Court File and Parties

COURT FILE NO.: CR-19-70000162-00BR

DATE: 20191017

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen, Crown/Respondent

AND: David Crowe, Defendant/Appellant

BEFORE: M.G.J. Quigley J.

COUNSEL: K. Hebert, Counsel for the Crown/Respondent D. Pledge, Counsel for the Defendant/Applicant

HEARD: October 10, 2019

Endorsement

[1] The applicant, David Crowe, brings this bail review application for an order pursuant to section 521 of the Criminal Code vacating the detention order made by Justice F. Bhabha of the Ontario Court of Justice on July 23, 2019.

[2] The applicant faces numerous charges of criminal harassment and other charges. His affidavit notes that he was arrested on July 9, 2019 for the offences of criminal harassment, harassing communications, fail to comply with recognizance x 2, fail to comply with probation x 4, mischief under $5,000 x 6, identity fraud, and personation. A bail hearing was conducted with evidence heard on July 9 and 10, 2019. Argument of counsel was presented on July 19, 2019, and on July 23, 2019, Justice Bhabha gave her decision denying release and requiring the continued detention of the accused.

[3] The accused was previously on a surety given by his father, Mr. Richard Crowe, but he breached that bail by failing to appear in Stratford, Ontario, on June 25, 2019, for the harassment charges that were laid in Stratford relative to the complainant Zara Jestadt. She is the same complainant in respect of whom charges have also been laid in the City of Toronto. At its core, apart from drug-related allegations addressed to the accused, and new extensive credit card fraud allegations about to be laid that arise in British Columbia, the core of this case relates to alleged criminal harassment by the accused against a former girlfriend, Zara Jestadt, who happens to be an actress both in Stratford, Ontario and in Toronto.

[4] The grounds of review put forward by counsel for the defence include allegations of factual errors alleged to been made by Justice Bhabha in her reasons, errors that defence counsel says collectively amount to an error of law on the face of the record.[^1]

[5] Second, defence counsel claims that the actual knowledge of the proposed new surety, Mrs. Crowe, the defendant's mother, relative to the execution of the warrant at the West Vancouver residence she shares with Mr. Crowe, her husband of many years, who was previously the accused’s surety, is itself a material change of circumstances justifying this court to reopen the bail proceedings. The material change is claimed to be that the state of Ms. Crowe’s knowledge of the execution of the Vancouver warrant is different from what defence counsel says Bhabha J. inferred.

[6] The statements contained in the numerous references set out in Footnote 1 are claimed by counsel for the defence to constitute errors of fact that ultimately, in her submission, give rise to an error of law on the face of the record. In fairness, there are some minor factual mistakes that conflate Ms. Crowe with Mr. Crowe as sureties, when only he was the accused's surety prior to the failure to attend in Stratford on June 25, 2019. However, in my view, that unfairly and over-technically reads Bhabha J.’s decision. Plainly, as is evident from reviewing her reasons on the initial bail hearing as a whole, Bhabha J.’s concern was with the involvement of both parents, when they knew about it, and not just Mr. Crowe who was the surety, before the accused failed to appear in Stratford. This is clear from the reasons Justice Bhabha reached as a whole, considered in their entirety.

[7] While I acknowledge that Justice Bhabha could have been more precise in her language, it is plain that she understood that Mr. Crowe was surety, not Ms. Crowe, but that she is now proposed to be the new surety. Yet Bhabha J. remained troubled and could not explain Ms. Crowe's absence of knowledge and seeming distance from the core facts, given she is the mother of the accused, particularly when she is now being put forward as a surety in lieu of her husband.

[8] This caused Justice Bhabha to note at pages 23 and 24 that:

I learned just last week that the Toronto police were contacted by the RCMP in British Columbia to advise that they were investigating Mr. Crowe [the accused] for fraud, credit card fraud, and that in the context of that investigation they executed a search warrant at the family residence and West Vancouver in May of this year, though all of that happened before the Stratford court date, and Mr. Richard Crowe was present at – when the search warrant was executed. That's the information the court has received.

Now, as I say, Mrs. Crowe did not testify about it. She wasn't specifically asked but nor did she reveal, and presumably I – husbands and wives don't share everything, but I would think when the police attend your residence and execute a search warrant and find credit card making machines and a laptop hidden but hidden sort of in plain sight – within your home, in the garage, that that might be some information a husband might share with the wife.

We don't know where Mrs. Crowe was at the time but I would think that is not an everyday occurrence and that is something a spouse might want to share with another spouse, so I am inferring and finding that Mrs. Crowe must have known that the RCMP had executed a search warrant at her home in May. It was her evidence that she returned from Arizona around that time. So, even if she wasn't present, I find it difficult to believe that she was unaware. So Mrs. Crowe was not subject to cross-examination about her knowledge of that and what was found and so forth. [Emphasis added.]

[9] Justice Bhabha went on at page 25 to explain that there were two particular reasons why she found this to be important. What is of significance, she said, is that a name associated on one of the credit cards, amongst the pile of blanks and fraudulent credit card producing equipment found at the Crowe residence in West Vancouver, were credit cards in the name of a particular person. That person was associated to one of the accounts used to communicate with the complainant in this case, Zara Jestadt, the former girlfriend of this accused, David Crowe.

[10] The court had previously heard part of the allegations that Mr. Crowe had created false accounts in different names, so that he could not personally be traced to the sending of messages to Ms. Jestadt. Consequently, in Bhabha J.’s view, the presence of that new link strengthened the Crown's case on the harassment charges.

