ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-342
DATE: 20130201

BETWEEN:

HER MAJESTY THE QUEEN

A. Shatto, for the Crown

• and -

T.R.

H. Thompson, for the Defendant

Defendant

HEARD: January 31, 2013

REASONS FOR DECISION ON

BAIL REVIEW APPLICATION

Conlan J.

INTRODUCTION

[1] In Canada, a person charged with a criminal offence has a Constitutional right to reasonable bail. That right is one of the hallmarks of our criminal justice system. Without it, the presumption of innocence becomes illusory as there would be scores of accused persons behind bars without being found guilty. The importance of bail cannot be overstated. Whether an accused person is granted bail often determines the plea, for example.

[2] Not everyone, however, is released on bail. There are occasions where the Crown meets its onus to show why the accused should be detained on the primary, secondary and/or tertiary grounds pursuant to section 515(10) of the Criminal Code, and there are instances where the accused bears the onus to show on balance why s/he should be released on bail but fails to meet that onus.

[3] The Crown met its onus in the Court below. After a contested bail hearing before His Worship Justice of the Peace Taylor on October 31, 2012, Ms. R. was detained on all three of the primary, secondary and tertiary grounds. The Crown had sought detention on the secondary ground.

[4] Ms. R. has applied to this Court for a review of the bail detention Order made in October of last year.

[5] The filing of a Bail Review Application does not automatically give an accused person a fresh bail hearing. There is a threshold issue to determine as to whether there has been a material change in circumstances and/or an error in the Court at first instance. The Applicant bears the onus to demonstrate one or both of those on a balance of probabilities.

[6] For oral reasons delivered in court on January 31, 2013, I find that Ms. R. has indeed established a material change in circumstances; in fact, the Crown did not argue otherwise. Clearly, the much stricter bail plan being proposed now is materially different from the plan that was presented to His Worship.

[7] The charges were and remain as follows:

• procuring a young person to become a prostitute contrary to subsection 212(1)(d) Criminal Code of Canada;

• sexual assault on that same young person contrary to section 271 Criminal Code of Canada;

• sexual interference with that same young person contrary to section 151 Criminal Code of Canada;

• possession of child pornography contrary to section 163.1(4) Criminal Code of Canada;

• and breach of probation for failing to keep the peace contrary to section 733.1(1) Criminal Code of Canada.

[8] Having established on balance a material change in circumstances, this Application in the Superior Court of Justice proceeded as a hearing de novo (a fresh bail hearing). A publication ban was ordered. There was an Order excluding witnesses with no exceptions.

[9] This is a crown onus situation as agreed by counsel.

THE ISSUE

[10] Has the Crown established on a balance of probabilities cause as to why Ms. R. should be detained in custody?

[11] The Crown says yes. The Defence says no. The Crown seeks detention on the primary and secondary grounds, though mainly the latter.

THE EVIDENCE

[12] I have considered the Affidavit sworn by Ms. R. on 31 January 2013 including Schedules A (the proposed release terms) and B (her criminal record), the Application Record, the Respondent’s Application Record, the transcript of the bail hearing in the lower Court, and the viva voce evidence before me from Ms. R., Darren Hansma – Director of IntactAccess Inc. (among other things, a private electronic monitoring company), and W.E. – Ms. R.’s maternal grandmother and proposed surety.

THE GROUNDS FOR BAIL DETENTION

[13] In Canada, accused persons cannot be detained at the whim of the Court. Parliament has directed that there are only three grounds upon which a detention order may be made. Those grounds are found in section 515(10) of the Criminal Code. There is no authority to deny bail to someone charged with a criminal offence for some discretionary reason outside the parameters of section 515(10).

[14] The primary ground in paragraph (a) is where detention is necessary to ensure the attendance of the accused in Court. It is meant to address flight risk and the absconding accused.

[15] The secondary ground in paragraph (b) is where detention is necessary to protect members of the public, whether connected to the charges as a victim or witness or not. All of the circumstances must be considered, but the focus is whether there is a substantial likelihood that the accused will on release commit a crime or interfere with the administration of justice.

