Court File and Parties
Court File No.: CR-17-92 Date: 2019-04-03 Ontario Superior Court of Justice
Between: Her Majesty The Queen And: Ebenezer Ampadu, Defendant
Counsel: Frederick Temple and Indy Kandola, for the Crown Jessica Sickinger, for Mr. Ampadu
Heard: April 3, 2019
Bail Ruling Number 1
Before: Boswell J.
[1] Mr. Ampadu is facing a number of charges relating to offences of violence. His trial on those charges has just begun. He has been out on bail pending his trial. His mother and father were his sureties. On day one of the trial his father withdrew as a surety for reasons that have not been made known to the court. Mr. Ampadu was taken into custody and brought before me, as trial judge, for a fresh bail hearing. It falls to me to determine if Mr. Ampadu should be granted bail and, if so, on what terms.
Overview
[2] Mr. Ampadu is one of four individuals jointly charged with manslaughter, assault with a weapon and assault causing bodily harm. The charges arise from a group confrontation that allegedly occurred in Bradford, Ontario at about two a.m. on September 12, 2015. During the confrontation one man suffered a broken wrist and another suffered a fractured skull. The latter died.
[3] Mr. Ampadu was arrested shortly after the alleged offences occurred. He was released on a recognizance of bail, with one surety – his father’s cousin – in the amount of $3,000.
[4] Roughly three weeks after being released on bail, Mr. Ampadu committed a number of other offences. He was involved in a motor vehicle accident at the intersection of Yonge Street and Davis Drive in Newmarket. Someone was injured in the accident. Mr. Ampadu drove away from the scene. The police attempted to pull him over. He would not pull over. He ran a stop sign in an attempt to evade the police. He then collided with a building. He got out of his vehicle and fled on foot. He was eventually apprehended in a cardboard compactor in the parking lot of the Upper Canada Mall.
[5] When arrested, Mr. Ampadu had a strong odour of alcohol on his breath and what appeared to be vomit on his clothes. He was given a demand for a breath sample but refused to provide one.
[6] He was charged with impaired driving causing bodily harm, dangerous driving causing bodily harm, failure to stop for police, failure to remain at the scene of an accident, failure to provide a breath sample and breach of recognizance. He subsequently pled guilty to impaired driving, flight from police, breach of recognizance and failing to provide a breath sample. He was sentenced to one day in custody in addition to 45 days of pre-sentence custody and placed on probation for one year.
[7] After Mr. Ampadu was arrested on the charges in Newmarket he was released on a recognizance of bail on terms that I am not entirely clear on. I understand that it was a relatively strict bail; one that required him to reside with his parents. It imposed a house arrest condition. He was not permitted to be absent from the residence except to go to court or to meet with counsel or for medical emergencies, unless he was accompanied by one of his sureties.
[8] Significantly, the Newmarket bail terms conflicted with the Bradford bail terms. The Bradford terms required him to reside with his father’s cousin. The Newmarket terms required him to reside with his parents. In the result, Mr. Ampadu’s surety on the Bradford bail withdrew as a surety, thereby “pulling” the bail. In other words, he rendered Mr. Ampadu into custody in relation to the Bradford recognizance.
[9] Mr. Ampadu came up for a bail hearing on the Bradford charges in Barrie on November 16, 2015. He was once again released on a recognizance of bail. This time the bail conditions were particularly strict. He was to live with his father, who was his surety. The amount of the recognizance was set at $150,000. He was subject to house arrest. And he was ordered to wear an electronic ankle bracelet.
[10] I note that the Crown had not sought an ankle bracelet condition and counsel were not invited to make submissions on the issue. In addition to the set up costs for the bracelet, Mr. Ampadu must pay $610 per month in monitoring fees. At the same time, however, the justice of the peace ordered that Mr. Ampadu could not work and he was ordered to report to the police station twice per week.
[11] Mr. Ampadu brought an application to the Superior Court to review the conditions of bail – particularly the ankle bracelet condition – which was heard and denied by McCarthy J. on January 25, 2016.
