Court File and Parties

COURT FILE NO. : CR-17-7-101BR DATE: 20170531 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ZAHEER AHMAD

Counsel: Aaron Del Rizzo for the Crown, Respondent Jeremy Wilton for the Applicant

HEARD: May 17, 2017

HIMEL J.

Reasons on Application for Review of Detention Order

[1] Zaheer Ahmad has applied for an order vacating the detention order made by Justice of the Peace S. Ng on September 22, 2016 and granting him judicial interim release pending trial. The following are my reasons for decision.

Factual Background

[2] Mr. Ahmad is charged with criminal harassment and was arrested on June 23, 2016. He was ordered detained on September 22, 2016. As of today, he will have been detained for approximately 330 days. Counsel argues that there is a material change in circumstances because he will have effectively served his potential sentence due to the length of time spent in pre-trial custody. The trial is scheduled for September 11, 2017 for seven days and he does not wish to enter a plea of guilty.

[3] The applicant is charged that, from August 1, 2015 until June 30, 2016, he harassed and engaged in repeated communications with Tara Everett causing her to reasonably fear for her safety contrary to s. 264(2)(b) of the Criminal Code. The parties met in November 2012 and became involved in a relationship. In the spring of 2013, the applicant was evicted from his apartment and asked to stay at the complainant’s place for a few days. However, he did not look for a place to live or for employment, and his stay lasted several months. In the fall of 2013, the applicant was arrested for unrelated charges and held in custody. He was released in the spring of 2014. The complainant and the applicant remained friends until January 2015, when the parties had an argument and the complainant told him she wanted no further contact. It is alleged that the applicant continued to contact her by telephone and through emails even though she had told him to stop doing so. By January 2016, she did not respond to him at all. However, it is alleged that the applicant, since January, has emailed and called hundreds of times asking her to meet him for breakfast, to have sex, or for a visit. Since May 24, 2016, it is alleged that the applicant has emailed the complainant over 40 times and called her numerous times. She never responded. On June 21, 2016, the complainant received two emails which she found disturbing as they suggested threats of violence and contained racist remarks. She reported the matter to police, who arrested the applicant. He has been detained since June 23, 2016.

[4] At the bail hearing in the court below, the Crown tendered a statement received from the complainant through the Victim Witness Assistance Program which outlined conditions should Mr. Ahmad be released from custody. They included that he have no contact with her, that he not attend 131 Monarch Park Avenue or any place he knows her to reside or work, and that he not be within 500 metres of her. The complainant did not want any contact with the applicant. The Crown also tendered the criminal record of the applicant, which included convictions for criminal harassment and breach of a recognizance on May 28, 2014. For the criminal harassment charge, the applicant received a suspended sentence and two years’ probation in addition to four months of pre-sentence custody. For the breach of recognizance charge, he received a suspended sentence and two years’ probation in addition to one month of pre-sentence custody. The applicant was also convicted for failure to comply with probation on November 26, 2014, for which he received a $100 fine in addition to 38 days of pre-sentence custody. The Crown also tendered occurrence reports and a pre-sentence report ordered for the disposition of the criminal harassment and fail to comply convictions, and filed a letter from the applicant’s mother, dated February 26, 2015, concerning the applicant’s psychiatric condition. There was reference to a report from the Consent and Capacity Board as well.

[5] Although the defence objected to the letter from the applicant’s mother, the justice of the peace allowed the documents to be filed but said that he would give the documents appropriate weight if they were not current. The court also heard extensive information about a number of occurrences involving Mr. Ahmad. Section 518(1)(c) of the Criminal Code sets out the type of evidence that the prosecutor may lead in addition to any other relevant evidence at a bail hearing. Pursuant to subsections (d.2) and (e), respectively, a “justice shall take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim of or witness to an offence” and “the justice may receive and base his decision on evidence considered credible or trustworthy by him in the circumstances of each case.” “Credible or trustworthy evidence” includes evidence which is normally inadmissible at trial as long as the other party has had fair opportunity to correct or contradict it: see R. v. Powers (1972), 9 C.C.C. (2d) 533 (Ont. H. Ct. J.).

[6] One occurrence report concerned an incident on March 10, 2005 when the applicant entered a martial arts store wearing a scarf, glasses, a toque and gloves, disguising his face. He pointed to a Samurai sword display and the clerk refused to give it to him. The police were called and asked him to leave the store. He refused and was arrested for trespassing. He resisted arrest and was taken to the police division. He had been released on bail once he was charged, but failed to attend court on May 31, 2005. A bench warrant was issued and he was arrested on June 15, 2005. Mr. Ahmad received a conditional discharge with 12 months’ probation.

[7] Also, on June 14, 2005, Mr. Ahmad was served with a suspension notice by the director at a fitness centre. He called the centre and made threatening remarks. Police were called and attended at his residence. He would not let them in. They obtained a warrant and he was arrested. He later entered into an s. 810 peace bond.

