ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR150000021300BR
DATE: 20150918
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.T.P.
Defendant/Applicant
Sean Horgan, for the Crown
Carolyne Kerr and L. Gary Stortini for the Defendant/Applicant
HEARD: August 26, 2015
An Order restricting publication in this proceeding was made under section 517(4) of the Criminal Code and continues to be in effect.
SPIES J.
Overview
[1] The Applicant, R.P., brings this application for an order reviewing the detention order made by Justice of the Peace Premji on March 4, 2015 who detained him on the primary, secondary and tertiary grounds. There is no dispute that Mr. P. had the onus to satisfy the Justice of the Peace that he ought not to be detained because of the nature of his charges.
[2] Mr. P. is charged on a number of separate indictments:
November 1, 2014 - impaired care and control, over 80 and possession of cocaine;
December 7, 2014 - arson - disregard for human life;
January 22, 2015 - robbery of a pharmacy with a firearm;
February 6, 2015 - uttering threats, assault and mischief.
[3] Mr. P. was arrested on February 12, 2015, and has been in custody since then. His preliminary inquiry has not yet begun. He brought an earlier bail review application in the Superior Court which was dismissed by Dunnet J. on June 12, 2015.
[4] On September 4, 2015, I gave brief oral reasons dismissing this application and advised counsel that written reasons would follow. These are my reasons.
The Issues
[5] The first issue to be considered is this Court’s jurisdiction and, in particular, whether or not I have any authority to review the decision of the Justice of the Peace or whether my authority is limited to a review of the decision of Dunnet J. For reasons I will come to, I have concluded that my authority is limited to a review of the decision of Justice Dunnet.
[6] The second issue to be determined is what the standard of review is and whether or not the decision of Dunnet J. should be set aside and an order made that Mr. P. be released on a recognizance with sureties as proposed before the Justice of the Peace.
Jurisdiction and Standard of Review
[7] Ms. Kerr, on behalf of Mr. P., took the position that my jurisdiction to hear this application is the same as Justice Dunnet’s; in other words, I am standing in Justice Dunnet’s shoes and reviewing the detention order made by the Justice of the Peace. She argues that I can consider all of the information that was available to Dunnet J. as well as evidence of what she submits is a material change since Justice Dunnet’s decision.
[8] In support of this position Ms. Kerr relies on R. v. Whyte; 2014 ONCA 268 where the Court of Appeal considered the jurisdiction of a judge hearing a second bail application but in the context of a review under s. 680 of the Criminal Code with an accused charged with being an accessory after the fact to murder. In Whyte, the first judge who heard the bail review was a judge of this Court which is required by s. 522. That judge dismissed the application. On a second application to a judge of this Court, the judge held that only the Court of Appeal had jurisdiction. On appeal, Tulloch J.A., speaking for the Court, disagreed and in the course of his reasons stated at para. 26:
In my view, the assessment of whether a material change in circumstances exists in a particular case depends on the actual considerations that underpinned the first bail judge’s refusal of bail. [emphasis added]
[9] Ms. Kerr argues by analogy that the first decision in this case is the decision of the Justice of the Peace. However, the case at bar is a review under s. 520(8) of the Code and, in any event, I do not accept Ms. Kerr’s interpretation of para. 26 from Whyte. The use of the word “first” was limited to the facts of that case as there had only been one prior review. This decision is clearly not a precedent suggesting that, in a case like the case at bar, I should ignore the decision of Dunnet J. and consider only the decision of the Justice of the Peace.
[10] I advised counsel during Ms. Kerr’s submissions that my understanding is that R. v. Saracino, 1989 4312 (ON SC), [1989] O.J. No. 2 governs this application for review and that it sets out the standard of review I must apply when considering the decision of Dunnet J. Counsel had an opportunity to consider that decision and in reply Ms. Kerr referred to R. v. Smith, 2003 SKCA 8, [2003] S.J. No. 30, from the Saskatchewan Court of Appeal, which rejected Saracino.
[11] At the conclusion of oral argument I advised counsel that I would ask my law clerk to determine whether or not Saracino is still the decision that governs this application. My law clerk did so and for the reasons that follow it is clear in my view that I must follow the guidance provided by the court in Saracino.
[12] Section 520(8) states:
Where an application under this section or section 521 has been heard, a further or other application under this section or section 521 shall not be made with respect to that same accused, except with leave of a judge, prior to the expiration of thirty days from the date of the decision of the judge who heard the previous application.
[13] In Saracino, Doherty J., as he then was, ruled that s. 520(8) invited a Superior Court judge to review the findings of another judge, irrespective of whether the initial judge maintained or reversed the Justice of the Peace’s order (at paras. 15 and 17).[^1] Doherty J. noted:
There is no good policy reason for insulating a decision of a judge from review when she makes an order changing the bail status of an accused, while at the same time providing for a review where her order maintains the status quo. Either order can be in error, and either order can have serious ramifications for an accused and for the community. A right of review (subject to the requirement of leave if the earlier review was held within 30 days) is more consistent with our bail system which emphasizes flexibility and the ready availability of the means to reassess or review an accused's bail status while the charges against him are working their way through our system of criminal justice (at para. 17).
