CITATION: R v. Kennedy, 2015 ONSC 6675
COURT FILE NO.: 852/15
DATE: 2015 10 18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Gregory Hendry, for the Crown
Respondent
- and -
AARON KENNEDY
Leora Shemesh, for the Applicant
Applicant
HEARD: October 26, 2015
APPLICATION FOR BAIL
(These reasons are subject to a non-publication order pursuant to the provisions of s. 517(1) of the Criminal Code.)
Trimble J.
[1] This is a second bail review.
[2] On Monday, 16 March, 2015, Mr. Kennedy was charged with multiple counts including assault causing bodily injury, kidnapping, unlawful confinement, uttering threats (including death threat), and extortion. He was arrested and voluntarily submitted to detention. On September 4, 2015 (and after the preliminary hearing), His Worship, Justice of the Peace Chang-Alloy released Mr. Kennedy to his surety under a plan of release. On 25 September, 2015 Justice Ricchetti, in a bail review requested by the Crown, revoked bail and remanded Mr. Kennedy in custody until trial.
[3] By application dated 7 October, 2015, Mr. Kennedy sought leave to seek bail review on October 23, two days before the 30 day period provided in s. 515 of the Code.
[4] Counsel agreed that leave to bring the bail review early should be granted on consent and that I should treat the application as one for bail review, alone.
Disposition:
[5] I grant leave to bring the Application for bail review, early. I find that Ricchetti, J. made no errors of law nor was any aspect of his decision inappropriate. For reasons that follow, Mr. Kennedy is remanded in custody until trial.
Standard of Review:
[6] The parties agree that the standard of review is as follows:
• On errors of law, the standard is correctness.
• On review of the bail decision, the standard of review is as set out in R. v. St. Cloud, 2015 SCC 27, para.s 120 & 121. Under St. Cloud I cannot substitute my decision for that of the original justice’s decision. I can only interfere where the impugned decision is clearly inappropriate; that is where the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another.
• In this case, the parties agree that
i. Applying the correctness standard, should I find that Ricchetti, J. erred in law, I should set aside his finding and perform a review of the decision of the Justice of the Peace on the point, applying the St. Cloud standard.
ii. If I find that Ricchetti, J. did not err in law, I should perform a review of his decision, applying the St. Cloud standard.
[7] Counsel provided no authority for the foregoing standard of review in a bail review application. I accept it, in any event.
Grounds for Review:
[8] The applicant says that Ricchetti, J. erred in law in four ways:
With respect to s. 515(10)(b) of the Code and the secondary ground for detention in custody, he erred in law by giving cursory weight to the plan of release. Mr. Kennedy argues that Ricchetti, J. paid little more than lip service to the plan of release.
With respect to s. 515(10)(c) of the Code and the tertiary ground for detention in custody, he erred in law by giving no weight to the plan of release.
He denied the Applicant natural justice by discouraging the applicant from making submissions on s. 515(10)(c) of the Code and the plan of release, then dismissing bail based on the tertiary ground.
The Applicant’s position with respect to each of the first three errors is that Ricchetti, J., decided that Mr. Kennedy would not have bail, and then rationalized his reasons to that conclusion. Further, he substituted his opinion for that of the Justice of the Peace.
Ground 1:
[9] This ground for review has no basis.
[10] The applicant says that Ricchetti, J. did not give the Justice of the Peace deference. At no time did he make the finding with respect to the secondary ground that the Justice of the Peace’s decision was clearly inappropriate. Rather, according to the applicant, Ricchetti, J. looked solely at the applicant’s criminal record and his risk of reoffending (para. 50-60).
[11] The applicant says that Ricchetti, J. mentioned the surety and plan of release, but only cursorily. He did not address the plan of release in detail. He did not discuss what changes could be made to make it more appropriate. He dismissed the Justice of the Peace’s reasons out of hand, notwithstanding that the hearing was long, and the Justice of the Peace called up the transcripts from the preliminary hearing, and made a review of the entire record.
[12] I disagree. In my view, Ricchetti, J. found that the Justice of the Peace’s decision on the secondary ground was clearly inappropriate (para. 67) and that the Justice of the Peace did not properly weigh the relevant factors and gave excessive and unjustified emphasis to the surety and plan of release (para.s 65 & 66).
[13] On review of his reasons at para.s 61 to 64, Ricchetti, J. gave full credit to the surety and plan of release. He had the benefit of the lengthy reasons of the Justice of the Peace and the full details of the surety and plan of release. He did not conclude that the surety and/or plan of release were inadequate. Rather, he concluded that Mr. Kennedy would not submit himself to it and would likely commit offences while he was on release. In reaching this conclusion, Ricchetti, J. reviewed the criminal record in more detail than did the Justice of the Peace, both in terms of pre-offence conduct, but also with respect to Mr. Kennedy’s conduct while in custody.