[11] She went on to state as follows:

And it is significant to me in assessing Ms. Crowe's suitability as a surety, because she knew – I'm inferring that she knew that the RCMP executed a search warrant and had found these items within her home and yet she and her husband did not accompany Mr. Crowe to the return date the June 25 return date in Stratford.

[12] That is a statement made by Justice Bhabha relative to the suitability of Ms. Crowe as surety. Defence counsel emphasized that this was a critical fact in Bhabha J.’s determination not to grant release to Mr. Crowe, but on my review of her reasons as a whole, that is not why the Justice denied bail to Mr. David Crowe. I will return to that in a few moments.

[13] Secondly, defence counsel says that the difference in the “new evidence” of what she claims is the state of knowledge of Ms. Crowe, is “a material change in circumstances” that permits this judicial interim relief review to open up the possibility of a change in result from the determination of Bhabha J.

[14] Respectfully, in my view, the state of mind of Ms. Crowe as the proposed new surety is not a material point, and it is not a material change in circumstances. It may have caused the court to conclude that the new surety cannot be relied upon or that the surety is naïve in her claims of ability to control the accused, but that is not what material change is about. That is not material change evidence that is new in the context of the governing jurisprudence.

[15] In R. v. Bonito[^2], the court described the clarifying effect of the Supreme Court’s decision in St. Cloud:

In St-Cloud, the necessary elements of material change are addressed at paras. 122-139. There are two central points. First, the Code stipulates in ss. 520(7) and 521(8) that new evidence may be tendered on a bail review application. Thus, on a review such as this, I am permitted to consider the transcript of the earlier proceedings, the exhibits, if any, filed at that time, and “such additional evidence or exhibits as may be tendered by the accused or the prosecutor.” However, in determining what constitutes new evidence for this purpose, with such modifications as the circumstances require in the context of a bail review, the Supreme Court instructs that the evidence tendered must meet the new evidence criteria established in R. v. Palmer[^3]:

i. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial...

ii. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

iii. The evidence must be credible in the sense that it is reasonably capable of belief, and

iv. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.[^4]

Those criteria, applied in this context of a bail review rather than a trial, permit me to consider evidence that is truly new, or that existed at the time of the initial detention but that was not tendered for some reason that is legitimate and reasonable, that in this context is relevant to such a review and that is credible, that is, reasonably capable of belief. Further, and most importantly in this context, the new evidence must be significant and of a nature and quality to lead to the conclusion that it could reasonably have affected the balancing exercise required by s. 515(10) and that was engaged in by the Justice of the Peace. [Emphasis added.]

[16] In my view, that is not the case here.

[17] In these circumstances, where the applicant bears the onus of having to “show cause” justifying his release, he must first satisfy the court that the new plan proposed constitutes a material change in circumstances. Only if he succeeds in that task may he continue to argue that his detention is not justified. In relation to the secondary ground, the applicant must establish that his detention is not necessary for the protection or safety of the public, and that there is no substantial likelihood that, if released from custody, the applicant will commit a criminal offence or interfere with the administration of justice. The revised release plan devised by the applicant must persuasively address these issues, and it must be a material change from the original plan.

[18] Here, Bhabha J. acknowledges that the proposed level of release is the highest level on the ladder in R. v. Antic, but that it remains the accused’s burden to satisfy the Court that there is no substantial risk of reoffending after release, and having considered the proposed plan, concluded that the accused must be detained:

I have carefully considered the plan proposed, the surety’s testimony and the additional information provided to the Court about the new British Columbia charges, something about which as I've noted, the surety was not cross-examined or examined, the nature and timing of the new Toronto allegations, and it is my assessment that Mr. Crowe has not met his onus on the secondary grounds. To be clear, Mr. Crowe is not required to demonstrate to this court that there is zero risk of reoffending. That is actually too high an onus, the test is a "substantial likelihood". But, I have determined, for a number of reasons, that Mr. Crowe has not met his onus, especially since the allegations involve a very sophisticated technical someone with technical computer savvy and the offences do not require physical presence outside a home or in the province. Although the allegations are just that, allegations, if proven they show a determined, relentless, methodical, almost pathological obsession with communicating with and embarrassing the complainant and punishing her for daring to end a relationship with him.

[19] Justice Bhabha’s concern was only indirectly with the plan: her real concern was with the substantial risk of Mr. Crowe reoffending, and that is the problem.

[20] I see no material change in circumstances. Certainly the difference between Ms. Crowe’s alleged knowledge, and whether she has knowledge of the detail of what was seized on the execution of the warrant hardly matters because she certainly knew about it. It is simply not a case where there is a material change, or where that could legally amount to a material change. In the circumstances of this particular case as a whole, with the substantial risk I agree is still present of reoffending, and despite the best efforts of the mother and father, and perhaps other people, I share the concern that they are not in fact going to be able to control the conduct of this accused.

[21] For that reason, the application must be dismissed.

M.G.J. Quigley J.

Date: October 17, 2019

[^1]: See Reasons for Judgment of the Hon. Justice F. Bhabha, dated July 23, 2019 at: page 20 line 29 to page 21 line 11; page 22 line 8 – 28; page 23 line 10 – page 24 line 20; page 24 lines 23 to page 25 line 23; page 26 line 25-30; page 31 line 17 to page 32, line 18; page 33 lines 7 to 23.

[^2]: 2015 ONSC 4928, [2015] O.J. No. 4629, at para. 34 and 35, see also R. v. Al Safi, 2018 ONSC 326, [2018] O.J. No. 473, at paras. 47-50.

[^3]: [1980] 1 S.C.R. 759 at p. 775, as reproduced in R. v. Warsing, [1998] 3 S.C.R. 579 at para 50.

[^4]: R. v. Warsing, [1998] 3 S.C.R. 579, at para. 50.