ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 15-RD19572, 15-A10167
DATE: 2015/11/02
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Promise Obayendo
Applicant
H. Shouldice, for the Crown
Michael Smith, for the Applicant
HEARD: October 26, 2015
REASONS FOR JUDGMENT RE BAIL
Aitken J.
Nature of the Proceedings
[1] The Applicant seeks a review under s. 520 of the Criminal Code, R.S.C. 1985, c. C-46 of the Decision of Justice of the Peace Soulière, dated July 2, 2015, in which she detained the Applicant in custody pending trial under the secondary grounds set out in s. 515(10)(b) of the Code.
[2] The Applicant takes the position that there has been a material change in circumstances since July 2, 2015. His uncle, who lives in Calgary, has offered to be his surety and to post a $5,000 bond. It is argued that the uncle is a far more suitable and convincing surety than the two sureties proposed at the hearing before Justice of the Peace Soulière. If the uncle’s proposal is deemed acceptable, the Applicant would be moving away from Ottawa and therefore away from those whom he is accused of having wronged.
Background Facts
[3] Both counsel agree that, in her Reasons delivered orally on July 2, 2015, Justice of the Peace Soulière adequately set out the charges against the Applicant, the context in which they occurred, and the chronology of events. I will not repeat those details here, but will provide a chart, instead, of my understanding of the relevant events to date.
October 18-19, 2014 Alleged assaults on Ms. Maposa.
October 25, 2014 Alleged assault on Ms. Maposa and alleged break and enter at her residence.
October 26, 2014 Applicant is arrested and released on an undertaking.
January 2015 Alleged frauds occurred on Kandish Asokan and Pathmarani Nithiandan, and subsequently, alleged thefts. Applicant allegedly made use of identification documents of Hakeem Kilanko to perpetrate frauds.
February 6, 2015 Alleged assaults on Ms. Maposa. Applicant is arrested.
February 17, 2015 Show cause hearing. Applicant is released to the supervision of two sureties: Adi Koko and Hakeem Kilanko.
March 2015 Allegations of further contact between Applicant and fraud victims.
March 5, 2015 Allegations of further contact with Ms. Maposa. Applicant is arrested.
April 14, 2015 Show cause hearing. Applicant is released.
April 15, 2015 Applicant is arrested by CBSA pursuant to an immigration warrant.
July 2, 2015 Show cause hearing before Justice of the Peace Soulière.
[4] As a result of these incidents, the Applicant has the following outstanding charges against him: one count each of personation to gain advantage, attempt fraud not exceeding $5,000, mischief/DATA access denial, theft not exceeding $5,000, mischief/damage to property not exceeding $5,000, attempt break and enter/dwelling-house, harassment by repeated communication with person, and harassment by threatening conduct to other person; two counts of intimidation with violence; two counts of failure to comply with a condition of an undertaking to an officer; four counts of assault; and four counts of failure to comply with a condition of judicial interim release.
[5] In effect, the Applicant has been incarcerated at the Ottawa Detention Centre since March 6, 2015 – a period of almost eight months. Prior to his arrest, the Applicant was living with his younger brother in Ottawa and was enrolled in his third year of a Business Management program at Carleton University.
[6] The Applicant is 21 years old, is a Nigerian national, and is in Canada on a student visa to obtain university education. He has no criminal record.
[7] The Applicant’s uncle, Odiri Oghre, is 42 years old. He has been a permanent resident of Canada for two and a half years, and lives with his wife and two school-age sons, in their own townhome in Calgary. He has a Masters degree in engineering from Oxford Brookes University in the U.K. and is working on his doctorate from Durham University in the U.K. For the last seven years, Mr. Oghre has worked for Data Exchange Technologies Ltd. Mr. Oghre works approximately 60 hours a week from his home office. Although he travels internationally from time to time for his work, Mr. Oghre does not anticipate any such trips in the near future. Mr. Oghre’s wife works full-time in technical support with Shaw.
[8] Mr. Oghre grew up and lived with the Applicant’s father and, once he was born, the Applicant, until Mr. Oghre moved to the United Kingdom in 2002. When the Applicant’s father died in 2009, Mr. Oghre returned to Nigeria for a three-month period and lived with the Applicant’s family. That is the last time Mr. Oghre and the Applicant lived together; however, since 2013, they have maintained weekly contact through social media. Mr. Oghre considers himself close to the Applicant, and since the death of the Applicant’s father in 2009, Mr. Oghre has played the role of the senior male in the family. When the Applicant’s father was not there, Mr. Oghre was the authority figure in the household. He guided the Applicant in his choice of university and university programs.
Analysis
[9] In R. v. St. Cloud, 2015 SCC 27, at paras. 120-121, the Supreme Court explained that, under s. 520 of the Code, the reviewing judge does not have an open-ended power to review the initial order respecting the detention or release of an accused. It will be appropriate for the reviewing judge to intervene if: (1) the justice has erred in law; (2) “the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another”; or (3) new evidence is tendered that shows a material and relevant change in the circumstances of the case.
[10] In para. 128 of St. Cloud, the Supreme Court, adopting its earlier statements in Palmer v. the Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 775, outlined the following criteria that must be met for evidence to be considered “new evidence” admissible on appeal:
The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;
The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
The evidence must be credible in the sense that it is reasonably capable of belief; and
It must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
(Reproduced in R. v. Warsing, 1998 775 (SCC), [1998] 3 S.C.R. 579, at para. 50.)
