CITATION: R. v. Chandrasekaram, 2017 ONSC 1646
COURT FILE NO.: CR-16-14324
DATE: 20170313
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SRIKARAN CHANDRASEKARAM
Defendant/Applicant
Mitchell A. Flagg, for the Crown
Robert Tomovski, for the Defendant/Applicant
HEARD: March 8, 2017
REASONS FOR DECISION
charney j.:
Introduction
[1] The applicant, Srikaran Chandrasekarm, commenced an application pursuant to s. 520 of the Criminal Code for bail review. He seeks to vary the release order imposed by Boswell J. on December 1, 2016 to allow a work exception to the house arrest condition imposed by that order.
Background Facts
[2] The applicant is charged with a number of offences between December 1, 2014 and May 20, 2016. These include six incidents of alleged domestic assault in 2016 against his girlfriend, including assault with a weapon, uttering threats to cause death and pointing a firearm. The arrest date was May 30, 2016.
[3] The applicant was detained in custody pursuant to a detention order made by Justice of the Peace Forestall in relation to those charges on June 16, 2016. The initial show cause hearing proceeded as a reverse onus matter on the basis that the applicant was alleged to have committed the offences while on a release order in relation to other charges.
[4] The Justice of the Peace detained the applicant on the secondary ground because she was not satisfied that his plan of release provided sufficient comfort that he would not reoffend or interfere with the administration of justice if released.
[5] At the original show cause hearing the defendant proposed two sureties (his brothers), each in the amount of $50,000. The plan was house arrest with his brothers or other family members watching the defendant 24/7. The Justice of the Peace rejected the plan for several reasons including that the two brothers lived apart and would supervise independently. Both worked and neither could supervise on a full time basis, and non-sureties would be doing much of the supervision. In addition, the brother with whom the defendant was supposed to be living was evasive in his testimony at the hearing and understated the significance of the outstanding charges.
[6] The applicant brought a bail review application before Boswell J. on December 1, 2016. He proposed a new surety – his sister – and a plan that the defendant reside full time with his sister under 24 hour supervision by her.
[7] Boswell J. reviewed the principles set out in the Supreme Court of Canada’s decision in R. v. St. Cloud, 2015 SCC 27, and set out the three situations in which a reviewing judge hearing an application under s. 520 of the Code can exercise his power to review a detention order: one, where the reasons for detention contain an error of law; two, where the detention order is clearly inappropriate; and three, evidence shows a material and relevant change in circumstances.
[8] Boswell J. concluded that there was admissible new evidence in the form of a new surety and a new plan of release and varied the bail conditions. He was satisfied that in light of the reasons set out by the Justice of the Peace, the new plan and surety qualified as new evidence that may reasonably have affected the Justice of the Peace’s balancing of the factors set out in s. 515(10)(c) of the Criminal Code.
[9] Boswell J. stated:
Given the domestic nature of the charges, their seriousness, the number of outstanding criminal charges facing the defendant, the criminal record of the defendant, and the fact that the complainant continues to reside in the community, I am of the view that there is a substantial risk of reoffence if the defendant is not detained. In view of that finding I must be satisfied that the proposed terms of release will adequately address the secondary ground concerns. I am so satisfied. I found the defendant’s sister to be an earnest and sincere witness….I am satisfied that the surety will provide competent 24 hour supervision. She is a professional. She is available. She is concerned and she cares about her brother’s future. I am satisfied that she will take her responsibilities as a surety seriously and that she will see to it that the terms of the house arrest are adhered to.
[10] Accordingly, Boswell J. set aside the detention order of J.P. Forrestall and released the defendant upon entering into a recognizance of bail in the amount of $30,000 ($5,000 from the defendant, $25,000 from his sister, who was to be his surety) and specified conditions, including, inter alia, that the defendant reside with his sister and remain in the residence at all times unless accompanied by his surety.
Change of Circumstances
[11] The applicant argues that there has been a material change in circumstances since he was released on bail by Boswell J. on December 1, 2016, that would justify a variation of the house arrest condition to allow for a work exception.
[12] The applicant testified that he has depleted his funds and is no longer able to retain his counsel of choice. He wishes to resume working in order to earn and save sufficient funds to retain counsel for his upcoming trials. The applicant testified that he has not applied for legal aid because his counsel of choice does not accept legal aid. He has also testified that his sister cannot help him financially since she is on maternity leave with a young family and can just makes ends meet as it is. If he is unable to pay for his counsel of choice he will be self-represented at his upcoming trials because he does not want any other lawyer. He would prefer not to be self-represented, but will do so rather than apply for legal aid.
[13] The applicant asks that his recognizance be varied from “Remain in your residence at all times unless you are in the direct company of your surety” to “Remain in your residence at all times unless you are in the direct company of your surety or unless you are working at Pizza Way at #4, 8 Midtown Drive, Oshawa, from 12:00 p.m. to 8:00 p.m. Tuesdays to Saturday inclusive”.
[14] The applicant’s sister testified that she is prepared to drive him to his job for noon each day and pick him up at 8:00 p.m. and drive him home. While she has young children at home, her mother lives with her and her mother will watch the children while she drives her brother to and from work, about 20 minutes from where she lives.
[15] The applicant’s sister spoke to the owner of the Pizza Way and he confirmed that he was prepared to offer a job to her brother. This was confirmed in a letter from the owner of Pizza Way who states that the applicant “will remain on site and he will be supervised by me”. He confirms that he is aware of the charges against the applicant and the bail conditions, and will remain in contact with the applicant’s sister daily by telephone to update her that the applicant is complying with all of his court conditions. He states that he will be on site whenever the applicant is working.
[16] The Pizza Way owner provided a letter but did not provide an affidavit, did not testify, and did not offer to make himself a surety.