[14] Justice Doherty also noted there where the initial review application is dismissed, as it was in this case, “subsequent applications will, in a very real sense, amount to a review of the initial dismissal of the review application” (at para. 16). However, Doherty J. cautioned that “[s]econd applications under s. 520 or s. 521 should not be a forum in which a disappointed party to the initial review seeks a fresh exercise of judicial discretion, or a re-determination of findings of fact made on the initial review” (at para. 18).
[15] In this respect, if a subsequent review application is premised on a material change in circumstances, the judge that heard the initial review application should hear the subsequent review, where possible (Saracino at para. 18; R. v. Cariaga, 2010 ONSC 8020, [2010] O.J. No. 5880 at paras. 24 and 26). This issue was not raised before me since Justice Dunnet was not sitting at the time of the second review application.
[16] If an error in law in the decision is alleged, Justice Doherty held that a judge conducting the subsequent review should not interfere with the initial decision unless the first judge “made an error in principle in his application of the relevant provisions of the Code, which materially affected the outcome of the initial application” (Saracino, at para. 18; see also R. v. McCue, [1998] O.J. No. 4384 at para. 9, where Salhany J. ruled that the initial reviewing judge erred in law and granted the review application).
[17] Justice Trotter has interpreted the words of Justice Doherty in Saracino as providing that, an order of a judge should be accorded greater deference when it is reviewed by another judge and that on a subsequent review application, the standard of review ought to be an assessment of reasonableness” (Gary Trotter, The Law of Bail in Canada, 3d ed. (Toronto: Carswell, 2010) at p. 8-35).
[18] Saracino was recently endorsed by the Alberta Court of Appeal in R v. Chan, 2000 ABCA 214, 146 C.C.C. (3d) 494 at paras. 24-27 and the Ontario Court of Appeal in R. v. Durrani, 2008 ONCA 856, [2008] O.J. No. 5118.
[19] In Durrani, the accused applied for bail three times, once to a Justice of the Peace and twice to different judges of the Superior Court; he then sought to have a single judge of the Court of Appeal review the status of his interim release (Durrani at paras. 1-2). In determining whether the Court of Appeal should exercise its jurisdiction, MacPherson J.A. noted at para. 29:
Section 520 clearly envisions more than one opportunity to bring a bail review application and contemplates that different judges of the superior court will sometimes hear these applications. … see R. v. Saracino (1989), 1989 7197 (ON SC), 47 C.C.C. (3d) 185 (Ont. H.C.), at 190-91 (Ont. H.C. per Doherty J.). In other words, s. 520 of the Code explicitly contemplates that, in reviewing an order made at a show cause hearing under s. 520, one superior court judge may consider the order made by another judge of the same court on a prior review application. [emphasis added]
[20] Finally as for Smith, the Saskatchewan Court of Appeal rejected Saracino (at para. 73). In light of Durrani, in my view it is not open to this Court to apply Smith. I note that Trotter J. has called Smith “unfortunate in a number of ways” and the product of counsel’s unacceptable handling of the case (The Law of Bail at p. 8-33).
[21] In summary then, relying on Saracino, I am only able to interfere with the decision of Justice Dunnet if there has been a material change in circumstances since her decision or if Dunnet J. erred in principle in a material way.
Chronology of Charges and Conduct of Mr. P.
[22] To consider this application a chronology of the charges and the conduct of Mr. P. and his parents is of assistance. This information was referred to extensively before the Justice of the Peace and Justice Dunnet.
[23] Mr. P. has one entry on his criminal record; a conviction for dangerous driving from 2007.
[24] On November 1, 2014, Mr. P. was charged with impaired care and control, over 80 and possession of cocaine. It is alleged that he was observed by the arresting officers sitting in the driver’s seat of a Dodge pickup parked in a rear alleyway. Numerous bottles of liquor were strewn about the vehicle. The results of the Breathalyzer were 145 mgs in 100 ml of blood and the second was 126 mgs in 100 ml of blood. A quantity of crack cocaine was found among the empty liquor bottles in the vehicle weighing .64 grams. Mr. P. was released on a promise to appear.
[25] On December 7, 2014, Mr. P. was given a ticket for being intoxicated in a public place. Apparently he was picked up while walking along a road. Police asked where he lived and he presumably said W. Ave., a semi-detached house owned by his parents, as that is where he was dropped off. Mr. P., Sr. believed this was a result of a drug overdose.
[26] Later on December 7, 2014, Mr. P. was charged with arson disregard for human life. The complainants are his parents. The house on W. Ave. had been vacant because of renovations in preparation for sale. A short time after Mr. P. attended at the home as observed by a neighbour, a fire started. Firefighters located a propane tank lying on its side with the valve in an open position and an object pushed into the nozzle to allow for the flow of gas. When Mr. P., Sr. was contacted he advised police that his son was going to enter a rehab facility for his drug use issues. The officer advised Mr. P., Sr. that a warrant was being sought for his son and his son could make arrangements to turn himself in once he left rehab.
