Court File and Parties

Court Number: CR-19-30000018-00BR Date: 20190318 Superior Court of Justice - Ontario

Re: R. v. Sean Weaver

Before: Justice Spies

Counsel: Hank Goody, for the Respondent/Crown Jason Burns, for the Applicant/Sean Weaver

Heard: February 15 and 18, 2019

Decision ON bail review APPLICATION

Introduction

[1] The applicant, Sean Weaver, brought an application pursuant to s. 520 of the Criminal Code and Rule 20 of the Criminal Proceedings Rules for an order granting a recognizance of bail on the basis that the learned Justice of the Peace, C. Mutuma, made errors in law in ordering Mr. Weaver’s detention at his original bail hearing on January 30, 2019.

[2] After hearing submissions on the first day of the hearing before me, I decided that Mr. Weaver ought to be released on terms proposed by the Toronto Bail Program (“TBP”) along with some additional conditions I discussed with counsel during submissions. Given the hearing concluded late in the day, I adjourned the matter to the next court day, February 18, 2019, so that the necessary paperwork for his release could be prepared and so that someone from the Scarborough office of the TBP could attend court to assist Mr. Weaver on his release from jail. I thank the TBP Scarborough office for accommodating my unusual request and providing this additional assistance to Mr. Weaver.

Jurisdiction to Hear this Application and the Issues

[3] Mr. Goody, counsel for the Crown, did not admit that the learned Justice of the Peace had erred in law in deciding to detain Mr. Weaver but he did suggest that I consider the question of his release on the merits. When I asked if that meant that I hear the application de novo, he responded that there was no error made but did not press the point in argument. His position was that Mr. Weaver should be detained on the secondary grounds, primarily because of his criminal record.

[4] For reasons that I will come to, I found that the Justice of the Peace did err in law and so I considered the issue of Mr. Weaver’s release de novo.

The Allegations

[5] On January 29, 2019 Mr. Weaver was arrested and charged with four counts of utter threat to cause death, contrary to s. 264.1(1)(a) of the Criminal Code and one count of breach of probation, contrary to s. 733.1(1) of the Criminal Code, alleged to have occurred on January 28, 2019.

[6] The charges relate to an alleged altercation between Mr. Weaver and his landlord. At the material time Mr. Weaver resided in the basement apartment of the home occupied by his landlord and family. In summary it is alleged that Mr. Weaver owed rent and was causing other problems for the family. When he was confronted about this by the landlord he was alleged to have made a threat to kill the landlord and his family.

The Decision of the Justice of the Peace

[7] At the outset of the original bail hearing, Mr. Burns asked that the hearing be bifurcated, relying on the decision of Justice Di Luca in R. v. Tunney, 2018 ONSC 961. Mr. Burns asked that the Justice of the Peace make a decision on the evidence tendered by the Crown and decide whether or not the defence needed to call evidence. The Crown stated that she was prepared to do this and the Justice of the Peace made no comment. Mr. Weaver’s criminal record was also before the Justice of the Peace and Mr. Weaver testified. Evidence of the enhanced bail program offered by the TBP was introduced and Mr. Weaver testified that he was prepared to comply with their proposed terms of release. He also testified that he had been with the bail program before on a couple of occasions and did not breach his bail.

[8] After hearing submissions, the Justice of the Peace referred in his brief oral reasons to “the principle of ladder and Antic” and he stated that the Justices of the Peace are “guardians” of those principles. He then immediately went to Mr. Weaver’s evidence that when he was asked why his parents were not present, he had testified that he did not want to call them and that they lived in Niagara Falls. The Justice of the Peace was clearly not satisfied with this and then stated that given Mr. Weaver’s criminal record, which includes a number of failures to attend court, and given that the “secondary condition needs to be maintained … the Bail Program would not be an appropriate program to address this issue, given the record that is before the court”. However the Justice of the Peace gave no reasons for this bald conclusion and he did not identify any specific danger to the public as his concern, nor did he specifically relate the criminal record in any way to any such concern.

[9] After an outburst from Mr. Weaver, the Justice of the Peace stated that the charge is serious and he concluded that:

[…] without proper supervision, which could have been available if the parents had been called ... this court finds that the Crown has shown cause, on a balance of probabilities, why you should continue to be detained, and for those reason bail is denied on both the secondary and the primary grounds. [Emphasis added]

The Proposed Plan

[10] The proposed plan before me was that Mr. Weaver be released on his own recognizance, with the assistance of the TBP. A letter from Ms. Ginne White, the Superior Court Bail Supervisor with the TBP, states that Mr. Weaver had been interviewed and accepted for “enhanced community supervision” by the TBP and that he had agreed to abide by certain conditions set out in the letter. I was advised by Mr. Burns, that if I accepted this as a term of Mr. Weaver’s release, that with an enhanced community supervision program Mr. Weaver would be assisted in obtaining his belongings from the jail and his apartment, finding a shelter where he could live and he would be accompanied when he was required to attend any counselling, treatment, medical appointments and or rehabilitative programs as directed. Ms. White states in her letter that the TBP’s decision to offer bail supervision to Mr. Weaver was based on the primary grounds and the apparent likelihood of Mr. Weaver fulfilling his reporting responsibilities but that they were not taking a position on the secondary grounds.

