ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-0018-BR
DATE: 2012-02-14
B E T W E E N:
HER MAJESTY THE QUEEN,
Andrew Sadler , for the Crown
Respondent
- and -
CODY HILL (a.k.a. KOOPMANS)
Neil J. McCartney , for the Applicant
Applicant
HEARD: February 9, 2012, at Thunder Bay, Ontario
Mr. Justice F. Bruce Fitzpatrick
Reasons On Application For Bail Review
[ 1 ] This is an application by the accused, Cody Hill, pursuant to s. 520 of the Criminal Code of Canada (“C.C.C.”) for review of the detention order made by Justice of the Peace R.E. Michels on January 16, 2012.
[ 2 ] The detention order was made on the secondary grounds with a passing reference to the tertiary grounds.
[ 3 ] Mr. Hill is charged with the following:
(1) That on or about January 11, 2012 he assaulted a person with intent to steal from him; and
(2) That on or about January 11, 2012 he committed an assault with a weapon.
[ 4 ] Mr. Hill’s trial has not yet been scheduled.
[ 5 ] At the bail hearing on January 16, 2012, Justice of the Peace Michels gave oral reasons why he ordered Mr. Hill detained on the secondary grounds with some reference to the tertiary grounds. The Justice of the Peace found that the Crown had discharged its onus to show cause why Mr. Hill should be detained pending trial. The Justice of the Peace was concerned about Mr. Hill’s previous record. Specifically four prior breaches of recognizance led the Justice of the Peace to believe that it was likely Mr. Hill would commit future breaches. While the Justice of the Peace was not concerned about the fact that the two proposed sureties were not able or prepared to put forward any money (either on a deposit or no deposit basis), he believed that the proposed sureties were not capable of performing the duties of a surety. The Justice of the Peace was concerned about Mr. Hill’s drug addiction and was of the view that the sureties would not be able to enforce the terms of bail. Mr. Hill was ordered detained pending trial.
Background
[ 6 ] The facts alleged by the Crown are as follows. Around 7:00 p.m. on January 11, 2012 the police received a 911 call from a Dairy Queen located at 428 Cumberland Street in Thunder Bay. The caller informed police that a male entered the store with a knife and attempted to rob the store. It is alleged that the robber was Mr. Hill, who, at the time, was wearing a coloured scarf around his head and face. He is also alleged to have been brandishing a steak knife with a black handle.
[ 7 ] The robber was not successful in obtaining any funds as the cashier managed to jam the perpetrator’s right hand in the cash register as he tried to pull money from it. The police allegedly followed footprints from the Dairy Queen to the vicinity of Mr. Hill’s apartment. Before reaching the apartment, the pursuing officer located some clothing that matched a description of the clothes worn by the person who had attempted to rob the Dairy Queen.
[ 8 ] Upon his arrest, photographs were taken of Mr. Hill’s right hand. There was a red mark on his right hand at or about the location where the Dairy Queen employee indicated that he had jammed the hand of the person who had attempted to rob the store.
[ 9 ] The first surety proposed was Mr. Hill’s 62 year old grandmother, Tuula Hill. Ms. Hill proposed to live with Mr. Hill and his girlfriend in their one-bedroom apartment. She has no assets and accordingly could not offer any monetary surety.
[ 10 ] A second surety proposed was Brandy Norland. Ms. Norland is Mr. Hill’s girlfriend’s sister who is approximately 10 years older than Mr. Hill. Ms. Norland made it quite clear she was not prepared to put up any monetary surety. Also she was not prepared to allow Mr. Hill to live with her. She indicated, given Mr. Hill’s drug problem, she was concerned about him relapsing and that having a negative influence on her young child.
[ 11 ] Mr. Hill admitted he is addicted to morphine. However, he had been participating in a methadone program for five months prior to the alleged offence. He did indicate, however, that he had relapsed perhaps twice in the past four months. Mr. Hill further acknowledged that he had been convicted of breaches of recognizance on four occasions.
Standard of Review
[ 12 ] Counsel for Mr. Hill referred me to R. v. Giesbrecht , [2007] O.J. No. 5643 (S.CJ.) . In that decision, Justice Wright adopted a statement taken from now Justice Garry Trotter in The Law Of Bail In Canada and said as follows:
“9 The defendant refers to the statement set out by Trotter in the Law of Bail on Canada (2 nd edition) at page 314: “A broad scope of review, one that is faithful to the constitutional features of the bail decision is desirable. It is also sustainable under Sections 520 and 521. The moving party on a review ought to be able to have a previous order vacated: 1) on the basis of a material change of circumstances; and/or 2) by persuading the reviewing judge that a different result ought to have been reached by the justice.” I agree with Professor Trotter.”
[ 13 ] Based on the Giesbrecht decision, counsel for Mr. Hill urged me that the standard of review is such that I could, in effect, substitute my decision on the matter for that of the Justice of the Peace.