[27] Mr. P. is also charged with robbery with a firearm and disguise related to the robbery of a pharmacy on January 22, 2015. It is alleged that three males had their faces covered with surgical style masks, that Mr. P. produced a handgun and proceeded to the area behind the prescription counter, that he demanded medication and money from the employees and that he struggled with one of the female employees. It is alleged that the robbery occurred while Mr. P. knew he was wanted on a warrant for the December 2014 arson incident.
[28] Finally, on February 6, 2015, Mr. P. was charged with uttering threats, assault and mischief. This was an incident of road rage in a McDonald’s parking lot. After some yelling Mr. P. is alleged to have exited his vehicle, banged on the driver’s side window of the complainant’s vehicle, opened the door and pulled the complainant out by his leg causing the complainant to land on his back and kicked the complainant.
[29] In the course of the investigation of the assault on February 6th it came to the attention of the investigating officers that Mr. P. had been at an Esso gas station suffering from a drug overdose; apparently heroin. He had given his address to paramedics as B. St. in Toronto. There is no dispute that that is an old address that Mr. P. lived at with his parents until he was 25 years old and was not an address where he had lived at for several years.
[30] When police called Mr. P., Sr. on February 6th looking for his son, he advised police that he did not know where he was but a male could be heard in the background telling him to hang up the phone and not talk. Mr. P., Sr. then apologized to the officer for lying and stated that his son would speak to his lawyer the next day. The phone then suddenly hung up. Police went to Mr. P., Sr.’s address and discovered that Mr. P. had fled prior to police arrival. As a result, a warrant in the first was sought for Mr. P.’s arrest.
[31] Mr. Stortini advised the Justice of the Peace as an officer of the court that he made contact with 54 Division on February 9th once he was contacted by Mr. P. concerning an outstanding bench warrant. He was told the officer in charge was away on holidays and that she would not be back until the Friday. The officer in charge contacted Mr. Stortini after her holidays but by this time Mr. P. had been arrested.
[32] Mr. P. was located and arrested at H. Sq. on February 12, 2015. A search warrant was executed at his residence/apartment, and a quantity of surgical masks were located along with a pair of grey shoes the police believed to have been worn by Mr. P. during the robbery.
Proceedings before the Justice of the Peace
The Evidence
[33] Justice Dunnet advised counsel that she had read the transcript of the proceedings before the Justice of the Peace including the reasons of the Justice of the Peace. The hearing before the Justice of the Peace appears to have taken about one and a half days.
[34] Before the Justice of the Peace both Mr. P., Sr. and Mrs. P. testified. Mr. P., Sr. gave evidence about his assets which are substantial. Mr. P., Sr. testified that they sent their son to Addictions Canada for treatment on December 8th, 2014, right after the arson incident. He thought his son completed the one month program for substance abuse namely drugs and alcohol. Mrs. P. said her son was to be at Addictions Canada for 30 days but he signed himself out just before the 30 days were up. She told him she wanted him to stay longer but didn’t demand it.
[35] Mr. P., Sr. confirmed that in early January his son was out of rehab. He testified that once his son was released he stayed at their home for a few days so they could make sure he was OK. Mr. P., Sr. reminded his son that he was supposed to turn himself into police because of the outstanding warrant but his son did not listen to him. His son wanted to go in with Mr. Stortini. The position of the Crown is that Mr. P. did not turn himself in after rehab which appears to be the case since Mr. Stortini was not contacted until almost a month later; February 9th.
[36] Mr. P., Sr. testified that he told police that his son was not in the house on February 6th when that was not true because the arrangement was to go to the police station the next day with Mr. Stortini. Mr. P., Sr. admitted that his son was yelling at him believing that he was talking to police. When asked if he took any steps to keep his son there given that he had to turn himself in on now at least two sets of charges that he was aware of, Mr. P., Sr. answered that his son is twice the size of him, that he told him “Don’t go” but he walked away anyway and didn’t listen. The police knocked on the door an hour or two later. Mr. P., Sr. admitted that he thought his son had probably gone to H. Sq. but he didn’t tell police that because he has “an issue with police” because his son “gets beat up all the time by police”.
[37] In the period December 2014 to February 2015, Mr. P., Sr. understood his son to live at H. Sq., in an apartment. Mr. and Mrs. P. both testified that their son never lived with them at their home at G. Pl. He just came to visit.
[38] Mr. P., Sr. gave evidence about what he knows about some of the charges and the position of his son as to what he did and did not do. The evidence before the Justice of the Peace was that neither he nor his wife was aware of their son’s drug problem until December 7, 2014.
The Release Plan
[39] Mr. P. is facing four separate sets of charges and as such is facing four separate trials. The process may last up to two years as was put by the Crown to Mrs. P.