The Evidence

[11] In support of his application, in addition to the letter from Ms. White, an affidavit sworn by Mr. Weaver was filed. Mr. Weaver is a 46-year-old Canadian citizen without dependents. In his affidavit, he states that his mother and stepfather live in Niagara Falls and that they are not agreeable to acting as his surety. Mr. Weaver also opined that he suffers from a hydromorphone opiod addiction and that he has been accepted into the Suboxone opioid treatment program at the Toronto East Detention Centre. His affidavit does not state that he suffers from schizophrenia, but that information was before the Justice of the Peace and not disputed, although he made no reference to it in his decision. Mr. Burns advised that this diagnosis was made when Mr. Weaver was in custody in 2008 and that acceptance into the enhanced bail program requires a diagnosis of a verified psychiatric condition. This information was not disputed by Mr. Goody.

[12] In addition I had a copy of Mr. Weaver’s criminal record. It is an understatement to say that it is lengthy. He has been convicted 58 times in the period between 1991 and 2018. However, his only conviction for a crime of violence was in 1999 when he was convicted of robbery. There are some driving offences but the majority of his convictions are for failing to attend court, failure to comply with his recognizance or failure to attend court. Furthermore he was on probation at the time of these charges.

Analysis

Did the Justice of the Peace Err in Law?

[13] In R. v. St-Cloud, 2015 SCC 27 at para. 121, Wagner J., as he then was, identified three circumstances in which a reviewing court may intervene if the justice has erred in law. This includes the case where the impugned decision was clearly inappropriate. In my view that is the case here. In addition there is the failure by the Justice of the Peace to provide sufficient reasons for his decision.

[14] I agree generally with the submissions made by Mr. Burns in support of his position that the learned Justice of the Peace made several errors in law. As Mr. Burns submitted, given the passage set out above from the reasons of the Justice of the Peace, he imposed what amounted effectively amounted to a reverse onus on Mr. Weaver during his initial bail hearing. Mr. Burns advised me that this is a common problem that he faces as Duty Counsel. In Tunney, Di Luca J. reviewed the Supreme Court of Canada’s decision in R. v. Antic, 2017 SCC 27 and he stated that in “light of a clarion call for culture change signaled in R. v. Antic [citation omitted], Mr. Ozkin [counsel for the defendant] asked the Court to review the procedure that should be followed when conducting Crown onus bail hearings” at para. 2. Justice Di Luca then went on to set out a comprehensive review of Antic and in particular a discussion of the “bail ladder” and the overuse of sureties.

[15] In my view the problems that Justice Di Luca identified occurred in the case at bar. In providing a basis for detaining Mr. Weaver on the primary grounds, the Justice of Peace did not provide any reasons as to why the assistance offered by the enhanced bail program offered by the TBP would not be appropriate, nor did he address the plan proposed at all, other than to say that the bail program would not be appropriate given Mr. Weaver’s criminal record. In addition the Justice of the Peace did not consider what role the fact Mr. Weaver suffers from schizophrenia might have played in his failures to attend court in the past, or the extent to which the assistance of the enhanced bail program offered by the TBP might alleviate these concerns regarding court attendance.

[16] Furthermore, as Mr. Burns submitted, although the Justice of Peace mentioned Mr. Weaver's criminal record in discussing the secondary ground concerns, he did not provide any reasons why imposing an own recognizance bail with a condition to stay 500 metres away from the complainants was insufficient to address the secondary grounds, nor did he identify any specific concern regarding "the protection or safety of the public, including any victim" as provided for in s. 515(10)(b) of the Criminal Code, as the secondary ground basis for the detention nor did he specifically relate the criminal record in any way to any such concern. Other than the mere allegations of the utter threats before the court, of which Mr. Weaver is to be presumed innocent, there was no evidence presented to suggest that Mr. Weaver would attempt to contact the complainants if released. I agree with the submission made by Mr. Burns that the mere mention that a defendant has a criminal record alone, should not be a sufficient basis by itself, without at least some greater specificity, for rejecting a lesser form of release, or there would be no point in defendants who possess criminal records undertaking a bail hearing. As the court stated in Antic: “[…] it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms”.

