ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

FESTUS SAMUEL

PROCEEDINGS IN COURT

BEFORE THE HONOURABLE JUSTICE G. MULLIGAN

on May 14, 2015, at BARRIE, Ontario.

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM

PUBLICATION PURSUANT TO SECTIONS 486.1(1) AND 517

OF THE CRIMINAL CODE OF CANADA

APPEARANCES:

K. Hull Counsel for the Crown

K. Miles Counsel for Festus Samuel

ONTARIO

SUPERIOR COURT OF JUSTICE

TABLE OF CONTENTS

Exam.

Cr.-

Re-

WITNESSES:

In-Ch.

exam.

exam.

None.

EXHIBITS

EXHIBIT NUMBER ENTERED ON PAGE

None.

RULING Page 1

Transcript Ordered: . . . . . . . . . . . . . May 19, 2015

Transcript Completed: . . . . . . . . . . . . June 1, 2015

Transcript Approved for Release: . . . . . . June 12, 2015

Notified Ordering Party:. . . . . . . . . . . June 15, 2015

CITATION: R. v. FESTUS SAMUEL - 2015 NCC 3826

MAY 14, 2015

MS. HULL: Good afternoon, Your Honour.

THE COURT: Good afternoon, counsel. Ms. Hull, just for clarification, I couldn't find an indictment in the file quickly, but I believe there are two sexual assault charges and two complainants, still matters before the court, as well as the breach and the unlawful confinement; does that summarize it or is there one sexual assault charge?

MS. HULL: It's one and one complainant, as far as I know.

MS. MILES: And, Your Honour, there wouldn't be an indictment before the court. The matter is still in the Ontario Court of Justice.

THE COURT: All right. I just want to clarify because it's - there was some information perhaps from earlier proceedings about other matters, but those are not of concern today. So I'm prepared to give my ruling orally.

R U L I N G

MULLIGAN, J. (Orally)

The Crown brings an application seeking to vacate the bail order of the Justice of the Peace releasing the respondent, Festus Samuel, and to substitute a detention order until his trial or other disposition of the charges against him.

The application was opposed by Mr. Samuel, who was ably assisted by counsel at this hearing.

Background

The bail hearing proceeded before the Justice of the Peace on March 11, 2015. The hearing proceeded on two sets of charges. The first set of charges involved CDSA charges, the second set involved Criminal Code charges of breach of recognizance, sexual assault and unlawful confinement.

With respect to the CDSA charges, Mr. Samuel was originally on a Promise to Appear. Those CDSA charges have now been resolved. With respect to the Criminal Code charges, Mr. Samuel was on house arrest. A further bail hearing came about because of his arrest for breach of recognizance while on house arrest as a term of his bail.

It was acknowledged that this was a reverse onus hearing. The Justice of the Peace heard evidence from Deborah Rodney, the proposed new surety, and received submissions from Crown and defence. Ms. Rodney's daughter and Mr. Samuel are engaged.

In her Ruling, the Justice of the Peace released Mr. Samuel with conditions. Those conditions involved residing with the surety at her residence and requiring him to remain in that residence, unless he was in the presence of the surety or the surety's spouse. Bail was set at $10,000 without deposit. There was a non-communication order and a non-contact order with respect to a former surety and other named individuals.

The Crown's Position

The Crown's position is that the detention of Mr. Samuel is required under the secondary and tertiary grounds of the Criminal Code.

Further, the Crown submits that the Justice of the Peace fell into legal error by not adequately considering the safety of the alleged victim and not adequately addressing the reverse onus on the respondent.

The Crown also submits that the Justice of the Peace failed to give adequate consideration to the strength of the Crown's case.

Further, the Justice of the Peace imposed a 24/7 house arrest, which the Crown submits was not possible on the facts before her.

Criminal Record

It is not disputed that Mr. Samuel has a criminal record. The CDSA charges previously mentioned were resolved on March 11, 2015 by a plea of guilty to possession of crack cocaine. He has a previous record for assault. He has a previous conviction for breach of a recognizance and received a 55-day jail sentence concurrent to the assault charges in 2011.

