COURT FILE NO.: CRIMJ(P) 839/15
DATE: 20150731
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Charles Waite, for the Respondent
Respondent
- and -
M.S.
Stephanie DiGiuseppe, for the Applicant
Applicant
HEARD: July 24, 2015
REASONS FOR JUDGMENT
André J.
[1] Mr. M.S. brings an application for an order vacating the detention order made by the Honourable Justice of the Peace Florence, on January 6, 2015. He submits that there has been a material change in circumstances that justify vacating the detention order.
SUMMARY OF ALLEGATIONS
[2] Mr. M.S. faces three sets of allegations.
[3] In May 2014, he was charged with assault, assault with a weapon and assault causing bodily harm following a complaint made by his wife Ms. J.J., to the police. Mr. M.S. was released on a recognizance on May 4, 2014, with a condition that he should not have any contact with his wife.
[4] On July 11, 2014, Mr. M.S. allegedly went to his wife’s home. He had an altercation with her and allegedly assaulted her. She subsequently contacted the police who charged Mr. M.S. with threatening death and two counts of fail to comply with a recognizance. On July 15, 2014, Mr. M.S.’s wife reported to the police that Mr. M.S. had raped her and injured her on July 11, 2015. He was then charged with sexual assault, threatening death and assault bodily harm. Mr. M.S. was held for a bail hearing and subsequently released on a recognizance with a condition that he should not have any contact with his wife.
[5] On January 2, 2015, Mr. M.S. was investigated by the police during a routine traffic stop. His wife was seated in the front passenger seat. He was again arrested and charged with breach of recognizance. Justice of the Peace Florence detained Mr. M.S. on the secondary ground following a bail hearing.
SUBSEQUENT JUDICIAL HISTORY
[6] Mr. M.S. brought an application for a bail review which the court heard on January 23, 2015. He submitted that there was a material change in circumstances based on the offer of a new surety and an increase in the quantum of bail money offered. Justice MacKenzie held that there was no material change in circumstances which justified the release of Mr. M.S..
[7] Mr. M.S. brought another application for a bail review on March 30, 2015. He submitted that Justice MacKenzie erred in finding that there had not been a material change in circumstances and that further changes justified Mr. M.S.’s release. Justice Daley, who heard this application, held that Justice MacKenzie did not err in his decision that there had been no material change in circumstances since the time of the original bail hearing.
MATERIAL CHANGE IN CIRCUMSTANCES
[8] Mr. M.S. submits that the following developments constitute a material change in circumstances:
[9] On June 8, 2015, Ms. J.J., Mr. M.S.’s wife, provided Crown and defence counsel with a sworn affidavit which she had written with the assistance of her counsel, recanting her allegations of sexual assault, threatening death and assault causing bodily harm.
[10] On June 12, 2015, Ms. J.J. testified before Justice Stribopoulos in the Ontario Court of Justice (“the OCJ”) regarding the first set of charges which were laid in May 2014. During her testimony she recanted her allegations of sexual assault, threatening death and assault bodily harm she had made against Mr. M.S. on July 15, 2014.
[11] On July 10 and 15, 2015, Ms. J.J. testified in a preliminary hearing before Justice Atwood in the OCJ. The hearing was related to the charges of sexual assault, threatening death and assault causing bodily harm against Mr. M.S.. Again, Ms. J.J. recanted her statement that she had been sexually assaulted, threatened or assaulted by Mr. M.S.. She attributed her July 15, 2014 statement to unknown women at a shelter who persuaded her to make the allegations against Mr. M.S..
[12] Ms. J.J. was cross-examined by the Crown on July 15, 2015, pursuant to s. 9(2) of the Canada Evidence Act. She maintained that her June 8, 2015 affidavit, her testimony to Justice Stribopoulos on June 12, 2015 and her testimony at the preliminary hearing to the effect that Mr. M.S. never sexually assaulted or threatened her was the truth and that her July 15, 2014 statement was a fabrication. The preliminary hearing is scheduled to continue on August 27 and September 4, 2015.
