R. v. W.V., 2015 ONSC 482
COURT FILE NO.: 700-15
DATE: 2015-01-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
W.V.
Applicant
P. Zylbergerg, for the Respondent
M. Venturi and R. Gregor, for the Applicant
HEARD: January 15, 2015
DECISION ON APPLICATION
DEL FRATE J.
[1] The applicant is charged with one count of sexual assault and one count of sexual touching on B.G., his stepdaughter, who at the time would have been between the ages of 9 and 15.
[2] The applicant seeks a review of the bail conditions imposed by Justice of the Peace Ross. More specifically, the applicant asks that Michel Lafond be accepted as the proposed surety and that the non-deposited amount of $10,000 be decreased. Alternatively, the applicant asks that the Elizabeth Fry Society be accepted as his surety and that he be allowed to reside at the local Salvation Army residence pending trial of this matter.
[3] On December 5, 2014, Justice of the Peace Ross ruled that the proposed surety, Mr. Lafond, was unacceptable because of his background and because of his living arrangements. The Justice of the Peace also rejected the applicant’s proposal to be released to the Elizabeth Fry Society because it does not “satisfy the need for close daily monitoring despite the proposal for frequent reporting to police”.
[4] Despite rejecting the applicant’s two proposed sureties, the learned Justice of the Peace granted the applicant bail subject to the following conditions:
• the applicant must pledge a non-deposited amount of $10,000;
• the applicant must reside with his surety;
• the applicant must not be away from his place of residence between 9:00 pm and 6:00 am of the following day, except for medical emergencies, except in the company of his surety, and except to travel to or from work or while at work;
• the applicant must not communicate directly or indirectly with B.G. or any member of her family;
• the applicant must not be within 100 metres of B.G. or any member of her family or their places of residence, school or employment, except on one single occasion to retrieve his personal belongings in the presence of a uniformed police officer;
• the applicant must not possess any cell phone or computer that has access to the internet or that is text capable;
• the applicant is to abstain from the use, possession or purchase of any non-prescription drugs;
• the applicant must report any change of address to the Greater Sudbury Police Service within 24 hours of the change in person;
• the applicant must not possess any firearms; and
• the applicant must not be in the presence of any person under the age of 18 unless in the presence of another adult.
[5] The applicant has been in custody since November 9, 2014, as his bail has not been perfected by the forthcoming of a different surety.
[6] Since the initial bail hearing, Mr. Lafond is no longer available to act as a surety for the foreseeable future due to his personal circumstances. Accordingly, the applicant proposes that he be released to the Elizabeth Fry Society and that he reside at the local Salvation Army until he finds a permanent residence. According to the applicant’s proposal, he would have to report to the Elizabeth Fry Society at least once a day, preferably in the morning, and report to the local police in the afternoon.
[7] The applicant also proposes that the non-deposited amount of $10,000 be reduced to $500 since he does not know what his common law spouse may have done with his tools and his leased vehicle. If released, it is his intention to continue working with his employer or, alternatively, to seek other employment since additional information discloses that his employer is not prepared to take him back in view of the outstanding charges.
[8] In summary, the applicant proposes the following:
• that the Elizabeth Fry Society be his surety;
• that he report to the Elizabeth Fry Society at least once a day, five days a week;
• that he reside at The Salvation Army and report to the police; and
• that he pledge a non-deposited amount of $500.
Position of the Applicant
[9] The applicant’s position is that the learned Justice of the Peace erred since the conditions are too strict considering the applicant’s situation. Firstly, the applicant submits that the Justice of the Peace erred in finding that the Elizabeth Fry Society was an insufficient surety and more specifically that he erred in failing to consider whether the imposition of further conditions could address his supervisory concerns with respect to the applicant’s proposed plan. The applicant is of the view that the conditions proposed are reasonable in that he has to report to the Elizabeth Fry Society and the police on a daily basis and the safety of the complainant and her family members is protected since there will be a non-communication order.