[8] Another occurrence was on April 26, 2006 when, while riding a bicycle, he approached an officer and began to ride around him and ask if he remembered who he was. The officer called for assistance and the male heard and rode away. He was apprehended by officers, refused to identify himself, and was arrested due to Highway Traffic Act violations. It was later discovered that this male was previously arrested by the officer for uttering threats.

[9] During the period of October 2011 to June 2012, Mr. Ahmad approached a complainant while she was in the gym, tried to befriend her, gave her some clothing, and kept approaching her. He was banned from the gym but would sit across from the gym and approach the complainant. On June 10, he presented her with a ring and said he loved her. She was fearful of him. He returned to the gym on June 14, 2012 and gym staff called police. He was arrested for criminal harassment. He entered into an s. 810 peace bond on November 30, 2012.

[10] During the months of November 1, 2010 to October 2012, Mr. Ahmad sent emails to a person he had met while jogging in the High Park area. He sent photographs of himself and of male genitalia. She called police and he was arrested on October 19, 2012 for criminal harassment. The end result was an s. 810 peace bond entered into on February 7, 2013.

[11] On September 6, 2013, a complainant reported that she was approached by a male person as she put out garbage at the rear of her home. He asked for her telephone number and she refused. He pulled out a notepad and gave her his email address and asked her to contact him. She said she was not interested. Then he emailed the company she runs (there is a sign for her design studio on the front of her house which contains the email address) and signed it “the lawnmower guy.” Between June 7 and July 17, 2013, he emailed her eight times. She said she was not interested. Then he began to contact her on Facebook. She said she was not interested but he continued. On August 9, 2013, the complainant took a photograph of the applicant sitting on a park bench across the street from her backyard. He had been sitting there for three hours. He was arrested on October 22, 2013.

[12] The peace bonds from November 30, 2012 and February 7, 2013 were in place when the applicant was arrested on the charge on October 22, 2013, so he was charged with breach of those peace bonds as well.

Background of the Applicant

[13] The applicant is 37 years old, born on May 15, 1979. He is a Canadian citizen. He has a criminal record for harassment and breach of a recognizance from 2014. Prior to being charged, he lived at a hostel for one year and other hostels and short term arrangements before that. He was on government support through Ontario Works and worked part-time at Zeytouna Restaurant Mediterranean Cuisine. He has attempted to find a surety but has been unable to do so. He appears to be estranged from his family. His preliminary hearing took place on January 19, 2017 and he was committed to stand trial. There was a judicial pre-trial in February 2017 and his trial is scheduled for September 11, 2017 for seven days with a jury.

The Decision of the Court Below

[14] The applicant was represented at the bail hearing. Mr. Ahmad had no sureties and was proposing his own bail. At the hearing, Crown counsel indicated that the Crown had the burden and was seeking detention on the secondary and tertiary grounds.

[15] In his reasons, the justice of the peace noted that this was a Crown onus, that the applicant is presumed innocent until proven otherwise, and that there are triable issues. He commented on the letter from the applicant’s mother, the Consent and Capacity Board report, and past behavior in considering the risk assessment. He noted that the risk of harm to the complainant and the threats that were made are paramount. He said that the applicant has a history of non-compliance, and that the frequency of peace bonds and his past behavior represents a threat. He also considered that the time spent in custody may be more than the sentence if convicted but held that the paramount consideration is the risk to the complainant. He held that there is a substantial risk of the applicant re-offending and that the threat is real, particularly because there is no supervision proposed. He detained the applicant on the secondary and tertiary grounds to maintain public confidence. He held that the plan proposed is not acceptable and poses a substantial threat.

The Proposed Plan for Release

[16] The applicant proposed the same plan for release as was proposed at the court below; that is, that he be released on his own recognizance, keep the peace, and be of good behavior. At the hearing of the bail review, counsel advised that the applicant would reside in a shelter, was prepared to attend at the office of Dr. Gordon Arbess, his family physician, to pursue further tests concerning a head injury, and that he would attend Reconnect Mental Health Centres for assessment. Counsel points out that the applicant is not on medication and has had no major issues while in custody. When asked if the Toronto Bail Program would supervise the applicant, counsel said he had been denied because of prior breaches. However, since the hearing of this bail review, counsel has determined that the Toronto Bail Program is prepared to supervise Mr. Ahmad in the community.

Positions of the Parties

The Defence

[17] At this review, the applicant asks that the detention order be vacated. He argues that there has been a material change of circumstances because of the length of time spent in pre-trial custody in relation to the appropriate range of sentence on these charges. Counsel says that pre-trial detention of 330 days would be, on a 1.5 to 1 basis, the equivalent of 16 months in custody, which exceeds the range of sentence for an offence of this kind. He argues that a sentence of eight to twelve months would be a more appropriate range. By the time of his trial, Mr. Ahmad would be in 457 days of pre-trial custody. Furthermore, he has been detained at the Toronto South Detention Centre and may be given enhanced credit.

