ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. J.M., 2015 ONSC 1331
COURT FILE NO.: CR-15-0013-BR
DATE: 2015-02-27
B E T W E E N:
Her Majesty The Queen,
Gordon Fillmore, for the Crown
- and -
J.M.,
S. George Joseph, for the Applicant
Applicant
HEARD: February 26, 2015,
at Thunder Bay, Ontario
Regional Senior Justice D. C. Shaw
Decision On Bail Review
[1] This is an application by the accused, J.M., pursuant to s. 520 of the Criminal Code, for review of the detention order made by Justice of the Peace, B. Caron, on February 3, 2015.
[2] The detention order was made on the secondary ground set out in s. 515(10) of the Criminal Code, namely that there was a substantial likelihood that Ms. J.M. would, if released from custody, commit a criminal offence.
Background
[3] Ms. J.M. is 24 year of age. She is the mother of four children, two of whom are cared for by her mother. The other two children are in the care of Dilico Family Services. Ms. J.M. does not have a criminal record.
[4] Mrs. J.M. is charged as follows:
March 23, 2014 – assault police –s. 270(1)(a)
April 25, 2014 – fail to attend count – s. 145(5)(b)
December 13, 2014 – assault with a weapon – s. 267(a)
December 13, 2014 – breach of undertaking by consumption of alcohol – s. 145(5.1)
January 28, 2015 –breach of recognizance by being in the company of L.B. s.145(3).
[5] The Crown alleges that on March 23, 2014, at about 5:00 a.m., the Thunder Bay Police responded to a telephone call from D.M., the mother of the accused, complaining that the accused and the accused’s boyfriend, L.B., were drinking and being noisy at her home. When the police arrived, the accused ran from a bedroom at her mother. Police detained her and prevented her from striking her mother. Mr. L.B. was arrested on an outstanding warrant. The accused went to attack her mother a second time. A police officer grabbed her by the shoulder to prevent the assault. The accused allegedly punched the officer with a closed fist under the right eye.
[6] On April 25, 2014, Ms. J.M. failed to attend court.
[7] On December 13, 2014, at about 10:00 p.m., Ms. J.M. and Mr. L.B. were walking down a back lane behind 242 Red River Road. Both were intoxicated. Ms. J.M. is alleged to have slapped Mr. L.B. and then stabbed him in the right side of his chest, with a knife. At the time she was bound by an undertaking which required her to abstain absolutely from the possession and purchase of alcohol.
[8] On January 28, 2015, Ms. J.M. was found in an apartment in Thunder Bay with Mr. L.B.. She was allegedly in breach of a recognizance to have no contact with Mr. L.B. and to reside in Marten Falls except for medical purposes or to meet with counsel or for court.
[9] The bail hearing was conducted on February 3, 2015 before Justice of the Peace, B. Caron. Because Ms. J.M. was on release under a recognizance when she was arrested in January 28, 2015, the onus was on her to satisfy the Justice of the Peace on a balance of probabilities that, on all of the circumstances, her detention was not justified on the primary, secondary or tertiary grounds. The bail hearing proceeded on the secondary ground.
[10] The defence called one witness, Ms. J.M.’s mother.
[11] D.M. testified that she was prepared to act as a surety for her daughter, and to pledge $500, without deposit. She proposed that the accused would reside with her. She stated in direct examination that she would make sure that the accused had no contact with Mr. L.B. and that she would not consume any alcohol. She said that she had spoken to her daughter and told her the rules that she would have to follow. She said that she thought the accused would listen to her. She said that if the accused did not follow the conditions of her release, she would call the police.
[12] In cross-examination, she agreed that she called the police because her daughter and her boyfriend were not listening to her. She agreed that the accused was so upset with her for calling the police that the accused tried to hit her while the police were there. She testified that the accused has had a problem with alcohol for two or three years and that the accused started drinking when she was with Mr. L.B.. She said that she had tried to stop her daughter from drinking but that the accused continued to drink. She agreed that her daughter had asked her to be a surety and that put her in a bad spot because, as her mother, she wanted to help her out.