THE CROWN’S POSITION
[13] The Crown concedes that if the more serious charges against Mr. M.S. are dismissed, on account of Ms. J.J.’s recantation, then Mr. M.S. would not be required to serve additional time in custody even if he is convicted of all the remaining charges.
[14] He submits however, that it would be premature to conclude that a change in Ms. J.J.’s testimony amounts to a change in circumstances that justify Mr. M.S.’s release. He maintains that Ms. J.J. could still adopt her July 15, 2014, statement. Alternatively, he submits that Ms. J.J.’s statement could still be held to be admissible, pursuant to the case of R. v. Khan, 1990 CanLII 77 (SCC), [1990] S.C.J. No. 81, and under the principled exception to the hearsay rule.
[15] Third, he submits that the charges against Mr. M.S. are still outstanding. Given his history of breaching court orders, there is the danger that if released, Mr. M.S. could seek to influence Ms. J.J. against testifying or changing her testimony. The Crown submits that for all these reasons, Mr. M.S.’s application should be rejected.
LEGAL PRINCIPLES
[16] Section 520 of the Code permits an accused to apply to a judge for review of an order made by a Justice of the Peace under s. 515(2) of the Code.
[17] A review of the order of a justice, permits a reviewing judge to substitute his or her discretion for that of the justice. R. v. Thompson (1972), 1972 CanLII 1274 (BC SC), 7 C.C.C. (2d) 70, 18 C.R.N.S. 102 (B.C.S.C.).
[18] The review of a justice’s order amounts to a de novo hearing and is not merely an appeal which is solely based on the record of proceedings before the justice. R. v. Powers (1972), 1972 CanLII 1411 (ON SC), 9 C.C.C. (2d) 533 (Ont. Sup Ct.).
[19] The Canadian Charter of Rights and Freedoms (the “Charter”) provides at s. 11(d) that an accused has the right to be presumed innocent until proven guilty at a trial.
[20] Section 11(e) of the Charter provides that an accused has the right not to be denied reasonable bail without just cause.
ANALYSIS
[21] This review raises the following issue:
Has there been a material change in circumstances since Mr. M.S.’s detention that would justify his release?
[22] What constitutes a material change in circumstances?
[23] In R. v. Abdel-Rahman, 2010 BCSC 189, the court noted at para. 49 that:
…It seems to me that the category of “material changes in circumstances” would include changes such as the following:
a) The key Crown witness recanted his or her evidence identifying the accused or significantly reduced his description of the severity of the alleged criminal conduct of the accused;
b) The trial of the accused would be delayed for such a long period that he might serve as much or more time in pre-trial custody than the length of any sentence that could be imposed upon him if convicted; and
c) No (or no substantial) surety or cash bail was available at the time of the bail hearing, but was available by the time of the review hearing.
[24] In R. v. Ouimet, the court suggested that a change in the strength of the Crown’s case may constitute a material change in circumstances: see R. v. Ouimet, (2006), 72 W.C.B. (2d) 53 (Ont. S.C.J.), at para. 25.
[25] In R. v. Ferguson, 2002 O.J. No. 1969 (S.C.J.), Justice Hill held that the offer of a new surety or sureties will not necessarily constitute a material change in circumstances. He further noted at para. 17 that:
It is only where the commitment and nature of the proposed suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause of detention.
[26] New evidence concerning the psychiatric condition of an accused may also constitute a material change in circumstances: see R. v. Yurko, [1999] A.R. (Uned) 602.
[27] The most serious charges against Mr. M.S. are those resulting from his wife’s statement to the police on July 15, 2014. The statement resulted in the charges of sexual assault, threatening death and assault bodily harm being laid against Mr. M.S..
[28] Ms. J.J. has given three sworn statements recanting her July 15, 2014, statement. In my view, this recantation has significantly weakened the Crown’s case against Mr. M.S. and has placed it in serious jeopardy. The original statement could still be held to be admissible against Mr. M.S. based on the principles enunciated in R. v. Khan or on the principled exception to the hearsay rule. Even if the statement is held to be admissible, the Crown’s case against Mr. M.S. will still be weakened significantly, given Ms. J.J.’s testimony under oath recanting her July 15, 2014, statement.