The Crown

[18] Crown counsel takes the position that the application for review of the detention order should be dismissed as there has not been a material change in circumstances. If this court decides that there is jurisdiction to review the detention order, the Crown argues for Mr. Ahmad’s detention on the secondary and tertiary grounds in light of the plan proposed for release.

[19] Mr. Del Rizzo argues that a sentence for criminal harassment has a wide range and that it may be as high as upper reformatory or higher.

Analysis and the Law

[20] Section 520(1) of the Criminal Code provides that the accused may, at any time before the trial of the charge, apply to a judge for a review of the detention order. On the hearing of such an application, the judge may consider the transcript of the proceedings heard by the justice, any exhibits filed in the proceedings before the justice, and “such additional evidence or exhibits as may be tendered by the accused or the prosecutor:” see s. 520(7)(c) of the Criminal Code.

[21] In R. v. St-Cloud, 2015 SCC 27, the Supreme Court clarified the extent of the power of the court under ss. 520(1) and 521(1) of the Criminal Code to review decisions concerning detention or interim release and noted that such a review is “not open-ended.” Wagner J. wrote as follows, at para. 6:

…I conclude that exercising this power will be appropriate in only three situations: (1) where there is admissible new evidence; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate. In the last of these situations, a reviewing judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision. It is only if the justice gave excessive weight to one relevant factor or insufficient weight to another that the reviewing judge can intervene.

Justice Wagner went on to explain that ss. 520 and 521 do not provide for a de novo hearing. Unless there is new evidence, the reviewing judge is not in a better position than the justice to evaluate whether the detention of the accused is necessary. The court also went on to discuss the notion of “new evidence” that can be admitted using the criteria outlined in Palmer v. The Queen, [1980] 1 S. C. R. 759, at p. 775.

[22] What constitutes a material change of circumstances was also considered in the St-Cloud decision, although it primarily focused on the question of fresh evidence. In Gary T. Trotter, The Law of Bail in Canada, Third Edition (Carswell: Toronto), at pp. 8–17, the author outlined changed circumstances which involve events in the criminal trial process of which a reviewing judge may take judicial notice; others require that some evidence be adduced. He also noted that many of the examples listed pre-date the St-Cloud decision, including:

1. the withdrawal of outstanding charges or the discharge on certain counts at the preliminary inquiry;
2. a reduction in the strength of the Crown’s case since the bail hearing;
3. the availability of disclosure that was not available at the original bail hearing or on a prior bail review;
4. new psychiatric or medical evidence;
5. the development of a new plan of release; and
6. the passage of a significant amount of time spent in pre-trial custody (in relation to the appropriate range of sentence).

[23] The onus is on the applicant to demonstrate why the order made by the court below should be vacated. The notion that the passage of time in pre-trial custody may constitute a material change in circumstances was considered in the case of R. v. Whyte, 2014 ONCA 268. At para. 43, the court cited, with approval, the statement made by Hill J. in R. v. White, 2010 ONSC 3164 (Ont. S.C.J.), at para. 10:

[P]ublic confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if convicted.

[24] Christopher Sherrin, in his article “R. v. Whyte: Protecting the Innocent (and the Guilty),” 10 C.R. (7th) 102, argues that the Whyte decision “offers the strongest jurisprudential support yet for the proposition that an accused person should not be required to serve more time in custody pending trial than s/he would have to serve as a sentence for the offences charged:” at p. 1. In his article, he states that “[p]roper punishment is defined, in law, by the sentence that the offender deserves on conviction. Forcing an offender to spend additional time in custody forces him or her to suffer more than proper punishment:” at p. 1 [emphasis in original]. Further, he states that “detaining accused persons for longer than would be appropriate on conviction operates as huge incentive for false guilty pleas:” at p. 1; see also Christopher Sherrin, “Excessive Pre-Trial Incarceration” (2012) 75 Sask. L. R. 55. He also points out that the court in Whyte considered the sentence not based on a conviction after trial but on a guilty plea, which “typically represents the shortest available sentence and therefore the sentence that is of most interest to [an] innocent accused contemplating a false plea:” at p. 2.

[25] Turning to the grounds under s. 515(10) of the Criminal Code, the analysis under the secondary and tertiary grounds was discussed in R. v. Manasseri, 2017 ONCA 226. There, the accused and another individual were charged with second degree murder and manslaughter, respectively, after a deadly altercation at a bar. The accused was released from custody on a recognizance with sureties and was subject to a series of conditions. He was arrested a year later for an alleged breach of the terms of his recognizance. The accused was released from custody six weeks later as the charge against him had been withdrawn. He was out of custody until he was convicted of the second degree murder charge six years later. The accused successfully appealed his conviction and a new trial was ordered. He sought release from custody pending the outcome of the new trial. The Crown argued that the accused’s continued detention was necessary for the protection or safety of the public and to maintain confidence in the administration of justice.

