ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR14-001
DATE: 2014-02-27
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Adam Shawana
Respondent
Stacy Haner, for the Appellant Crown
Brad Middleton, for the Respondent
HEARD: February 20, 2014
in Gore Bay, Ontario
DECISION ON APPLICATION FOR REVIEW OF JUDICIAL INTERIM RELEASE ORDER
DEL FRATE J.:
[1] The Crown seeks a review of the Judicial Interim Release Order made by Justice of the Peace Bubba on February 7, 2014, releasing the accused from custody upon a recognisance of bail with two sureties. The Crown is seeking an order detaining the accused in custody until he is dealt with according to law.
Background
[2] The accused is currently facing three charges of assault on his girlfriend, Nikki Trudeau. One count is alleged to have occurred on January 29, 2014, another count on June 20, 2013, and a further count on September 1, 2013. Another count is breaching the conditional sentence order dated December 13, 2013.
[3] On January 29, 2014, it is alleged that he struck his girlfriend in the face four or five times as a result of a disagreement between them. When the police intervened, allegations of two earlier assaults were made whereby on June 20, 2013, and September 1, 2013, the accused pushed the complainant and placed her in a headlock and on another occasion he swung her by the arm.
[4] At the hearing before Justice of the Peace Bubba, his mother and father proposed themselves as sureties. Each pledged $10,000 as security with strict conditions over and above the conditions of the conditional sentence. In particular, he is not to associate directly or indirectly with Nikki Trudeau and not attend within 500 metres of her places of residence, school or employment. He is not to possess any firearms and not to reside in any home where firearms are situated. Lastly, should the conditional sentence order expire before the present charges are heard then he is to reside with his parents and be subject to a curfew of being in the residence or adjacent property unless one of the sureties is with him.
[5] Both parents testified that they were aware of their son’s criminal behaviour and of his drug addiction. They also were aware that while purging his conditional sentence order his son tested positive for a variety of drugs including cocaine, morphine and oxy-contins. Some of the prescriptive drugs were supplied to him by his father who was attempting to alleviate his son’s sufferings from drug withdrawal. Apparently he was not given enough methadone to address his dependency.
[6] Mr. Romeo Trudeau, a family relative who resides next door, is also on the methadone program and described the withdrawal symptoms from opiates. During December, he witnessed Adam’s withdrawal symptoms and described him as being “real sick”. He was aware that his father was providing him with morphine to alleviate some of the symptoms.
[7] Although Romeo cannot act as a surety, he offers his assistance in any way that he can.
[8] At the hearing, the accused testified that he was ingesting drugs because of the withdrawal symptoms.
Position of the Crown
[9] The Crown submits that the Justice of the Peace erred in law in approving the accused’s parents as sureties. She submits that they were aware of the terms of the conditional sentence about abstaining from drugs and yet, the father in particular provided his son with illegal drugs.
[10] The mother was present when the alleged assault took place on January 29, 2014, and yet she took no steps to report her son. The parents need their son to help them out around the house in looking after the horses and thus would not be inclined to report breaches that their son might commit.
[11] The Crown submits that any breaches would only be discovered if the police became involved. Considering the seriousness of the offences and that the assaults were perpetrated on his girlfriend, the accused should be deprived of his liberty.
Discussion
[12] For the Crown to succeed in this Application, it must be shown that the Justice of the Peace made an error in law. It is not a question of whether another Justice of the Peace might have decided differently.
[13] In this case, the Justice of the Peace methodically assessed the evidence, the pre-sentence report and the Gladu Report and made findings of fact on the alleged incidents. He also concluded that both Mr. and Mrs. Shawana are appropriate sureties and they each have the financial resources of posting the $10,000 as a bond.
[14] He also accepted the explanation of why the accused had tested positive for certain illegal drugs and why his father would have provided some of his medication.
[15] A reviewing judge must show deference to the findings made by the initial judge. The findings could be made on the evidence presented. I see no error in law.
[16] I should add that the concerns expressed by the Crown are quite valid however, with the terms of the conditional sentence, and with the added conditions imposed by the Justice of the Peace, the secondary and tertiary grounds are satisfied since should there be a breach, both the accused and the sureties will be facing serious consequences.
[17] Accordingly, the Crown’s application is dismissed.
The Honourable Mr. Justice R.G.S. Del Frate
Released: February 27, 2014
COURT FILE NO.: CR14-001
DATE: 2014-02-27
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Adam Shawanda
Applicant
deCISION ON APPLICATION FOR REVIEW OF JUDICIAL INTERIM RELEAse ORDER
Del Frate J.
Released: February 27, 2014