Court File and Parties
COURT FILE NO.: CR-17-92 DATE: 20190408 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 4, 2019
bail ruling Number 2
Boswell J.
Introduction
[1] Mr. Ampadu is on trial for manslaughter, assault with a weapon and assault causing bodily harm. He was, until the Crown’s opening statement at least, on a bail recognizance. He had two sureties: his mother and his father. Immediately following the Crown’s opening statement, and during a court recess, Mr. Ampadu was taken into custody. It turns out that his father had attended the court house earlier in the morning and rendered him into custody by applying to be removed as one of his sureties.
[2] A bail hearing began the next morning. At the request of defence counsel, the court bifurcated the proceeding. During the first leg of the hearing, the court received evidence from the Crown and heard submissions from both parties as to whether the Crown had met its onus to establish that there were grounds to detain Mr. Ampadu, or to at least impose conditions of release more onerous than an unconditional undertaking.
[3] I determined, for reasons reported at 2019 ONSC 2099, that the Crown had established that Mr. Ampadu poses a safety risk to the public and that there is a substantial likelihood of re-offence if he were to be released from custody. I concluded that only a surety release would suffice to attenuate these concerns. The onus shifted to Mr. Ampadu to satisfy the court that he has a plan of supervision in place that will indeed attenuate any safety concerns associated with his release.
[4] The matter was adjourned for a day for further evidence and submissions. At the end of the day I released Mr. Ampadu on a recognizance of bail on the terms set out on Appendix “A”. I undertook to provide written reasons for my decision. These are those reasons.
The Parties’ Positions
[5] Prior to the commencement of the trial, Mr. Ampadu had been subject to a $150,000 recognizance with his parents as his sureties. He was subject to a house arrest condition, with exceptions that included attending court, attending appointments with his lawyer, medical emergencies and going to work. He was also subject to electronic monitoring of his location, which required him to wear an ankle bracelet at all times. When the trial commenced with jury selection, Mr. Ampadu’s conditions were varied, on consent, to remove the ankle bracelet for a trial period of some two weeks.
[6] Mr. Ampadu’s counsel, Ms. Sickinger, urged the court to essentially return to the conditions that were in effect immediately prior to the revocation of his bail, save that he would now proceed with only one surety: his mother, Ms. Pauline Osei.
[7] Ms. Sickinger argued that Mr. Ampadu was on his prior recognizance for over three years without breach. She noted that there are roughly six weeks left before his trial is completed and he will be spending most of his time in court. He would be beyond foolish to commit further offences at this time.
[8] A considerable part of Ms. Sickinger’s arguments focused on the ankle bracelet condition and the impact it has had on Mr. Ampadu and his family. She contended that they simply cannot afford the $610 per month monitoring fee. If the condition remains, Mr. Ampadu will have to work night shifts to earn the money to pay for it. He will have to work all night, then attend court during the day. He will be in no condition to participate meaningfully in his defence.
[9] Crown counsel was not opposed to Mr. Ampadu’s release with his mother as his surety, provided the court imposed the electronic monitoring condition. In the Crown’s submission, Mr. Ampadu’s father was his primary surety – the person whose influence kept Mr. Ampadu out of trouble. Indeed, on an earlier bail variation hearing, Ms. Osei appears to have admitted as much.
[10] Crown counsel, Mr. Temple, noted that with only six weeks remaining until the end of the trial, there will not be significant further expense to be incurred in relation to the monthly monitoring fees. They are, in his submissions, a reasonable cost to impose on Mr. Ampadu considering the risks associated with his release.
The Proposed Surety
[11] Mr. Ampadu’s mother was advanced as his proposed surety. She gave relatively brief evidence at the bail hearing.
[12] Ms. Osei is a personal support worker. She typically works eight hour days, but that varies sometimes and she may only work six or seven hours. She lives with her husband, Mr. Ampadu’s father, and their four children in Bradford in a home that she and her husband jointly own at 100 West Park Avenue. The home is valued at roughly $425,000 and is subject to a mortgage with about $250,000 outstanding. Mr. Ampadu is their oldest child. The others are ages 12, 13 and 18.
[13] Ms. Osei has been a surety for her son for about three years. She testified that during that three year period he has given her no trouble and has not breached his bail conditions in any way. She has a good relationship with him and he listens to her.