[29] The Crown submits that Ms. J.J.’s three sworn statements recanting her July 15, 2014, statement may not necessarily constitute a material change in circumstances that calls into question the continued validity of the reasons for detention. He submits that the original detention order by Justice of the Peace Florence was largely based on the fact that Mr. M.S. had repeatedly breached court orders prohibiting him from having any association or contact with J.J.. She indicated that she may have released Mr. M.S. with suitable sureties and electronic monitoring.
[30] The proposed sureties are Mr. D.S., who is Mr. M.S.’s cousin, and the cousin’s wife. The 41 year old D.S. has no criminal record. The proposed plan involves Mr. M.S. residing with D.S. and his wife in their Brampton home. The plan involves a form of house arrest except for employment and when Mr. M.S. is in the company of one of his sureties.
[31] It is further proposed that Mr. M.S. should wear an ankle monitor at all times which will be managed by a company called Recovery Science Corporation. The monitor would allow the company to monitor Mr. M.S.’s movements at all times. This monitoring system would significantly reduce the risk of Mr. M.S. interfering with potential witnesses and thus obstructing justice.
[32] The other factor I must consider in this application is the amount of time Mr. M.S. has been in custody. He has been in custody for approximately seven (7) months. He would be entitled, following a conviction on any of the May 2014 or January 2015 charges, credit for pretrial custody in the ratio of 1.5 to 1 day. Accordingly, he would receive credit of 10.5 months for the 7 months he has already spent in pre-trial custody.
[33] The Crown concedes that if Mr. M.S. is convicted on all his charges, except those of sexual assault, threatening death and assault bodily harm, he would not receive a sentence which is greater than the quantum of time he has already spent in pretrial custody.
[34] There is authority for the proposition that time spent in pretrial custody that exceeds the length of any sentence that could be imposed upon a detainee if convicted, constitutes a material change in circumstances: see R. v. Abdel-Rahman.
[35] Furthermore, Justice Hill noted in R. v. White, 2010 ONSC 3164, at para. 10, that:
Public confidence in the administration of justice and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if convicted.
[36] This statement was quoted approvingly by the Court of Appeal in R. v. Whyte, 2014 ONCA 268, [2014] O.J. No. 1633, at para. 43.
[37] In my view, the comments in R. v. White apply with equal force in this case.
[38] A recent development has underscored the fact that Ms. J.J.’s recantation of her July 15, 2015, statement has weakened the Crown’s case to such an extent that the continued detention of Mr. M.S. could adversely impact the public’s confidence in the administration of justice and the judicial interim release regime. On July 30, 2015, one day before this decision, Justice Stribopoulos acquitted Mr. M.S. of the charges of assault, assault bodily harm and assault with a weapon, stemming from the May 2014, statement of Ms. J.J.. Justice Stribopoulos indicated in his judgment that even if Mr. M.S. had not testified he would have acquitted him based on the frailties in Ms. J.J.’s testimony.
CONCLUSION
[39] Mr. M.S. has established that since his detention, there has been a material change in circumstances that materially calls into question his continued detention. Accordingly, he will be released on the following terms:
(1) On a Recognizance of $10,000, without deposit, with D.S. and N.S. as sureties, subject to the following conditions:
(2) Keep the peace and be of good behaviour.
(3) Reside at 28 Hallcrown Court, Brampton, with your sureties and abide by the rules of the home.
(4) Remain in your residence at all times except for the purpose of going directly to work and returning, via the most direct route, to your residence, and except when in the presence of one of your sureties.
(5) Immediately upon release, wear a Global Positioning System’s ankle bracelet from Recovery Science Corporation, at all times.
(6) Have no weapons in your possession as defined by the Criminal Code.
(7) Do not have any association or contact, directly or indirectly, with J.J..
(8) Do not attend within 100 metres of the residence or place of employment of J.J., if known to you.
(9) Carry a copy of your recognizance on your person at all times when outside your residence.
(10) Attend court at required.
André J.
Released: July 31, 2015
COURT FILE NO.: CRIMJ(P) 839/15
DATE: 20150731
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
M.S.
Applicant
REASONS FOR JUDGMENT
André J.
Released: July 31, 2015