Court File and Parties

Court File No.: 14233/16 Date: 2016-08-17 Superior Court of Justice - Ontario

Re: R. v. Christopher John Clymer

Before: Justice B. A. Glass

Counsel: Counsel, for the Crown, M. Flagg Counsel, for the Defendant, C. Hanson

Heard: August 17, 2016

Endorsement

Crown application for Bail Review

[1] The Defendant faces 6 charges. They are 2 counts of aggravated assault, 2 counts of assault with a weapon, 1 count of possession of a knife for the purpose of committing an offence, 1 count of uttering death threats.

[2] The Defendant has a criminal record of 12 offences including crimes of violence.

[3] The current offences centre on allegations of stabbing 2 people at a bar area. The wounds were much more than superficial requiring the wounded persons to be taken to hospital for medical care. One injured person had a punctured lung and the other had a stab wound into a heart ventricle.

[4] The Crown submits that the Justice of the Peace failed to consider the tertiary grounds for detaining a person and thereby erred in judgment. The Crown had sought detention based on both the secondary and tertiary grounds.

Issue

[5] Did the Justice of the Peace make an error that ought to be reversed?

Analysis

[6] In R. v. St. Cloud, 2015 SCC 27, the Supreme Court of Canada clarified that the tertiary grounds are to be considered in a broader manner than many courts had done in the past. The tertiary grounds are not to be left as a sometimes catch-all for consideration. Rather, they are to be considered in all bail applications. At paragraph 89 of St. Cloud, there is a summary of the essential principles to be applied. The four listed circumstances in s. 515(10)(c) of the Criminal Code are not exhaustive. Courts are not to make detention orders automatically even where the four listed circumstances support that type of result. Courts are to consider all circumstances. With the tertiary grounds, the court must ask whether detention is necessary to maintain confidence in the administration of justice.

[7] The reviewing court is not to simply replace the initial court decision with its own preference. Only if there is an error by the initial court should the reviewing court expand its consideration of bail release terms or detention pending trial.

[8] In this case, the secondary grounds were referenced but I do not see an analysis; rather, the Justice of the Peace appears to have moved on to finding that there should be 1 surety and a supervisor to manage the Defendant.

[9] The Justice of the Peace did not consider the tertiary grounds upon being satisfied with 2 sureties and bail release terms. The comment from the Justice of the Peace is that he did not need to consider it.

[10] The Justice of the Peace should have considered the tertiary grounds taking into account the extensive record of the Defendant. That record included crimes of violence. The current charges are focused on violence. As with the St. Cloud guidance from the Supreme Court, the Justice of the Peace should have given consideration to this feature of an application for judicial interim release.

[11] With such an error existing, the order of the Justice of the Peace will be set aside and be replaced with an order from this court.

Decision of This Court After the Judicial Interim Release Order Has Been Vacated

[12] The secondary grounds are met by the Crown. With the extensive criminal record of Mr. Clymer with convictions for violence and failing to follow court orders, the court cannot help but have concern that the Defendant will commit other offences.

[13] With respect to the tertiary grounds, section 515(10)(c) calls on the court to consider whether detention is needed to maintain confidence in the administration of justice taking into account the apparent strength of the Crown’s case, the seriousness of the offence, the circumstances surround the commission of the offence, and whether the person, if found guilty, is liable to a potentially lengthy term of imprisonment.

[14] The circumstances of these offences, if a person were found guilty of committing them, would be viewed by a sentencing court as cause for considerable alarm. The allegations are that the girlfriend of the Defendant asked another male person for a cigarette and the Defendant became angry following which he stabbed both the person giving the cigarette and that person’s brother when a physical confrontation arose.

[15] The Defendant ran from the area of the bar following the stabbing.

[16] The record of violence coupled with current allegations of stabbing 2 other people whereby they required hospital treatment of a substantial nature cannot help but rattle the public’s confidence in the administration of justice if the person were not detained.

[17] If found guilty of the current offences, the Defendant would be liable to receive a lengthy custodial sentence. The current offences would be most likely to call for such a sentence.

[18] Ms. Thompson was presented as a potential surety to be assisted by Mr. Beder who is the father of her children. He is not a parent paying regular support for the children; however, he contributes when the children need items. Mr. Beder works for the Defendant. Ms. Thompson is not a close friend of Mr. Clymer; rather, she might be considered to be in a conflict of interest to act as a surety for Mr. Clymer because she is counting on Mr. Beder to be employed and possibly to be able to contribute money for their children. Mr. Beder has a potential conflict of interest as well when working for the Defendant and acting as a watching supervisor to make sure that the Defendant does not breach any terms of a judicial interim release. Both Ms. Thompson and Mr. Beder are persons without resources. Ms. Thompson had told the first court that she did not have much money but would be prepared to undertake a $3,000 no deposit; however, the Justice of the Peace set the sum at $5,000.

[19] Ms. Thompson would not be a surety with control over the Defendant. She would have to rely on the father of her children, Mr. Beder. Both do have a conflict of interest to making sure that Mr. Clymer comply with any terms of a judicial interim release order because they would stand to be the last persons who would report infractions since they count on his being out of custody. Ms. Thompson might receive money for child support from Mr. Beder and Mr Beder is counting on a pay cheque from the Defendant.

[20] Ms. Thompson appears to have had a casual interest in the criminal record of the Defendant. She would have Mr. Clymer sleeping at her residence which appears to be small.

[21] Without a surety who can control Mr. Clymer, with allegations of serious crimes of violence, with a history of committing crimes of violence and breaching court orders, the Defendant is to be detained.

Conclusion

[22] The Defendant will be detained on both the secondary and primary grounds.

Justice B.A. Glass

Date: August 17, 2016