Court File and Parties

COURT FILE NO.: 18-6802 DATE: 2018/09/18 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen Respondent – and – Tyler G. Turnbull Applicant

Counsel: Jon Fuller for the Crown Vanessa B. Carew for the Accused

HEARD: September 17, 2018

Reasons for Decision

O’Bonsawin J.

[1] Mr. Turnbull applied for a review of his continued custody as a result of a finding by Justice Wadden on August 21, 2018 that the plan provided was insufficient and the detention was warranted on the secondary grounds.

[2] At the hearing, I dismissed Mr. Turnbull’s Application and advised that I would issue my reasons today. These are my reasons.

[3] According to the Charge Sheet, Mr. Turnbull was charged with unlawfully entering a dwelling house, assault and uttering threats related to incidents alleged to have occurred on July 9, 2018. He was released on an undertaking given to a peace officer and a promise to appear on July 27, 2018. The undertaking included the condition that Mr. Turnbull was not to communicate directly or indirectly with the complainant and two others or from going within 150 meters from them. The complainant was Mr. Turnbull’s girlfriend.

[4] According to the Charge Sheet, on July 31, 2018, Mr. Turnbull was arrested at a traffic stop. He was a passenger in the complainant’s car. He had breached his undertaking since he was in the presence of the complainant. According to the Police Officer Statements, Mr. Turnbull was adamant that he was permitted to be with the complainant. The complainant had not revoked the conditions of the undertaking entered into by Mr. Turnbull on July 9. Mr. Turnbull was released on a promise to appear.

[5] In addition, while on his undertaking, Mr. Turnbull was charged for break and enter of a dwelling house, mischief/damage to property not exceeding $5,000, sexual assault, forcible confinement, assault with a weapon, uttering threats, intimidation by violence and failure to comply with conditions of an undertaking to an officer related to incidents alleged to have occurred against the complainant on August 19, 2018.

[6] On August 21, 2018, Mr. Turnbull’s bail review hearing took place in front of the Justice. The Crown sought detention on secondary grounds and the Defence agreed that there was a reverse onus.

[7] I must start off by noting that the right to bail is a constitutionally protected right. As we are aware, there is a presumption of Mr. Turnbull’s innocence.

[8] The Defence argued as follows:

1. that the Justice erred in law and in principle in refusing to release Mr. Turnbull pursuant to s. 515 of the Criminal Code;
2. that the Justice erred in failing to consider Mr. Turnbull’s rights to bail and his presumption of innocence guaranteed by sections 11(d) and (e) of the Canadian Charter of Rights and Freedoms;
3. that the Justice erred in failing to consider that having Mr. Turnbull’s father supervise him as a surety would address any safety concerns on the secondary grounds;
4. that the Justice erred in detaining Mr. Turnbull when the evidence heard did not show that he poses as substantial likelihood of committing an offence or interfering with the administration of justice, and that such substantial likelihood endangers the protections or safety of the public;
5. that the Justice erred in making his decision to detain Mr. Turnbull on the basis that the Justice did not have confidence in him without considering any viable conditions of his release; and
6. such further and other grounds as counsel may advise that this Court may allow.

[9] The Defence argued that the Justice’s decision “did not even make up more than two pages”. The Justice committed an error by not discussing the test of substantial likelihood of committing a criminal offence. The plan in Mr. Turnbull’s case was for his father to act as his surety. The Defence further submitted the Justice did not consider how the fact of Mr. G.G. Turnbull acting as Mr. Turnbull’s surety could mitigate the secondary ground concerns. The Defence further argued that the issue of a surety was simply ignored by the Justice and that no conditions for release were considered. As stated in R. v. Antic, 2017 SCC 27, “a recognizance with sureties is one of the most onerous forms of release” (para. 67). The Defence further stated that Mr. Turnbull did not have a real understanding of his conditions and the seriousness of the accusations against him.

[10] For its part, the Crown argued that there was no ambiguity regarding Mr. Turnbull’s conditions. He remained under the same conditions as per his undertaking from July 9 onward. During his cross-examination before the Justice, Mr. Turnbull was asked about his conditions when he was released by an officer in charge. He testified that “I was given a piece of paper and I read ’em on my own”. Mr. Turnbull was asked if he understood those conditions and he responded “yes” (p. 21 of Transcript).

[11] The Crown recapitulated this Court’s jurisdiction to review the Justice’s decision. As per paragraphs 92 and 121 in R. v. St-Cloud, 2015 SCC 27, [2015] S.C.J. No. 27,

92 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.

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.

[12] In addition, it is important to note that in St-Cloud, Justice Wagner confirmed that the reviewing judge does not conduct a de novo hearing (para. 94).

