Court File and Parties

COURT FILE NO.: CR-19-03923-00BR DATE: 20190613 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – PRASATH THANIGASALAM Defendant

Counsel: P. Westgate, for the Crown D. MacAdam, for the Defendant

HEARD: June 5, 2019

Reasons for Judgment on Bail Review Application

CHARNEY J.:

[1] This is an application by the accused, Prasath Thanigasalam, pursuant to s. 520 of the Criminal Code for review of the detention order made by Justice of the Peace Robinson on April 1, 2019. That order was made under the “secondary ground”, that is Mr. Thanigasalam’s detention was necessary for the protection of the public “having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offense or interfere with the administration of justice.”

[2] Mr. Thanigasalam is 28 years old. On March 29, 2019, he was arrested in Markham, Ontario, following a high speed police car chase at approximately 3:00 a.m., for failure to comply with recognizance and possession of stolen property (a grey Porsche). When arrested, he was found to have possession of a key to start the Porsche.

[3] The failure to comply with his recognizance related to two separate recognizances, one in relation to charges in Peel Region and one in relation to charges in Thunder Bay. The Thunder Bay recognizance contained a curfew that prohibited the accused from being away from his residence in Brampton between 10:00 p.m. and 6:00 a.m. unless in the direct company of his surety. The Peel Region recognizance required him to remain in his residence at all times unless in the presence of his surety and prohibited the accused from “possessing any keys or starting devices for any motor vehicle”.

[4] The accused is currently being held in pre-trial custody at the Central East Detention Centre.

[5] The Thunder Bay charges date from May 14, 2018. They are for trafficking cocaine and possession of property obtained by crime, and for being at large on a recognizance with a term not to possess or consume any unlawful drugs. The accused had been released on recognizance with a surety (his sister) to reside in the family home in Brampton. His father gave a $10,000 monetary pledge. A term of the recognizance was that he was to remain in the residence daily between the hours of 10:00 p.m. and 6:00 a.m., unless in the presence of his surety.

[6] The Peel Region charges date from August 19, 2018. At approximately 8:46 p.m. an individual was observed in a white Mercedes off the roadway having struck a hydro pole. Flames began to consume the vehicle. The two occupants could be seen leaving the vehicle and the scene of the accident. Police and the fire department were called. The vehicle was stolen. Mr. Thanigasalam was located south of the intersection hiding in the tall grass, and was arrested for failure to remain at the scene of the accident and for possession of property obtained by crime. He was released on a recognizance, which, prohibited him from being away from his residence in Brampton unless in the presence of his surety, who was his father. An additional monetary pledge of $5,000 was given by the father. The recognizance also prohibited the accused from having any keys or starting devices for any motor vehicle.

[7] Mr. Thanigasalam also has a criminal record for impaired driving. The conviction was in March, 2019 and resulted in a $3,000 fine and a one year driving prohibition.

[8] The accused raises three grounds for this review:

(a) That the Justice of the Peace failed to apply the test under the secondary grounds correctly; (b) That the Justice of the Peace failed to provide sufficient reasons for detaining the applicant; and (c) That the surety is now prepared to pledge up to $75,000 to secure Mr. Thanigasalam’s release with a house arrest condition that includes an ankle bracelet with a GPS monitoring system.

Analysis

[9] Under s. 520 or s. 521 of the Criminal Code, a reviewing judge does not have an open-ended power to review the initial order respecting the detention or release of the accused: “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”: R. v. St-Cloud, 2015 SCC 27, at para. 121.

[10] A reviewing judge can intervene where an error of law has been made, where the decision was clearly inappropriate, or where new evidence submitted by the accused or the prosecutor shows “a material and relevant change in the circumstances of the case”. (St-Cloud at para. 121).

[11] “New evidence” is evidence “that is truly new or evidence that existed at the time of the initial release hearing but was not tendered for some reason that is legitimate and reasonable.” (St-Cloud at para. 132). In addition, “the new evidence must be such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the justice under s. 515(10)(c) of the Criminal Code. The new evidence must therefore be significant”. (St. Cloud at para. 137)

Did the Justice of the Peace fail to apply the test for the second ground correctly, or fail to provide sufficient reasons for detaining the applicant?

[12] Examining the reasons given by the Justice of the Peace, I am satisfied that he did not fail to apply the secondary grounds correctly, and that his reasons, although brief, are sufficient to permit appellate review.