[12] Subsequently, there have been a number of consent variations to the recognizance. For instance, Mr. Ampadu’s mother was added as a surety. And the provision prohibiting Mr. Ampadu from working was removed.
[13] The trial of all co-accused commenced with jury selection on March 26, 2019. On March 28, 2019 I further varied Mr. Ampadu’s bail recognizance on consent. The variation made it easier for Mr. Ampadu to attend court, by removing a condition that he be in the company of one of his sureties while travelling to and from court. It also removed the condition for the ankle bracelet for a trial period of March 28, 2019 to April 12, 2019.
[14] Jury selection was completed on April 1, 2019 and the evidentiary portion of the trial was scheduled to begin on April 2, 2019.
[15] As Crown counsel was delivering his opening remarks to the jury a uniformed police officer entered the back of the courtroom, walked to the front to where another Crown counsel was seated at the counsel table, and advised counsel that Mr. Ampadu’s bail had been revoked and he was going to be taken into custody at the next break. The officer’s conduct reflected poor judgment on an epic scale. Crown counsel were as taken aback as anyone.
[16] The court took a recess following the Crown’s opening submissions. Mr. Ampadu was taken into custody. It was revealed that his father had rendered him into custody earlier in the morning on application to a justice of the peace under s. 766(1) of the Criminal Code. The justice of the peace executed an order for committal as a result of the application of Mr. Ampadu’s father.
[17] The court was forced to take an extended break while Mr. Ampadu was processed into custody and for his counsel to get some sense of what was going on.
[18] Mr. Ampadu became distraught upon his arrest and was unable to collect himself for a number of hours. His counsel expressed significant concerns about the jury seeing him in that condition and sought to postpone the trial for the day. The jury ultimately was sent home for the day without having heard a moment of evidence.
[19] Ms. Sickinger immediately requested that Mr. Ampadu be released on a new recognizance. The Crown was not in a position to address a bail application and asked for time to locate the transcripts from the initial bail hearing. Mr. Ampadu was, in the result, remanded in custody until the next morning.
Issues
[20] Mr. Ampadu’s bail application raises the following issues:
(i) What is the status of Mr. Ampadu’s recognizance once he is rendered into custody by one of his sureties? (ii) What is the nature of the bail hearing before this court? (iii) Who bears the onus on the bail hearing before this court? And, (iv) Has that onus been met?
[21] I will address the first three issues en masse and then address the matter of the disposition of the application.
Discussion
The Consequences of Surety-Rendering
[22] This application engages a number of provisions of the Criminal Code, including sections 766 and 769. For ease of reference, those sections provide as follows:
766 (1) A surety for a person who is bound by recognizance to appear may, by an application in writing to a court, justice or provincial court judge, apply to be relieved of his obligation under the recognizance, and the court, justice or provincial court judge shall thereupon issue an order in writing for committal of that person to the prison nearest to the place where he was, under the recognizance, bound to appear.
(2) An order under subsection (1) shall be given to the surety and on receipt thereof he or any peace officer may arrest the person named in the order and deliver that person with the order to the keeper of the prison named therein, and the keeper shall receive and imprison that person until he is discharged according to law.
(3) Where a court, justice or provincial court judge issues an order under subsection (1) and receives from the sheriff a certificate that the person named in the order has been committed to prison pursuant to subsection (2), the court, justice or provincial court judge shall order an entry of the committal to be endorsed on the recognizance.
(4) An endorsement under subsection (3) vacates the recognizance and discharges the sureties.
769 Where a surety for a person has rendered him into custody and that person has been committed to prison, the provisions of Parts XVI, XXI and XXVII relating to judicial interim release apply, with such modifications as the circumstances require, in respect of him and he shall forthwith be taken before a justice or judge as an accused charged with an offence or as an appellant, as the case may be, for the purposes of those provisions.
