ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20140801

B E T W E E N :

HER MAJESTY THE QUEEN
Respondent

– and –

RENAGI BOSTON
Applicant

Suhail Akhtar
for the Respondent

R. Roots Gadhia
for the Applicant

SECTION 520 BAIL REVIEW

THEN J.:

[1] The accused, Boston, applies pursuant to s. 520 of the Criminal Code, R.S.C. 1985, c. C-46, for a review of the revocation order made by the preliminary inquiry judge pursuant to s. 523(2)(b) of the Code prior to committal of the accused for trial with respect to a charge of robbery and two charges of failing to comply with probation orders on an information alleging the commission of those offences on January 29, 2013.

[2] The accused submits that the preliminary inquiry judge erred in principle in exercising his jurisdiction to revoke the accused’s bail under s. 523(2)(b) of the Code. Namely, he engaged in a hearing de novo in which the onus was the same as that before the justice of the peace, but in which any change in circumstances could be considered to assess whether the accused could be detained on the secondary ground. The accused submits that the correct approach was to place the onus on the Crown to show cause by demonstrating a substantial or material change in circumstances as justification for vacating the release order made by the justice of the peace. The Crown submits that the preliminary inquiry judge approached his task correctly and committed no error in principle.

[3] I agree with the position advanced by the accused. Accordingly, pursuant to s. 520(7) of the Code I am prepared to vacate the order of revocation made by the preliminary inquiry judge and order the release of the accused for the reasons set out below.

background

[4] On January 29, 2013, the accused was arrested and charged with robbery and failing to comply with two probation orders. The police allege that the accused and David Francis approached the victim in the parking lot of a Home Depot in Scarborough where the victim was attempting to sell electronics. It was arranged between the three men that the accused and Francis would purchase the electronics at another location. The electronics were transported to this location by the victim who alleges that the accused grabbed him in a chokehold while Francis made off with the electronics. The victim identified both men in a photo lineup. The accused maintained that he was dropped off at his home by Francis and that it was someone else who assisted Francis in the robbery. The accused stated that he knew who that person was, but was not prepared to divulge his identity at that time for fear of reprisal.

show cause before justice of the peace

[5] On April 2, 2013, a show cause hearing was held before the Justice of the Peace. This was a reverse onus situation as the accused was alleged to have committed the robbery while on bail for breach of probation orders, facing outstanding charges of assaulting a peace officer, failing to comply with probation orders, and subject to numerous firearms prohibition orders. The Crown also adduced what he called an “atrocious” criminal record including 12 prior convictions of violence, 10 prior convictions for property offences, 4 prior convictions for breaching a recognizance, 3 prior convictions for breach of probation, and 1 breach of a weapons prohibition. Notwithstanding these factors, the Crown consented to a high monetary bail with strict conditions amounting to house arrest. The Crown took the position that while the Crown case was compelling and the accused did not deserve bail because of his antecedents, there remained a risk of wrongful conviction based on possible issues with the identification of the accused in view of the accused’s position that someone else, whose identity the accused was not prepared to divulge, had committed the offence.

[6] The justice of the peace released the accused on bail of $75,000 with no deposit with two sureties. Thrift Boston, the mother of the accused, was to be responsible for $65,000 and Marlene Payne for $10,000. The following conditions were imposed:

a) The accused was to remain in Ontario

b) The accused was to reside at 14 Parsonage Dr. in Toronto and be amenable to the discipline of the home

c) The accused was subject to house arrest 24 hours a day 7 days a week, except if out of the home with/or other of the sureties

d) The accused was to answer the front door within five minutes of a police check

e) The accused was to notify the officer in charge Peter Cusak (8695) of any change of address within 24 hours

f) The accused was not to communicate with either the victim of the robbery or the co-accused, Francis, except in the presence of counsel.

g) The accused was not to possess any weapons, firearms or ammunition, or explosives

h) The accused was to attend counselling as directed by his mother.

the preliminary inquiry

[7] On August 1, 2013, prior to the completion of the preliminary inquiry the Crown sought an order from the preliminary inquiry judge to revoke the bail order of the justice of the peace. The jurisdiction of the preliminary inquiry judge to vacate a previous order for release is found in s. 523(2)(b) of the Code, which provides as follows:

Despite subsections (1) to (1.2),

(b) the justice, on completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other than an offence listed in section 469

may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted. [Emphasis added.]

