USA v. Hillis, 2019 ONSC 1049

Court File and Parties

COURT FILE NO.: CR-18-0055-BR DATE: 2019-02-12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: The Attorney General of Canada on behalf of the United States of America, Respondent v. Brady John Hillis, Applicant

HEARD: February 6, 2019 BEFORE: Fregeau J.

COUNSEL: B. Friesen, for the Respondent AG Canada M. Cheater, for the Applicant Brady John Hillis

Endorsement on Application to Vary Conditions of Judicial Interim Release

WARNING

A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER S. 517 OF THE CRIMINAL CODE OF CANADA which will continue until the surrender or discontinuation of the Extradition Hearing to be held in this matter and further A NON-PUBLICATION ORDER HAS BEEN MADE IN THIS PROCEEDING UNDER S. 26 OF THE EXTRADITION ACT S.C. 1999 c. 18

1Brady John Hillis (the “Applicant”) is the subject of a pending extradition hearing brought by the Attorney General of Canada on behalf of the United States of America. It is alleged that on June 22, 2018, he committed three acts of what would be sexual interference under the Criminal Code of Canada.

2On September 12, 2018, Fitzpatrick J. ordered the Applicant released on a Recognizance of Bail, without deposit, with sureties without deposit and with conditions. The conditions of the Applicant’s release included but were not limited to the following:

1. The Applicant’s mother, Margaret Hillis and father, William Hillis, act as sureties in the amounts of $50,000 and $1,000 respectively, both without deposit;
2. The Applicant’s spouse, Kirsten Hillis, act as surety in the amount of $10,000 without deposit;
3. After September 12, 2018, the Applicant “shall reside with his mother, Margaret Hillis, and father, William Hillis, at 91 Metcalfe Crescent, in London, Ontario” (condition “e”);
4. The Applicant “shall remain at the residence at 91 Metcalfe Crescent, London, Ontario, 7 days a week from the hours of 11 pm until 6 am except in the case of medical emergencies” (condition “h”); and
5. “At all other times if away from the residence at 91 Metcalfe Crescent, London, Ontario, he shall be in the presence of at least one of his sureties” (condition “i”).

3Other conditions of the Applicant’s release were either varied or added on consent on this application and are not relevant to this endorsement.

4The Applicant submits that there has been a material change in circumstances such that the conditions of his judicial interim release noted as #’s 3, 4 and 5 above should be varied.

Background

5The Applicant grew up in London, Ontario and is 29 years old. He has no criminal record. He and his wife Kirsten Hillis married in 2015. They are expecting their first child in July 2019. The Applicant has been an OPP officer for three years. At the time the incidents were alleged to have occurred, the Applicant was stationed and living in Kenora with his wife.

6At the initial judicial interim release hearing, the Applicant proposed that he be released on strict conditions, including that he reside with his parents in London, Ontario pending the outcome of the extradition hearing. The AG of Canada sought detention on the primary and tertiary grounds.

7Fitzpatrick J. found that the Applicant’s “plan for release is very strong. I am confident he will attend court as required. I do not find on the evidence before me that he is a flight risk.” Fitzpatrick J. also held that the Applicant’s detention was not justified on the secondary ground.

8Finally, Fitzpatrick J. found the Applicant’s specific proposal for release on strict conditions to be relevant to the issue of detention on the tertiary ground. The court held that the public’s confidence in the administration of justice would be maintained by allowing judicial interim release on strict conditions.

9Following his release from custody, the Applicant and his wife relocated to London, Ontario. They both now reside at his parent’s residence at 91 Metcalfe Crescent, London, Ontario.

The Positions of the Parties

10The Applicant seeks to vary the conditions of his release in regard to conditions “e”, “h” and “i’ of his September 12, 2018, recognizance, set out above at paragraph 2(3),(4) and(5). The material change in circumstances which the Applicant suggests have occurred since September 2018 are the following:

1. That his spouse, one of his three sureties, is now employed by the Ministry of Health and Long-Term Care at the Ambulance Communication Centre in London, Ontario, working three 12 hour shifts per week, day and night shifts as well as being on-call;
2. That his parents, the other two of his three sureties, have plans to be on vacation and away from their home at 91 Metcalfe Crescent, London, Ontario, for the month of March 2019.

11The Applicant submits that these facts establish that a material change in circumstances has occurred since September 2018, giving this court jurisdiction to re-consider the relevant conditions of his release.

12The Applicant submits that condition “e” be varied to allow his parents/sureties to travel on vacation during the month of March 2019 without fear of putting him in breach of his recognizance and without fear of them being in breach of their surety obligations by doing so.

13The Applicant submits that condition “i” be deleted entirely and that condition “h” be amended to include “or when in the presence of at least one of his sureties.” The Applicant submits that the combined effect of these two conditions as they currently stand is that he is only permitted to leave his residence during non-curfew hours and only if accompanied by one of his sureties.

14The Applicant submits that his parents plan to be away for the month of March 2019 and that his wife works frequently on a variable schedule such that he will be effectively be subject to an absolute curfew, akin to “house arrest” much of the time. The Applicant further submits that as a result of the present conditions, he has been unable to visit his family cottage in Sombra, Ontario, or his in-laws in Thedford, Ontario.