The Crown's submissions at the bail hearing before the Justice of the Peace provided some context. He said:

"Also, if you look at the timing of all of this, I just wanted to point out to you, of course, that he was charged with respect to the original drug matters, given a release. He was on that release while the sexual allegations arose and then, again, while both of those matters were outstanding, the subsequent house arrest breach. So when he was on a house arrest bail for trafficking in controlled substances and a serious sexual allegation, with obviously, and I would say appropriately, tight terms, blatantly breached it and without the knowledge at all of his surety, basically misleading these folks and obviously avoiding his surety, at least on the occasion that he was caught."

As to the circumstances of the breach of recognizance charge before the court, the Crown alleges that when the police did an occupancy check at the residence of the surety, Mr. Samuel was found not to be at the residence, as required. He was later located outside of the residence in a vehicle. The police attempted to apprehend him, but he left the vehicle and ran away and was subsequently apprehended after a foot chase. Contrary to the terms of his recognizance, he was not in the presence of the surety at that time, at the time of his arrest. Further, the evidence of the proposed new surety, Deborah Rodney, indicated that Mr. Samuel attended at her residence on at least three other occasions without the presence of his surety.

The Bail Hearing

The learned Justice of the Peace conducted a bail hearing and gave oral reasons at the conclusion of the hearing. She acknowledged at the outset of her Ruling that this was a reverse onus on the accused.

In her Ruling, Her Worship stated:

"So the plan that was brought forward is, essentially, a 24/7 house arrest, with round-the-clock supervision."

In fact, the plan proposed by Mr. Samuel did not amount to 24/7 house arrest. The plan provided that he would reside at the home of Ms. Rodney, proposed surety, and her husband. However, Ms. Rodney's evidence was that she works 9:00 to 5:00 and is not at home. In addition, her husband, although having flexible hours, is not at home for periods of time when he is at work. He works as a boat restorer and when there is work, he works at the customer's residence.

Ms. Rodney was prepared to make random checks during the day from her workplace by telephone. When asked about Mr. Samuel sneaking out from the home of his former surety, she was asked:

"QUESTION: Okay. There's an allegation here that he snuck out on Mr. Smith?

ANSWER: Right.

QUESTION: Is that - is there anything you can do to guard against that given the set-up of your house?

ANSWER: I have two very loud dogs that don't let anyone in or out of that front door."

Therefore, the plan fell far short of round-the-clock supervision.

The Crown points out that the charge before the court, breach of recognizance, occurred while Mr. Samuel was under house arrest at Mr. Smith's residence. Mr. Smith was a surety. The allegation is that he would leave the residence while Mr. Smith was asleep. On the one occasion, he was arrested by the police and charged with breach of recognizance. And according to Ms. Rodney's evidence at the bail hearing, there were at least three other occasions when he was at her residence at a time when he knew he was breaching the terms of his bail because he was not accompanied by his surety, Mr. Smith. Clearly, she was deceived or misled. Her evidence was that she did not know his bail conditions.

The Crown also suggested that the Justice of the Peace fell into error when the Justice of the Peace stated:

"...she [that is Ms. Rodney] had no concerns with respect to drug issues. She was very informed about your previous record, details of those convictions, attended court with you, and indicated she still had no concerns with respect to drug issues, violence issues or the previous assault convictions that you have on your record."

However, in cross-examination, it was apparent that Deborah Rodney was not fully informed about his criminal record. The following question was posed to Ms. Rodney:

"So what I wanted to, first of all, talk to you about is the fact that he's been convicted for breaching bail before. So in similar circumstances, and this of course, just so you understand, would have [been] again subject to some terms of bail, breached them and either pled guilty or [had] been found guilty, had to serve some time in jail for that a few years ago. You obviously didn't know that before, now you know that now; right?

ANSWER: Yes."