[26] Watt J.A. first determined that the Court of Appeal, rather than the Superior Court, was the appropriate forum to decide the issue. He then held that the accused met the onus of establishing that his detention was not justified under the secondary and tertiary grounds. He noted that, despite the breach, the accused was also on judicial interim release for close to seven years without any other breaches. He also noted that the second trial could result in a different outcome due to the expert evidence advanced that pointed to the other individual as the primary contributor to the victim’s death. Therefore, given the circumstances and the anticipated end date of the new trial, pre-disposition custody would likely exceed any sentence imposed other than for second degree murder: at para. 110. As a result, the accused was released from custody. While the circumstances of this case may be distinguishable from the case at bar, Watt J.A.’s comments at para. 104 are pertinent:

[N]either the secondary nor the tertiary ground is established or rebutted by any single circumstance. Each case is different. And the answer in each case is determined by a consideration of all the circumstances. Each circumstance is worthy of individual consideration. That said, what is dispositive is their cumulative impact in light of the standard set by the applicable ground. There is no primus inter pares.

[27] In R. v. Dang, 2015 ONSC 4254, Trotter J., as he then was, considered the “clearly inappropriate” ground for bail review set out in St-Cloud. In Dang, the Crown applied to review the granting of bail by a justice of the peace to an accused charged with attempted murder and a criminal organization offence. The victim in the case was shot 14 times and suffered serious injuries. The Crown alleged that the accused was one of the shooters but no one was able to identify the shooters because they wore dark clothing and ski masks. The accused was 25 years old, was not employed, and had a dated youth record. The accused was released on a $33,000 recognizance with three sureties as well as electronic monitoring. The Crown only challenged the decision to release the accused on the attempted murder charge. It argued that detention was required on the secondary and tertiary grounds and that the justice made legal errors and came to a “clearly inappropriate” conclusion.

[28] Trotter J. dismissed the application for review. He held that, under St-Cloud, “all three bases for review apply to all three criteria for detention in s. 515(10) of the Criminal Code” and that bail review judges must “take the same deferential approach to first instance bail decisions as appellate courts take to sentencing decisions:” at paras. 31, 37. Under the secondary ground, Justice Trotter found that the case against the accused was not overwhelming. While he found that it was a “close call,” the justice made no legal error and it could not be said that the decision was “clearly inappropriate.” Under the tertiary ground, he noted that he may have balanced the factors differently and reached a different result. However, in all the circumstances, he found that the justice of the peace did not err in her application of s. 515(10)(c) of the Criminal Code. Importantly, Trotter J. noted that an accused’s plan of release may be relevant under the tertiary ground. At para. 58, he stated:

An accused person's plan of release may be relevant to whether public confidence in the administration of justice can be maintained when an accused person is released: see R. v. B. (A.) (2006), 204 C.C.C. (3d) 490 (Ont. S.C.J.), at p. 501. This is explicitly recognized in the newly enacted amendment (S.C. 2012, c. 1) to s. 29(2)(c) of the YCJA. A reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused. The plan goes to the core of s. 515(10)(b) of the Criminal Code, but it may also impact on the application of s. 515(10)(c) of the Criminal Code. The bail decision does not involve a stark choice between absolute freedom on one hand, and detention on the other. Realistically, it is a choice between release on conditions and detention. I see nothing wrong with this reality being reflected in s. 515(10)(c) of the Criminal Code.

[29] In R. v. A.B., [2006] O.J. No. 394, 35 C.R. (6th) 249, a case decided prior to St-Cloud, the accused was charged with various firearms offences after police found a semi-automatic handgun in the vehicle in which he was riding. The court below considered the recent gun violence in the city at the time and ordered the detention of the accused on the basis of the tertiary ground under s. 515(10)(c) of the Criminal Code. The accused applied for a review, arguing that the court below erred in concluding that his detention was necessary to maintain public confidence in the administration of justice. Specifically, he submitted that the judge overemphasized media reports about guns and violence, and incorrectly concluded that the Crown’s case was strong and that he would receive a lengthy term of imprisonment if convicted.

[30] Ducharme J. granted the application. He disagreed with the characterization of the case as “very strong with respect to knowledge and possession” and noted that possible Charter issues were not addressed. He also held that the charges being faced were among the least serious of handgun offences and that, given the accused’s excellent antecedents and the lesser role he played in the offence, it could not be said that a lengthy term of imprisonment was a certainty. He concluded that none of the four factors under the tertiary ground suggested that the accused should be detained and that his release would not undermine public confidence in the administration of justice, despite the heightened public concern about gun violence in the city.

[31] I now consider jurisprudence on sentences for criminal harassment and the issue of whether the passage of time constitutes a material change of circumstances in this case.

