ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-15-0048
DATE: 2015-09-02
B E T W E E N:
Her Majesty The Queen,
Gordon Fillmore, for the Crown
Respondent
- and -
Tony Gordon,
David Kiesman, for the Applicant
Applicant
HEARD: September 1, 2015,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Reasons For Judgment On Application For Bail Review
[1] This is an application by the accused, Tony Gordon, pursuant to s. 520 of the Criminal Code, for review of the detention order made by Justice of the Peace Leaman on April 8, 2015.
[2] The detention order was made under the secondary ground set out in s. 515(10) of the Criminal Code, namely that there was a substantial likelihood that the applicant would, if released from custody, commit a criminal offence.
Background
[3] Mr. Gordon is 22. He is charged with assault, sexual assault and sexual touching of a female under the age of 16 contrary to sections 266, 271(1) and 151 of the Criminal Code.
[4] For a young man, the applicant has an extensive criminal record. The record for Mr. Gordon filed on his bail review lists 32 convictions in the last seven years. Of these convictions, there are 13 convictions for breach of bail and probation conditions in the last five years. His other convictions include convictions for sexual assault, uttering threats, resisting arrest, obstructing a peace officer, break and enter, assaults and theft under.
[5] The defence put forward a surety, Leonard Gordon, the applicant’s maternal grandfather. Leonard Gordon was not available to testify at the bail hearing but testified at the bail review hearing as did the applicant.
[6] Leonard Gordon had previously acted as a surety for the applicant on three occasions: in 2012, 2013 and 2014. In 2012, there were no issues with compliance with the conditions of the applicant’s release. In 2013, Leonard Gordon applied to be removed as the applicant’s surety because the applicant had not complied with his curfew and was not coming home to reside with his grandfather as required. After several failures to abide by these conditions, Leonard Gordon applied to have his surety revoked. Most recently, in 2014 the applicant was arrested for breach of conditions while he was released with his grandfather as surety.
[7] In cross-examination, Leonard Gordon acknowledged that this conduct indicates that the applicant is becoming more rebellious. He admitted that his grandson has issues with alcohol and that intoxication was a factor in many of the applicant’s convictions. He admitted that Lac Seul First Nation, where he resides and where the applicant would reside if released, has a significant crime rate, much of which is related to alcohol.
[8] Leonard Gordon is prepared to post surety in the amount of $1000 which is acknowledged to be significant given his limited assets and his monthly income of approximately $1450 from old age security and Canada pension. Leonard Gordon has a very distant criminal record for impaired driving and even more distant, for assault.
[9] Leonard Gordon testified that, should the applicant be released, he would be employed by another family member at a local gas station.
Reasons of the Justice of the Peace
[10] In his reasons for denying bail on the secondary ground, the Justice of the Peace noted that Leonard Gordon had been surety when the applicant acquired breaches and stated that the applicant "has far too many breaches in his short life to give this court any confidence that he would be able to comply with any conditions of his release."
Submissions of the Defence
[11] Counsel for the applicant submits that there is a material change in circumstances since Leonard Gordon was not able to testify at the bail hearing. No error on the part of the Justice of the Peace is alleged. Counsel candidly acknowledged the history of breaches and, in particular, the success, or rather lack thereof, of the two most recent releases of the applicant with his grandfather as surety.
Submissions of the Crown
[12] Simply stated, it was the Crown's position that given the record of breaches there was a substantial likelihood that Mr. Gordon would reoffend if released.
Discussion
[13] 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, 3603 (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 material change in circumstances since the original proceedings.
[14] I do not find that the Justice of the Peace erred in principle. I do not find that the defence has established a material change in circumstances. Even if the fact that Leonard Gordon is now able to testify does constitute a material change in circumstances, I conclude that the applicant should nevertheless be detained on the secondary ground.
[15] "A number of breaches of undertakings, recognizance and other court orders may be helpful in predicting future criminal behavior while on bail." See Trotter, The Law of Bail in Canada, loose-leaf, 3rd ed. (Carswell, 2015) at 3-17 and R. v. Geesic ONSC 7438, at para. 21. As is often said, nothing predicts behaviour like behaviour.
[16] Gladue factors were considered by the Justice of the Peace. In his view, Gladue factors did not outweigh the protection of the public. I agree. The factors of the applicant 's past life experiences are unfortunate but, based on past behaviour, I conclude that there is a substantial likelihood that Mr. Gordon would reoffend if released.
Conclusion
[17] For the reasons given, the application to set aside the detention order of April 8, 2015 is dismissed.
______”original signed by”
The Hon. Mr. Justice W.D. Newton
Released: September 2, 2015
COURT FILE NO.: CR-15-0048
DATE: 2015-09-02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and -
Tony Gordon,
Applicant
REASONS FOR JUDGMENT ON
APPLICATION FOR BAIL REVIEW
Newton J.
Released: September 2, 2015
/mls