CITATION: R. v. Saikaley, 2017 ONSC 921
COURT FILE NO.: 14-R2003
DATE: 20170213
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Samual Saikaley
Applicant
David Roberts for the Crown
Self-represented Applicant
HEARD: January 9, 2017
REASONS FOR DECISION
CORTHORN J.
Introduction
[1] Mr. Saikaley brings this application pursuant to section 520 of the Criminal Code of Canada[^1] to vary the order of Justice Mew made on July 11, 2016 (the “Bail Order”). The recognizance of bail issued by Justice Mew on July 11, 2016 includes four conditions, which require that Mr. Saikaley :
Abstain from communication, directly or indirectly, with Marina Macleod, Jacqueline Walker, Bianca Shuster, Isabelle Larose or Tania Freeman and not attend within 100 meters of their place of residence, place of employment or any place they may be, or anyone else who indicates to you to cease communication with them.
Not to use the Internet under any form EXCEPT for the purposes of conducting legal research and then only provided that such research is limited to obtaining of information. Any use of the Internet by Mr. Saikaley for the purposes of communication with any other person or entity remains prohibited.
Surety to attend Sam Saikaley’s residence every day.
Not to call the Ottawa Police Services except for emergencies.
[2] In his application filed with the Court on January 4, 2017, Mr. Saikaley identified that he seeks a variation of conditions 1, 2, and 4.
[3] The application follows the release of the decision of Justice Parfett dated December 23, 2016, with respect to Mr. Saikaley’s application to quash the committal to trial on seven counts that were laid in December 2014. At the outset of the application heard by Justice Parfett, the Crown withdrew three of the seven charges. The charges of intimidation (s. 423(1)(c) and (f)), as they relate to Marina Macleod (“Ms. Macleod”) and of breach of recognizance (s. 145(3)) were withdrawn.
[4] Justice Parfett considered the application to quash, as it related to the remaining four charges of criminal harassment (s. 264) with respect to Ms. Macleod (three charges) and Jacqueline Walker (“Ms. Walker”, one charge). Justice Parfett quashed the committal to trial with respect to the charge of criminal harassment as it relates to Ms. Walker. Justice Parfett ordered that the remaining three charges of criminal harassment related to Ms. Macleod be remitted to Provincial Court for Mr. Saikaley to (a) be given an opportunity to complete cross-examination of the final witness called at the preliminary inquiry, and (b) advise the Provincial Court as to the witnesses, if any, he will be calling at trial.
The Evidence
[5] The evidence before me was limited to the transcript from the bail review hearing before Justice Mew in July 2016, a copy of the recognizance issued by Justice Mew on that date, a copy of the December 2016 decision of Justice Parfett (on the application to quash), and a 19-page document titled “Bail Variation Motion”. The latter document was filed by Mr. Saikaley and includes 76 paragraphs identified as the grounds for the relief requested on the bail review application.
[6] The transcript from the bail review hearing before Justice Mew in July 2016 filed with the Court was incomplete. At page 124 of the transcript it was noted that the “Reasons for Decision” (i.e. given orally) were not included in the transcript because they were awaiting judicial review. As a result, my decision on the bail review application was reserved to permit:
a) A copy of the transcript of the Reasons for Decision to be made available to Mr. Saikaley, to Crown counsel, and to the Court; and
b) Mr. Saikaley and Crown counsel the opportunity to file written submissions, if they each so choose, after reviewing the transcript of the Reasons for Decision and only in the event that they have any submissions in addition to those made at the hearing.
[7] Subsequent to the date on which I heard the bail review application, I obtained directly from Justice Mew a copy of the transcript of the reasons given in July 2016. A copy of the transcript of the reasons is being provided to the Crown and Mr. Saikaley together with a copy of these Reasons.
[8] No affidavit materials were filed on the application. During the hearing, reference was made to a transcript from a bail hearing before Justice of the Peace Lauzon in 2015. A copy of that transcript was not filed and was not identified by Mr. Saikaley as one of the transcripts upon which he relies in support of the application. I am not aware of any review of the bail conditions having been conducted between the hearings conducted Justice of the Peace Lauzon in 2015 and Justice Mew in July 2016. If there was any such review, a transcript of it was not filed in support of the application.
[9] At the end of the 19-page document filed by Mr. Saikaley, he identifies a number of documents that are said to be “pre-filed”. Those documents include the transcript from each of two previous bail review hearings:
• The first transcript to which Mr. Saikaley referred is said to be for a bail review application conducted on November 28, 2013. He indicated that said transcript was “pre-filed”. There was no bail review hearing on that date. There was, however, a bail review hearing on November 25, 2013. That hearing was before Justice James. The court file has been reviewed and it does not contain a transcript for a bail review application on that date.