As to Ms. Rodney's understanding of why Mr. Samuel could be at her house while he was on house arrest at Mr. Smith's residence, she stated:

"So what you're saying, though, is that your understanding is that Festus [Mr. Samuel] was actually allowed to be out of the house with Mr. Smith's permission but not his coming?

ANSWER: Correct."

"Okay. And so did Festus tell you that that's what the situation was?

ANSWER: I don't think it was even really a conversation that [we] had."

The Crown submits that Ms. Rodney was misled or deceived by Mr. Samuel when he attended at her residence on several occasions without the presence of his surety, Mr. Smith.

As to the strength of the Crown's case, Her Worship noted:

"It goes without saying, these are extremely serious allegations involving very young victims and of a very violent sexual assault and forcible confinement, and then while out on bail, you're alleged to have breached your curfew and not be in your residence at the time when the police conduct compliance checks. They are very serious and they are very concerning, but at this point they are allegations."

The Crown submits that Her Worship did not consider the circumstances surrounding the alleged breach of recognizance. Those circumstances involved the police attempting to stop Mr. Samuel while he was in a vehicle and his taking flight and later apprehension.

The Crown also relies on certain DNA evidence resulting from swabs taken as a result of the alleged sexual assault. The Crown submits that this goes to the strength of the Crown's case. The defence responds that although this information was available, it was not tendered before the Justice of the Peace at the bail hearing.

Defence Position

The defence submits that the Justice of the Peace fully considered the issues, acknowledged the reverse onus and fashioned a release that adequately protected the community and specifically

the victim in the form of house arrest at the residence of Ms. Rodney under her supervision.

The defence further submits that this is not a case where the court ought to consider detaining the accused in custody under tertiary or secondary grounds.

A word about tertiary grounds. Section 515(10)(c) of the Criminal Code provides, at subparagraph (10):

"Justification for detention in custody:

For the purpose of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(c) if the detention is necessary to maintain confidence in the administration of justice having regard to all of the circumstances including:

(1) the apparent strength of the prosecution's case;

(2) the gravity of the offence;

(3) the circumstances surrounding the commission of the offence, including whether a firearm was used; and

(4) the fact that the accused is liable on conviction for a lengthy term of imprisonment."

In this case, I am not satisfied that this is a case requiring detention on tertiary grounds. This issue was extensively canvassed by Justice Lauwers, as he then was, in R. v. MacFarlane. At paragraph 42, he stated:

"While the circumstances set out in section 515(10)(c) of the Criminal Code can be made out on the facts with some qualifications, I find the element of 'something more' to justify continued detention required by the binding precedents is missing. If the egregious facts in Laframboise involving a callous murder when Thompson involved in conspiracy to murder or the facts in other cases cited above were not sufficient to justify detention on tertiary ground, then neither are the facts in this case. In my view, a reasonable member of the community who is properly informed about the philosophy of the legislative provisions, Charter values, including the presumption of innocence, and about the actual circumstances, both of the case and about the accused, would not consider Mr. MacFarlane's continued detention before trial to be necessary."

I now turn to the secondary grounds.

The Crown also relies on the secondary grounds under section 515(10) of the Criminal Code. That section provides as follows:

"For the purpose of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(b) where the detention is necessary for the protection or safety of the public, including any victim or witness to the offence, or any person under the age of 18 years, having regard to all of the circumstances, including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice."

The approach taken by a Superior Court judge reviewing a bail decision from the Justice of the Peace was canvassed by Justice Gary Trotter in his text, The Law of Bail in Canada, and he stated:

"The reviewing judge is not permitted to re-decide the matter and substitute his or her decision in the absence of a demonstrable error in law or principle. However, not any error is sufficient. The error must bear on the merits of the release for detention of the accused, as opposed to an inconsequential evidentiary or procedural matter."

As to the appropriate standard of review, Justice Trotter stated:

"Moreover, and given the hasty and informal nature of bail hearings discussed above, fairness requires that even in the absence of a change in circumstances, the initial determination ought to be susceptible to review by a higher court. This gives rise to the question of the appropriate standard to be applied in an evaluation of a justice's decision."

