Court File and Parties

COURT FILE NO.: CR-17-0036-BR DATE: 2017-06-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen, Respondent v. Drew Mitchell, Applicant

HEARD: June 26, 2017 BEFORE: Fitzpatrick J.

COUNSEL: S. Doherty, for the Respondent K. Brindley, for the Applicant

Endorsement on Bail Review

[1] The applicant, Drew Mitchell, seeks to vacate the Detention Order made by Justice of the Peace B. Caron on April 11, 2017.

[2] Mr. Mitchell currently faces a number of charges relating to an alleged domestic assault causing bodily harm, unlawful confinement, assault with a weapon and commit damage to property under $5,000.00. I am advised that the trial of those charges will occur August 3, 2017 in the Ontario Court of Justice at Thunder Bay.

[3] Counsel for Mr. Mitchell, Ms. Brindley, argued that the learned Justice of the Peace made an error of law in deciding to order his continued detention pending trial. Further, Ms. Brindley argued that Mr. Mitchell has presented this court with admissible new evidence that demonstrates a material relevant change in circumstances which justifies a review of the order and his release pending trial.

[4] The Crown resists the application. The Crown submits the decision of the learned Justice contains no errors of law, and the evidence tendered on behalf of Mr. Mitchell upon this bail review was neither admissible nor “new.”

[5] The grounds for detention are set out in section 515(10) of the Criminal Code. At the hearing before the learned Justice of the Peace, Mr. Mitchell was entitled to a presumption of innocence of all charges before the Court. However, as the bail hearing arose as the result of an alleged breach of an earlier judicial interim release, s. 524 of the Criminal Code provided that Mr. Mitchell bore the onus at the hearing to show cause why his detention was no longer justified. Justice of the Peace Caron ordered Mr. Mitchell’s continued detention on the basis of the secondary grounds; that is, he found there was a substantial likelihood that Mr. Mitchell would reoffend or interfere with the administration of justice.

[6] The jurisdiction for this Court to review the detention order at issue is contained in section 520 of the Criminal Code. The test for successfully entertaining such an application was thoroughly and succinctly set out by the Supreme Court of Canada in the decision R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328. At paragraph 92, Wagner J. stated:

For the reasons that follow, I am of the opinion that ss. 520 and 521 Cr. C do not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning the detention or release of the accused. Nonetheless, they establish a hybrid remedy and therefore provide greater scope than an appeal for varying the initial order.

[7] This Court may exercise its power to review in three situations. As Wagner J. set out at paragraph 121:

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.

[8] The defence did not argue that the decision of the Justice of the Peace offended the second branch of the test; that is, it was clearly inappropriate as the result of the Justice of the Peace giving excessive weight to one relevant factor or insufficient weight to another.

[9] I will address first the issue of whether or not the decision of the learned Justice of the Peace was based on an error of law.

[10] In this matter, the reasons for decision of the learned Justice of the Peace were relatively brief. Counsel for Mr. Mitchell has focused on several comments to argue that the learned Justice of the Peace erred in law by in effect finding Mr. Mitchell guilty of the breach offences that were before him before moving on to an assessment of whether or not he had satisfied the Court that his detention was not justified. In particular, Ms. Brindley pointed to the following passages in the transcript of the bail hearing that was provided to the Court:

He was released not so long ago under the supervision of the John Howard Society. That failed when within two months of that release he was with the complainant. He was breaching, I would state with contempt and defied the order of release (Transcript April 11, 2017, p. 31 line 7 – 13) and;

There is as well I would suggest, no apparent effort to comply with the probation order that was filed as Exhibit 1 as he should have already addressed the conditions of anger management, substance abuse, alcohol abuse, psychiatric or psychological issues and life skills. I have not heard anything that this was being addressed (Transcript April 11, 2017, p. 31 line 25)

[11] With respect to the first quote, I am of the view that the words used do not indicate that the learned Justice of the Peace had decided that Mr. Mitchell was guilty of the breaches at issue. The Crown in its submission asked the rhetorical question that had the learned Justice of the Peace simply used the words “allegedly” to modify the words “he was breaching I would state with contempt,” there would be no issue. I agree. I believe the context in which the words were spoken is important to understand exactly what was meant. I have attached the entire text of the reasons for decision as a schedule to this decision.

[12] As recognized by the Supreme Court in the St-Cloud decision, supra, at paragraph 127, the bail process is conducted in a very summary, expeditious fashion. Justices of the Peace hearing these matters do not have the luxury of sitting back and carefully crafting written judgments when faced with the large case load that greets them every day.

[13] I am aware that Justice of the Peace Caron is experienced at his job. It would be quite an exceptional thing for a person in that position to set aside the very fundamental presumption of innocence in the context of a bail application. I am sure it can happen. I just do not think it happened in this case.

