Court File and Parties
Court File No.: CR-19-1050-00MO Date: 2019-07-12
Superior Court of Justice - Ontario
Re: Her Majesty the Queen v. Jennifer Brownley
Before: Stribopoulos J.
Counsel: Mr. P. Léger, for the Crown / Respondent Mr. M. Lacy and Mr. L. Strezos, for Ms. Brownley / Applicant
Endorsement
[1] On very short notice, counsel on behalf of Ms. Brownley, the Applicant, brought a motion for habeas corpus before me this afternoon.
[2] Amongst other claims, the Applicant alleges that the adjournment of her case this morning, in Owen Sound, to this coming Monday, July 15, 2019, for the purposes of bail hearing, was unlawful, and, violated her s. 11(e) Charter right “not to be denied reasonable bail without just cause.” Given this, the Applicant asserts that the court should intervene, by relying on its inherent jurisdiction to grant relief for a Charter violation.
[3] The Crown opposes the application. It contends that there was nothing improper in the adjournment of the Applicant’s bail hearing to this Monday. Unfortunately, yesterday, when she was in bail court, Duty Counsel requested that the Applicant’s case be remanded to today, in video remand court.
[4] The Crown notes that video remand court is ill-suited to deal with bail hearings, given that the use of that system is constrained by the reality that it does not simply service a single jail, but must coordinate with other jails that have prisoners whose matters also need to be addressed using the video remand system. To conduct a bail hearing in video remand court, with the attendant delay this will occasion, will mean that a detention centre, that has a video suite subject to its own constraints, will not be linked into the system as scheduled. With every courthouse needing to connect to the jails it services, and each jail needing to connect to the courthouses they service, the potential cascading effects are somewhat obvious.
[5] The recording from the proceedings in bail court this morning was played on this application and marked as an exhibit.
[6] The recording makes clear, in my view, that however the Applicant came to be in video remand court this morning, she wanted to proceed with her bail hearing today. The discussion on the record about that possibility was extensive.
[7] The message was clear, a consent release could be handled in video remand court, but not a contested bail hearing. It was because of this that the Applicant was remanded to Monday to appear in bail court over her objections.
[8] On its face, section 515(1) of the Criminal Code creates the impression that an accused deserving of bail will be released within 24 hours of arrest. It is common, however, for the bail hearing to be adjourned. The controlling section contemplates an adjournment at either party’s request, the only limitation being that the accused must consent to any adjournment longer than three clear days: see s. 516(1) of the Criminal Code; Interpretation Act, R.S.C. 1985, c. I-21, s. 27(1) (“clear days” excludes the days between two events, so an accused’s bail hearing may be involuntarily remanded from a Monday to a Friday). See also R. v. Zarinchang, 2010 ONCA 286, [2010] O.J. No. 1548, para. 39 (C.A.).
[9] Of course, if courts too readily acquiesce to adjournment requests by prosecutors then the right to a timely bail hearing will be illusory. In that regard, I note that Justice Trotter, in his seminal text on bail, writes that the prosecutor “must offer some legitimate reason” for an adjournment, which should not be granted “merely because it is requested”: Gary T. Trotter, The Law of Bail in Canada, 3d ed. (Toronto: Thomson Carswell, 2010) at p. 5-21. See also R. v. Donnelly, 2013 ONSC 7798, at paras. 34-49.
[10] On this record, I am satisfied that there was insufficient regard paid to accommodating the Applicant’s request to proceed with a bail hearing today. Importantly, there was no suggestion that the video remand list was too heavy to accommodate the Applicant’s request and that if the court acquiesced there would have been mischief caused to the orderly use of that system. Rather, the distinct impression created from the record of the proceedings in bail court this morning, is that proceeding with a bail hearing in video remand court was simply not an option.
[11] I would come to a very different conclusion, had this been a complicated matter that would involve a lengthy bail hearing. It is far from that.