[40] The plan proposed to the Justice of the Peace by Mr. Stortini was that Mr. P. reside with his two sureties; his parents at the family home and that he not be out of the residence unless in the company of one of his sureties. Mr. P., Sr. is semi-retired and probably works four hours a day. His wife works from home apart from a month near year-end. Mr. P. was to surrender his passport and not apply for any travel documents and remain within the province of Ontario. He was not to operate a motor vehicle, possess any electronic device including a cell phone or computer unless in the presence of one of his sureties. He was to wear an electronic GPS and alcohol monitoring bracelet and be subject to any terms related to their operation as set out by the court. He could be no more than 80 feet outside of the house. He was to submit to urine/blood sampling as requested or required by his surety, have no contact with any witness or individuals charged as a result of this investigation, attend for counselling as directed and recommended by his parents, and not consume any drugs or alcohol.
[41] Mr. Stortini advised the Justice of the Peace that the parents were prepared to assume substantial financial risk and he suggested $200,000 but added “any amount that the Justice of the Peace would feel justified under the circumstances, they were prepared to meet. Their assets are in excess of a couple of million dollars – three to four million at least – that they’re prepared to pledge.”
[42] The Justice of the Peace was advised that Mr. P. would go to a place in Toronto called the “Clinic on Dupont” which is headed up by a psychiatrist who uses cognitive behavioural therapy. No appointments had been scheduled. Mrs. P. testified that she wanted her son to go to this clinic after he got out from Addictions Canada in early January but he didn’t want to until he dealt with the arson charge. Mrs. P. also testified that her son has suffered from anxiety for two years, that she had suggested he see a psychiatrist and that he should be on medication for it but he is not. In her view it’s not being controlled. On the second day of the hearing Mrs. P. testified that she believes that her son suffers from depression.
[43] In 2013 Mrs. P. called police twice because of her son’s “attempted suicide” and she testified that she probably told him he needed help but she had no way of enforcing it. She testified that she probably spoke to his family doctor but she couldn’t say for sure. In November 2014 when her son was charged with the impaired care and control charges, she realized that he had an alcohol problem and she told him to go into rehab. He didn’t.
[44] The position of Mr. P.’s parents before the Justice of the Peace was that with a substantial monetary bail they could now enforce conditions on their son. However, they also testified that he was paid $25 per hour for working for a family company, that he was given additional cash of several hundred dollars per month and that Mrs. P. paid his VISA off a couple of times as well in the amount of about $7,000. It was not clear how often such a significant sum was paid but the evidence before the Justice of the Peace suggested that Mr. P.’s parents were making these payments without questioning where the money was going or using these voluntary payments as a means of control over their son.
The Reasons of the Justice of the Peace
[45] The Justice of the Peace gave oral reasons after a break following the completion of counsel’s submissions. I will not review all of the reasons but clearly there were concerns about the primary, secondary and tertiary grounds. The Justice of the Peace noted:
• The parents were questioned about the arson and knew that Mr. P. was wanted by police on those charges. Rather than turn him in and attempt to have bail and perhaps have rehab as part of the plan for release, they put their son in rehab.
• Mr. P. had spent under 30 days in the rehab program and shortly after that time period, instead of turning himself into police, he continued on and the offences of January 25th, which are “one of the most serious that you’ve been alleged to commit”, namely the armed robbery and disguise with intent, was committed.
• At Mr. P.’s apartment, owned by his mother’s numbered company, where she said he lived, police found “surgical masks that were similar, and also, the pair of shoes that the video connects that they are similar to what was found on the particular video”. [emphasis added]
• “[A]s to the strength of the Crown’s case, the fact that similar surgical masks were found in your home through a search warrant and there was no reason been [sic] provided why you would need something like that, would lead to believe that there is some strength to the Crown with regard to that evidence.” [emphasis added]
• In terms of outstanding charges, the Justice of the Peace was concerned that Mr. P. was looking at four sets of outstanding charges.
• As for history of complying with court orders, the Justice of the Peace expressed concern about the fact that Mr. P. was aware that the police wanted him and he didn’t turn himself in and he fled when police called his father on February 6th.
• There are some allegations that Mr. P. made some comments to a possible co-accused that “may have deterred him into making a particular statement.”
• The fact that for the past few years Mr. P. had had an alcohol abuse problem and a drug problem and that in 2013 he tried to commit suicide a number of times and as such there were some mental issues.
• The proposed plan of release was “the highest in the ladder of releases” and that nothing more stringent could be in place to that of detention. The Justice of the Peace acknowledged that in essence Mr. P. would be tied to his parents’ home and be only allowed to go where his parents allowed him to go and the electronic device would track where he was and that although it’s not absolute because if someone wants to flee they still can, it is a tool for sureties to use as a deterrent.
• On the secondary grounds, the Justice of the Peace referred to Mr. P.’s criminal record and outstanding charges, the fact that Mr. P. was already on a release, the nature and circumstances of the alleged offences, the strength of the prosecution’s evidence, the character and personal circumstances of Mr. P. and his mental health and substance abuse issues and the proposed release plan.