• The second transcript to which Mr. Saikaley referred is for February 24, 2014. Again, Mr. Saikaley identified that transcript as having been “pre-filed”. The date is correct and the bail review application was heard that day by Justice Ray. However, the court file does not include a transcript for the bail review hearing on that date.
[10] The only transcript I identified from the court file is that for a bail hearing on July 11, 2013 before Justice of the Peace Pearson. I have reviewed that transcript. It appears that the bail hearing on that date related to charges arising from Mr. Saikaley’s alleged conduct towards Ms. Macleod. Mr. Saikaley provided Justice Mew with a copy of that transcript during the bail review hearing in July 2016.
[11] Since initially reserving my decision on the bail review application, I have had the opportunity to review the transcript of the oral reasons given by Justice Mew in July 2016 and the transcript from the bail hearing conducted by Justice of the Peace Pearson in July 2013. I am satisfied that I am in a position to determine the bail review application. I see no reason to delay my decision:
a) Based on the submissions made on January 9, 2017 and the transcripts available to me; and
b) Subject to further consideration of the bail review application in the event of further submissions being made by the Crown or Mr. Saikaley after they have each had an opportunity to review the transcript of the oral reasons given by Justice Mew in July 2016.
Grounds in Support of Review
[12] In the 76 paragraphs in which Mr. Saikaley outlines the grounds in support of the application to vary, he reviews the history of his various appearances before this Court and before the Provincial Court with respect to the charges laid in December 2014 and to other charges previously laid. Many of the appearances to which Mr. Saikaley refers pre-date December 2014.
[13] Mr. Saikaley identifies a number of statutory provisions upon which he relies in support of his application. I note that he does not refer to section 520 of the Code.
[14] Mr. Saikaley describes the manner in which his bail and other proceedings have been conducted as “[t]en of the worst … proceedings on record in court history”. He characterizes the evidence upon which the Crown relied in the various proceedings as “fabrication” or “severe fabrication”. Mr. Saikaley contends that any number of witnesses, including police witnesses, have committed perjury during the various court appearances in this and other matters. Mr. Saikaley submits that the various court appearances have resulted in repeated “travest[ies] of justice”.
[15] Mr. Saikaley submits that the seven charges laid in December 2014 are the result of a conspiracy by the Ottawa Police Service. Mr. Saikaley also expresses concern with the manner in which he has been represented by various defence counsel throughout the proceedings from 2013 forward.
[16] In paragraph 1 of his motion, Mr. Saikaley submits that the decision of Justice Mew was “a travesty of justice … severe … and was not founded in the evidence”. It is also submitted that Justice Mew failed to consider documentary evidence that Mr. Saikaley filed over the bench on the date of the bail review hearing. Mr. Saikaley also appears to allege that Justice Mew was biased because his ruling “went beyond the facts of the case”.
[17] The document titled “Bail Variation Motion” bears a court file number which is different from the file number which appears on the transcript of the bail review hearing conducted by Justice Mew and on the decision of Justice Parfett. In his document, Mr. Saikaley identifies the court file as number “14-113208”. Both Justices Mew and Parfett referred to the court file number which appears on this ruling – “14-2003”.
Scope of Review
[18] Section 520 of the Code provides Mr. Saikaley with the right to seek a review of the Bail Order. The onus is on Mr. Saikaley to show cause as to why the Bail Order should be varied.[^2]
[19] The jurisdiction of this Court to review a bail order is limited. In R. v. St. Cloud[^3] the Supreme Court of Canada established that a judge on a bail review application should not exercise his or her power to set aside or vary previously imposed conditions except where:
a) The impugned decision contains an error of law,
b) The decision rendered was clearly inappropriate, or
c) Where new evidence is submitted, if the new evidence is admissible and shows a material change in the circumstances.[^4]
[20] To introduce new evidence in support of the grounds of material change in circumstances, the new evidence must satisfy the four-part criteria established by the Supreme Court of Canada in R. v. Palmer[^5].
[21] Those criteria were reviewed in R. v. St-Cloud and summarized as follows:[^6]
a) Due diligence: The Court must be satisfied that the new evidence could not, even with the exercise of due diligence, have been introduced at the bail hearing;
b) Relevance: The evidence relied upon must be broadly relevant in all the circumstances;
c) Credibility: The evidence must be credible or trustworthy; and
d) Significance: The evidence must have been able to affect the balancing exercise by the initial justice.