[23] The leading academic work on the law of bail in Canada is Justice Gary T. Trotter’s, The Law of Bail in Canada, loose-leaf, 3rd ed. (Toronto: Thomson Reuters Canada Limited, 2016). Justice Trotter notes, at section 7-14, that at common law an accused who was rendered by his sureties was in the same position as if he or she had not yet applied for bail. In his view, s. 769 of the Criminal Code effectively codifies that aspect of the common law.
[24] According to Justice Trotter, an accused who has been surety-rendered is essentially returned to his or her pre-release status. There is, however, some inconsistency in the case law on this point.
[25] In R. v. Alexander, 2012 ONSC 3792, Hill J. held that where an accused has experienced a surety-rendering due to no fault of his or her own, there is “no reason to interpret a s. 766(1) committal as penalizing an accused to the point of eliminating the underlying and pre-existing 515(2) order for release.” (Para. 34).
[26] In Justice Hill’s view, an accused in those circumstances would have a release order in hand, awaiting fulfilment by the production of satisfactory new sureties. In other words, a full blown bail hearing would not be required. Instead, the only requirement would be for the accused to demonstrate that his proposed new sureties are satisfactory to the court.
[27] On the other hand, in R. v. Smith, 2013 ONSC 1341, Justice Dambrot held that, on the plain wording of s. 766 of the Code, once an accused person is imprisoned pursuant to the order for committal and the entry of the committal is endorsed on the recognizance, the recognizance is vacated. Moreover, the express wording of s. 769 of the Code requires that once an accused has been committed to prison he or she is to be taken forthwith before a justice for the purposes of applying the interim judicial release provisions of the Code. (Smith, para. 33). In other words, a new bail hearing is required.
[28] In this case, Mr. Ampadu’s father brought an application before a justice of the peace to render Mr. Ampadu into custody. On the strength of that application the justice of the peace issued an order for committal. The order was executed almost immediately – indeed rather ham-fistedly as I set out above. An endorsement of revocation has been made on the original recognizance.
[29] In my view, on a plain reading of s. 766 of the Code, Mr. Ampadu’s recognizance is vacated. It is at an end. Pursuant to s. 769 of the Code he is to be brought forthwith before the court for a new bail hearing. I agree with Justice Dambrot’s interpretation of the relevant provisions, which is also favoured by Justice Trotter.
[30] At the original show cause hearing, the onus was on the Crown to demonstrate that the continued detention of Mr. Ampadu was justified on one or more of the three grounds set out in s. 515(10) of the Code. There would not appear to be any justification to reverse the onus just because Mr. Ampadu’s father applied to render him into custody. None of the triggers for a reverse onus have been established under s. 515(6) of the Code.
[31] In summary then, I conclude that Mr. Ampadu’s recognizance has been vacated and his status has essentially returned to where it was before he was first released on bail. A new bail hearing is required; in other words a hearing de novo. The Crown bears the onus to establish that continued detention is justified, or at least that conditions of release more stringent than an undertaking are required.
[32] I turn now to the question of whether the Crown has met that onus.
Fundamental Principles
[33] Persons charged with criminal offences have a number of important constitutional rights. Two of them are engaged whenever the detention of an accused person pending trial is in issue. One is the presumption of innocence, which is guaranteed by s. 11(d) of the Charter of Rights and Freedoms. It is a “principle of fundamental justice that the starting point for any proposed deprivation of … liberty … of anyone charged with or suspected of an offence must be that the person is innocent.” See R. v. Pearson, [1992] 2 S.C.R. 665 at para. 31.
[34] The other is the right not to be denied reasonable bail without just cause, which is guaranteed by s. 11(e). As Ms. Sickinger highlighted, this is a right in two parts. First, every accused person has the right not to be denied bail without “just cause”. Second, the right to bail means the right to “reasonable bail”. Reasonable bail relates to the terms of the bail, while just cause relates to the grounds upon which release is granted or denied. See R. v. Morales, [1992] 3 S.C.R. 711, at para. 38.
[35] Bail may only be denied in what the Supreme Court has described as a “narrow set of circumstances” and only where “necessary to promote the proper functioning of the bail system”: Pearson, at para. 58; R. v. Antic, 2017 SCC 27 at para. 40.