[14] She explained that her husband, unbeknownst to her, locked Mr. Ampadu out of their house on April 2, 2019 because his son had not paid rent to him for the past two months. He then drove to the court house in Barrie and, again unbeknownst to her, applied to be removed as a surety for Mr. Ampadu, thereby rendering him into custody.
[15] Given the state of the relationship between Mr. Ampadu and his father, Ms. Osei has arranged for them to stay, for the duration of the trial, with a friend from her church. The friend also lives in Bradford, at 66 Stewart Street.
[16] Ms. Osei proposes to maintain regular contact with Mr. Ampadu by phone when she is at work, to ensure that he is complying with his bail conditions.
[17] She testified that she was not opposed to the ankle bracelet condition, but did not believe it was necessary because her son has learned his lesson and is not a trouble-maker. Moreover, she expressed concerns about how it would be paid for.
[18] Ms. Osei earns about $3,000 per month as a personal support worker. Her husband is a self-employed contractor. She was not certain how much he makes but says he is sometimes working and sometimes not.
[19] She indicated that their family has experienced difficulties paying the $610 per month monitoring fee for the electronic bracelet. It has placed financial and emotional stress on the family. Some months they simply could not afford it and had to render their son back into custody until they could save up the money to reactivate it. More recently, Mr. Ampadu has been able to find work through a temp agency doing overnight shifts. Still, he was unable to earn enough to pay for both the monitoring and the rent his father wanted him to pay.
[20] Under cross-examination Ms. Osei denied that her husband was the only one in the family that her son would listen to. She expressed confidence that he would listen to her and would not lie to her.
[21] She agreed with the Crown’s suggestion that her main means of keeping tabs on her son was through phone calls.
[22] She was asked about an incident that occurred on June 20, 2017. Mr. Ampadu’s father had rendered him into custody. A police officer attended at their family home to arrest Mr. Ampadu. The incident report reflects that Mr. Ampadu was less than co-operative and that ultimately he had to be removed from the house forcibly and under threat of being tasered. The incident report further indicates that as the officer had Mr. Ampadu on the ground and was checking his pockets for officer safety purposes, Ms. Osei interfered and had to be asked to step back three times.
[23] Ms. Osei disagreed with the description of the events as they were portrayed in the incident report. She testified that the officer who attended to arrest her son was unduly aggressive. He entered the home with his taser drawn. She said she had to plead with him not to taser her son. She denied interfering with the arrest procedure in any way and denied the Crown’s suggestion that she was conflating her role as a surety with her role as a mother.
Discussion
[24] When Mr. Ampadu was arrested on the charges now before the court, he was released on a surety recognizance in the amount of $3,000 with his uncle as his surety. His conditions were otherwise not particularly onerous.
[25] Several weeks after being released, Mr. Ampadu committed a series of other serious offences. He ultimately entered pleas of guilt to impaired driving, flight from police, breach of recognizance and failing to provide a breath sample. He received a custodial sentence equal to about sixty days, plus probation for a year.
[26] Mr. Ampadu’s bail on the index charges was adjusted after the additional offences were committed. A justice of the peace released him on a new recognizance, this time with far more stringent conditions. He was required to live with his parents. His father was his named surety. The recognizance was in the amount of $150,000. He was on house arrest and could only be out of his residence when accompanied by his surety save for a few limited exceptions. In addition, he was ordered to wear an ankle bracelet and comply with electronic monitoring of his location.
[27] The ankle bracelet condition proved to be very problematic on at least three levels.
[28] First, the Crown had not sought an ankle bracelet provision during the bail application. The presiding justice of the peace added that condition on his own initiative. It is a principle of fundamental justice that orders should not be made against parties without permitting them an opportunity to be heard. Mr. Ampadu was denied that opportunity.
[29] Had the justice of the peace invited submissions on the issue, he would have learned something about the cost of the condition and that Mr. Ampadu’s family was ill-equipped to meet that cost. It was impossible for the justice of the peace to assess the reasonableness of that strict bail provision without having heard and considered those submissions. In the result, I must conclude that the imposition of the electronic monitoring condition – with its cost to be borne by Mr. Ampadu – was not constitutionally compliant.
[30] Second, and as I have alluded to, the cost of the ankle bracelet was not realistically affordable for the Ampadu family. It has been roughly forty months since the ankle bracelet provision was imposed. At $610 per month, the total expense has been roughly $25,000. That is profoundly punishing to this family of modest means, with four children to support. They have struggled to make the monthly payment and at times have not been able to. On those occasions, they have had to render their son back into custody so as to avoid a breach of his recognizance.