[10] Secondly, the applicant submits that the Justice of the Peace erred in ordering the applicant to pledge a $10,000 non-deposited amount as a condition of his release. According to the applicant, requiring him to deposit $10,000, or anywhere close to that amount, would be the equivalent of denying bail “without just cause” in view of his economic situation.
[11] Thirdly, the applicant submits that just because he has no one to act as a surety and because he is indigent, that should not preclude him from receiving bail on conditions that address his personal situation. To keep him incarcerated pending trial would breach his s. 11(e) Charter rights. The applicant further submits that bail must be a personalized exercise taking into consideration the background and the existing circumstances of the individual at the time of the application. Accordingly, the proposal submitted by the applicant is sufficient to comply with the principles enunciated in s. 515 of the Criminal Code and in particular s. 515(10).
Position of the Crown
[12] The Crown submits that the Justice of the Peace did not err in law for the following reasons:
• he analyzed the evidence and the three grounds outlined in s. 515 of the Criminal Code and concluded that the applicant could be released on certain conditions;
• he did not say no bail whatsoever; and
• he appreciated the facts and the principles of law and concluded that conditions were necessary to ensure that the administration of justice would not be placed in disrepute.
Analysis
[13] Absence an error in law, deference must be shown to the decision of the hearing judge: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; and R. v. Lysyk, 2003 ABQB 256, 20 Alta. L.R. (4th) 148.
[14] The Justice of the Peace rejected the applicant’s plan on the basis that it did not meet the necessary supervision to comply with the principles enunciated in s. 515(10) of the Criminal Code. He concluded that merely reporting to the Elizabeth Fry Society and the Greater Sudbury Police Service was not sufficient. He considered the applicant’s prior record of failing to appear and breaching a probation order and, in particular, the fact that the applicant was on the lam for some 10 years on a charge of being in possession of a stolen vehicle.
[15] In spite of these factors, the Justice of the Peace concluded that the applicant was releasable provided certain conditions were imposed to balance concerns and provided there was an appropriate surety who could properly monitor those conditions and be adequately grounded to those responsibilities.
[16] I am of the view that the conditions imposed by the Justice of the Peace were reasonable at the time that he imposed them. During this hearing, evidence was led that the applicant has no fixed address, no security, no surety, no employment and no ties to the community. Counsel for the applicant submits that because of his indigenous and disadvantaged situation, a court should release him. Such a proposition would negate the intention of s. 515(2) of the Criminal Code granting the justice discretion to release an individual on certain conditions so that confidence in the administration of justice is maintained.
[17] What is being proposed does not address the risks involved in this fact situation. Simply reporting to the Elizabeth Fry Society and residing at The Salvation Army would not address the supervision necessary for the other conditions of non-communication with the complainant and her family, either in person or by social media. The proposal would mean that the applicant is on his own from approximately 9:00 a.m. until he returns to The Salvation Army in the evening. During the daytime, he would be roaming the streets or the malls and have access to media devices capable of accessing social media.
[18] The purpose of a surety is to ascertain that the conditions are respected. Neither the Elizabeth Fry Society nor The Salvation Army can render that type of supervision. They are merely reporting stations who can take action for failure to attend. There is no monetary penalty imposed on these organizations in the event that the applicant does not report. Although altruistic by the organizations, such a proposal is not feasible. The proposal must be meaningful and, in my view, releasing the applicant with the risk factors enunciated would harm the confidence in the administration of justice. The Justice of the Peace did not commit any palpable errors. Deference must be given.
Conclusion
[19] For the above reasons, the application is dismissed.
[20] I would recommend that the ensuing proceedings and trial be expedited.
The Honourable Mr. Justice Robert G.S. Del Frate
Released: January 26, 2015
CITATION: R. v. W.V., 2015 ONSC 482
COURT FILE NO.: 700-15
DATE: 2015-01-26
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
W.V.
Applicant
DECISION ON APPLICATION
Del Frate J.
Released: January 26, 2015