Reasons of the Justice of the Peace
[13] The Justice of the Peace reviewed the offences with which the accused is charged and the facts alleged in support of the charges.
[14] He stated that the onus was on the accused to prove why she should be released. He noted that the only person he had heard from was the mother of the accused, whom he described as well-meaning. He referred to D.M.’s pledge of assets, but found that the pledge would have an impact on the two children in her care, which would not be fair. He said that he did not doubt that she would call the police if her daughter breached her conditions of release, but that he believed there was a substantial likelihood the accused would re-offend. He found that although the accused had no criminal record, she was out of control, using alcohol and associating with L.B.. He stated:
“And for that reason I am not satisfied that the plan as crafted will be sufficient to have her… I haven’t heard from her; I do not know how she’ll respond with her mother, how she regards her mother. But all the indication that I have is from the incident that occurred in March and I am not satisfied, and all the breaches, and I am not satisfied, that she will follow the rules that I would be willing to impose. And so for that reason: detention. And as the second ground has not been established there is substantial likelihood that she will reoffend, putting the public safety at risk. Plus she is living closely to a witness of the first incident.”
The accused was detained in custody.
Submissions of The Defence
[15] The defence submits that the Justice of the Peace erred in law.
[16] First, the defence submits that the Justice of the Peace failed to give any weight to the presumption of innocence. The defence states that the Justice of the Peace referred to allegations as if they were proved beyond a reasonable doubt.
[17] Second, the defence submits that if an accused, as in this case, has no criminal record, it is impossible for the Crown to show that there is a substantial likelihood that the accused will, if released from custody, commit a criminal offence.
[18] Third, the defence submits that the Justice of the Peace erred by not considering a “ladder of release”, in that the accused was released initially on an undertaking and next on her own recognizance, leaving the last “rung”, namely a release on a recognizance with a surety, untried. The defence submits that this last “rung” should have been ordered before employing the detention option.
[19] Fourth, the defence submits that the Justice of the Peace effectively was requiring the accused to testify, in breach of her right to remain silent, when he stated in his reasons that: “I haven’t heard from her; I do not know how she’ll respond to her mother, how she respects her mother”.
[20] The defence submits that the accused should be released on a recognizance with her mother as a surety.
Submissions of the Crown
[21] The Crown submits that the “ladder of release” is not a principle of law and the Justice of the Peace, having considered the plan of release, as the “third rung”, found it insufficient.
[22] With respect to the defence submission of a breach of the presumption of innocence, the Crown submits that the Justice of the Peace was entitled to consider the probability of conviction.
[23] The Crown submits that the defence is putting forward as a surety the person whom the accused attempted to assault after the proposed surety called the police.
[24] The Crown submits that although the accused has a right to silence, it was fair for the Justice of the Peace to note that there was no evidence to allay his concerns that if the accused was released, she would continue her pattern of ignoring and contravening court orders.
Discussion
[25] The standard of review on an application under s. 520 of the Criminal Code was set out by Hill J. in R. v. Reid, [2000] O.J. No. 3606 (S.C.J.), at para. 7:
A detention review pursuant to s. 520 of the Code is not a de novo hearing. The application for review must establish an error in principle in the reasoning of the show cause justice and/or a material change in circumstances since the original proceedings.
[26] I do not find that the Justice of the Peace erred in principle. The defence does not suggest that there has been a material change in circumstances.
[27] With respect to the issue of presumption of innocence, the Justice of the Peace did not disregard that presumption by referencing the allegations presented by the Crown. The Justice of the Peace was entitled to make his assessment taking into account what the accused is alleged to have done. In assessing those allegations, the Justice of the Peace was also entitled to look at the strength of the Crown’s case, although that does not displace the presumption of innocence. Section 518(1)(a) allows the Justice of the Peace to “make such inquiries on oath or otherwise of and concerning the accused as he considers desirable”. Section 518(1)(c)(iv) provides that the Crown may lead evidence to show the circumstances of the alleged offence, particularly as they relate to the probability of conviction. Section 518(1)(e) allows the Justice of the Peace to “receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case”.