[32] In R. v. Beckwith, 2015 ONCA 588, the accused was charged with criminal harassment and assault in relation to conduct towards his former partner. He appealed his four year sentence on three grounds: that the trial judge erred by denying him 1.5 to 1 credit for pre-sentence custody, that the trial judge erred by sentencing him to a penitentiary term so he could get treatment, and that the sentence was demonstrably unfit.

[33] The Court of Appeal allowed the appeal in part. It granted the appellant 1.5 for 1 credit for his one year of pre-sentence custody. It could not be said that the accused was unlikely to be paroled and his criminal record was dated. On the second submission, the court held that the trial judge did not sentence the appellant to the penitentiary so he could get treatment. Lastly, it was held that the sentence was not demonstrably unfit. The circumstances demanded a sentence that provided specific deterrence and denounced the accused’s conduct. The court upheld the two year sentence for criminal harassment and the two year sentence for serious assault of his partner of two years.

[34] In R. v. Jafarian, 2014 ONCA 9, the appellant pleaded guilty to breaches of outstanding court orders and a charge of criminal harassment. His criminal record included several prior convictions for breaches of court orders forbidding contact with his former wife. The trial judge imposed a denunciatory sentence and critiqued the “ridiculously low” sentences for these types of offences because of the Court of Appeal’s direction. The Court of Appeal allowed the appeal and reduced the appellant’s sentence to 15 months. The Crown had proposed a range of 12 to 15 months.

[35] In R. v. Doherty, 2012 ONCA 855, the complainant had placed an internet advertisement for a roommate. The accused responded to the advertisement but was rejected. He called the complainant repeatedly, dropped in on her, slipped notes under her door, and threatened to kill her. The complainant told the accused to stop calling and not to visit her. However, he continued to contact the complainant, even when in custody and under a non-communication order. The accused was charged with criminal harassment, two counts of attempting to obstruct justice, and two counts of breaching a court order. He pleaded guilty to the latter two charges and was convicted of the first three. He was sentenced to a total of 5.5 years imprisonment: four years for criminal harassment; one year each on the two counts of attempting to obstruct justice, consecutive to the four years, but concurrent to each other; and six months on each breach, consecutive to the other sentences, but concurrent to each other. The accused appealed the sentences.

[36] The Court of Appeal dismissed the appeal, finding that the sentence was significant but not unfit or outside the appropriate range. The appellant’s lengthy criminal history (over 70 prior convictions), record for related offences and persistence, and the mental and physical impact of the accused’s behaviour on the complainant justified the imposition of a lengthy sentence. The court also noted that the trial judge’s reasons covered 30 pages and that she considered all the relevant factors. Her sentence was entitled to deference. The court held that the sentence of four years for criminal harassment was fit and just.

[37] In R. v. Ohenhen (2005), 200 C.C.C. (3d) 309 (Ont. C.A.), leave to SCC denied, the accused made aggressive, threatening, and derogatory calls to the complainant in 1992. In one voice message, he threatened to rape and kill her and bomb her house and family. The accused was convicted of uttering a threat and was sentenced to 30 days in custody followed by three years’ probation, with a condition that he not contact the complainant. In 2001, the accused sent the complainant a letter. The complainant contacted the police, who made a photocopy of the letter and resealed the letter in an envelope marked “return to sender.” Eighteen months later, the accused sent the complainant another letter. He was charged with threatening bodily harm and criminal harassment, and was convicted of criminal harassment for repeated communication with the complainant. He was sentenced to three years in custody, less pre-trial custody credit, followed by two years’ probation. The accused appealed the conviction and sentence. The main issue was whether the trial judge erred when she instructed the jury that to do an act “repeatedly” means to do it “more than once.”

[38] The Court of Appeal dismissed the appeal. It held that while a single action could not constitute “repeated” communication, as required for a conviction of criminal harassment, conduct which occurred more than once could satisfy the “repeated” requirement, depending on the circumstances. At para. 31, MacFarland J.A. stated, “it is unnecessary that there be a minimum of three events or communications. ‘Repeatedly’ obviously means more than once but not necessarily more than twice.” As the accused did not testify, there was no evidence that he was not aware that the first letter reached the complainant. Therefore, he was held to have known that the second letter constituted “repeated” communication. The court also held that the sentence of approximately three years imprisonment was manifestly fit and that there was no reason to interfere with it. The court noted that the accused had an extensive record dating back to 1990, including convictions for weapons offences, aggravated assault, assault with a weapon, and uttering threats.

[39] In R. v. Alton, 2015 ONSC 2166, the accused and complainant had met at a church group and the accused attended a dinner party at the complainant’s home with another member of the group. Several months later, the complainant became uncomfortable with the accused’s romantic interest in her and told him she wanted no further communication. The accused, however, began harassing the complainant by following her, attending volunteer groups where she volunteered, and showing up at places where she would be. She applied for a peace bond against him and eventually went to police to have him charged. The accused was convicted of criminal harassment and was sentenced to a suspended sentence, in addition to 91 days of pre-sentence custody, and three years’ probation. He appealed his conviction and sentence. He argued that the trial judge improperly relied on reply evidence called by the Crown and that his sentence was unfit in all of the circumstances.