[13] The accused proposed house arrest and release to Mr. Thanigasalam’s mother as a residential surety with $50,000 bail. Mr. Thanigasalam’s mother testified that she did not supervise her son under the Thunder Bay and Peel recognizances because it was her husband who signed, so she “kept quiet”.

[14] During submissions, the Justice of the Peace indicated that his main concern was “what kind of supervision” the mother could provide “to ensure secondary grounds concerns”.

[15] The Justice of the Peace referenced the Supreme Court of Canada’s decision in R. v. Antic, 2017 SCC 27, and acknowledged that “detention should only be an option under some circumstances”. The accused complains that the Justice of the Peace then stated:

Then it begs the question; what’s the purpose of this bail court? It would be redundant if all you did was rubber stamp everybody that comes before the Court, and everybody goes, released. What would be the purpose of the bail court? It seems to – it doesn’t make any sense to me.

I understand the provisions of Antic where the ladder principle plays a role, but unless, of course, I don’t understand the principle fully, bail, I don’t believe – I don’t believe Antic principle allows for universal release of all those that come before the Court. I don’t think that's the intention. And the accused comes before the court in a reverse onus position, with outstanding charges, alleged to have breached the terms on several occasions. Not only, not one breach, several breaches.

[16] The accused takes the position that this excerpt demonstrates a misunderstanding of the principles from Antic, because it completely disregards the ladder principle, because it suggests that “an accused person who comes before the court in a reverse onus position, alleged to have breached the terms on several occasions, is not releasable.”

[17] With respect, I do not read the Justice of the Peace’s comments in that way. In Antic, the Supreme Court stated, at para. 4:

The “ladder principle”… requires a justice or a judge to impose the least onerous form of release on an accused unless the Crown shows why that should not be the case.

[18] And at para. 29:

The ladder principle generally requires that a justice not order a more onerous form of release unless the Crown shows why a less onerous form is inappropriate.

[19] There is some question as to how Antic applies in a reverse onus situation such as this, and whether the onus is on the Crown to show why a less onerous form of detention is inappropriate, or whether the accused must justify each step of the ladder downward from detention. This question does not have to be addressed in the present case, since, in my view, the decision is the same regardless of where the onus lies. In the present case, the Justice of the Peace had to choose between two options: the most onerous form of release – house arrest with a surety and a large monetary pledge – proposed by the defence, and no release proposed by the Crown. Given the accused’s failure to abide by the previous conditions imposed in Peel and Thunder Bay, no one was proposing any condition less onerous than house arrest.

[20] The Justice of the Peace gave reasons why house arrest was, in his view, not appropriate in this case. He stated:

I’ve heard from the proposed surety, his mother, and while the plan of supervision is not ideal, I’m satisfied that the surety is well intentioned. But that’s only half the equation. The other half of the equation is, what is the accused going to do to comply? And he’s demonstrated, being on release in Thunder Bay, being on a release in Peel Region, he has demonstrated, in my opinion, an inability to comply with court orders…And I’m not satisfied that, given those circumstances, that he’s met the onus on the secondary grounds, and I think he is, in fact, a substantial risk of reoffending, and it’s for that reason why I think he should be detained.

[21] In R. v. J.L., 2018 ONCA 756, the Court of Appeal summarized the law related to sufficiency of reasons as follows, at para. 39:

Appellate courts are to take a functional approach to reviewing the sufficiency of reasons, keeping in mind that reasons do not have to meet a standard of perfection: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3. An appeal based on insufficient reasons will only be allowed when the trial judge’s reasons are so deficient that they foreclose meaningful appellate review: Sheppard, at para. 25 and R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25. As Chief Justice McLachlin stated in R. v. H.S.B., 2008 SCC 52, [2008] 3 S.C.R. 32, at para. 2:

So long as the trial judge fulfills the purpose of giving reasons --- to explain the decision, to provide public accountability and to permit meaningful appellate review --- a court of appeal is not justified in interfering with the verdict on the grounds of insufficiency of reasons. The purposes of giving reasons are fulfilled where the reasons for judgment, read in context, establish a logical connection between the verdict and the basis for it --- in other words, the reasons must explain why the judge made his or her decision. A detailed description of the judge’s process in arriving at the verdict is unnecessary.

[22] Read in context, the comments by the Justice of the Peace regarding Antic do not indicate a misunderstanding of the ladder principle. He simply indicates that Antic does not lead to automatic release, and that each case must be considered on its own merits. That is what the Justice of the Peace did in this case, and I am satisfied that, read as a whole, the reasons given for his decision are clear and concise. The decision to reject house arrest is based on the accused’s failure to comply with his prior recognizance. Given the accused’s failure to comply in the past, the house arrest proposed stood no greater chance of success than the previous failed plans. There was no real likelihood that simply changing the surety from the accused’s father to the accused’s mother would have any effect on the accused’s compliance with the terms of his recognizance.