• On the tertiary grounds, the Justice of the Peace noted the factors to be considered as the apparent strength of the Crown’s case, the fact that he had commented on that, the gravity and nature of the offence, the circumstances around the commission of each of the four charges, including the use of a firearm and the potential for a lengthy period of custody. The Justice of the Peace continued:
So having regard to all the circumstances, including, and these factors are related to the circumstances for this, so it’s not something that the court looks at in isolation, it’s looked at all the factors, and really, it comes down to two specific things that the court is most concerned about, having looked at all the factors. [emphasis added]
• The first concern was with respect to Mr. P.’s parents as sureties and, in particular, the fact that they hadn’t had the best relationship with Mr. P., the fact that the court was concerned about his father’s role in telling police, even though he apologized, that Mr. P. was not there and not bringing Mr. P. forward to the authorities. Notwithstanding these types of concerns however, the Justice of the Peace ended this section with the following:
But your parents are willing to put up a whole lot of assets. They are willing to, in essence, babysit you 24/7. Your mom has said she is going to be home all the time. When she can’t, dad is going to be home. You’re not leaving the house without your parents constantly monitoring you.
• The second concern raised was with Mr. P. personally and the fact that there had been a spiral of events that happened since November 1st, that his parents had tried to support him and put him in a program, but he released himself a couple of days early, that the program wasn’t successful if the allegations are true, that the parents want to put him in a new program and that it would be difficult to say if that would be successful or not, that Mr. P. had demonstrated an influence on his parents and how they behave referring to the money that his mother gives him beyond what he earns and getting his father to lie to police. He continued:
When you look at the plan in totality, you would have an electronic bracelet that will alert the authorities at some particular point, but the question is for you, sir, are you going to follow this particular plan?
• That there was confusion as to where Mr. P. lived because Mr. P. had not told authorities what his correct address was on November 1st and on December 7th a different address was given and on February 6th Mr. P. gave an old address. [The Justice of the Peace made a factual error with respect to December 7th but there is no dispute that, save for the B. St. address given to the paramedics on February 6th, that Mr. P. never gave police the H. Sq. address which is where he was clearly living.]
• That Mr. P.’s actions had demonstrated, even though his parents were willing to risk so much to help him, that:
…the documents that you sign, the promises that you keep, are not there, given the allegations that are there, and as a result you have not met your reverse onus based on the plan that’s being proposed and the information that’s being provided in the court, and you are detained on the primary, secondary, and tertiary grounds.
It is very difficult to meet the tertiary grounds, and in this particular case, the only issue the court has is with regard it [sic] the video, but when you’re looking at everything in complete totality, the court feels that you have not met your onus and you are going to be detained on these charges.
Application before Dunnet J.
[46] I have reviewed the transcript of the proceedings before Justice Dunnet. The grounds for that application were that there had been a substantial change in circumstances since Mr. P. was ordered detained and that the Justice of the Peace erred in law in detaining Mr. P.
[47] By the time of the hearing before Justice Dunnet, the Supreme Court of Canada’s decision in R. v. St-Cloud, 2015 SCC 27, [2015] S.C.J. No. 27 had been released. The court stated, at paras. 120 and 121, that a reviewing judge does not have an open-ended power to review the initial order for detention or release and that it is only appropriate for the reviewing judge to intervene if the justice has erred in law, if the decision of the justice was clearly inappropriate or new evidence is submitted that shows a material and relevant change in the circumstances of the case. With respect to what would constitute a material and relevant change in circumstances the court held (at paras. 128 and 129) that the four criteria from Palmer v. The Queen, [1980] 1 S.C.R. 579, at para. 50, “with any necessary modifications.”
[48] Ms. Kerr acknowledged that the applicant had to establish one or more of these three circumstances before Justice Dunnet could interfere with the decision of the Justice of the Peace. Ms. Kerr submitted before Dunnet J. that the armed robbery charge was the most serious charge that Mr. P. was facing and that there had been a material change in the evidence, now that the Defence had disclosure and that the Crown’s case against Mr. P. was not as strong as it appeared before the Justice of the Peace.
[49] There is no dispute that the CCTV video of the armed robbery and witness statements had not been disclosed and were not available to the Justice of the Peace. Ms. Kerr made a point of submitting before Dunnet J. that the Justice of the Peace commented four times in the course of his reasons that the video might raise some questions although I note he did not indicate whether or not the video might help or hurt the Crown’s case. In any event these materials were disclosed by the time of the hearing before Justice Dunnet and it was submitted before her that this disclosure weakened the Crown’s case for the charge of armed robbery and that this affected one of the four factors that had to be considered in determining whether or not the tertiary ground has been met. The specific issues raised were that:
a) two of the three witnesses said the robbers were wearing blue surgical masks and only one witness told police that the masks were white whereas the surgical masks seized from Mr. P.’s apartment were white;
b) the shoes seized from Mr. P.’s apartment are grey and white high top Adidas whereas the Crown told the Justice of the Peace that they were grey;
c) distinctive black track pants shown on the video and alleged to have been worn by Mr. P. during the robbery were not found during the search of his apartment;
d) it is impossible to determine the identity of the robbers from the video; and
e) the descriptions provided by the witnesses are generic and conflicting and some do not match Mr. P.