[16] The tertiary ground in paragraph (c) is where detention is necessary to maintain confidence in the administration of justice. Again, the Court shall consider all of the circumstances, but Parliament has delineated four specific factors: the strength of the Crown’s case, the seriousness of the offence, the nature of the offence such as whether a firearm was used, and the potential punishment if the accused is found guilty including the possibility of lengthy prison time or a minimum custodial sentence for a firearms offence. That ground of detention is not being advanced by the Crown.

ANALYSIS and CONCLUSION

[17] Faced with the same evidence and bail plan that were presented to the learned Justice of the Peace, I would have detained Ms. R. on the secondary ground.

[18] This, however, is a materially different and much tighter bail proposal. Assessed in the context of the evidence before me, the proposal that Ms. R. be subject to the IntactAccess electronic monitoring compliance protocol and the bail terms that I may impose in that regard, I have concluded that it is not necessary to detain Ms. R. in custody to ensure her attendance at Court (the primary ground) or to protect members of the public (the secondary ground).

[19] Detective Ford of the Owen Sound Police Service has conducted a competent investigation which has led to the laying of very serious charges against Ms. R. Given those facts, along with Ms. R.’s significant criminal record which includes multiple convictions on crimes against the administration of justice, failing to attend court and breaching Court Orders, the Crown was well justified in opposing this release both in the court below and before me. The Crown, however, has not met its onus.

[20] T.R. shall be released from custody on a Recognizance of Bail with one surety, W.E. The amount of the pledge shall be $1,000.00 in the name of the surety and $1,000.00 in the name of Ms. R. The conditions, numerous and onerous but necessary to address the primary and secondary grounds, shall be as follows:

• Ms. R. shall reside with her surety, W.E., and obey all rules of that household;

• Ms. R. shall not reside or stay overnight with any person other than W.E.;

• Ms. R. shall have no contact in any form, directly or indirectly (except through her legal counsel), with A.V. D.-K., B.M., D.M. and C.A.;

• Ms. R. shall not attend within 50 metres of any place known to her to be the residence, place of employment or place of education of A.V.D.-K., B.M., D.M. and C.A.;

• Ms. R. shall not possess or consume alcohol or drugs except in accordance with a medical prescription;

• Ms. R. shall not attend at any place where alcohol or non-medically prescribed drugs exist;

• There shall not be any alcohol or non-medically prescribed drugs in Ms. R.’s residence;

• Ms. R. shall not possess any firearm or weapon as those terms are defined in the Criminal Code of Canada;

• There shall not be any firearms or weapons, as defined in the Criminal Code of Canada, in the residence of Ms. R.;

• Ms. R. shall remain within the City of Owen Sound;

• Ms. R. shall report to the Owen Sound Police Service station and sign the register between the hours of 9:00 a.m. and 10:00 a.m. each and every Tuesday and Friday commencing Tuesday, February 5, 2013;

• Ms. R. shall not access the internet or possess any device which has internet access;

• There shall not be any device with internet access in Ms. R.’s residence;

• Ms. R. shall not be in the presence of any person under the age of 16 years unless in the company of W.E.;

• Ms. R. shall not attend at any motel, hotel or short-term rental premises unless in the company of W.E.;

• Ms. R. shall present herself at the door of her residence upon request by a member of the Owen Sound Police Service or an employee or agent of IntactAccess Inc.;

• Ms. R. shall maintain a curfew by remaining in her residence except for the following situation: Ms. R. may be outside of her residence between the hours of 9:00 a.m. and 6:00 p.m. daily provided that she is in the company of W.E.;

• Ms. R. shall comply with the protocol established by IntactAccess Inc., which said protocol shall be appended as Schedule A to the Recognizance of Bail; and that protocol shall, at a minimum, provide that Ms. R. wear an electronic monitoring device which will forthwith sound an alarm reported without delay to the Owen Sound Police Service if Ms. R. violates any condition imposed herein with regard to curfew, remaining within the City of Owen Sound and not attending at or near the places specified herein;

• Ms. R. shall pay, on time, all fees and charges associated with the services of IntactAccess Inc., failing which those services shall be terminated forthwith.

[21] Order to go accordingly.

Conlan J.

Released: February 1, 2013

COURT FILE NO.: CR-12-342
DATE: 20130201

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

• and -

T.R.

Defendant

REASONS FOR DECISION ON

BAIL REVIEW APPLICATION

Conlan J.

February 1, 2013