[17] At the conclusion of the bail hearing, the Justice of Peace essentially indicated that he might have released Mr. Weaver to a surety and in particular to his parents, so that “proper supervision could have been available." In Antic, Wagner, J. stated at para. 67(g): "[a] surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate." [Emphasis added] As already stated, the Justice of Peace effectively placed Mr. Weaver in a constructive reverse onus situation, contrary to s. 515(2) of the Criminal Code. At the conclusion of the Crown's evidence, the Justice of Peace did not provide any reasons as to why, in his view, Mr. Weaver could not be released on one of the forms of release set out in s. 515(2)(a) through (d), and he did not provide any reasons as to why he needed Mr. Weaver to call evidence. In fact after finding that the Crown has shown cause, the Justice of Peace was then asked by Mr. Burns if he would consider setting a surety bail. The Crown objected, notwithstanding her original agreement, and submitted that Mr. Weaver should not get a “second kick at the can”. The Justice of the Peace agreed with the Crown and refused to consider that suggestion.

[18] In my view, had the Justice of the Peace articulated sufficient reasons for why he was not prepared to release Mr. Weaver on his own recognizance with the assistance of the TBP, which as I have already stated he failed to do, he was then obligated to consider the next “rung on the ladder” namely a surety bail. Instead he clearly shifted the burden onto Mr. Weaver on the first rung of the ladder to convince the court why he should be released even though that first rung of the ladder was subject to a Crown onus. By so doing, the Justice of Peace was conflating the issue of surety suitability with the issue of releasability, contrary to the direction given in Tunney at para. 42. Without giving proper reasons the Justice of the Peace ought not to have determined Mr. Weaver’s releasability on whether or not he had offered up a suitable surety.

[19] In summary in my view the Justice of Peace erred in law in that he did not properly apply “the ladder principle” in a Crown onus situation as it is set out in s. 515(2) of the Criminal Code and as instructed in Tunney and Antic. As such his decision was clearly inappropriate.

[20] For these reasons I considered Mr. Weaver’s application on its merits as if I were the original decision maker, including all aspects of the proposed plan of release.

The Secondary Ground

[21] Chief Justice Lamer in R. v. Morales (1992), 77 C.C.C. (3d) 91 (S.C.C.) at para. 39 observed:

39. …. Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose “a substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous.

[22] Mr. Weaver is entitled to be released on the least restrictive form of bail and conditions that address the concerns of s. 515 of the Criminal Code. I was also concerned about the fact that Mr. Weaver had already been in custody since January 29, 2019 and in the scheme of criminal charges, the offences he has been charged with are at the lower end of the seriousness spectrum. Given my conclusion that his proposal for release satisfied the primary and secondary grounds, for reasons I will come to, the fact that Mr. Weaver might serve considerable more jail time than if he was convicted of all charges was another compelling reason for ordering his release.

[23] I concluded that Mr. Weaver’s proposal for release addressed the primary and secondary ground concerns despite his criminal record. I appreciate that his serious record of non-compliance with court orders suggests that absent proper supervision there is a substantial likelihood that he might fail to attend court or breach his conditions of bail. However the TBP will assist Mr. Weaver in finding a suitable place to live, he will receive assistance in keeping track of court dates as well as being monitored, receive ongoing counseling to specifically address any underlying substance abuse and he will be required to continue treatment for his mental health issues and in particular schizophrenia and the TBP will be able to ensure compliance with these terms. As Mr. Burns submitted, the TBP has agreed to act effectively as a “personal mobile social worker”. If Mr. Weaver fails to comply with the terms, there is no doubt that this Court will be alerted to this.

[24] Furthermore, there is no evidence that Mr. Weaver might reoffend by contacting the complainants or committing any offence of the nature of the offences he is currently charged with. Mr. Goody submitted that the TBP will not be supervising the proposed condition of release that Mr. Weaver not have any contact with the complainants or be within a specified geographical distance of where they live. He submitted that with his criminal record he could not be relied upon to self-regulate his own behaviour. To answer that concern I was advised that I could impose a term that any shelter found for Mr. Weaver not be within Scarborough and that Mr. Weaver be obliged to notify the officer in charge of any change of address within 24 hours. In my view this was a sufficient answer to address any concern in this regard.

[25] I did not consider determining if Mr. Weaver’s parents should act as his surety. First of all, I was satisfied on the first rung of the ladder that Mr. Weaver should be released on the proposed plan. In any event, even if his parents were available to act as sureties, the proposal of an enhanced bail program is in my view superior. Paramount is that this Court ensure that Mr. Weaver receive proper treatment for his mental illness and that he not have any contact with the complaints. The TBP in my view is in the best position to do so. Their policy of zero tolerance will ensure that Mr. Weaver comply with his terms of release failing which he will be found in breach.

Disposition

[26] For these reasons I granted the application and ordered the release of Sean Weaver on the terms proposed by the TBP with some variation. In particular, the conditions of release ensure that Mr. Weaver will not have contact directly or indirectly with the complaints and this includes a condition that he not live in a shelter in Scarborough.

SPIES J. Date: March 18, 2019