[40] The court dismissed the appeal as to conviction, finding that the trial judge did not err in admitting the evidence and that, even if the evidence was collateral, “in the face of overwhelming evidence of his criminally harassing behaviour…there was no substantial wrong or miscarriage of justice in admitting it:” at para. 13. The court also dismissed the appeal as to sentence, finding that a suspended sentence following 91 days of pre-sentence custody was not clearly unreasonable. The court noted the accused’s persistent behaviour despite cautions from the complainant, his employer, and police and the significant disruptive effect of the behaviour on the life and emotional well-being of the complainant.

[41] In R. v. Walling, 2010 ONSC 5587, the complainant testified that the appellant called her 50 to 60 times a day and made “intrusive and vile comments.” The appellant pleaded guilty to two counts of failing to comply with release orders and not guilty to one count of criminal harassment. The trial judge, despite the defence’s objection, permitted the Crown to introduce evidence of incidents between the appellant and complainant that occurred before the relevant charges. At a subsequent trial, the appellant was acquitted of the charges in relation to those incidents but, in convicting the appellant, the trial judge referred to those incidents. The appellant appealed, arguing that the verdict was unreasonable, and that the trial judge erred in admitting the pre-offence evidence and in the weight he placed on the pre-offence incidents. He also appealed the length of the probation order that followed the sentence of 74 days in jail in addition to pre-sentence custody credit of 114 days. He argued that the trial judge gave inadequate weight to his guilty pleas. The appellant had already served the sentence.

[42] The appeal was dismissed. The court found that the judge below appropriately used the pre-offence incidents to put the charge in context and only referred to the evidence within the timeframe of the information when dealing with the elements of criminal harassment. With regard to the sentence, the court held that there was no basis upon which the sentence could be varied. The trial judge specifically addressed the appellant’s guilty pleas and considered his criminal record. Ultimately, the trial judge’s findings supported the maximum period of probation as the appellant had a history of breaching court orders and there was significant evidence that no contact was required.

[43] In R. v. Beaulieu, 2000 CarswellOnt 2977, [2000] O.J. No. 3165 (Sup. Ct.), the accused and his mother repeatedly drove by the home of the accused’s ex-wife. The accused videotaped her, gave her the finger, and pointed his finger at her as if he were pulling the trigger of a gun. The accused was charged and entered a plea of guilty to criminal harassment. A joint submission of three years’ probation was advanced.

[44] The judge rejected the joint submission, finding that it was not in the public interest and would bring the administration of justice into disrepute. The judge noted that the accused’s criminal record included convictions for threats against the same complainant, weapons offences, and breaches of court orders. The judge considered the accused’s criminal background and the ongoing animus between him and his ex-wife as aggravating factors, while the guilty plea was a mitigating factor. Ultimately, a six month custodial sentence was imposed followed by three years’ probation.

[45] In R. v. Lauretti, 2006 ONCJ 244, the complainant terminated her relationship with the accused in 2005. Over the following eight months, the accused sent 200 text messages, 16 letters, and numerous e-mails to the complainant and her friends and family. He was subject to a restraining order issued by a family court at the time and had been sentenced to jail on three prior occasions, the last of which was in 1997, for criminal harassment and breach of a recognizance or probation involving the same complainant.

[46] The accused initially pleaded not guilty but changed his plea during the trial. He was sentenced to 90 days, to be served intermittently, plus two years’ probation. The accused was also ordered not to have contact with the complainant except pursuant to the family court order. The judge noted that deterrence and denunciation were the overriding principles. The aggravating factors included the accused’s record, the breach, and the breadth (contacting family and friends) and persistence of his conduct. Mitigating factors included the fact that the accused pleaded guilty, the gap in his criminal record, and his employment.

[47] In the case before me, there is no new evidence and the plan of release proposed is similar to the plan before the court below. The defence argues there is a material change in circumstances because of the length of pre-trial detention. If I conclude there is a material change, then it is open to me, as the reviewing judge, to vary the initial decision concerning the detention or release of the applicant with reference to the grounds set out in s. 515(10) of the Criminal Code.

[48] I also must address whether the justice gave excessive weight to one factor or insufficient weight to another.

[49] I note at the outset that an accused person is entitled to the presumption of innocence and to reasonable bail as protected by section 11(e) of the Charter of Rights and Freedoms. Detention pending trial must be based on any one of the grounds set out in s. 515(10) of the Criminal Code.

Decision

[50] Having reviewed the jurisprudence concerning sentences for criminal harassment, I am of the view that the pre-trial detention of the applicant through to the trial date will exceed the expected range of sentence. Thus, the pre-trial detention constitutes a material change of circumstances.

