ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-29-00BR

DATE: 2014-12-17

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Christine McCormack

Accused

Brian Bencze, for the Crown

Larry Douglas, for the Accused

HEARD in Parry Sound: September 22, 2014

REASONS FOR DECISION ON DETENTION REVIEW HEARING

o’neill j.:

A. Introduction

[1] On September 22, 2014, following a hearing in the Superior Court at Parry Sound, Ontario, I released the accused Christine McCormack on the terms of a judicial interim release order. The order is attached to these Reasons as Schedule A.

[2] The accused was arrested on June 3, 2014, on multiple charges which I will summarize later in these Reasons.

[3] A contested bail hearing was held on June 6, 2014, and the accused was denied bail. The hearing before me was initiated under s. 525 of the Criminal Code – Review of Detention where Trial Delayed. While an affidavit was sworn in support of returning the accused to court for a bail review, no application for a bail review was filed.

[4] On the hearing, Crown counsel took the position that based on the two decisions, R. v. Gill [2005] O.J. No. 2648, and R. v. Kissoon [2006] O.J. No. 4800, “it is only where evidence of unreasonable delay is first established that the court reviews detention in the terms of s. 515(10) of the Code.” Accordingly, Crown counsel submitted that given that there was no evidence of unreasonable delay during the accused’s detention in jail, “a hearing to consider whether or not the accused should be released from custody” ought not to proceed to a second stage inquiry given the absence of unreasonable delay.

[5] At the conclusion of the hearing and arguments before me, I released the accused, as outlined in Schedule A, with Reasons to follow.

B. The Nature of the Charges

[6] The accused was a passenger in a car which was stopped near Highways 141 and 400. It was 12:20 a.m. on June 3, 2014.

[7] The male driver was found to be a suspended driver. He was arrested at 12:38 a.m. for driving under suspension. A black silver replica BB handgun was found in a shopping bag near the centre console.

[8] A seven inch fixed blade knife was also found. Inside the accused’s purse there was wrapped in a shirt, a brick of cocaine.

[9] The accused was arrested for trafficking in cocaine, and for possessing cocaine for the purpose of trafficking.

[10] The male driver began kicking the rear door in the police vehicle, and officers were diverted from the subject vehicle to restrain him. The accused was able to free herself, and she took the cocaine and drove off on to Highway 400.

[11] She travelled at speeds between 85 and 107 kilometers per hour, swerving from lane one into lane two. She travelled 22 kilometers northbound, until a spike belt was used to stop the vehicle.

[12] Three police vehicles were utilized in a rolling block procedure to stop her vehicle.

[13] The cocaine in her possession consisted of 1,068 grams.

C. The Accused’s Background and the Evidence at the s. 525 Hearing

[14] The accused faces multiple charges, including carry a weapon (knife) for a purpose contrary to the public peace, assault police, fail to stop her vehicle while being pursued by police, dangerous driving, escape lawful custody and use of an imitation weapon (pellet gun) while attempting to commit the indictable offence of trafficking.

[15] At the original bail hearing, a plan was presented to have the accused reside with a friend in the Parry Sound District, under certain terms. Bail was denied.

[16] Christine McCormack was born on October 13, 1983. She has a youth court record from 1999 for two assaults and from 2001 for theft under $5,000. She has an adult record from 2007 for fraud and uttering a forged document. She received a suspended sentence and 18 months’ probation in 2004 in Thunder Bay, where she was residing at the time. Her home community is Thunder Bay.

[17] The new plan presented at the s. 525 hearing was to have the accused returned into the care of her parents in Thunder Bay. Her parents own their home and have been married for 35 years. They are both employed or self-employed. The accused’s father explained how his daughter had struggled with substance abuse issues since 2004/2005.

[18] The accused was abusing cocaine and percocets. She enrolled in a methadone program in 2008.

[19] The accused’s mother explained that her daughter urgently needed drug treatment and counselling and she explained that between her and her husband, they could act as civilian sureties and ensure that their daughter fully complied with all conditions, if released. The bail order in Schedule A sets out all of the requisite release terms.

[20] Christine McCormack has no connection to the Parry Sound area. She testified that she wants to get better and that she requires treatment. She testified that she wished to return to the care of her parents.

D. Increased Jailing by Denying Bail, Case by Case

[21] In recent months, statistics have become available to the effect that there are more Canadians in jail today, pre-trial and conviction, than there are post-trial and conviction. Information from the Canadian Civil Liberties Association, in a document entitled: By the Numbers: Crime, Bail and Pre-trial Detention in Canada, documents, in part, the following statistics (Schedule B attached):

Canada’s Jails: The Rising pre-trial detention population

• Provincial and territorial jails hold individuals detained before their trial and anyone sentenced to a custodial sentence under two years; federal prisons incarcerate those who are convicted and sentenced to two or more years in custody.