[14] I am persuaded by the argument of the Crown that what the learned Justice of the Peace was doing was not pronouncing guilt, or even giving his views on that precise issue, but rather setting out the factual matrix which presented itself on the application for bail. I have considered the sentence immediately before the one to which the defence points as the error of law. Justice of the Peace Caron said, “The Crown has fear or does not have faith regarding the secondary ground that if released he will reoffend or interfere with the, interfere with the administration of justice.” He then continues with the words the defence takes issue with.

[15] In my view, the learned Justice of the Peace was simply setting out the basis for the Crown opposition to bail rather than his own assessment of the guilt or innocence of Mr. Mitchell. That matter was not before him. In order for such a finding to be made on a bail review, I am of the view that more clear words would have been required to have been pronounced for me to accept the submission of the defence that Justice of the Peace Caron committed an error of law by putting aside the presumption of innocence in favour of Mr. Mitchell while considering his application for bail.

[16] With respect to the second quote, I accept the Crown’s argument that these words represented something more in the nature of a finding of fact as opposed to a finding of law, which could represent an error of law. The Crown had cross-examined the proposed surety for Mr. Mitchell on the issue of the degree to which she understood Mr. Mitchell had complied with previous conditions. Clearly that evidence was hearsay, but it was some evidence and indeed the only evidence on that point that had been led at the application. After all, in the particular fact circumstances of this case, Mr. Mitchell did bear the onus of demonstrating why his detention was no longer justified. He only called one witness and it was his proposed surety.

[17] I turn now to a discussion of the evidence given by the proposed surety, Ms. Chrusz, on this application. Ms. Chrusz is Mr. Mitchell’s sister. She was the proposed surety for the decision under review. She lives with her partner in a blended family arrangement along with four children. Her evidence was tendered both by affidavit and vive voce. The Crown took the position that the evidence was inadmissible as it was not “new evidence” within the meaning of the fourth branch of the test set out for the acceptance of new evidence articulated by the Supreme Court in Palmer v. The Queen, [1980] 1 S.C.R. 759 at p. 775. This specific test was set out in the St-Cloud decision by Wagner J. at paragraph 128 where he stated:

128 In Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775, this Court established the following criteria that must be met for evidence to be considered “new evidence” on appeal:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial ... .

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[18] In St-Cloud, the Supreme Court set out that such evidence if admitted will permit a review only if it represents a material and relevant change in circumstances.

[19] The learned Justice of the Peace denied the application on the basis that the plan for release did not provide an adequate level of supervision for Mr. Mitchell. The learned Justice of the Peace stated:

The proposed plan which is, I believe, is lacking suitable supervision that he requires. There is too many holes in the supervision plan. I don’t believe it will, what is being proposed, the supervision during the day will curb the clear contempt that the defendant or the accused has of court orders. And so therefore the surety as presented is not sufficient to reassure the court that she will have the skill, the desire, or even the means to supervise him. (Transcript of April 11, 2017, page 32 line 5 - 17)

[20] The plan presented by the evidence of Ms. Chrusz was different from that presented to Justice of the Peace Caron in a number of ways. First, it provided that Mr. Mitchell was to reside with her and her family as opposed to on his own. Second, she proposed that he would remain on “house arrest,” save and except for work and certain other exceptions. Third, she was prepared to pledge significantly more security $5,000.00 as opposed to $300.00, albeit on a no deposit basis.

[21] In my view, this plan continues to have a significant “hole.” It relates to the gap in supervision for Mr. Mitchell during the day during the work week. Ms. Chrusz testified it was a possibility, not a sure thing, that Mr. Mitchell could get a job in the family property management business. It was silent as to how Mr. Mitchell would be supervised during the day while Ms. Chrusz was at work if he remained unemployed. She testified that if he did get a job, he could be supervised by a co-worker. This person was not identified to the Court. This raises concern for me about the reliability of the level of supervision for Mr. Mitchell.

[22] In my view, this evidence is not “new” in that it could be reasonable to think it would have affected the balancing exercise undertaken by the Justice of the Peace at first instance. Justice of the Peace Caron was concerned with the supervision of Mr. Mitchell. This plan leaves me concerned about the supervision of Mr. Mitchell.

[23] Also, this evidence does not satisfy me that it represents a material change in circumstances. While it does offer some improvements on the previous plan, I view this as more of a “reshuffle of the deck,” to borrow an older metaphor used in bail decisions following the decision of Hill J. in R. v. Ferguson, [2002] O.J. No. 1969 at para. 17.

[24] The application as presented has not persuaded me that the learned Justice of the Peace based his decision on an error of law. I am also not persuaded that new evidence has been presented that represents a material change in Mr. Mitchell’s circumstances. I am not prepared to exercise my discretion to review and vary the bail decision as requested by Mr. Mitchell.

[25] This application is therefore dismissed.

”original signed by” The Hon. Mr. Justice F.B. Fitzpatrick

DATE: June 29, 2017