[51] I now turn to the plan proposed and the circumstances of the offence to consider whether detention is justified on the primary, secondary, or tertiary grounds.

[52] The applicant is a Canadian citizen. He has no family support and has a history of failure to comply with court orders. Nonetheless, I am not satisfied on the evidence that the primary ground is engaged.

[53] Turning to the secondary ground, s. 515(10)(b) of the Criminal Code requires consideration of whether 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. Matters such as the circumstances of the alleged offence, the strength of the Crown’s case, the likelihood of conviction, the accused’s background, lifestyle, and prior criminal record, and the nature of the plan of release and supervision proposed are relevant to this ground. The objective of this analysis is to look to the past and the present in order to predict the future in considering whether the plan of supervision proposed meets the concerns raised by the secondary ground. In the case of R. v. Morales, [1992] 3 S.C.R. 711, Lamer C.J. wrote, at p. 107:

…Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous…

[54] Where there is a history of criminal antecedents, the secondary ground may be engaged. In the case of Mr. Ahmad, he does have a criminal record for the offence of criminal harassment and convictions for breaching court orders. In addition to that, there is extensive information about occurrences, some of which led to s. 810 peace bonds, which demonstrate a pattern of behavior by Mr. Ahmad that is extremely concerning. In fact, the type of behavior referenced suggests some escalating conduct. On the other hand, since he has been in custody at Toronto South Detention Centre, he has not made efforts to contact the complainant. Overall, I am satisfied that, with some supervision, there is not a substantial likelihood that Mr. Ahmad will commit further offences or that he will interfere with the administration of justice if released on bail subject to the recognizance and conditions he has proposed.

[55] I now turn to the tertiary ground. As McLachlin C.J. wrote in R. v. Hall, 2002 SCC 64, there may be circumstances where it is necessary to deny an accused bail even where there is no risk that he or she will not attend trial, reoffend, or interfere with the administration of justice. She wrote at para. 26, “…Where justice is not seen to be done by the public, confidence in the bail system and, more generally, the entire justice system may falter.”

[56] Section 515(10)(c) of the Criminal Code, the tertiary ground, is not a residual section or one that is applied only as a last resort. As stated by Wagner J. in St-Cloud, at para. 54:

[T]he application of s. 515(10)(c) of the Criminal Code is not limited to exceptional circumstances, to “unexplainable” crimes or to certain types of crimes such as murder. The Crown can rely on s. 515(1)(c) of the Criminal Code for any type of crime but it must prove – except in the cases provided for in s. 515(6) of the Criminal Code – that the detention of the accused is justified to maintain confidence in the administration of justice.

[57] The Supreme Court in St-Cloud went on to discuss the circumstances in which s. 515(10)(c) of the Criminal Code must be considered by a justice in determining whether the detention of an accused is necessary to maintain public confidence in the administration of justice. The justice is required to assess each of these factors and consider their combined effect. This is a balancing exercise to enable the court to decide whether detention is justified. The section provides as follows:

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) The apparent strength of the prosecution’s case,

(ii) The gravity of the offence,

(iii) The circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) The fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is a firearm, a minimum punishment of imprisonment for a term of three years or more.

[58] Considering the four factors with reference to the case at bar, I note the following:

(i) Apparent strength of the Crown’s case

[59] I recognize that the nature of the evidence in the case may well change by the time of trial. However, at this time, I am able to consider the allegations as set out in the transcript of the bail hearing. The case rests on the existence of emails allegedly sent by the applicant to the complainant. I find that the prosecution’s case is strong.

(ii) Gravity of the offence

[60] While the offence of criminal harassment is not one of the most serious offences in the Criminal Code, such as murder, the offence can be serious and may call for a period of incarceration.

(iii) Circumstances surrounding the commission of the offence

[61] In St-Cloud, at para. 61, Wagner J. noted the following circumstances may be relevant, without drawing up an exhaustive list of possible relevant circumstances under this section:

…the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account.

[62] In my view, the circumstances surrounding the commission of the offence with which Mr. Ahmad is charged may not fall into the category of cases described by Wagner J. However, he is alleged to have communicated repeatedly with the complainant when she told him not to do so, continued to communicate with her anyway, and ultimately sent her two emails that contained threatening and racist comments which caused her to fear for her life. The Supreme Court has deliberately noted the circumstance of domestic violence as a concern under this section.

(iv) Fact that the accused is liable for a potentially lengthy term of imprisonment

[63] The Supreme Court has clarified that because no crime is exempt from the possible application of s. 515(10)(c) of the Criminal Code, it is “self-evident that the words ‘lengthy term of imprisonment’ do not refer only to a life sentence:” St-Cloud, at para. 64. Wagner J. noted that the justice must consider all the circumstances of the case known at the time of the hearing as well as the principles for tailoring the applicable sentence. While the justice is not to engage in a calculation of the appropriate sentence, this factor is to be assessed subjectively and with reference to obvious aggravating or mitigating circumstances. In the case at bar, Mr. Ahmad has a record for criminal harassment and breach of court orders as well as numerous occurrences with police which led to s. 810 peace bonds.