[22] At the outset of the application for review of the bail conditions, the Crown acknowledged that the quashing of the committal to trial of the charge of criminal harassment in relation to Ms. Walker is a “material change in circumstances” within the meaning established by the Supreme Court of Canada in R. v. St-Cloud and R. v. Palmer.
Analysis
[23] Mr. Saikaley requests a variation of three of the four conditions of bail. At the outset of his submissions, Mr. Saikaley informed the Court that he intended to request that each of the four conditions be varied. Mr. Saikaley had not given notice to the Court or to the Crown of his intention to seek a variation of condition No. 3, which requires the “[s]urety to attend Sam Saikaley’s residence every day.”
[24] With no notice of that request having been given, it was not possible to conduct a review of condition No. 3. In addition, there was no evidence filed on the application that was relevant to the obligations on the surety and whether the surety was having any difficulty fulfilling those obligations.
Condition No. 1
[25] As noted above, the count of criminal harassment in relation to Ms. Walker has been quashed. Crown counsel advised that the Crown is considering an appeal from that portion of the decision of Justice Parfett. Crown counsel also conceded that pending such an appeal being taken, it is reasonable to remove Ms. Walker’s name from condition No. 1.
[26] Crown counsel informed the Court that when the condition was originally imposed the investigation was ongoing and there was the potential for Ms. Shuster, Ms. Larose, and Ms. Freeman to be called as witnesses. For that reason the names of each of the three women were included in condition No. 1. The investigation is now complete. The Crown did not call any of the women during the preliminary hearing and does not anticipate calling any of them at trial.
[27] In summary, the Crown is satisfied that (a) the names of Ms. Walker, Ms. Shuster, Ms. Larose, and Ms. Freeman may be removed from condition No. 1, and (b) the specific prohibitions with respect to Ms. MacLeod and the general prohibitions with respect to “anyone else who indicates to you to cease communication with them” are sufficient to attenuate risk in this matter.
[28] As noted above, I reviewed the transcript from the July 2013 bail hearing before Justice of the Peace Pearson. It appears each of Ms. Larose, Ms. Shuster, and Ms. Freeman had made complaints to the police of communication from and/or contact with Mr. Saikaley that was of concern to each of the women.
[29] The complaint by Ms. Larose appears to have been made in 2003. The complaints by each of Ms. Shuster and Ms. Freeman appear to have been made in 2013. At the time, the complaints made in 2013 were being investigated.
[30] Based on my review of the transcript from July 2013 and the information received from the Crown on January 9, 2017, I am satisfied that it is no longer appropriate to include the name of anyone other than Ms. Macleod in condition No. 1. The women other than Ms. Macleod are protected by the general prohibition that remains part of condition No. 1. In the event any one of the women receives communication from and/or is contacted by Mr. Saikaley, they may bring same to the attention of the police.
[31] Mr. Saikaley does not request elimination of Ms. Macleod’s name from condition no. 1. His request with respect to Ms. Macleod is that the geographic restriction of 100 metres be removed.
[32] I note that Mr. Saikaley did not provide the Court with any new evidence in support of his request in that regard. His submissions were to the effect that Ms. Macleod works in the Byward Market area and, as a result, the geographic restriction makes it difficult for Mr. Saikaley to travel about the Byward Market area in his day-to-day life. Mr. Saikaley submits that the continuation of this restriction, a number of years after it was put in effect, is unreasonable.
[33] The Crown’s position is that there is no new evidence upon which to base a variation of the geographic restriction. The Byward Market is a large area. A restriction of 100 metres is proportionate in the circumstances.
[34] I agree with the Crown and find that there is no basis for a variation of the geographic restriction in condition No. 1.
[35] There are, however, bases upon which to vary condition No. 1 so that the only individual whose name is specifically mentioned is that of Ms. Macleod. As a result, condition No. 1 is to be varied to read as follows:
Abstain from any communication, directly or indirectly, with Marina Macleod and not attend within 100 meters of her place of residence, place of employment or any place she may be, or anyone else who indicates to you to cease communication with them.
Condition No. 2
[36] Justice Mew varied condition No. 2 from “Not to use the Internet under any form” to as quoted in paragraph 1 above. In essence, Justice Mew permitted Mr. Saikaley to use the Internet for the purpose of obtaining information with respect to legal research. Justice Mew recognized that Mr. Saikaley is conducting his own defence and that materials on the Internet might be of assistance to Mr. Saikaley in defending himself.