And Justice Trotter concludes his analysis by indicating that the appropriate standard for review is correctness.

In my view, the Justice of the Peace rightly concluded that a 24/7 house arrest was necessary in the circumstances of this case. However, the plan proposed clearly did not amount to supervision 24 hours a day, seven days a week. There were gaps.

I'm satisfied that the Justice of the Peace fell into legal error. Her conclusion was contrary to the evidence. The following constellation of factors assist me in this determination. The proposed surety worked from 9:00 to 5:00, five days a week and, therefore, was absent from her home during substantial periods of time. The spouse of the proposed surety also worked outside of the home when required and it could not be assured that someone would be home with Mr. Samuel at all times of the day. There was no evidence of any home monitoring system which would enable the surety or her spouse to track unauthorized departures by Mr. Samuel.

The house was equipped with a landline but it was not password protected, therefore, Mr. Samuel would have access to the telephone at his convenience. There was a no-contact order in place. Based on the gaps in the supervision of Mr. Samuel, the Justice of the Peace did not give adequate consideration of factors affecting the complainant and her safety.

In considering the reverse onus on Mr. Samuel, the Justice of the Peace did not give adequate consideration to his record for breach of recognizance, the evidence of three other breaches noted by Ms. Rodney, his proposed surety, and the strength of the Crown's case with respect to the current breach before the court involving his arrest only after a foot chase.

By way of conclusion, I, therefore, grant the Crown's application and order that the bail of Mr. Samuel be revoked and, therefore, Mr. Samuel is required to surrender into custody.

MS. HULL: Thank you, Your Honour. I believe there is a court date - a pending court date for the breach of recognizance.

MS. MILES: The breach of recognizance is set to return in courtroom number 9 on May the 27th, Your Honour.

MS. HULL: So there will have to be a new remand order for that date, please.

THE COURT: All right.

MS. HULL: And the other - and there should probably be a remand for the other charges, as well.

THE COURT: So, Madam Registrar...

COURT REGISTRAR: For the same date?

MS. HULL: I don't know whether it's the same date or not.

COURT REGISTRAR: It already has a date, Your Honour.

MS. MILES: No, that date is set for preliminary hearing in November.

COURT REGISTRAR: Right, but there was a September 9th date for status hearing to confirm the prelim.

MS. MILES: I'm going to ask that all matters go to the May 27th date, please, Your Honour.

MS. HULL: That's fine.

THE COURT: All right. Madam Registrar, can you attend to that and I'll sign where necessary?

COURT REGISTRAR: The form is going to printed, sir, and I'll bring it to you.

THE COURT: Thank you, Madam Registrar. So we'll put the other matters over to the May date then. Shall I deal with those in chambers...

COURT REGISTRAR: Yes.

THE COURT: ...when the form is ready?

COURT REGISTRAR: Yes.

THE COURT: Thank you, counsel.

COURT REGISTRAR: All rise, please.

...MATTER READDRESSED

THE COURT: Counsel, I just want to confirm or order fresh that the non-communication order should remain in place.

MS. HULL: I should have asked for that. I apologize.

THE COURT: There are three named individuals, actually four I see on here, Jennifer Handley, Myus Clovis, David Smith, Shawnee Newton. Those are the four parties?

MS. HULL: Thank you.

MS. MILES: Sorry, Your Honour, I just wanted to indicate as well, there needs to be an exception for Myus Clovis, who is the co-accused on the sexual assault matter, for the purposes of speaking with counsel or while at court.

MS. HULL: Of course, yes.

THE COURT: Madam Registrar, I'll just have you note that and this is important not only during Mr. Samuel's custody but in the event that he does get bail subsequently. So it says except through legal counsel. Does that cover it, or should it say and while in court?

MS. HULL: Or while at court. It should say "Or while at court."

THE COURT: Thank you, Madam Registrar. That completes the matter now?

MS. HULL: Thank you, yes.