SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 13BR10000050
DATE: 20130304

RE: R. v. Andrew Eagan

BEFORE: Dambrot J.

COUNSEL:
M. Humphrey, for the Crown/Respondent

S. Fishbayn, for the Applicant

HEARD: February 23, 2013

ENDORSEMENT

[1] Andrew Eagan brings this application pursuant to s. 520(1) of the Criminal Code to vary the judicial interim release order made by Bassel J. on November 28, 2011 at the conclusion of the applicant’s preliminary inquiry, by deleting a condition that imposes a curfew on him.

[2] The applicant is charged in an indictment with twelve firearm offences, all in respect of two loaded handguns alleged to have been in his possession on July 8, 2010. After a judicial interim release hearing, he was ordered released on a recognizance in the amount of $50,000 with two sureties, being his parents, with several conditions, including a condition of house arrest requiring him to be in the home of his parents except in the company of his father or mother.

[3] At the conclusion of the preliminary inquiry, Bassel J. replaced the house arrest condition with a curfew condition, requiring the applicant to be in the home of his parents from 10:00 p.m. to 6:00 a.m. each day, except when in the company of one of his parents. In addition, Bassel J. included a term to the order requiring the applicant to use his best endeavours to attend school or seek employment. Bassel J. made this variation because the applicant had complied with the house arrest condition for 16 months, and he wanted to give the applicant the “flexibility to allow him to try and do some worthwhile things.” He made this change in response to the submission of counsel for the applicant that the applicant “wants to work and bring some money into the home,” that this is not a strong case for the Crown, and that it could be another nine months to one year before the case would be tried.

[4] The Crown did not object to the bail being varied so that the applicant could be a productive member of society by working or attending school.

[5] The applicant now asks to be relieved of his curfew because, he says, the strength of the Crown’s case has been weakened since another person is prepared to give evidence that the guns were in fact his, and because the trial will not take place until December of this year, a longer delay than was anticipated, and, not having violated his release order, he ought to have an opportunity to have a normal social life in the interim.

[6] Whether or to what extent the Crown’s case has been weakened is debatable. But any effect that this “change” might have on this application is offset by other considerations. Specifically, I am troubled by the fact that this variation is substantially placed on the basis that the applicant ought to be permitted to enjoy a more normal social life, while the record is silent about the accused having satisfied the rationale for the house arrest term of his release being varied to a curfew in the first place. When the applicant was originally released, the proposed plan was for the applicant to work with his father. After the applicant was released, that plan did not work out. The affidavits filed by the accused on this application are silent about the applicant having obtained any other employment, or about him attending school. This silence speaks volumes.

[7] I see little reason to permit the accused to enjoy a more pleasant social life while awaiting trial on these serious charges, when he has obviously done nothing with his opportunity, in his counsel’s words, “to try and do some worthwhile things.” He has not availed himself of the opportunity he said that he wanted “to work and bring some money into the home.” As a result, the applicant has failed to satisfy me that the secondary ground concerns that justified the original house arrest condition, and later the curfew, have been alleviated sufficiently to permit the variation he seeks.

[8] This application is dismissed.

M. Dambrot J.

Date: March 4, 2013