• On an average day in 2012/2013, there were 25,208 people behind bars of provincial and territorial jails; 54.5% of these people were in a pre-trial custody, legally innocent, awaiting trial or determination of bail.

• Over the past 30 years, the pre-trial detention rate has tripled; 2005 was the first time Canada’s provincial and territorial jails held more people who were legally innocent than they did sentenced offenders.

• There are significant differences between different provinces and territories. Manitoba has the highest proportion of pre-trial incarceration: 66% of people incarcerated in that province are in pre-trial detention. Other provinces with high percentages of pre-trial detention include Alberta (61%), Yukon (60%) and Ontario (60%). Prince Edward Island has the lowest ratio of pre-trial to sentenced population; 18% of its jailed population is in pre-trial custody.

• Two-thirds of those in pre-trial detention are charged with non-violent offences. Violation of a previous bail condition is the most common reason for people to be held for a bail appearance, accounting for just over 1 in 10 cases.

[22] In my view, those statistic are shocking, and contrary to the values underlying this country’s Constitution. Countless appellate court authorities, the Morales decision included, speak to the spirit and intent of Canada’s bail laws and the underlying rationale behind s. 515(10) of the Criminal Code.

[23] It is important to always remember that in the context of a formal bail hearing, the issue is never bail or jail. Rather, the issue is whether a bail order, with required terms and conditions, highly restrictive if necessary, can be justified under the legislation and the appellate court decisions, as opposed to a denial of bail and consequent incarceration for an unknown period of time. It should also never be lost sight of that given the authority of the Court to place conditions upon sureties, and to obtain cash or the pledge of equity in property, a restrictive bail order pre-trial and conviction, can be as or more restrictive and protective of personas and the community, than can be a suspended sentence with probation, or a conditional sentence order, post-conviction.

[24] In my view, s. 525 deserves the same progressive and liberal interpretation, as do ss. 515 and s. 520 of the Code. It is noteworthy that s. 525(3) provides that “… the judge may, in deciding whether or not the accused shall be released from custody, take into consideration whether the prosecutor or the accused has been responsible for any unreasonable delay in the trial of the charge.”

[25] Section 525(4) provides the hearing judge with a discretion to order a release from custody pending trial, if the judge “is not satisfied that the continued detention of the accused in custody is justified within the meaning of subsection 515(10)…”

[26] It is true, as Crown counsel noted, that a s. 525 hearing can proceed without a transcript. On the other hand, as counsel noted, a s. 520 bail review most often proceeds with a transcript, making the hearing in the nature of a blended or hybrid bail review proceeding. Counsel submitted that it might be to an accused’s advantage to not proceed with an earlier bail review, but rather to remain detained for 90 days and then take advantage of proceeding with a s. 525 hearing, de novo, and without a transcript. I am not at all sure that many jailed accused would ever resort to paying the 90 day price for that strategy.

[27] But the lack of a transcript – indeed as is often the case – the lack of legal representation on 90 day detention reviews under s. 525 – ought not to vitiate the ability of the court to nonetheless hold a hearing, nor in my opinion should such a hearing, and the ability to order a release under fixed conditions and terms, be made conditional upon Crown delay being shown. Section 525 does not say that.

[28] In the present case, release was ordered to enable the accused to seek and undergo the treatment she requires. The accused presented a new plan to the court. Her sureties were sincere and motivated. The recognizance at Schedule A carries strict terms and provisions. To have denied the accused, after a s. 525 hearing, the benefit of the terms of a fair and just bail order would, in my view, simply add this accused to the ever-growing stack of statistics of Canadians in jail, pre-trial and pre-conviction. The denial of fair bail in this case offends the spirit and intent of Canada’s bail provisions.

[29] I add the following - s. 515 (10)(c) provides in part that the detention of an accused in custody is justified on one or more of the following grounds - “… if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including” those enumerated in i-iv set out therein. But surely the corollary is also true. Surely the rising statistics in relation to pre-trial detention, noted above, risk eroding and undermining confidence in the administration of justice. The principle of justice itself must be infused into the administration of justice.

[30] To the extent that R. v. Gill and R. V. Kissoon, supra, stand for the proposition that it is only where evidence of unreasonable delay is first established that the court can then review detention in the terms of s. 515(10) of the Code, those cases are with respect, wrongfully decided and ought not to be followed.

E. Conclusion

[31] It is for these reasons that I granted the judicial interim release order of September 22, 2014, set out in Schedule A attached hereto.