[36] The bail system does not function properly where those on bail fail to appear for future court dates. It does not function properly where those on bail commit further offences, or interfere with the administration of justice. And it does not function properly where it causes the administration of justice to be brought into disrepute.
[37] In view of the foregoing, Parliament has set out, at s. 515(10) of the Criminal Code, the circumstances in which pre-trial detention may be justified.
[38] There are three grounds for continued, lawful detention, known as the primary, secondary and tertiary grounds. These grounds for detention are constitutionally valid, assuming they are properly applied: see Morales, as above and R. v. Hall, 2002 SCC 64.
[39] Detention is justified on the primary ground if the accused poses a flight risk.
[40] Detention is justified on the secondary ground where it is necessary for the protection or safety of the public.
[41] Detention is justified on the tertiary ground if it is necessary to maintain confidence in the administration of justice, having regard to all the circumstances of the case.
The Bifurcated Proceeding
[42] Section 515 of the Criminal Code requires that judicial officers conducting bail hearings adhere to the ladder principle. The ladder principle requires that accused persons be granted bail on terms no more onerous than necessary.
[43] Section 515(1) of the Code specifically provides that accused persons are to be released on their unconditional undertaking to appear in court when required unless the Crown shows cause as to why continued detention is justified or, alternatively, why some more stringent conditions of release ought to be imposed. Section 515(2) enumerates other forms of pre-trial release, each one more burdensome than the one(s) before it. They include:
(2) Where the justice does not make an order under subsection (1), he shall, unless the prosecutor shows cause why the detention of the accused is justified, order that the accused be released
(a) on his giving an undertaking with such conditions as the justice directs;
(b) on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(c) on his entering into a recognizance before the justice with sureties in such amount and with such conditions, if any, as the justice directs but without deposit of money or other valuable security;
(d) with the consent of the prosecutor, on his entering into a recognizance before the justice, without sureties, in such amount and with such conditions, if any, as the justice directs and on his depositing with the justice such sum of money or other valuable security as the justice directs; or
(e) if the accused is not ordinarily resident in the province in which the accused is in custody or does not ordinarily reside within two hundred kilometres of the place in which he is in custody, on his entering into a recognizance before the justice with or without sureties in such amount and with such conditions, if any, as the justice directs, and on his depositing with the justice such sum of money or other valuable security as the justice directs.
[44] In R. v. Antic, as above at para. 67, the Supreme Court provided explicit direction regarding the manner in which contested bail hearings should be conducted. Their instructions include the following:
(c) Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1).
(d) The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, release is favoured at the earliest reasonable opportunity and … on the least onerous grounds. This principle must be adhered to strictly.
(e) If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention.
(f) Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, 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.
(g) A recognizance with sureties is one of the most onerous forms of release. A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.
[45] Conducting a bail hearing while simultaneously conducting a homicide trial with four co-accused before a jury is logistically challenging.
[46] Mr. Ampadu appeared before the court with his counsel at 9:00 a.m. on April 3, 2019 to commence the bail hearing. The jury was scheduled to attend at 10:00 a.m. to begin hearing evidence.
[47] Mr. Ampadu’s mother, Paulina Osei, attended court as well, prepared to stand as a surety for him, if necessary. She had taken the day off of work in order to be available.
[48] Ms. Sickinger took the position that she was not required to adduce evidence from any potential surety until the Crown had met its onus of establishing that no less onerous a form of release than a surety release was appropriate. She urged the court to conduct a bifurcated hearing. While I would have preferred, as a matter of convenience to Ms. Osei, to have taken her evidence while she was present, I agree that the court cannot compel Mr. Ampadu to tender evidence from a proposed surety prior to the Crown establishing that a surety release is called for.
[49] Accordingly, I heard submissions from Crown and defence counsel on the threshold issue of what, if any, conditions beyond an unconditional release were necessary in this instance.