[8] As outlined earlier in these reasons there was a fundamental disagreement between counsel at the preliminary inquiry as to the nature of the scope of review contemplated by s. 523(2)(b) of the Code. The position of counsel for the accused was that in order to show cause under this section the onus was on the Crown to demonstrate on a balance of probabilities a material or substantial change in circumstances from the situation as it related to the secondary ground that existed at the hearing before the justice of the peace. It was the position of the Crown that s. 523(2)(b) contemplated a de novo hearing with a reverse onus on the accused, which continued from the hearing before the justice of the peace, wherein the preliminary inquiry judge was required to assess any change in the circumstances in determining whether a detention was warranted on the secondary ground. The Crown’s position was accepted by the preliminary inquiry judge, who then vacated the release order of the justice of the peace and ordered the detention of the accused.

[9] With respect to a change of circumstances the preliminary inquiry judge relied on two matters. First, he found that certain evidence adduced at the preliminary hearing constituted a “modest increase” in the strength of the Crown’s case on the issue of identification. He found that evidence as to the soiled pants of the victim and accused tended to corroborate the victim’s evidence that an altercation had taken place at the time the victim alleged he had been choked by the accused and accordingly, strengthened the identification of the accused by the victim as a participant in the robbery. Secondly, during the course of the preliminary hearing the accused was convicted of two charges that were merely outstanding when the accused was released by the justice of the peace. The preliminary judge found that the accused’s criminal record had correspondingly worsened and that this together with the strengthening of the Crown’s case were valid considerations on the secondary ground.

[10] The jurisdiction of this court to review the detention ordered by the preliminary inquiry judge arises under s. 520, which reads as follows:

(1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(2), (5), (6), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the accused may, at any time before the trial of the charge, apply to a judge for a review of the order.

(7) On the hearing of an application under this section, the judge may consider

(a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice,

(b) the exhibits, if any, filed in the proceedings before the justice, and

(c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor,

and shall either

(d) dismiss the application, or

(e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted.

[11] In assessing the adequacy of the approach taken by the preliminary inquiry judge regarding the court’s jurisdiction under s. 523(2)(b), I am prepared to adopt the following views of Justice Trotter in The Law of Bail in Canada, 3d ed., looseleaf (Toronto: Carswell, 2010) as set out at pp. 8-62-8-62.1:

As suggested earlier, however, the better view is that the subsection permits the justice to vacate a previous release order upon the party demonstrating a change in circumstances of sufficient magnitude. I would go further and say that these changes ought to be focused on the events that transpired at the preliminary inquiry. That is why an avenue of review was provided at this juncture. This view is more in keeping with the structure of the review provisions as a whole. It is also bolstered by the fact that the general review provisions (ss. 520 and 521), which afford a broader scope of review, remain available to the parties until the time of trial. Given that s. 523(2)(b) applies to orders made under ss. 520, 521 and 525, permitting a free-standing review under this section would equip preliminary inquiry judges to conduct wholesale reviews of bail decisions made in the superior courts of criminal jurisdiction, a result that was never intended.

See also R. v. Prete, [1987] O.J. No. 2480 (S.C.); R. v. Joyal, [2013] Q.J. No. 18829 (S.C.); and R. v. Vaithilingam, 2014 QCCQ 51.

[12] Although s. 523(2)(b) was not directly in issue in R. v. Prete, Watt J. (as he then was) correctly, in my view, outlined what is required to show cause if a revocation of bail is sought under s. 523(2)(b) of the Code, where he states as follows, at para. 4:

In my respectful view, it is incumbent upon an applicant under subsection 457.8(2) [the predecessor to s. 523(2)] to demonstrate, on a balance of probabilities, a substantial change in circumstances in a respect material to the basis upon which detention has been ordered, namely, the primary or secondary ground, in order to discharge the onus of showing cause placed upon him or her under the subsection. The subsection does not envisage a hearing de novo akin to that held at first instance under Section 457.7(1), nor an examination of such an hearing to identify error, which is clearly the function of a review under Section 608.1.

See also R. v. Cole, [2002] O.J. No. 4662, at paras. 5-6, and 9-16 (Duncan J.).

