Court File and Parties
COURT FILE NO.: 14146/16 DATE: 20160427 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Keon Chisholm
BEFORE: Madam Justice S.J. Woodley
COUNSEL: M. Flagg, Counsel for the Crown H. Dudding, for Applicant Keon Chisholm
HEARD: April 13, 2016
Reasons for Decision
Warning
INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO ANY ORDER UNDER SECTION 486.4(4) OF THE CRIMINAL CODE OF CANADA. THIS JUDGMENT COMPLIES WITH THIS RESTRICTION AND CONTAINS NO INFORMATION IDENTIFYING THE COMPLAINANT IN THIS PROCEEDING.
Overview
[1] The Applicant, Keon Chisholm, stands charged with a seventeen count indictment alleging assaultive and prostitution related conduct against the complainant K.P., who was 16 years of age at the time of the alleged conduct.
[2] The Applicant was ordered released by Her Worship Justice M. Lewis on October 22, 2015. The terms of the Applicant’s release require him to abide by house arrest with permission to leave his residence only when in the direct company of his sureties (his mother and sister), or at court, or for medical emergencies.
[3] The Applicant commenced an application pursuant to Section 520 of the Criminal Code for bail review and seeks to vary the terms of bail to permit him to have contact with his brother Kemoy Chisholm, and to attend school and/or pursue employment opportunities.
[4] The Applicant seeks variation of the bail order in the form of a curfew or other variations that would permit the Applicant to practically attend school and/or secure and maintain employment.
Test for Review of Bail Order
[5] The onus is on the Applicant to show cause, on the balance of probabilities, why the bail order should be vacated and varied. Where cause is not shown the application must be dismissed.
[6] The bail review hearing is neither an appeal nor a de novo review. The initial bail order is to be reviewed with due consideration and with independent discretion.
[7] In exercising the discretion granted I am required to balance several factors including those listed in s. 515 (10) (c) of the Criminal Code to determine whether detention is justified and to assess the appropriateness of the decision. However, my review is not open ended.
[8] It is appropriate to intervene if the justice erred in law. This is not alleged.
[9] It is appropriate to intervene if the initial order is clearly inappropriate. This is also not alleged.
[10] Finally, where new evidence is submitted, as it was in the present case, it is appropriate to intervene and vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.
Facts and Analysis
[11] By his Notice of Application the Applicant alleges that there has been a material change of circumstances that would permit the review and variance of the detention order pursuant to s. 520 of the Criminal Code.
[12] The material change of circumstances as alleged by the Applicant relate to his circumstances and to the delay in the matter coming to the preliminary inquiry, and more specifically are as follows:
a. At the time of the bail hearing it was unknown how quickly the matter would proceed. The preliminary inquiry has now been set for October 24, 2016. The trial has not been scheduled but is anticipated to occur in 2017.
b. The Applicant has contacted the Boys and Girls Club of Durham and arranged for a referral by this organization to the John Howard Society Youth Outreach Program. The Applicant alleges that participation in the program will enhance his ability to obtain work and participate in positive opportunities.
c. The Applicant has now completed approximately six months of positive bail compliance which he alleges support his application for more lenient conditions.
d. The Applicant has sought to further his education and enrolled in an alternative high school, however the Crown did not consent to vary the bail to permit him to attend. The Applicant wishes to pursue his education and enhance his social connectivity and seeks a variance to enable attendance at school.
[13] In support of the application the Applicant relied upon the transcript evidence from the show cause hearing, affidavits sworn by the Applicant, his mother (Karen Cameron) and his sister (Keshane Planter) and the viva voce evidence of Ms. Cameron and Ms. Planter.
[14] With respect to the Applicant’s request to have contact with his brother Kemoy Chisholm, I note that Kemoy Chisholm is a co-accused on approximately nine of the seventeen charges pending against the Applicant. At the hearing Ms. Cameron advised that the Applicant and his brother share a close relationship and the Applicant wishes to speak to his brother (who is detained without bail). However, this is not new evidence and I have no basis to find that a material change in circumstances has occurred since the bail hearing. As such I dismiss the request for variation regarding the Applicant’s request for contact with Kemoy Chisholm.
[15] With respect to the Applicant’s request to attend school and/or to obtain employment, the Applicant did introduce new evidence and the introduction of the evidence was not disputed by the Crown.
[16] With respect to these issues (schooling and employment), affidavit evidence was introduced by the Applicant and his mother and sister, and viva voce evidence was provided by the mother and sister. The new evidence clearly established that the Applicant has made efforts to register and attend at school and to obtain employment and his efforts have been frustrated by the restrictive nature of the bail order.
[17] However, with respect to the Applicant’s desire to obtain an education, little to no evidence was provided regarding the Applicant’s efforts to complete his high school education through online courses (as contemplated by the initial order) or through night school courses.
[18] With respect to the Applicant’s desire to obtain employment, there was no evidence provided that employment was necessary for the Applicant to support his family, which was a primary concern discussed in R. v. Vallada, [2016] O.J. No. 730. Instead, the new evidence focused on the Applicant’s youthful age (19 years old). The Applicant’s need to obtain employment was primarily expressed as being connected to his self-worth, sense of belonging, and social connectivity. This aspect of the evidence does not constitute a material and relevant change in circumstances as the Applicant’s youthfulness and the inherent benefits of employment were known at the date of the bail hearing six months prior.
[19] The Applicant also submitted that compliance with the bail conditions imposed to date and procedural delay constitute a material and relevant change in circumstances which warrant a variation of the bail order.
[20] With respect to the issue of compliance, the bail order has been in effect for a period of less than six months. As I advised counsel at the hearing, the court presumes future compliance of an order when rendered. Compliance for six months does not in the circumstances of this case constitute a material and relevant change in circumstances sufficient to allow variation.
[21] With respect to the submission that procedural delay constitutes a material change in circumstances, I note that the bail order was made less than six months ago and the trial date is not set. At this point in the proceedings delay does not constitute a material and relevant change in circumstances sufficient to warrant variation.
[22] Finally, I note that even if the evidence established a material and relevant change in circumstances, the proposed variation to allow the Applicant to attend school and/or obtain employment does not allow for adequate supervision of the Applicant by the sureties. Further, the proposal does not adequately and properly balance the various interests to be considered under s. 515 of the Criminal Code and unnecessarily exposes the sureties to risk the security pledged by them.
[23] I have reviewed sections 520 and 515 of the Criminal Code together with the leading authorities governing bail review, including R. v. St-Cloud, 2015 SCC 27 and R. v. Morales, 1992 SCC 53, [1992] 3 S.C.R. 711. I have also carefully considered the Applicant’s arguments including the submissions concerning the “deprivation of liberty and hardship inherent in house arrest” as described by Trotter, J. in R. v. Vallada, [2016] O.J. No. 730.
[24] Based upon my review of the applicable law and the evidence in its entirety, I find that there are no material and relevant changes in circumstances sufficient to warrant a variation of the initial bail order.
[25] I note that the charges alleged are serious in nature and notwithstanding the seriousness of the charges the Applicant has been allowed to remain at home in the company of his mother and sister. In balancing the objectives to be considered on this application I find that at this time the initial order continues to adequately and properly balance the liberty rights of the Applicant and the protection and safety concerns of the complainant and the public.
Ruling
[26] For the above noted reason, I dismiss the Application.