The Positions of Counsel
[50] The Crown set out the general circumstances of the index offences, as well as the circumstances of the Newmarket offences. In addition, the Crown provided evidence of two incidents involving Mr. Ampadu and his father occurring subsequent to the Newmarket offences which bear, in the Crown’s submissions, on the bail issue.
[51] It is the Crown’s position that Mr. Ampadu has, by his own conduct, demonstrated clearly that he is a risk to the safety of the public and that there is a substantial risk that he will, if released from custody, commit a further criminal offence. Indeed he has already done so.
[52] The Crown seeks conditions similar to those imposed immediately before this trial began. In particular, a surety release with a substantial recognizance, together with house arrest and electronic monitoring through an ankle bracelet.
[53] Mr. Ampadu’s counsel urged the court to consider far less burdensome conditions. She highlighted the fact that Mr. Ampadu has not had any issues with breaches in almost three and a half years. He has never failed to attend court. He is now engaged on a full-time basis in his trial, which is scheduled to last another six weeks. The stakes are high for him. He cannot afford to pay for the electronic monitoring unless he works night shifts. If he does so, he will be in no condition to participate meaningfully in his defence.
Conditions of Release
[54] Mr. Ampadu is constitutionally entitled to reasonable bail. This means the least onerous conditions that are necessary to ensure his attendance at trial, ensure the protection of society and maintain public confidence in the administration of justice.
[55] The Crown did not make any submissions directed at concerns on the primary or tertiary grounds. Instead, the Crown focused on secondary ground concerns. This is not surprising, for reasons that will become apparent momentarily.
[56] Detention is warranted on the secondary ground where necessary for the protection or safety of the public, including any victim of or witness to the offence. To reach such a conclusion, the court is directed to look at all of the surrounding circumstances, including any substantial likelihood that the accused will re-offend or interfere with the administration of justice if released.
[57] The “substantial likelihood” threshold does not require the court to make exact predictions about future dangerousness: see Morales as above. Justice Trotter has described the “substantial likelihood” test as a slightly enhanced balance of probabilities standard.
[58] The assessment of the likelihood of re-offence or interference with the administration of justice, and of the protection of the public more generally, requires a consideration of a cluster of factors. The nature of the offence, the criminal record of the accused, the strength of the Crown’s case and whether the accused was already on bail or probation at the time of the alleged offence(s) are all relevant considerations: see R. v. K.D., [2006] O.J. No. 2616 (S.C.J.) and R. v. Vairavanathan, [2006] O.J. No. 3053 (S.C.J.).
[59] If the court concludes that public safety is at risk, and/or that there is a substantial likelihood of re-offence or interference with the administration of justice, then the issue will be what terms of release will adequately address the secondary ground concerns. If the court is of the view that a surety release is necessary, then the accused bears the onus to satisfy the court that the proposed sureties and their plan of supervision will sufficiently reduce the risks posed by release.
[60] My vantage point, being one day into the trial evidence, is obviously very limited. It strikes me, on the basis of the limited evidence I have to consider on this application, that the Crown has a strong case to place Mr. Ampadu at the scene of the group confrontation that led to one man’s death and the injury of another. The charges, including manslaughter and assault with a weapon, are obviously serious offences of violence.
[61] Mr. Ampadu was driving a vehicle with six occupants, including himself. He drove past three intoxicated males walking down Centre Street in downtown Bradford. Words were exchanged between the pedestrians and the occupants of the car. Mr. Ampadu turned the car around and went back to the location of the pedestrians. The occupants of the car piled out. A confrontation ensued. From what I understand, Mr. Ampadu did not engage with the male who died, but did engage with the male whose arm was broken.
[62] Whether the Crown can establish Mr. Ampadu’s guilt on the manslaughter charge is definitely an open question. My impression at this stage is that the Crown has a strong case that Mr. Ampadu has some level of culpability for one or more offence. At this stage, however, one can only speculate about what level of culpability, if any, that might turn out to be.