[28] The underlying allegations in this case were presented by the Crown, with agreement of the defence. The Crown’s case with respect to the alleged offences is strong;
[29] As to the January 28, 2015 charge of breach of recognizance, the accused was required by the terms of her release to be in Marten Falls and to not associate with Mr. L.B.. She was found in an apartment in Thunder Bay, with Mr. L.B..
[30] With respect to the facts surrounding the March 23, 2014 charge of assault police, the mother of the accused testified that the accused was so upset with her for calling the police that the accused tried to hit her while the police were there.
[31] With respect to the December 13, 2014 charges of assault with a weapon and breach of undertaking, the accused was allegedly located on top of Mr. L.B., who had been stabbed. She had a knife in her jacket with possible bloodstains on it and on her hand. She was said to be so intoxicated that she could not care for herself.
[32] At the bail hearing, the defence did not take issue with the allegations presented by the Crown nor did it present any evidence that affected those allegations.
[33] I do not accept the proposition advanced by the defence that if the accused has no criminal record, it is impossible to establish the secondary ground. The Justice of the Peace was required to consider the circumstances of the allegations and the circumstances of accused that he had before him, which included the fact that the accused did not have a criminal record, in arriving at his decision whether the accused was substantially likely to commit offences while on bail. There was evidence to support his decision. The alleged failures of the accused to comply with the terms of release pursuant to her undertaking and then pursuant to her recognizance, in the context where the Crown’s case in that regard is strong, were properly significant considerations for the Justice of the Peace. Two of the alleged offences are crimes of violence.
[34] I agree with the submission of the Crown that the defence proposal of a “ladder of release” is a consideration, but not a principle of law. The onus was on the accused to satisfy the secondary ground. The Justice of the Peace found that the plan for the “third rung”, namely, a recognizance with the mother of the accused as surety, was not sufficient. The Justice of the Peace had good reason to make that finding. The only evidence of interactions between the accused and her mother was that on March 23, 2014, the accused attempted, twice, to assault her mother, because she was upset that her mother had called the police about the conduct of the accused and Mr. L.B.. The accused was prevented from doing so only by the intervention of a police officer who was then allegedly punched in the face by the accused. The reason why the mother had to take the step of calling the police was because the accused and her boyfriend would not listen to her. The proposed surety, herself, gave evidence confirming the Crown’s allegations of the events of March 23, 2014. Moreover, as the Justice of the Peace observed, the mother will be a witness at the trial of her daughter on the charge of assault police.
[35] I do not read the reasons of the Justice of the Peace to be requiring the accused to testify at the bail hearing. The onus was on the accused to show why the secondary ground would be satisfied by the plan she was proposing. In my view, the Justice of the Peace was commenting on the failure of the accused to discharge the onus upon her. He was not drawing an impermissible, inculpatory conclusion because she chose to exercise her right not to testify. He had, understandably, serious concerns about the proposed plan. He did not have evidence to answer those concerns. As I understand the reasons of the Justice of the Peace, read in their entirety, his determination that the onus had not been met was based not on the decision of the accused not to testify, but on the strength of the Crown’s case, as confirmed in material respects by the evidence of the proposed surety, and on the failure of the defence to provide evidence in answer to the Crown’s case.
Conclusion
[36] For the reasons given, the application to set aside the detention order of February 3, 2015, is dismissed.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: February 27, 2015
CITATION: R. v. J.M., 2015 ONSC 1331
COURT FILE NO.: CR-15-0013-BR
DATE: 2015-02-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
and –
J.M.,
Applicant
DECISION ON BAIL REVIEW
Shaw R.S.J.
Released: February 27, 2015
/mls