[31] Third, there has been, as one can easily imagine, a significant emotional toll on the family because of the fact that Mr. Ampadu’s parents have had to render him into custody on a number of occasions. Sending your child into prison because you can’t afford to cover the cost of his ankle bracelet would be a traumatic experience. Mr. Ampadu’s parents had to experience that trauma on multiple occasions.
[32] Going forward, I am not satisfied that electronic monitoring by way of an ankle bracelet is required to attenuate secondary ground concerns. Moreover, it is not reasonably affordable for Mr. Ampadu and his mother. I agree with defence counsel’s submission that Mr. Ampadu will not be able to meaningfully participate in this trial if he has to work nights and be in court all day.
[33] I am, in fact, satisfied that a house arrest condition, with certain exceptions, will be sufficient, with Ms. Osei acting as Mr. Ampadu’s surety. I have reached this conclusion for reasons that include the following:
(a) I found Ms. Osei to be a credible and well-intentioned surety. She has a track record of ensuring Mr. Ampadu’s compliance with his recognizance. She has rendered him into custody when not able to afford the electronic monitoring fees, rather than have him breach. She is also prepared to move out of her family home and into the home of a friend for the duration of the trial in order to avoid further problems between Mr. Ampadu and his father. She has sacrificed and will continue to do so for her son;
(b) Mr. Ampadu is now three years older than he was when he breached a former iteration of his recognizance by committing a number of offences in Newmarket. He has demonstrated an increased level of maturity by a preparedness to work midnight shifts in order to cover the cost of electronic monitoring. He has also not breached his recognizance in almost three and a half years;
(c) Mr. Ampadu’s trial has commenced. It is expected to be completed within the next six weeks. For most of that time, Mr. Ampadu will be in court, which will substantially reduce the risk of breach; and,
(d) Mr. Ampadu’s mother works during the day but is done by 4:30 p.m., when court typically ends for the day. In other words, while she is at work Mr. Ampadu will generally be in court. Any concern that she is only able to supervise him by phone is largely attenuated. She will, in fact, be available to supervise him at most times when he is not in court.
[34] I have reduced the amount of the recognizance from $150,000 to $25,000. In my view, $150,000 is unnecessarily punitive. It is more than four times Ms. Osei’s annual income. The purpose of the recognizance is twofold. First, to make Mr. Ampadu think twice about breaching in light of the financial impact on his mother. Second, to underscore the significance of the surety’s commitment to the court. The sum of $25,000 is more than sufficient, in my view, to achieve both those aspirations.
[35] The balance of conditions imposed are more or less the same as those that were in place prior to Mr. Ampadu’s re-arrest.
[36] I thank counsel for their co-operation in fitting in the bail hearing on top of the normal sitting hours of the court.
Boswell J.
Released: April 8, 2019
Appendix "A" - Terms of Release
Mr. Ampadu is released on a recognizance, with Pauline Osei as his surety, in the amount of $25,000 on the following terms:
- To reside with his surety at 66 Stewart Street, Bradford;
- To notify the officer in charge, Deb Smith, or her designate, in writing of any change in his employment;
- To notify the officer in charge of the place, dates and times of his scheduled employment;
- To observe a curfew between the hours of 10:00 p.m. and 6 a.m. each day, save for Friday and Saturday nights and Saturday and Sunday mornings, when he is working;
- To otherwise remain in his residence at all times except: (a) when in the presence of his surety; (b) for travelling directly to and from and while at court appearances or for purposes of complying with this or any other court order; (c) for purposes of travelling directly to or from or while at meetings with his lawyer at 665 Davis Drive, Newmarket, Ontario; (d) for travelling to and from or while at his place of employment;
- To remain in Ontario;
- To deposit his passport with the South Simcoe Police Service and not to reapply for a passport or any other travel documentation;
- To refrain from communicating, directly or indirectly, with any of the following: Jillian Clare, James Paniccia, Julian Zenczuk, Christopher Mainhaussen-Tomasseti, Ryan McGrath, Marquize McBride, Claudio Fiaes, Steven Myall, Robert Scott and Steven Maynard, except through counsel for the purpose of preparing a defence;
- To not possess any weapon as defined in the Criminal Code; and
- To not buy, possess or consume any alcohol or other intoxicant.