[63] While the strength of the Crown’s case is somewhat of an open question, the central focus of the Crown’s position really relates to a massive problem that Mr. Ampadu has created for himself.
[64] As I noted, just three weeks after being released on bail on very serious charges, Mr. Ampadu committed a pack of additional serious offences, which endangered the public and the police officers involved in pursuing and arresting him. They furthermore caused injury to a person whose vehicle he struck while driving impaired.
[65] The Newmarket offences are enough to satisfy me that Mr. Ampadu is not a good candidate to be released on an unconditional undertaking to appear. Nor is he a good candidate to be released on his own conditional undertaking, or for that matter on a recognizance without a surety.
[66] The Newmarket offences were committed while Mr. Ampadu was on a recognizance with a surety: his father’s cousin. Obviously he had insufficient respect for that surety or for the surety’s pledge of $3,000.
[67] In view of Mr. Ampadu’s history, any suggestion that he should now be released on any less stringent condition than a surety release is one that I am not able to take seriously.
[68] I appreciate that over three years have passed since the Newmarket offences were committed. And I have no evidence of any further breaches in that time period. That said, I make the following observations.
[69] First, I consider the Newmarket offences extremely serious. They reflect an egregious breach of the trust placed in Mr. Ampadu when he was initially released on bail.
[70] Second, in the period between those offences and today, Mr. Ampadu has been subject to significantly onerous bail conditions, including house arrest and electronic monitoring. It is impossible, under these conditions, to reach the conclusion that the absence of further criminal conduct is a reflection of a fundamental change in character on Mr. Ampadu’s part.
[71] Finally, while Mr. Ampadu has not been engaged in any unlawful behaviour during the last 3 + years while on bail, his history has not been entirely unblemished.
[72] On May 26, 2019 Mr. Ampadu’s father contacted South Simcoe Police to advise that he wanted Mr. Ampadu removed from his home because he would not follow the house rules. That conflict was resolved through police assistance.
[73] On May 10, 2017 Mr. Ampadu Sr. attended before a justice of the peace at the Barrie courthouse and made an application to be removed as his son’s surety. He was provided with a copy of an Order of Committal signed by the justice of the peace that day. On June 20, 2017 he took his copy of the Order of Committal, together with his son, to the South Division of the South Simcoe Police in Bradford. The police decided to arrest Mr. Ampadu and take him into custody.
[74] While his father was in the police station, Mr. Ampadu, who had been waiting in the car, exited the car and walked home. Police Constable Smith attended at his home to arrest him. When PC Smith identified himself, Mr. Ampadu advised him that he wanted to eat dinner. PC Smith said that would not be possible and instructed him to come to the front door. Mr. Ampadu refused. Ultimately Mr. Ampadu had to be forcibly removed from the home and under threat of being tasered.
[75] Mr. Ampadu subsequently had a bail hearing and was released on a similar recognizance to the one he had been on before his father rendered him into custody. In fact, his father once again stood as one of his sureties.
[76] Mr. Ampadu’s current predicament is a result of his father once again rendering him into custody.
[77] I am not able to say, on this thin evidentiary record, what the source of the difficulties is between Mr. Ampadu and his father. But given the obvious volatility in that relationship, questions continue to linger about Mr. Ampadu’s governability.
[78] In light of those concerns, the seriousness of the charges now before the court, the strength of the Crown’s case, Mr. Ampadu’s criminal record and the flagrant and serious breach of recognizance that occurred in connection with the Newmarket offences, I am satisfied that the Crown has met its onus to establish that more stringent release conditions are required than an unconditional undertaking.
[79] In fact, I am satisfied that if Mr. Ampadu were released from custody that he would pose a safety risk to the public and that there is a substantial likelihood of re-offence.
[80] In the circumstances, I am satisfied that only a surety release will suffice. The inquiry will now move to the second stage. The question now is whether adequate sureties can be put in place and what further, if any, conditions are necessary to attenuate the concerns that are present on the secondary ground.
[81] The matter is adjourned to April 4, 2019 at 9:00 a.m. for further evidence and/or submissions.