[11] The Applicant seeks his release on the basis of a material and relevant change in circumstances. The primary changes are that his uncle, Mr. Oghre, is offering himself as a surety, Mr. Oghre is prepared to post a bond of $5,000, and, pursuant to Mr. Oghre’s plan, the Applicant would be residing with Mr. Oghre and his family in Calgary.
[12] Crown counsel argues that, had due diligence been exercised, this plan could have been placed before the Justice of the Peace in July 2015. I disagree. Due diligence criteria should not be applied as strictly in criminal matters as it is in civil matters: Palmer, at p. 775, St. Cloud, at para. 131. As Mr. Oghre explained, in April 2015, his wife collapsed for unknown reasons and had to be hospitalized. She had another relapse in July. During this period, Mr. Oghre was juggling the care of his children, the care of his wife, hospital trips, medical appointments, and his heavy workload. It would have been extremely difficult for him to have attended court in Ottawa to offer himself as a surety for his nephew or, for that matter, to have devoted himself to supervising the Applicant. Mr. Oghre’s wife has now regained her health and, therefore, Mr. Oghre is better able to assume responsibility for the Applicant.
[13] The fact that Mr. Oghre is prepared to act as surety is highly relevant. The Justice of the Peace had significant reservations about the likely effectiveness of the two sureties that were proposed at the hearing before her. The first was the Applicant’s brother, Precious, who is two years younger than the Applicant, is a full-time student at the University of Ottawa and works part-time. Although Precious was prepared to post a bond of $1,000, it was clear that, if the Applicant breached his conditions of release, it would be the Applicant’s mother paying the price. The second proposed surety, a friend, Gerald Ezenwenyi, could only commit to visiting the Applicant two to three times a week and to posting a $500 bond. He was in fourth year at the University of Ottawa and worked part-time. Neither proposed surety had ever supervised the Applicant in any respect. This is understandable in that the primary surety was his younger brother, and the second was a friend and equal. It was clear to Justice of the Peace Soulière that the level of supervision that these sureties could offer was minimal and was likely to be ineffective. That troubled the Justice of the Peace because she concluded, quite understandably, that adult supervision was important in this case. What she felt was needed was an adult supervisor who would have control over the Applicant. She observed that, having Precious Obayendo as the Applicant’s supervisor, was like having children supervising children. And Gerald Ezenwenyi was a friend and equal, not someone who would naturally be able to exercise control or authority over someone like the Applicant, who had shown on a number of occasions that he was quite willing to ignore direction. The crux of why Justice of the Peace Soulière denied bail was the inadequacy of the Applicant’s proposed sureties.
[14] Mr. Oghre is a very credible witness and his plan for the Applicant is credible. The Applicant will live with Mr. Oghre and his wife and children. He will help around the house and with the children. Since Mr. Oghre works from home, he will be available to supervise the Applicant. Mr. Oghre has always been in a position of authority over the Applicant, in that he is the Applicant’s uncle and, since the passing of the Applicant’s father, has been the senior male in the family. The Applicant has looked to Mr. Oghre in the past for guidance and mentorship. What Mr. Oghre is offering is the very sort of adult supervision that Justice of the Peace Soulière found wanting with the proposal before her in July 2015.
[15] In my view, had Mr. Oghre been in a position to offer himself as surety in July 2015, Justice of the Peace Soulière, very likely, would have released the Applicant to his supervision. It is clear that the Justice was concerned that the Applicant was unable to break the pattern of his connecting with Ms. Maposa. She described the Applicant’s behavior as bordering on the obsessive. She was concerned that the Applicant, if living in Ottawa, would find it extremely difficult not to communicate in some fashion with Ms. Maposa. Not only does the plan now being put forward offer true adult supervision for the Applicant, but also, it takes the Applicant a long distance away from Ottawa and from the temptation to connect with Ms. Maposa and the complainants in the fraud/theft case.
[16] For these reasons, I find that there has been a material change in circumstances.
[17] The next question is whether, taking all of the evidence into account, including the evidence of what Mr. Oghre offers as a surety, the Applicant has satisfied me that no grounds for his continued detention exist under s. 515(10) of the Code. The only grounds relied on by the Crown (and by Justice of the Peace Soulière) for the continued detention of the Applicant are the secondary grounds, namely, “where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, … having regard to all 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”.
[18] Prior to the charges being laid in regard to the incidents involving Ms. Maposa, there is no evidence that the Applicant had ever been in trouble with the law – either here or in Nigeria. He must have been a good student to be admitted to and progress at university. The charges he is now facing relate to a relatively short period of time and to activities centered in Ottawa. They occurred at a time when he was living with his brother or with friends, and did not have any adult attention or supervision. Despite the number and variety of charges that the Applicant is now facing, I am satisfied that there is not a substantial likelihood that the Applicant will commit a criminal offence or interfere with the administration of justice (particularly through interference with a complainant or witness) if he were living with Mr. Oghre and his family in Calgary pending trial.
[19] Consequently, on October 26, 2015, I released the Applicant from custody, subject to the terms set out in the recognizance of bail, with written reasons to follow. These are those reasons.
Aitken J.
Released: November 2, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
Promise Obayendo
Applicant
REASONS FOR JUDGMENT RE BAIL
Aitken J.
Released: November 2, 2015