated above, empathetic to the tragic circumstances that seem to have befallen this accused. At the same time, I know almost nothing about these circumstances. Nor do I know how they may be addressed through terms of proposed release.

[29] I accept that Mr. Manning is an “accused who belongs to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part” (s. 493.2 of the Criminal Code), perhaps twice over. However, I have virtually no information as to his antecedents, and more particularly, no information that enlightens how that background contributes to or helps understand how he came to be involved in the criminal justice system.

[30] I accept that there may be undiagnosed mental health concerns. That said, I cannot accept that a delay from date of proposed release to any such assessment (let alone counselling) will be without substantial risk of re-offence, especially given the history of events preceding this arrest.

[31] I accept that there is a willing social worker available at the shelter. I have no information that allows me to assess how effective that person may be in assisting Mr. Manning, particularly given that he was a resident at that shelter at a time connected with his Toronto arrest, and he left (with no explanation provided as to why) there.

[32] I have no information as to whether Mr. Manning has tapped into any culturally appropriate community resources, or community based mental health services to assist him in navigating his time at liberty without a substantial risk of re-offence which would otherwise put the public at significant risk.

[33] The Court sought to elicit any further information from counsel that may have been available to assist in these matters. It is clear that the Court ought not sit silent while these issues are insufficiently addressed. Unfortunately, the Court was provided little if any further assistance. While it is clear that counsel was confident of a possible road forward and passionate about assisting this youthful accused to return to the path he seemed to be on prior to his turning eighteen, that confidence and passion are simply not enough to satisfy the Court.

[34] For these reasons, I do not accept that Mr. Manning has met his burden, with the result as set out above that follows.

Issued at City of Hamilton, Ontario, August 6, 2024

Original Signed

His Worship Donald Dudar Justice of the Peace