[17] The applicant’s sister also testified that if the Pizza Way owner ever had to leave the store for any reason or emergency she could be at the store within 20 minutes.
[18] The applicant worked at Pizza Way in Oshawa for approximately three years prior to his arrest. He testified that if this work exception is granted he would remain on the premises of Pizza Way at all times when he was not accompanied by his surety. He would not leave the premises to deliver pizzas.
[19] The Crown takes the position that these new facts do not qualify as a material change in circumstances. The applicant has chosen not to apply for legal aid, and he should not be permitted to use this choice to relax the terms of his bail. Boswell J. determined that the restrictions imposed on the applicant were necessary for the protection or safety of the public pursuant to s. 515(10)(c) of the Criminal Code, and the applicant’s decision to retain counsel who does not accept legal aid does not justify a relaxation of the strict limits imposed by Boswell J. on the first bail review only three months ago. In short, whatever retainer issues have developed between the applicant and his counsel of choice should not trump Boswell J.’s assessment of the protection and safety of the public.
Analysis
[20] In St. Cloud, the Supreme Court of Canada held (at para. 92) that ss. 520 and 521 of the Criminal Code “do not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning the detention and release of the accused”. As indicated above, the Court identified three circumstances in which a reviewing court may intervene (at para. 121):
It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if 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. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently. I reiterate that the relevant factors are not limited to the ones expressly specified in s. 515(10)(c) Cr. C. Finally, where new evidence is submitted by the accused or the prosecutor as permitted by ss. 520 and 521 Cr. C., the reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case.
[21] The present case proceeds under the third factor: does the evidence show a material and relevant change in the circumstances of the case?
[22] In St. Cloud, the Court recognized (at para. 127) that due to the short time between the arrest and the first bail hearing the “detained person may not always tender all possible evidence at their first hearing”. It therefore rejected the narrow approach to new evidence that can be admitted under ss. 520 and 521. The Court stated (at para. 129):
Given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end like the sentence appeal, a reviewing judge must be flexible in applying these four criteria. I reiterate at the outset that the rules of evidence are relaxed in the context of the release hearing…
[23] The Court concluded (at paras. 137 – 138):
… the new evidence must be 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 under s. 515(10)(c) Criminal Code. The new evidence must therefore be significant.
If the new evidence meets the four criteria for admissibility, the reviewing judge is authorized to repeat the analysis under s. 515(10)(c) Cr. C. as if he or she were the initial decision-maker. The reviewing judge must therefore consider all the circumstances of the case, focusing in particular on the circumstances specified in that provision. The judge must then undertake a balancing exercise and determine, from the perspective of the public, whether the detention of the accused is still justified…
[24] In the present case the applicant has already had a bail review, so the concerns expressed by the Supreme Court of Canada in St. Cloud do not apply with the same force as they would if this were a first bail review. The applicant has already had the benefit of a second sober thought some six months after his first bail hearing. Still, the Supreme Court does not suggest that there is a different standard for subsequent bail reviews, so while this is a consideration, it does not change the basic analysis.
[25] In The Law of Bail Review in Canada (3d ed.), Justice Gary T. Trotter comments on the issue of new release plans qualifying as changed circumstances. He states (at p. 8-17):
[T]he development of a new release plan probably represents the most common example of changed circumstances on s. 520 reviews. Prior to St. Cloud, this was considered somewhat controversial. Since St. Cloud, reviewing judges may be more probing in their queries about why the newly proposed plan was not the original plan placed before the bail judge.
[26] In this case, of course, the question arises why the newly proposed plan was not placed before Boswell J. when he conducted the first bail review some six months after the bail hearing.
[27] Putting that question aside, I am, in any event, of the view that the applicant’s decision to not apply for legal aid or consider another lawyer for his defence cannot qualify as a “material and relevant change in circumstances” such that it could have affected the balancing exercise engaged in by Boswell J. when he conducted the first bail review in December 2016. Boswell J. (like Justice of the Peace Forestall before him) was very concerned that the applicant be subject to 24 hour supervision. While he recognized that no plan is ever 100% fool proof, he was satisfied that the applicant’s surety would see to it that the terms of the house arrest would be adhered to because she “will provide 24 hour supervision”. The plan being proposed now does not provide 24 hour supervision by a surety. It provides that for eight hours a day the applicant will be supervised by an individual who is not a surety, who has not provided an affidavit, and who has not been subjected to cross-examination by the Crown. However well intentioned the owner of Pizza Way may be, he is an individual without any real stake in the applicant’s compliance with the proposed new terms.
[28] The new plan simply does not allow for adequate supervision by the applicant’s surety.
[29] The new evidence, which really relates more to the applicant’s counsel’s refusal to take legal aid than to the applicant himself, does not amount to a material and relevant change in circumstances with respect to the secondary grounds that were the basis for Boswell J.’s order. It cannot be that concerns for the protection and safety of the public are reduced or otherwise affected because the applicant cannot afford his counsel of choice and chooses not to apply for legal aid to hire a different lawyer.
[30] That being said, I have great sympathy for the applicant’s desire to work and earn money while waiting for his trial. If the applicant had presented a plan with a satisfactory surety to supervise him during his eight hour’s a day at work I might have taken a different view on whether the applicant’s new plan could have affected the balancing exercise engaged in by Boswell J. in his initial review.
Conclusion
[31] For these reasons, the application under s. 520 of the Criminal Code is dismissed.
Justice R.E. Charney
Released: March 13, 2017
CITATION: R. v. Chandrasekaram, 2017 ONSC 1646
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SRIKARAN CHANDRASEKARAM
Defendant/Applicant
REASONS FOR DECISION
Justice R.E. Charney
Released: March 13, 2017