[64] Crown counsel submits that while there is a wide range for sentence on criminal harassment, some upper reformatory is the likely sentence. The defence argues that the circumstances of the accused support a shorter sentence and likely one that is not greater than the time served. I would expect that the sentence imposed would be closer to that referenced by the defence than the sentence suggested by the Crown given the jurisprudence I have reviewed and the circumstances in the case at bar.

[65] The Supreme Court also clarified in St-Cloud that the listed circumstances set out in the Criminal Code are not exhaustive and that there may be others that justify release from detention: see paras. 66–69. While the four factors listed above are the focus, the court “must consider all the relevant circumstances:” at para. 68. The four factors, along with the other relevant factors, are to be balanced by the justice in deciding whether detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice.

[66] One of the other relevant factors that may be considered is the applicant’s proposed plan of release: see Dang, at para. 58. In reviewing the plan of release proposed, I am concerned about the applicant residing in various shelters in the community without much supervision. This is a further circumstance that I have considered under the tertiary ground, in addition to the four factors listed under s. 515(10)(c) of the Criminal Code.

[67] In St-Cloud, Wagner J. also discussed the meaning of “public.” That is the term that was used in Hall, at para. 41, where the court referred to detention under this provision based on the need to maintain public confidence in the administration of justice. In Hall, the Supreme Court explained that the “public” means reasonable members of the community who are properly informed about the “the philosophy of the legislative provisions, Charter values and the actual circumstances of the case:” at para. 41, quoting R v. Nguyen (1997), 119 C. C. C. (3d) 269 (B.C.C.A.), at para. 18. Wagner J. described a reasonable member of the public as someone who “is familiar with the basics of the rule of law in our country and with the fundamental values of our criminal law, including those that are protected by the Charter:” at para. 79. While the courts must not base their decisions on media reports that are in no way representative of a well-informed public (see R. v. Turcotte, 2014 QCCA 2190), this does not mean that the courts should disregard evidence from news media as the media have a vitally important role to play in a democratic society: St-Cloud, at paras. 83–84.

[68] Finally, Wagner J. highlighted that the release of accused persons is the cardinal rule and detention is the exception: at para. 70. He concluded by saying, at para. 86, that “there is not just one way to undermine public confidence in the administration of justice. It may be undermined not only if a justice declines to order the interim detention of an accused in circumstances that justify detention, but also if a justice orders detention where such a result is not justified.” In my view, the further detention of Mr. Ahmad in these circumstances would shock the community and undermine public confidence in the administration of justice.

Result

[69] In conclusion, I am mindful of the presumption of innocence and the right to reasonable bail as protected by the Canadian Charter of Rights and Freedoms. These rights require that detention pending trial is truly justified having regard to all the relevant circumstances. Mr. Ahmad has been incarcerated since September 2016. His preliminary hearing took place in January 2017 and he was committed for trial. Now his trial is scheduled for September 11, 2017 before a jury. I find that Mr. Ahmad’s pre-trial detention constitutes a material change in circumstances. I conclude that the Crown has not met its onus and has not demonstrated that Mr. Ahmad should be detained under the secondary and the tertiary grounds. While the Crown’s case is strong and the circumstances surrounding the alleged commission of the offence are concerning, the applicant has spent an inordinate amount of time in custody. The applicant has proposed a plan of release that can offer some supervision in the community pending trial. Therefore, I grant the application and vacate the detention order.

[70] Mr. Ahmad shall be released on his own recognizance on the following terms:

1. That he shall report to the Toronto Bail Program, Room 162, Old City Hall, Toronto forthwith upon release (between the hours of 8:00 a.m. and 4:00 p.m.) and thereafter as required but not less than twice a week;
2. That he shall reside at an address approved of by the Toronto Bail Program and not change such address without prior approval of the Toronto Bail Program;
3. That he shall be amenable to the supervision of the Toronto Bail Program;
4. That he shall attend and actively participate in counselling and/or rehabilitative program(s) and provide verification of efforts and attendance to the Toronto Bail Program;
5. That he shall seek and maintain employment and/or education and provide verification to the Toronto Bail Program;
6. That he shall attend at the office of his family physician and take such treatment as prescribed by him;
7. That he shall attend Reconnect Mental Health Centres for the purpose of assessment;
8. That he shall keep the peace and be of good behaviour;
9. That he shall not be within 500 metres of where the complainant resides, works, or is known to be;
10. That he shall not contact the complainant directly or indirectly;
11. That he shall not possess a weapon as defined by the Criminal Code; and
12. That he shall attend court as required.

Himel J. Released: May 31, 2017