[14] With respect to the secondary ground, the applicant says that Ricchetti, J. made findings of fact in para. 63 for which there was no evidence at the hearing. The alleged finding of fact is that the plan of supervision could not be enforced on the Six Nations Reservation, where the surety lived, and where the applicant would live during release.
[15] Ricchetti, J. made no findings of fact in para.s 61 to 63 concerning the Six Nations Reservation or the police force acting on the Reservation. Rather, he was assessing risk. When para. 63 of Ricchetti, J.’s reasons is read in conjunction with the relevant portions of the transcripts of the hearing before him, it is clear that he is concerned about the ability of Peel Police to enforce a plan of release at such a distance, and with the local police force’s ability to do so on a stretched budget.
[16] Given Ricchetti, J.’s finding that Mr. Kennedy would not likely abide by any plan of release, his concerns are understandable regarding enforcing the plan made in Peel, in respect of occurrences that occurred in Peel by a remote police force, which was not responsible for the charge.
Ground 2 & 3:
[17] The applicant says that Ricchetti, J. erred in law by saying nothing about the surety and plan of release under the tertiary ground. He actively discouraged the applicant’s lawyer from arguing surety the plan of supervision in respect of the tertiary ground, then made a finding based on the plan of release and its effect on the tertiary ground.
[18] The applicant directed me to page 47 of the transcripts of the proceedings before Ricchetti, J., at line 17. In a discussion of the tertiary grounds and plan of release, Ricchetti, J. says “So, you don’t have to persuade me that way”. The applicant says that this is the basis for her submission with respect to a denial of natural justice.
[19] There is no denial of natural justice. I say this for two reasons. First, Ricchetti, J. says that he agrees with the applicant that under the tertiary ground and informed member of the public would also know the plan of release and that would factor into whether or not they would likely be shocked. A review of pages 40 and following of the transcript of the discussion culminating on page 47 confirms this. Second, Richetti, J. did not say he agreed with the applicant’s position on the plan of release. He only said that it was something to consider in relation to the tertiary ground. There is nothing that prevented counsel from making full argument on the point.
[20] I do not think that the fact that the plan of release was not mentioned in Ricchetti, J.s reasons on the tertiary ground, specifically, is an error of law. In St. Cloud, at para. [69](https://www.minicounsel.ca/scc/2015/27), the Supreme Court says that in considering the tertiary ground for detention, The four circumstances [set out in 515(10)(c)] are simply the main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country.” [Emphasis added].
[21] The surety and plan of release are “other relevant factors.” Once Ricchetti, J., under his analysis of the secondary ground for detention, held that Mr. Kennedy would not likely submit to any plan of release and would likely commit offences while on release, the surety and plan of release were no longer ‘relevant factors’ for consideration under the tertiary ground.
[22] Even if I were to hold that Ricchetti, J. erred in law in not considering the plan of release on the tertiary ground, I would not have reached a different result. I would be bound by his finding of fact that there is a substantial likelihood that Mr. Kennedy would commit offences while on bail. With that finding of fact, I too would have found that the decision of the Justice of the Peace was inappropriate in that he unreasonably emphasized the plan of release and unreasonably underemphasized the risk that Mr. Kennedy would commit offences while released.
Ground 4:
[23] The applicant says that Ricchetti, J. made up his mind about a result then arranged his arguments and marshalling of the evidence to support that result. As evidence of Ricchetti, J.’s bias, he points to the following language and punctuation use in Ricchetti, J.’s reasons:
• “Mr. Kennedy’s criminal record screams that there is a substantial likelihood Mr. Kennedy would commit another office if released….” (para. 60),
• “To suggest that Mr. Kennedy would now abide by the terms of release in his basil is simply not believable.” (para. 54);
• The use of underlining in “…while in detentions on the current charges” when referring to an assault he committed while in custody (para 55), and;
• The use of exclamation points (para.s 53, 55).
[24] The accusation that Ricchetti, J. made up his mind about a result then arranged his reasons to support that result is a strong accusation, requiring cogent evidence as proof. I do not accept these submissions. The language and punctuation Ricchetti, J. uses is strong, at times. It does not display bias, however. It does display his strong disagreement with the Justice of the Peace’s weighing of the evidence, and his view that the Justice of the Peace’s weighing of the factors was clearly inappropriate.
[25] For the foregoing reasons, Mr. Kennedy shall remain in custody until trial.
Trimble J.
Released: October 28, 2015
CITATION: R v. Kennedy, 2015 ONSC 6675
COURT FILE NO.: 852/15
DATE: 2015 10 28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
AARON KENNEDY
Applicant
REASONS FOR JUDGMENT
Trimble J.
Released: October 28, 2015