The Honourable Mr. Justice J.S. O’Neill

Released: December 17, 2014

Schedule A

Schedule B

By the Numbers:

Crime, Bail and Pre-trial Detention in

Canada

Crime in Canada: Declining crime rates, declining severity

• Canada’s crime rate has been steadily decreasing for decades; the 2012 crime rate was the lowest it has been since 1972.1

• The violent crime rate has also been declining; Canada’s 2012 violent crime rate was the lowest since 1987.2

• In 2012, property offences and other non-violent charges (eg. breaching court orders, mischief) accounted for 79% of police-reported crime.3

• In 2011/2012, an administration of justice charge was the most serious charge in 22% of completed criminal and federal cases; just under half of these administration of justice charges stem from violations of bail conditions.4

Canada’s Jails: The rising pre-trial detention population

• Provincial and territorial jails hold individuals detained before their trial and anyone sentenced to a custodial sentence under two years; federal prisons incarcerate those who are convicted and sentenced to two or more years in custody.

• On an average day in 2012/2013, there were 25,208 people behind bars of provincial and territorial jails; 54.5% of these people were in pre-trial custody, legally innocent, awaiting trial or determination of bail.5

• Over the past 30 years, the pre-trial detention rate has tripled; 2005 was the first time Canada’s provincial and territorial jails held more people who were legally innocent than they did sentenced offenders.6

• There are significant differences between different provinces and territories. Manitoba has the highest proportion of pre-trial incarceration: 66% of people incarcerated in that province are in pre-trial detention. Other provinces with high percentages of pre-trial detention include Alberta (61%), Yukon (60%) and Ontario (60%). Prince Edward Island has the lowest ratio of pre-trial to sentenced population; 18% of its jailed population is in pre-trial custody.7

• Two-thirds of those in pre-trial detention are charged with non-violent offences. Violation of a previous bail condition is the most common reason for people to be held for a bail appearance, accounting for just over 1 in 10 cases.8

Disproportionate Impacts

• In 2011/2012 Aboriginal Canadians made up 25% of admissions to remand, and just under 4% of the population. The over-representation of Aboriginal persons is higher for women than it is for men: 37% of women admitted to remand in Canada are Aboriginal.9

• A study of Toronto’s criminal courts found that, “after controlling for a variety of legal factors, black accused were much more likely to be remanded to custody before trial than offenders from other racial backgrounds”10

• A disproportionate number of individuals in pre-trial detention have mental health or substance abuse issues. A study of individuals supervised by bail programs in Ontario showed that 70% had issues with substances (alcohol or drugs), over 40% reported that they have current mental health issues, 31% had concurrent mental health and substance use issues. Approximately one-third reported being homeless.11

Sources

1 Samuel Perreault, Statistics Canada, Police-reported Crime Statistics in Canada, 2012 (Ottawa: StatCan, 25 July 2013), online: Statistics Canada http://www.statcan.gc.ca/pub/85-002-x/2013001/article/11854-eng.htm#wb-tphp.

2 Ibid.

3 Ibid.

4 Jillian Boyce, Adult criminal court statistics in Canada, 2011/2012 (Ottawa: StatCan, 13 June 2013), online: Statistics Canada http://www.statcan.gc.ca/pub/85-002-x/2013001/article/11804- eng.htm?fpv=2693.

5 Statistics Canada, CANSIM Table 251-005.

6 Ibid.

7 Samuel Perreault, Correctional services key indicators, 2012/2013 (Ottawa” StatCan, 12 May 2013), online: Statistics Canada http://www.statcan.gc.ca/pub/85-002-x/2014001/article/14007-eng.htm.

8 Lindsay Porter and Donna Calverley, Trends in the use of remand in Canada (Ottawa: StatCan, 17 May 2011), online: Statistics Canada http://www.statcan.gc.ca/pub/85-002-x/2011001/article/11440-eng.htm#a4.

9 Samuel Perreault, Admissions to adult correctional services in Canada, 2011/2012 (Ottawa: StatCan, 20 March 2014), online: Statistics Canada http://www.statcan.gc.ca/pub/85-002-x/2014001/article/11918-eng.htm#a5.

10 Kellough, Gail and Scot Wortley 2002 "Remand for Plea: The Impact of Race, Pre-trial Detention and Over-Charging on Plea Bargaining Decisions." British Journal of Criminology 42 (1): 186-210.

11 John Howard Society of Ontario, Reasonable Bail? (2013), online: http://johnhoward.on.ca/pdfs/Reasonable%20Bail%20-%20JHSO%20Report%202013%20final.pdf.

COURT FILE NO.: CR-14-29-00BR

DATE: 2014-12-17

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Christine McCormack

Accused

REASONS FOR DECISION ON DETENTION REVIEW HEARING

O’Neill J.

Released: December 17, 2014