[23] Mr. Thanigasalam’s mother also testified in the proceeding before me. The evidence provided was not materially different than that heard by the Justice of the Peace, and I came away with the same conclusion: the mother is well-intentioned, but, without more, there is little prospect that she will have any more success in controlling her 28 year old son than did her husband.

[24] Accordingly, I find that the Justice of the Peace did not make any legal error in his decision.

Does a house arrest condition that includes an ankle bracelet with a GPS monitoring system change the analysis?

[25] That brings us to the third ground for the bail review. The accused now takes the position that he is prepared to wear a GPS ankle bracelet to provide an additional safeguard that was not proposed when bail was being considered by the Justice of Peace. This proposal is significant because it deals directly with the primary concern raised by the Justice of the Peace in his reasons: “What is the accused going to do to comply?”

[26] The accused has provided a signed statement from Stephen Tan, Director of Operations at Recovery Science Corporation (RSC). While not in the form of an affidavit, the Crown did not object to it being filed.

[27] Mr. Tan indicates that if the court requires that the GPS ankle bracelet to be installed prior to Mr. Thanigasalam being released from custody, the technician will install the bracelet before he is released. The accused’s proposed residence in Brampton is in an area of GPS cellular coverage and the monitoring will be functional.

[28] RSC monitors house arrest and movement restrictions ordered by the court. RSC is able to monitor terms such as house arrest, curfew, surety accompanied leaves, and leaves for specific purposes such as work. If RSC detects a violation, the police of the region where the violation has occurred is called unless more specific instructions are provided by the Officer in Charge or a protocol is specified in the Recognizance of Bail. The applicant or copayor for the applicant is responsible for all costs. There is no costs to the police, the Crown or the Court, even if RSC is required to give evidence of a violation. If at any point the applicant is unable to make a payment for the monitoring, RSC will report the non-payment to the police, and RSC will continue to provide the monitoring until the applicant is taken into custody.

[29] The Crown objects that the availability of GPS monitoring is not “new evidence”, in that GPS monitoring technology existed at the accused’s hearing before the Justice of the Peace on April 1, 2019. While that is undoubtedly correct, the accused’s consent to GPS monitoring, and his parents’ agreement to pay for GPS monitoring (which I understand costs approximately $700 per month) is new evidence. This, in my view, qualifies as “a material and relevant change in the circumstances of the case” that could have affected the balancing exercise engaged in by the Justice of the Peace. Indeed, given the Justice of the Peace’s reasons, the accused’s consent to wear a GPS ankle bracelet could have been a satisfactory answer to the important and legitimate question: “What is the accused going to do to comply?”

Conclusion

[30] Based on the foregoing, the accused’s application is allowed, and he will be released on the following terms:

[31] The accused will not be released until after the ankle bracelet has been installed.

[32] The accused shall, at his own expense (which may be paid by his surety), be subject to GPS monitoring by Recovery Science Corporation (RSC) including the following terms:

(a) Entering into RSC’s Participant Agreement and complying with its terms; (b) Wearing a GPS ankle bracelet at all times; (c) Permitting RSC to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary; (d) Complying with RSC leave notification and battery charging requirements; and (e) Cooperating fully with RSC staff. (f) By agreeing to this condition of bail, you understand and agree that RSC may permit the police to monitor you electronically, without your prior consent or knowledge.

[33] The accused must reside at all times at 72 Don Minaker Drive, Brampton, Ontario. He is under house arrest and must remain at the residence at all times unless in the direct company of his mother, Gunavathy Santhamoorthy, or his father, Santhamoorthy Thanigasalam, and has given RSC notice that same day of his permitted absence from the home.

[34] His surety will be his mother, Gunavathy Santhamoorthy, in the amount of $75,000.

[35] Do not possess any weapons as defined by the Criminal Code.

[36] Do not possess or consume any unlawful drugs or substances as defined in the Controlled Drugs and Substances Act.

[37] You are not to be the driver or in the care and control of any motor vehicle, or possess any key or starting devices for any motor vehicle.

[38] Do not have any contact or communication with Rodel Seelochan, except through counsel for the preparation of his defence.

Justice R.E. Charney

Released: June 13, 2019