[50] In addition Justice Dunnet was provided with the first five minutes of the booking tape of Mr. T.J. and an affidavit setting out a different version of what Mr. P. is alleged to have yelled to Mr. J. The tape was not available at the time of the bail hearing. Before the Justice of the Peace the utterance alleged to have been made by Mr. P. was: “You better not say anything or I’ll kick the shit out of you”. The position of the Defence before Dunnet J., based on the booking tape, is that what in fact Mr. P. is alleged to have said is: “Hey, lawyer up. These guys are going to beat the shit out of you if you don’t say nothing. They’ll fucking beat the shit out of you.”
[51] It was also submitted that the Justice of the Peace erred in assessing the arson charge and not considering certain defences to the arson and impaired driving charges. It is also alleged that the Justice of the Peace erred in law and misapprehended the evidence by being concerned about the sureties; Mr. P.’s parents and whether Mr. P. would obey the bail conditions. In this regard I note that counsel before Justice Dunnet took the position that the Justice of the Peace found that the parents were not suitable sureties but in my view that is not clear from his reasons.
[52] The release plan proposed before Dunnet J. was the same as the one proposed before the Justice of the Peace.
The Hearing Before Dunnet J.
[53] Before I come to the Endorsement of Dunnet J. it is important to note some of the comments that she made during the course of oral submissions as they inform what she was concerned about as she heard the submissions of counsel.
[54] When in reply Ms. Kerr submitted that the Justice of the Peace erred in not addressing how a surety bail allows the sureties to exercise control over an accused, Justice Dunnet commented that “their [the parents’] evidence is rife with the fact that they [Mr. P.’s parents] had no idea what was going on” and she queried where was the evidence that they would know what to do as a surety and that they would call the police and that this was important because of issues in that regard in the past. Justice Dunnet then noted that “there is a real issue, in my view, with respect to these sureties regardless … of the money that they are prepared to put up.”
[55] Justice Dunnet went on to state that the issue is not the parents but Mr. P.’s desire to deal with his mental health and drug and alcohol addiction issues. As a result she questioned the ability of the sureties to control Mr. P. and protect the public from any future activity that he might become involved in, given the quick accumulation of charges. Justice Dunnet then asked Ms. Kerr why she said that the parents as sureties would be in a position to do anything other than try to keep their son within the four walls of their home for the next four years and that Mr. P. would have to “buy into” the release plan. Ms. Kerr then attempted to address that concern.
[56] At the conclusion of oral submissions by counsel for Mr. P. and the Crown, Dunnet J. stated:
The issue for the court at this time is whether or not the hearing should proceed, and Ms. Kerr, despite your very able submissions, I am persuaded, on the basis of St-Cloud, that the test has not been satisfied and that the hearing should not proceed, and I intend to release brief written reasons to that effect, but at the end of the day, I am dismissing the application on that basis.
Dunnet J.’s Endorsement on the Bail Review Application
[57] In Justice Dunnet’s endorsement she made reference to the CCTV video of the robbery and the booking tape of Mr. J. and the submissions made by Ms. Kerr about why the CCTV video was significant as set out above. In reference to St-Cloud Dunnet J. stated in part that it would be appropriate to intervene if the Justice of the Peace had erred in law, if the impugned decision was clearly inappropriate, or “new evidence shows a material and relevant change in the circumstances of the case.” It appears that she then considered the third branch as she turned to the test in Palmer which the court in St-Cloud (at para. 129) said should be adopted “with any necessary modifications”. Dunnet J. then concluded as follows:
The CCTV video of the robbery provided to the defence in April 2015 shows that the perpetrators wore masks. Masks were found at the applicant’s home. All of the witnesses said that they wore surgical masks and surgical masks were retrieved.
At the bail hearing, the Crown told the Justice that during the booking of [T.J.] at the police station, the applicant yelled out from the cells, “You better not say anything or I’ll kick the shit out of you.” The affidavit of Joanna Castillo, assistant to Gary Stortini, co-counsel for the applicant, states that she viewed the video on June 10, 2015 and understood the words that were used by the applicant to be “Hey, lawyer up. These guys are going to beat the shit out of you if you don’t say nothing. They’ll fucking beat the shit out of you.”
In my view, the new evidence is not significant and it is not such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the Justice. [Emphasis added]
[58] Dunnet J. also dealt with the submission that the Justice of the Peace erred in describing the strength of the Crown’s case in finding that Mr. P. did not comply with court orders, would not follow the plan of release, and his parents were inappropriate sureties. Dunnet J. noted that in the reasons of the Justice of the Peace he dealt with the fact that the Applicant was aware that he was wanted by police and did not turn himself in and that he provided the police with an address where he did not reside. In considering the suitability of the sureties and whether the Applicant would comply with the proposed plan, Dunnet J. noted that the Justice of the Peace concluded that “looking at everything in complete totality” the Applicant has failed to meet his onus.
[59] In her endorsement Justice Dunnet also referred to the fact that in January and February of 2015 the Applicant’s parents, knowing that there was a warrant for his arrest, were not in a position to control the Applicant by having him turn himself in to the police. She noted that it was asserted that they were now willing to pledge a million dollars to secure his release which would “enable them to exert control in their role as sureties”. She then concluded as follows:
In my view, there was a plethora of evidence to support the finding of the Justice of the Peace that the Applicant would not comply with the plan of release and that the proposed sureties would be ineffective, notwithstanding their one million dollar pledge.