[13] In my view, the real issue before this court is to determine whether the change in the strength of the Crown’s case with respect to the evidence adduced at the preliminary inquiry relating to the soiled pants and its impact on identification and the two convictions during the course of the preliminary inquiry with respect to the accused’s outstanding assault of police and breach of police charges, constitute a substantial or material change in circumstances so as to either individually or cumulatively provide justification for the preliminary inquiry judge to revoke the bail order of the justice of the peace.

[14] In my view, they do not.

[15] First, with respect to the evidence said to strengthen the Crown’s case on the issue of identification, I agree with the preliminary inquiry judge that this evidence constitutes merely a “modest increase” in the strength of the Crown’s case. In my view it does not of itself constitute a material or substantial change in circumstances.

[16] Secondly, while the two convictions of outstanding charges logically relate to the secondary ground, their effect is merely to moderately worsen an already appalling criminal record. More importantly, these convictions do not relate to the conduct of the accused during the preliminary inquiry and while he was on bail. Rather these convictions depend merely on the vagaries of trial dates. For example, the commission of indictable offences during the preliminary inquiry and while on bail, or breach of the bail conditions during the preliminary inquiry would potentially constitute a substantial change in circumstances highly relevant to the secondary ground. Indeed, the evidence before the preliminary inquiry judge was that the accused had complied with the strict bail conditions imposed by the justice of the peace, despite frequent monitoring by the police. In my view the two convictions during the course of the preliminary hearing do not of themselves constitute the material or substantial change of circumstances sufficient to vacate the bail. Further, the two convictions viewed cumulatively with the evidence said to strengthen the Crown’s case does not constitute a material or substantial change in circumstances such that bail should have been vacated.

[17] In my respectful view the Crown failed to show cause before the preliminary inquiry judge why the order of the justice of the peace ought to be revoked, and the preliminary inquiry judge erred in principle in revoking the bail order as the Crown failed to demonstrate a material or substantial change in circumstances. Accordingly, in the exercise of my jurisdiction under s. 520(7)(e) of the Code, I find that the accused has shown cause why this application should be allowed and the order of the preliminary inquiry judge is to be vacated. It remains for this court to make any other order provided in s. 515 of the Code that is warranted.

[18] There are two matters that pertain to the order which is warranted. In the proceeding before me the accused testified as did two new proposed sureties, Tara and Grace Soodeen, who were willing to commit $1,000 and $2,000, respectively. Ms. Boston and Ms. Payne, who were sureties for the amount of $75,000 in the original release made by the justice of the peace, provided affidavits indicating that they were willing to provide more security in the amount of $50,000 each. The accused revealed for the first time who he claimed actually committed the robbery. While this evidence may subsequently be proved to be false it constitutes, at this stage, part of the totality of the evidence on the issue of identification.

[19] The release order, which in my view is warranted, is as follows:

The accused shall be released on bail of $103,000 with no deposit with four sureties. Thrift Boston, the mother of the accused, will be responsible for $50,000, Marlene Payne for $50,000, Grace Soodeen for $2,000 and Tara Soodeen for $1,000. The conditions of bail are as follows:

(a) The accused shall remain in Ontario, deposit any travel document, and shall not apply for any travel documents.

(b) The accused will reside at 14 Parsonage Dr. in Toronto and be subject to the discipline of the home as directed by Thrift Boston.

(c) The accused is subject to house arrest 24 hours a day, 7 days a week, except if he is outside of the home with one or other of the sureties only for the purpose of work, and medical and legal appointments. If he is outside of the home, each of the sureties will be notified of his whereabouts. The accused will carry his bail papers on his person if he is outside the home.

(d) The accused is to answer the front door within five minutes of a police check.

(e) The accused is to notify the officer in charge, Cusak (8695), of any change of address within 24 hours.

(f) The accused is not to communicate with either Mr. Mirza, the victim of the robbery, nor with the co-accused, Francis, except in the presence of counsel.

(g) The accused is not to possess any weapons, firearms, ammunition, or explosives.

(h) The accused is to attend counselling as directed by Thrift Boston.

THEN J.

RELEASED: August 1, 2014

DATE: 20140801

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN
Respondent

– and –

RENAGI BOSTON
Applicant

REASONS FOR JUDGMENT

THEN J.

RELEASED: August 1, 2014