[ 14 ] In respect of the issue of the standard of review, counsel for the Crown relied on a number of other cases including the decision of Justice Hill in R. v. Reid, [2000] O.J. No. 3603 (S.C.J.) at para 7 , which states as follows:
“a detention review pursuant to s. 520 of the Code is not a de novo hearing. The application for review must establish an error in principle in the reasoning of the show cause justice and/or a material change in circumstances since the original proceedings”.
[ 15 ] I am not convinced that the decision in R. v. Giesbrecht stands for as wide a proposition as is submitted by counsel for the defence. While it is true that Justice Wright, in adopting the text of now Justice Trotter, suggested that it is possible for the moving party to persuade a reviewing justice that a different result ought to have been reached in first instance, in my view, that decision can only come when there is a finding as set out in R. v. Reid that there was either an error in principle and/or a material change in circumstances since the original proceedings.
[ 16 ] In order for the standard of review to be as broad as suggested by the counsel for the defence, I believe that specific statutory language would be required in the provisions of s. 520 or s. 521 which govern this proceeding. In my view, such language would clearly specify that the matter is to be dealt with by way of a hearing de novo . Such language is not present in those sections. I believe deference should be given to the Justice of Peace on a bail review consistent with the line of cases following R v. Reid . Consequently in this matter, it is my view that counsel for the defence has to demonstrate that the Justice of the Peace erred in principle.
[ 17 ] In this matter, the defence pointed me to a very specific section of the relatively short oral reasons for decision given by the Justice of the Peace. The specific portion of the transcript reads as follows:
“My considerations are, have more to do with Mr. Hill’s current situation in struggling with alcohol and drug abuse, or I guess it’s primarily drugs. And the question that has been in foremost on my mind all the way along, is the allegation, that’s before the court and that is the robbery charge with a weapon at the Diary Queen store.”
[ 18 ] Counsel for the defence submits that these reasons indicate that the Justice of the Peace did not give Mr. Hill the benefit of the presumption of innocence which is mandatory under s.515.
[ 19 ] In my view, the particular section relied upon by the defence was not completely indicative of the thinking of the Justice of the Peace with respect to why bail was denied. In another portion of the reasons, the Justice of the Peace said as follows:
“Mr. Hill’s previous record that does give me some concern because of the nature of the charges and convictions. First of all there is the issue of breaches of court orders, and while we don’t have a lot of detail on that, nonetheless breaches are breaches and I have to be concerned about the reliability of Mr. Hill as far as attending court and doing what the court requires. … And while it was some time ago in history, one goes back to, I guess they are all pretty much back in 2008 and 2006, so that is somewhat back in history, at least three years, but nonetheless the nature of them with, so firearm, possession of property obtained by crime, possession of a weapon, arson with disregard to human life, possession of property obtained by crime and so on, those are not easily overlooked issues. They are potentially are significant as far as the risk to the public is concerned, and so there is enough of a pattern there that I have to be concerned about that as a future prediction.”
[ 20 ] The Justice of the Peace also turned his mind to the quality of the sureties where he said:
“While I don’t have any doubt about the desire of the pro-securities here to do their job, but I am concerned about is their ability to do the jobs.”
[ 21 ] Elsewhere the Justice of the Peace also said:
“And I have to ask myself, now if that the allegation is proven, if in fact that happened, which I, and the question is, why would he need, why would he need to rely upon that as a source of money when he is on ODSP, and that raises a concern on my mind as to whether or not he’s got any kind of serious control on his drug additions. That being the case and the primary concern I have is in regard to re-offending and that is a signal that it is re-offending a process as far as the drugs are concerned so when I add all that up I have to say, I don’t have confidence in the plan that is proposed before the court. I think the sureties have the best of intentions but my job isn’t to measure intentions, my job is to measure the probably of the desired result which is to ensure conformity with court orders and I don’t have that confidence so therefore I’m going to deny bail.”
[ 22 ] I do not believe the reasons indicate that the Justice of the Peace treated the accused as guilty of the offences charged. There is no basis to find that the Justice of the Peace did anything other than to presume Mr. Hill to be innocent. Accordingly I do not believe that the Justice of the Peace committed an error in principle in denying bail.
[ 23 ] The accused freely admitted his drug addiction. The Justice of the Peace weighed that evidence together with Mr. Hill’s prior record of breaches of recognizance. He also assessed the plan regarding bail put forward by Mr. Hill and found it lacking. I agree with the assessment of the Justice of the Peace concerning the deficiencies of Mr. Hill’s plan.
[ 24 ] Accordingly I find there has been no error in principle and that the application is dismissed.
The Hon. Mr. Justice F. Bruce Fitzpatrick
Released: February 14, 2012
COURT FILE NO.: CR-12-0018-BR
DATE: 2012-02-14
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN, Respondent - and – CODY HILL (a.k.a. KOOPMANS), Applicant REASONS ON APPLICATION FOR BAIL REVIEW Fitzpatrick J.
Released: February 14, 2012
/mls