[37] Mr. Saikaley requests that condition No. 2 be eliminated entirely. He describes being totally isolated and alienated because of his inability to use the Internet. In the alternative, Mr. Saikaley requests that other exceptions to the Internet ban be added to condition No. 2. He requests that he be permitted to use the Internet for the following additional purposes:
a) Communication with professionals (legal and other), friends, and acquaintances;
b) Increasing his social network;
c) Reading generally, conducting research (related to psychology and general well-being), and entertainment.
[38] Mr. Saikaley submits that if the additional exceptions are added to condition No. 2, he is prepared to have condition No. 2 varied so as to identify that he is not permitted to use the Internet to communicate with Ms. Macleod or with any of the individuals who are going to be witnesses at trial.
[39] Mr. Saikaley did not identify any new evidence upon which he relies in support of his request for elimination or variation of condition No. 2. He relies on the passage of time since the condition was first put in place and the isolation and/or alienation which he experiences because of the restrictions imposed on his use of the Internet. From my review of the transcript of the bail hearing conducted in July 2013, I note that Mr. Saikaley’s counsel at that time made reference to “isolation” experienced by Mr. Saikaley.
[40] Crown counsel highlighted that the potential revision to condition No. 2, including for the reasons requested before me, was fully canvassed by Justice Mew in July 2016. Crown counsel submitted that Mr. Saikaley has not provided the Court with any new evidence in support of a material change since the summer of 2016. Crown counsel also pointed out that the reason for the inclusion of the original full prohibition from using the Internet was the result of Mr. Saikaley’s view of who is and who is not an “acquaintance”.
[41] Crown counsel consents to a variation of condition No. 2, expanding the exception to include that Mr. Saikaley is permitted to use the Internet to communicate with individuals who are assisting him in his defence.
[42] From the transcript of the bail review hearing before Justice Mew in 2016, it is clear that he was in the same as position as that in which I find myself – lacking copies of transcripts from bail hearings and bail review hearings conducted in previous years. Without the benefit of the transcripts, Justice Mew was and I am unable to determine the genesis of the complete ban on the use of the Internet.
[43] During the bail review hearing before Justice Mew, Crown counsel reviewed a series of recognizances in place from July 2013 to July 2016. Based on that review and from the transcript of the bail hearing conducted in July 2013, it is clear that Mr. Saikaley was detained at that time. In addition, a ban on communication or contact with the five women was issued.
[44] In July 2016, Crown counsel identified four other recognizances; they were dated September 9, 2013; October 7, 2013[^7]; February 24, 2014; and 2015 (the bail hearing before Justice of the Peace Lauzon)[^8]. From the contents of the transcript of the hearing before Justice Mew in July 2016, it appears that the ban on the use of the Internet was first imposed as a bail condition in September 2013. It also appears that on February 24, 2014, the bail condition imposed with respect to use of the Internet was that Mr. Saikaley was not to purchase, possess, or use any device which had Internet connectivity capability. In addition, he was not to attend any premises where the primary service offered was the rental of Internet connectivity.
[45] In describing the conditions imposed in February 2014, Crown counsel who appeared before Justice Mew referred to the conditions as “particularly strict”.
[46] It appears that in 2015, the condition with respect to the Internet was varied to read as set out in the recognizance considered by Justice Mew (“Not to use the Internet under any form.”). As set out in paragraph 1 of these Reasons, Justice Mew varied that bail condition to include an exception with respect to use of the Internet for the purpose of defence of the charges against Mr. Saikaley.
[47] From my review of the transcript for the bail hearing in July 2013, I note that Mr. Saikaley’s uncle, who was proposed at the time as a surety, gave evidence to the effect that Mr. Saikaley does not always understand what he is doing in terms of his communication via the Internet.
[48] Absent evidence (i.e. the transcripts) of the reasons(s) for the imposition in September 2013 of the complete ban on the use of the Internet, I am not in a position to consider whether the ban was imposed based on an error of law or was otherwise “clearly inappropriate”. As a result, I am only in a position to consider the additional exceptions to the ban requested by Mr. Saikaley.
[49] Mr. Saikaley has not satisfied me that there is any new evidence to support variation of condition No. 2 as broadly as he requests. I am satisfied, however, that the expansion of the exceptions in condition No. 2 to permit Mr. Saikaley to use the Internet to communicate with individuals assisting him with his defence is reasonable.
[50] Condition No. 2 is therefore to be varied as follows:
Not to use the Internet under any form EXCEPT for the purposes of:
a) Conducting legal research and then only provided that such research is limited to obtaining of information; and
b) Communicating with individuals who are assisting Mr. Saikaley with the defence of the charges against him.