15The AG of Canada opposes all variations sought by the Applicant. The Crown submits that there has not been a material change in circumstances since September 2018 and that this court therefore does not have jurisdiction to vary the conditions of release.

16The Crown submits that the Applicant’s parents signed as sureties knowing that this required them to act in a supervisory capacity to the Applicant. The fact that Mr. and Ms. Hillis now want to go on vacation, a purely discretionary choice on their part, and seek to be temporarily relieved of that obligation cannot be seen as a material change in circumstances, according to the Crown.

17The Crown further submits that the current work schedule of the Applicant’s wife is not a material change in circumstances. The Crown submits that it was obviously in the contemplation of the Applicant and his wife at the time of his release on conditions in September 2018 that she would move to London, Ontario with him and find work there. Now that she has done so, the fact of her current work schedule is not, in and of itself, a material change in circumstances, according to the Crown.

18The Crown submits that the fact that the Applicant is restricted in his ability to visit his family cottage and his in-laws as a result of his current release conditions would have been known to the Applicant at the time of the original release.

19The Crown contends that the Applicant has not established that there has been a material change in circumstances since September 2018. The Crown submits that the Applicant is essentially asking for a relaxing of his release conditions to allow him more freedom of movement.

Discussion

20The release conditions which are the subject of the contested portion of this bail variation application (conditions “e”, “h” and “i” of the recognizance) were essentially suggested to the court at the initial bail hearing, albeit the Applicant proposed in general terms that he “abide by a curfew that this Honourable Court sees fit.”

21As noted by the Supreme Court of Canada in R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 120, s. 520 of the Code does “not confer on the reviewing judge an open-ended power to review the initial order respecting the detention or release of the accused. The reviewing judge must determine whether it is appropriate to exercise this power of review.” At para. 121, the Court added that where new evidence is submitted by the accused, the reviewing judge may vary the initial decision “if that evidence shows a material and relevant change in the circumstances of the case.”

22The Court in St. Cloud did not provide any further guidance as to what may constitute a “material and relevant change in the circumstances of the case.” However, the Court’s suggestion that a flexible and broad application of the Palmer criteria regarding fresh evidence on appeal be applied regarding the admissibility of evidence as to a material change in circumstances on a s. 520 bail review application is of some assistance in determining what a material and relevant change in circumstances is on such a review.

23Applying the four Palmer criteria by analogy, it seems to me that in order to establish a material change in circumstances for the purposes of a s. 520 bail review application, an applicant must establish that the suggested change in circumstances:

1. Occurred after the previous bail application or review and that the change was not within the contemplation of the applicant on the previous occasion;
2. That the suggested change in circumstances is relevant in the sense that it bears upon a potentially decisive issue as to detention, release or the conditions of release;
3. That the evidence in support of a material change in circumstances is credible; and
4. That the evidence could reasonably be expected to have affected the result.

24Applying these criteria, I am not satisfied that the Applicant has established that a material change in circumstances has occurred subsequent to his September 12, 2018, release on a recognizance with conditions. As a result, I am without jurisdiction to vary the release conditions set out therein, absent consent of the parties.

25First, the Applicant proposed strict release conditions to Fitzpatrick J., including that he was to reside with his parents at 91 Metcalfe Crescent in London, Ontario, and that he would abide by any curfew the court saw fit to impose. The court accepted the accused’s suggestion as to his required residency and imposed specific terms of the curfew as invited to do so by the accused.

26The accused now advises this court that his parents have planned a vacation for the month of March 2019 and that his wife is currently working shift work in London, Ont. Nowhere in the material before me is it suggested that the travel plans of Mr. and Ms. Hillis transpired only after September 2018. I find it reasonable to infer that a month long vacation would have been planned and known to them in September 2018. I suspect neither they nor the applicant anticipated the impact that vacation would have on the applicant’s circumstances.

27I have a great deal of sympathy for Mr. and Ms. Hillis. However, they agreed to act as sureties of the accused with “eyes wide open” as to the conditions that they undertook to supervise. A change or suspension of their vacation plans may be the unfortunate, indirect result of their undertaking.

28Second, I find it hard to believe that the Applicant and his spouse did not anticipate that she would be working once she relocated to London with him in September 2018. The fact that she has obtained full time employment which requires frequent shift work that impacts on the Applicant’s ability to be outside of his residence without violating his release conditions is perhaps unfortunate and inconvenient to the Applicant, but it is not, in my opinion, a material change in circumstances for the purposes of a s. 520 review.

29The Applicant’s complaint that he is unable to visit his family cottage and his in-laws as frequently as he would like to is irrelevant.

30I accept the submission of the Crown that the Applicant is essentially asking for a relaxation of the terms of his release to provide him with more freedom after having realized, five months after his release, how restrictive those terms would in fact be.

31At the hearing of this application, counsel noted that the accused’s release conditions do not allow for his attendance in Kenora for the purpose of attending court as required. I order that a condition allowing for such attendance or attendances be added to the accused’s recognizance, in terms consistent with condition a.a., added to the recognizance February 6, 2019.

32The Applicant’s application is dismissed, but for the variation of conditions agreed to by the Crown and the addition referred to in paragraph 31.

The Hon. Mr. Justice J. Fregeau