Accordingly, the new evidence does not impact the original decision such that this court would consider a new bail review. There was no error in law and the decision was not clearly inappropriate. [emphasis added]
Grounds for this Second Application for Bail Review
[60] During the oral submissions before me, after the discussion about Saracino, Ms. Kerr modified her position and submitted that there had been a material change since the decision of Justice Dunnet and that Dunnet J. had erred in law in her interpretation of St-Cloud and the meaning of “material change” in light of the Ontario Court of Appeal’s decision in R. v. A.A.C., 2015 ONCA 483, which was released after her decision. There was no suggestion that Dunnet J. had not correctly summarized St-Cloud in her endorsement and in my view there could be no issue about that.
[61] With respect to the alleged material change, the Applicant relies on a statement made by Mr. J. on August 12, 2015, when he pleaded guilty to the robbery charge in front of Justice Moore. An excerpt of the proceedings recording Mr. J.’s statement to the court before sentencing was introduced into evidence. He told the court that “somebody else got dragged down for this that had nothing to do with it”. Ms. Kerr argues that this must be a reference to Mr. P. as he and Mr. J. are the only two individuals that have been charged with this offence. There is no dispute that three persons were involved in the robbery based on the CCTV video.
[62] As for the alleged error in law, it is Ms. Kerr’s position that A.A.C. clarified the definition of “material change in circumstances” to be evidence which was not fully available or available at the time of the initial bail hearing which was “relevantly material” to the initial decision to refuse to grant bail. In this regard Ms. Kerr, in her Notice of Application, disputes the position taken by Dunnet J. that the new evidence was not “significant” and submits that the statements of the witnesses describing the perpetrators and their masks, the evidence seized and not seized from Mr. P.’s home, the CCTV video, and the actual statement of Mr. P. in the booking cells, is new evidence that was relevant and material to undermining the Justice of the Peace’s finding that the Crown’s case on the robbery was strong.
Analysis
Is there a material change?
[63] With respect to the alleged material change, I find that it does not meet the Palmer test. The first issue is whether or not Mr. J. was even referring to Mr. P. when he made this statement. If I assume that he was for the purpose of this analysis, this evidence clearly meets the first Palmer criterion and if it were credible and reliable I accept it would impact on the strength of the Crown’s case against Mr. P. on the armed robbery charge which, in turn, relates to the second Palmer criterion and it could reasonably be expected to affect a determination of the tertiary ground for detention as required by the fourth Palmer criterion. It would not likely affect the primary and secondary grounds for detention.
[64] Even accepting without finding that the other Palmer criteria are met, the third criterion is that the evidence must be “credible in the sense that it is reasonably capable of belief”. Although I will presume for the purpose of this application that the transcript is accurate that Mr. J. made this statement, it was not a statement under oath. There is also no evidence to suggest that Mr. J. would be willing to testify and give evidence under oath. Without that this statement would not be admissible at Mr. P.’s trial. Clearly Mr. J. has not cooperated with police as there was a third robber who remains unknown. Even if he was prepared to testify the trier of fact would have to be given a significant Vetrovec instruction.
[65] In any event at this stage of the proceedings there is no reason to believe that the statement is credible. It is true that at this stage Mr. J. did not gain anything by making this statement but he did not lose anything either. He could have had any number of reasons to have made this statement. The relationship between Mr. J. and Mr. P. is unknown; now that he has resolved his charge Mr. J. might have been motivated to help a friend.
[66] For these reasons I find that this evidence does not constitute a material change.
Did Dunnet J. err in principle in a material way?
[67] As already stated, Ms. Kerr submits that Dunnet J. erred in law in her interpretation of St-Cloud and the meaning of “material change” in light of the Ontario Court of Appeal’s decision in A.A.C. which was released after her decision. For the reasons that follow I do not accept that submission.
[68] It is Ms. Kerr’s position that there is significance to the fact that the court in A.A.C. referred to Whyte with respect to the approach that should be taken on the fourth prong of the Palmer test. In particular she submits that Whyte suggests that it is the reasons of the Justice of the Peace as to why an accused is detained that gives context to what should be considered significant. She argues that this issue was not dealt with by the court in St-Cloud. I note that Whyte was released before St-Cloud but was not referred to Dunnet J. on the original review application.