[13] The Crown argued that contrary to the Defence’s contention, the Justice’s decision was more than two pages; it started at p. 25 and finished on p. 30. In addition, the Crown noted that during the hearing before the Justice, no further conditions were proposed by the Defence.

[14] The Crown further submitted the only condition put forward was for Mr. G.G. Turnbull to act as the surety for his son. The Justice appropriately addressed the shortcoming of Mr. Turnbull’s plan. The Justice discussed his concerns about the “pattern of violence occurring over a relatively short period of time, repeated violence against the same individual” (p. 27). There was evidence that the complainant had attended the father’s residence on “several occasions” as most recently “last week”, the week prior to the bail review hearing (p. 12). Even though Mr. G.G. Turnbull was not Mr. Turnbull’s surety at the time, the latter was still willing to breach his conditions under his father’s roof.

[15] The Crown argued the Justice did not have faith based on the evidence he heard that Mr. Turnbull would abide by the terms of his release. While it may be true that the Justice did not explicitly list off the sections of the Criminal Code, he noted that there was a risk of escalation. He did not state the words “substantial likelihood”, however his intention was clear and this Court must review the entire decision in order to come to its decision on this Application.

[16] I turn to my review of Mr. Turnbull’s Application. In addition to the exhibits, I have reviewed the transcript of the hearing before the Justice. I agree with the Crown the Justice’s decision was more than just a mere two pages. He provided detailed reasons.

Summary of Justice's Reasons

[17] I summarize the Justice’s reasons that are relevant to this review as follows:

• Mr. Turnbull was charged with relatively serious domestic violence against the complainant on July 9;
• Mr. Turnbull was released on an officer’s undertaking and one of the conditions included not to have any direct or indirect contact with the complainant;
• There’s an allegation that Mr. Turnbull breached his no-contact condition on July 31 when he was found in the company of the complainant in her vehicle;
• Mr. Turnbull was released on a promise to appear for that breach;
• There was evidence from Mr. G.G. Turnbull that Mr. Turnbull disregarded his no-contact condition since the complainant had been regularly attending the father’s residence;
• The most recent charges related to August 19 were quite serious, including break-and-enter, forcible confinement, sexual assault, common assault, threats, intimidation, violence by threats and intimidation by violence towards the complainant. The alleged incidents occurred when Mr. Turnbull was under the no-contact condition of July 9;
• Given that Mr. Turnbull is alleged to have committed the offences of August 19 while he had outstanding criminal offences, there was a reverse onus situation and Mr. Turnbull had to show why he ought to be released from custody;
• The facts showed a pattern of violence, occurred over a relatively short period of time with repeated violence against the complainant;
• The pattern showed a disregard for the seriousness of both the charges that Mr. Turnbull was facing and the no-contact condition; the facts showed a serious escalation of violence that was alleged to have occurred on August 19;
• The plan put forward was that Mr. G.G. Turnbull would act as a surety for his son. The Justice found the father to be credible and would fulfill his duties within the limits available to him, however, he did not have confidence that Mr. Turnbull would abide by conditions and would not commit further violence based on the evidence he had seen; and
• The Justice concluded there was a risk if Mr. Turnbull was released, he would pose a risk to the complainant and deemed him not to be an appropriate candidate for release.

Analysis

[18] As per the St-Cloud decision, this Court has the power to review a judge’s decision only in three situations: 1) where there is admissible new evidence; 2) where the impugned decisions contains an error of law or 3) where the decision is clearly inappropriate. In this case, the issue related to an allegation of an error of law by the Justice.

[19] As per s. 515(10)(b) of the Criminal Code, “detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice”.

[20] In his Reasons, the Justice reviewed the only plan presented by the Defence; Mr. G.G. Turnbull would act as Mr. Turnbull’s surety. There was evidence from Mr. G.G. Turnbull that Mr. Turnbull disregarded his no-contact condition since the complainant had been regularly attending the father’s residence. Even though the Justice found Mr. G.G. Turnbull to be credible, he concluded that based on the overall evidence, he did not have confidence that Mr. Turnbull would abide by conditions and would not commit further violence. The Justice concluded that Mr. Turnbull’s detention was necessary for the protection or safety of the complainant because if he was released, he would pose a risk to the complainant. The Justice’s conclusion had the same sense as a substantial likelihood that Mr. Turnbull was likely to commit a criminal offence if he was released.

Conclusion

[21] In line with my review obligations as noted in the St-Cloud decision, I am not prepared to conclude the Justice committed an error in his decision to detain Mr. Turnbull on August 21, 2018. The Justice provided sufficient reasons to support his decision based on the evidence that was presented to him. Consequently, Mr. Turnbull shall remain detained.

Justice M. O’Bonsawin Released: September 18, 2018