[12] The Applicant was convicted of assaulting the complainant, Mr. White, on September 27, 2018. For that offence, she received a suspended sentence and was placed on probation for twelve months, with one of the conditions requiring that she not contact or communicate directly or indirectly in any way with Mr. White.
[13] On April 9, 2019, the Applicant was charged with breaching the no contact or communication condition of her probation order. It is alleged that on March 30, at 11:00 a.m., she called Mr. White over 54 times on his cell phone. She was reportedly unhappy because he had left the couple’s twin 2-year-old daughters with a babysitter while he was out of town. She was released on undertaking by police that included a similar no contact or communication condition in relation to Mr. White.
[14] On April 30, 2019, the Applicant was arrested again, after Mr. White reported that she was at his residence, knocking on the door, and refusing to leave. Police attended and reportedly found her outside the residence, with her pants down, heavily intoxicated, and urinating on the porch. She was held for a bail hearing but ultimately released.
[15] The most recent allegation, that led to her arrest earlier this week, is again from Mr. White. He reported to police that on June 24, 2019, at 9:30 a.m., he was walking on the street with the couple’s children. They encountered the Applicant, who allegedly followed them, and when she got close by she reached out to her children as if to hug them. (I note that the Applicant has produced a statement, from her current boyfriend, who suggests that it is Mr. White who is engaging in harassing behaviour towards the Applicant.)
[16] It is noteworthy that these allegations, with the exception of the charge relating to the events of April 30, 2019, all rely on Mr. White’s evidence. In a police synopsis from an investigation by the Owen Sound Police on September 16, 2018, a police officer writes: “WHITE has proved that he is an unreliable witness and could potentially become hostile and uncooperative.”
[17] Of course, given her outstanding charges, and the nature of the most recent charge, an allegation of breaching a recognizance, the Applicant bears the burden of justifying her release.
[18] In the circumstances, I am satisfied that had she been afforded the opportunity to so, the Applicant would have been able to demonstrate that her continued detention in custody is not justified.
[19] There is no basis to suggest that the Applicant will not attend court. Nor, on this record, would I be prepared to conclude, under s. 515(10)(b) of the Criminal Code, that her continued “detention is necessary for the protection or safety of the public, including any victim of or witness to the offence”. In coming to that conclusion, I note that the John Howard Society has agreed to supervise the Applicant if she is released; they were not involved with any of her previous releases.
[20] The reality is, for all of these offences, even if found guilty, I suspect that the Applicant would be unlikely to even receive a custodial sentence.
[21] As a result, I am satisfied that she should be released at this time.
[22] In that regard, I am exercising my inherent supervisory jurisdiction under the Charter to intervene. To do otherwise, I conclude, in all of the circumstances of this case, would occasion a breach of the Applicant’s s. 9 and 11(e) Charter rights: see R. v. Rahey, [1987] 1 S.C.R. 588 at 603-604. In my view, this justifies this court’s intervention at this time. To refrain from intervening, will mean that the Applicant will needlessly spend the weekend in custody. As Justice Iacobucci observed, “[a]t the heart of a free and democratic society is the liberty of its subjects”: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 47, per Iacobucci J., dissenting. In short, liberty lost cannot be restored.
[23] For all of these reasons, I am ordering the Applicant released on her own recognizance, in the amount of $500, with no deposit, subject to the following conditions:
- That she not have any contact, directly or indirectly, by any means, with David White, except pursuant to the terms of a family court order or indirectly through legal counsel;
- That she report to the John Howard Society Bail Program at 207 Cayley St. Walkerton, ON, on Wednesday, July 17, 2019 at 10:00 a.m. and thereafter as directed. Further, that she be under the direction and supervision of that program and be amenable to its rules and regulations.
[24] Finally, given that she was remanded to this coming Monday, July 15, 2019, at 10:00 a.m., that she appear in court on that date and at that time to be dealt with.
[25] On consent of the parties, all existing bail orders relating to the Applicant are hereby vacated, and this order shall serve in their place.