[69] Like the decision in Whyte, A.A.C. dealt with an appeal under s. 680 of the Criminal Code. Throughout the A.A.C. decision, Cronk J.A. on behalf of the court quoted extensively from St-Cloud and referred to specific paragraph numbers from that decision. On the issue of “material change”, Justice Cronk did refer to the court’s earlier decision in Whyte and the passage from para. 26 of that decision, which is the passage that I have already set out (at para. 56). When Justice Cronk returned to this issue, she referred to the language from St-Cloud and continued:
Put somewhat differently, in the language of Whyte, at para. 26, this new evidence was “relevantly material” to an assessment of both the strength of the Crown’s case against A.A.C. and the circumstances of the offence. It was thus open to the Bail Review Judge to conclude, on the entirety of the augmented record, that there had been a material change in circumstances warranting a fresh bail review. [at para. 83, emphasis added]
[70] In my view the court in A.A.C. did not change the meaning of “material change” in St-Cloud which of course is binding on the Court of Appeal. Cronk J.A. was simply giving her reasons as to what issues the new evidence was “relevantly material” to on the bail review. The first bail judge had detained on the tertiary ground only and so the relevance of the new evidence was considered in the context of the factors that are set out in s. 515(10)(c) of the Criminal Code and was found to be relevant to the first and fourth factor. Although she put it “somewhat differently” she did not suggest that she was changing the test as set out in St-Cloud.
Additional Submissions by Ms. Kerr
[71] I permitted Ms. Kerr to make many of the submissions that she had made before Justice Dunnet given that the issue of my jurisdiction was not settled. She raised six pieces of evidence that were not available to the Justice of the Peace but five of those pieces of evidence were the subject of the material change argument before Dunnet J. The thrust of those submissions was that the Justice of the Peace’s decision to detain Mr. P. was based in part on the strength of the Crown’s case on the robbery charge which was considered by the Justice of the Peace to be the most serious charge that Mr. P. faced. Ms. Kerr submitted that he found the case to be strong as the perpetrators wore masks similar to those found in Mr. P.’s home, the shoes similar to those worn by one of the perpetrators were found in Mr. P.’s home and Mr. P. is alleged to have made comments that may have deterred Mr. J. from making a particular statement.
[72] Ms. Kerr essentially repeated the submissions that she made before Dunnet J. about how disclosure of the CCTV video and the audio of the alleged statement by Mr. P. weakened the Crown’s case. I have already set out the grounds of the application before Justice Dunnet. Ms. Kerr also made much of the fact that the absence of the CCTV video taken during the robbery was subject to comment three times in the reasons of the Justice of the Peace insofar that it may impact the strength of the Crown’s case. However, the Justice of the Peace had no way of knowing nor was it suggested that the CCTV video would strengthen the Crown’s case.
[73] Dunnet J. referred to the fact that the CCTV video of the robbery shows that the perpetrators wore masks, and all of the witnesses said that they wore surgical masks and surgical masks were retrieved from Mr. P.’s home. She set out the two versions of the comments alleged to have been made by Mr. P. and concluded that none of this evidence was significant nor in her opinion would it have affected the balancing exercise engaged in by the Justice. I should add that at counsel’s request I reviewed this evidence. I take no issue with what Justice Dunnet described from the CCTV video. As for the two versions of what it is alleged that Mr. P. said, I heard what may be a third version but on any version it is clear that he was urging Mr. J. to not give a statement. That is really the point of this evidence.
[74] Apart from the submissions based on A.A.C. it is not argued that Justice Dunnet misapprehended this new evidence or made any other error in law. Having carefully reviewed the prior proceedings I would not conclude otherwise.
[75] I note as well that Ms. Kerr’s submissions before me largely focused on the strength of the Crown’s case on the armed robbery charge which is primarily relevant to the tertiary ground for detention. However, submissions were also made by Ms. Kerr before Justice Dunnet and before me that the Justice of the Peace misapprehended the evidence by being concerned about the sureties; Mr. P.’s parents and whether Mr. P. would obey the bail conditions. There was no new evidence before Justice Dunnet or before me on this issue. It was clear from the submissions made to the Justice of the Peace that Mr. P.’s parents were prepared to put up a very significant sum of money as sureties.
[76] Justice Dunnet did not deal with this submission in her endorsement but it is clear from the comments that she made during the submissions that I have set out above, what her view was. Like the Justice of the Peace, she had concerns about Mr. P.’s parents and whether they would call police if he breached his bail; a legitimate concern in my view given their past behaviour. More importantly she, like the Justice of the Peace, was concerned about Mr. P.’s willingness to comply with the terms of the release plan. That too, was a reasonable conclusion on the evidence.
[77] For these reasons, in my view, even if the Crown’s case against Mr. P. is not as strong on the robbery charge as submitted to the Justice of the Peace and there are defences on the other charges to be considered, the basis for detention on the primary and secondary grounds is unassailable.
Disposition
[78] For these reasons I dismissed Mr. P.’s application to review his detention.
SPIES J.
Released: September 18, 2015
COURT FILE NO.: CR150000021300BR
DATE: 20150918
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.T.P.
Defendant/Applicant
DECISION ON BAIL REVIEW
SPIES J.
Released: September 18, 2015
[^1]: In so doing, Doherty J. adopted the findings of Eberle J. in R. v. Gouveia (1982), 1982 3878 (ON SC), 1 C.C.C. (3d) 143 (Ont. H.C.) and rejected the interpretation previously set out by the same court in R. v. Lahooti (1978), 1978 2377 (ON SC), 38 C.C.C. (2d) 481 (Ont. H.C.). See: Saracino at paras. 8-10.