Court File No. CR-10-00010880-00BR
SUPERIOR COURT OF JUSTICE
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HER MAJESTY THE QUEEN
v.
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ABDIAS MONGARD
D E C I S I O N O N B A I L H E A R I N G
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BEFORE THE HONOURABLE JUSTICE L. RATUSHNY
on Wednesday, May 10, 2017, at OTTAWA, Ontario
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APPEARANCES:
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S. Schriek Counsel for the Federal Crown
G. Castle-Trudel Counsel for A. Mongard
(i)
Table of Contents
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
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ENTERED ON PAGE
Decision of Bail Hearing 1
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Legend
[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription
15 error.
(ph) – Indicates preceding word has been spelled
Phonetically.
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Transcript Ordered:. . . . . . . . . . . . . May 16 ,2017
Transcript Completed:. . . . . . . . . . . . May 19, 2017
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WEDNESDAY, MAY 10, 2017
CITATION: R. v. Mongard, 2017 ONSC 7826
D E C I S I O N O N B A I L H E A R I N G
5 RATUSHNY, J.: (Orally)
Mr. Mongard, my decision on this bail review application by the Crown – and you can remain seated, sir, thank you – is that I will be detaining you.
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This was a reverse onus situation before the justice of the peace where Mr. Mongard was to show cause on a balance of probabilities why his detention was not justified. I agree that the
15 justice of the peace did not address this point specifically in her reasons, although as Ms. Castle-Trudel has said, she is presumed to know that area of the law and what the reverse onus
entails. I do not fault her for not going through
20 a detailed review of whether or not Mr. Mongard had met that onus.
In terms of the facts facing the justice of the peace, those facts included Mr. Mongard’s personal
25 circumstances and, of course, the circumstances of the charges arising out of the March 2, 2017 incident.
In my review of those facts earlier, I agree that
30 the case against Mr. Mongard appears to be a strong one. I agree that the offences are very serious as alleged, involving weapons including a
knife, gun, BB gun, pepper spray, duct tape and vulnerable employees. I agree there is a
possibility of lengthy incarceration.
5 At the time of that incident on March 2, 2017 and as placed before the justice of the peace, were
Mr. Mongard’s personal circumstances including his criminal history. In confirming that personal history with counsel, I have already reviewed it.
10 It includes two prior convictions, one of them
volunteered by Mr. Mongard and one of them being a related conviction from 2011 for carrying a concealed weapon.
15 There are also outstanding charges facing Mr.
Mongard including three charges of failing to attend court, one of them, I believe, from Alberta. And then the other circumstance of Mr.
Mongard’s criminal history is that in 2017, he was
20 arrested on an outstanding bench warrant from May
9, 2011 for failing to attend court.
Those were the other criminal charges Mr. Mongard was facing at the time the justice of the peace
25 considered his personal circumstances.
The other part of Mr. Mongard’s personal circumstances are, of course, and these were before the justice of the peace, having no family
30 ties to Ottawa, no alcohol or drug issues, no bank account, on welfare, and, I believe, without a
job.
The plan of release presented to the justice of the peace was and is absolutely minimal. While I agree with Ms. Castle-Trudel that a surety is not
5 a requirement for bail, even the bond amount given no bank account is most likely to be a meaningless safeguard.
Turning to the decision of the justice of the
10 peace in all of these circumstances, I agree she did review the evidence as Ms. Castle-Trudel stated, but I also agree with the Crown that she committed errors of law or principle, as the Crown submits. The Crown has outlined those reasons in
15 her materials and I will go through them in short- form.
I agree that she inadequately considered the gravity of the offence, according to the St. Cloud
20 case and including the potential for lengthy imprisonment.
I agree that she did not appreciate the lack of connection to Ottawa and the lack of a specific
25 residence other than the Mission at the time. I recognize that residence situation has since changed, but I am reviewing the circumstances before the justice of the peace.
30 I agree that she did not accurately assess the seriousness of the allegations before the Court including the possession and presence of weapons,
that Mr. Mongard was on bail for his related
conviction, and the allegation of breaches.
Those errors relate to the gravity of the offence,
5 the primary ground and the secondary ground.
With respect to the tertiary ground, I agree, of course, that its focus is to maintain confidence in the administration of justice.
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I agree with the Crown in this respect that the chain of events regarding identification of Mr. Mongard in relation to the alleged offences can be said to be very strong and the Fido video store
15 identification is only one link in a chain of evidence.
I agree, therefore, that the justice of the peace committed errors in law or principle and that a de
20 novo hearing is appropriate.
I find, additionally, that the justice of the peace relied heavily on the presumption of innocence with respect to all of Mr. Mongard’s
25 outstanding criminal charges and she stressed that he had only one criminal conviction. That was correct, however, she was also required to look at the impact of those outstanding criminal charges
in coming to her decision.
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I find she relied too heavily in all of the circumstances on the John Howard Bail Supervision
Program as being sufficient to keep Mr. Mongard in the jurisdiction and from offending or interfering
with the administration of justice.
5 I certainly agree that the John Howard Society is
a valuable, valuable resource and I do not mean to denigrate it by my criticism of the decision by
the justice of the peace.
10 The Crown had sought detention on all three grounds under Section 515(10). I am of the
opinion that the primary and secondary grounds are most strongly engaged by all of these
circumstances and that these circumstances, of
15 course, also inform my decision on the tertiary ground.
I find that the justice of the peace erred in principle not only in the ways in which I have
20 stated, but also in the exercise of her discretion by placing too little weight on the outstanding charges against Mr. Mongard that I regard as indicative of evidence of a history of non- attendance in court regarding criminal charges.
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Additionally, and as evidence of a further disregard of court orders, he left Alberta while on bail and never did turn himself in on his outstanding 2010 charges.
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The evidence before this Court of Mr. Mongard’s
alleged conduct between 2010 until 2017,
therefore, does not allow me to be satisfied on a balance of probabilities that the release plan he presented will adequately ensure his attendance in court or will adequately protect the public from a
5 substantial likelihood of his committing another criminal offence or interfering with the administration of justice. The latter is of some concern given the number of co-accused allegedly connected to the robbery.
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As a consequence of these errors and this de novo hearing, I vacate the accused’s release order and detain Mr. Mongard on the primary and secondary grounds. I also detain him on the tertiary ground
15 given, as I have said, the strong Crown case against him, the seriousness of the offences involving weapons, force, duct tape and confinement of vulnerable employees, the evidence before the Court that the accused has failed to
20 attend court on four separate occasions or to deal with outstanding charges from 2010, and the possibility of a lengthy period of incarceration
if convicted of the present offences.
25 ... FURTHER PROCEEDINGS AUDIO RECORDED BUT NOT TRANSCRIBED [TRANSCRIPT AVAILABLE UPON REQUEST]
... MATTER ADJOURNED
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FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
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I, Linda A. Lebeau, certify that this document is a true and accurate transcript of the recording of Regina v. Mongard in the Superior Court of Justice, held at 161 Elgin Street, Ottawa,
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Ontario taken from Recording No.
0411_CR30_20170510_083502 10_RATUSHL.dcr which has been certified by Ricardo Rodas Alvarenga in Form 1.
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Date Linda A. Lebeau
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Authorized Court Transcriptionist (ACT)
Member in Good Standing
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30 *The Reasons for Decision were judicially reviewed and approved for release by the Honourable Justice Ratushny on June 2, 2017.