Any use of the Internet by Mr. Saikaley for the purposes of communication with any other person or entity remains prohibited.
Condition No. 4
[51] Mr. Saikaley requests that the prohibition from calling the Ottawa Police Service except for emergencies be eliminated in its entirety. In the alternative, he requests that he be permitted to contact the Ottawa Police Service for specific, identified purposes such as (a) dealing with driver’s licenses; (b) CPIC information; (c) to address policy matters; and (d) with respect to the defence of the charges and other legal matters. With respect to the latter, Mr. Saikaley informed the Court that he is in the process of laying private charges against approximately 30 members of the Ottawa Police Service. It is his position that telephone communication is the most efficient, cost-effective, and practical manner by which he can communicate with the Ottawa Police Services.
[52] I note that there is no evidence before the Court of any steps taken by Mr. Saikaley to lay private charges against the Ottawa Police Service and/or encountering any difficulty in carrying out that process as it relates to service of documents on the various individual members of the Ottawa Police Service.
[53] Crown counsel’s position is that Mr. Saikaley has not provided the Court with any new evidence in support of a material change with respect to condition No. 4. From a practical perspective, Mr. Saikaley is able to deal with his police-related matters in writing or by attending at the General Information Desk. Crown counsel highlights that condition No. 4 is preventative and intended to preclude excessive communication from Mr. Saikaley with any member of the Ottawa Police Service.
[54] In reply, Mr. Saikaley submitted that because he does not own a vehicle and is required to use public transportation, requiring him to attend in person at any of the locations of the Ottawa Police Services is onerous, time-consuming, and impractical. There is no evidence to suggest that this is a new set of circumstances for Mr. Saikaley.
[55] Mr. Saikaley also submitted that some of the members of the Ottawa Police Service might prefer not to deal with him in person. He suggested that they might be uncomfortable dealing with him in person because they have been subjected to cross-examination by Mr. Saikaley. This reply submission was not supported by any evidence and is speculation on the part of Mr. Saikaley.
[56] I find that there is no new evidence upon which to base a finding that there has been a material change in circumstances to support a variation of condition No. 4. There shall be no change to condition No. 4.
Summary
[57] For the reasons set out above, conditions Nos. 1 and 2 are varied and the bail conditions shall be as follows:
Abstain from any communication, directly or indirectly, with Marina Macleod and not attend within 100 meters of her place of residence, place of employment or any place she may be, or anyone else who indicates to you to cease communication with them.
Not to use the Internet under any form EXCEPT for the purposes of:
a) Conducting legal research and then only provided that such research is limited to obtaining of information; and
b) Communicating with individuals who are assisting Mr. Saikaley with the defence of the charges against him.
Any use of the Internet by Mr. Saikaley for the purposes of communication with any other person or entity remains prohibited.
Surety to attend Sam Saikaley’s residence every day.
Not to call the Ottawa Police Services except for emergencies.
[58] A copy of the transcript of the oral reasons given by Justice Mew at the bail review hearing in July 2016 is being provided to Crown counsel and to Mr. Saikaley together with a copy of this Ruling.
[59] Only in the event there is anything arising from the transcript of the July 2016 bail review hearing may Crown counsel and/or Mr. Saikaley make further submissions in writing. The further submissions, if any, shall be made as follows:
The written submissions shall not exceed four, single-sided pages;
The written submissions shall be delivered to the counter at The Courthouse no later than 4:00 p.m. on Tuesday, February 28, 2017; and
Any statutory or case law authorities relied on in support of the submissions made shall be included with the written submissions.
[60] In the event I receive any further written submissions, I shall consider them and release an addendum to these Reasons. In the event I do not receive any further written submissions, I shall not release any further reasons in this matter.
Madam Justice Sylvia Corthorn
Date: February 13, 2017
CITATION: R. v. Saikaley, 2017 ONSC 921
COURT FILE NO.: 14-R2003
DATE: 20170213
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
Samual Saikaley
Applicant
reasons for decision
Madam Justice Sylvia Corthorn
Released: February 13, 2017
[^1]: R.S.C. 1985, C. C-46 (the “Code”). [^2]: Section 520(7)(e) of the Code. [^3]: 2015 SCC 27. [^4]: St-Cloud, at paras. 121 and 139. [^5]: 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. [^6]: St-Cloud, at paras. 128 to 137. [^7]: The Crown identified October 7, 2013 as the date on which a bail reviewing hearing occurred. [^8]: The terms of the recognizance, as it existed following the bail hearing in 2015, were the subject of the bail review application before Justice Mew in July 2016.