COURT FILE NO.: CR-1053-19
DATE: 2019-11-29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
D.L.
Accused
Bailey Rudnick and Kaely Whillans, for the Crown
Michael Haraschuk, for the Accused
HEARD: November 21 and 22, 2019
Information contained herein is prohibited from publication pursuant to ss. 517(1) and 486(5) of the Criminal Code
DECISION ON BAIL REVIEW
R.D. GORDON, J.
Overview
[1] The accused is charged with several counts of domestic violence stemming from incidents which are said to have occurred on March 23 and 26, 2018.
[2] He was arrested on March 26, 2018. His bail hearing was held on September 27 of that same year. Given that he was on a recognizance from March 23 when the March 26 offences are alleged to have been committed, the bail hearing proceeded on a reverse onus basis.
[3] The Justice of the Peace found that the accused had not met his onus on the secondary and tertiary grounds and denied bail.
[4] This decision deals with a bail review application brought by the accused and heard on November 20 and 21.
Background Facts
[5] On March 23, 2018 the accused and the complainant, his domestic partner, became involved in an argument. It is alleged that the accused committed an assault on her by pushing her, striking her in the upper torso, pushing her, and punching her in the face, resulting in a black eye. The accused was arrested that day and appeared in bail court. He agreed to be released on a recognizance of bail without sureties which included conditions that he have no contact with the complainant and remain 100 m away from her.
[6] Over the next few days there was consensual contact between the accused and the complainant that culminated with the accused being invited to her home on March 26. On that date it is alleged that the accused cut his own neck and was bleeding badly. The complainant called 911 to request medical assistance. While she was on the phone, he attacked her with a knife and stabbed her several times. When bystanders who heard her screaming for help arrived and began banging on the door the accused answered the door and said, “Do you want to come to my house now?” or “Do you want to come upstairs now?”. He was covered in blood and wielding a knife. The bystanders fled and the accused is said to have chased after them. He eventually gave up the chase and returned to the apartment. The complainant had made her way to the front door. There was a further struggle between them, and it is alleged that the complainant was stabbed again. The accused returned to the apartment. The complainant was located by police lying in a snowbank. She had been stabbed several times including in the back (which entered the heart), the neck, the chest and the arms. She was taken to hospital where she underwent surgery to repair the damage to her heart.
[7] The accused was found inside the complainant’s apartment with a knife stuck in his chest. He too was taken to hospital for medical treatment. He was arrested the next day.
[8] A bail hearing was conducted on September 27, 2018. It was a reverse onus situation. The accused presented a plan whereby he be released with two sureties: one, his father Gerardo Sossa and the other, Holly Jenkins, a person with whom he has a young daughter.
[9] The Justice of the Peace was not satisfied the accused had met his onus on the secondary and tertiary grounds and denied bail.
[10] Since that time, the accused has completed a five-day preliminary hearing and was committed for trial by judge and jury on April 29, 2019. His Superior Court pre-trial was conducted on May 27, 2019. In assignment court on June 18, 2019, his three-week trial was scheduled to begin on August 24, 2020.
[11] At the end of June 2019 counsel for the accused became aware of the possibility of trial time having become available in November and December of 2019 and inquired of the court whether this trial might be moved forward to those dates. Unfortunately, there were already further matters scheduled and no additional time was available.
[12] The accused now proposes that he be released on a recognizance of bail with a single surety in the amount of $7,000 and subject to the following terms: (1) that he reside at an address approved by his surety; (2) that he notify the Greater Sudbury Police Service of any change of address; (3) that he remain in his residence between the hours of 10:00 p.m. and 6:00 a.m. with various exceptions including employment; (4) that he remain in Ontario; (5) that he not communicate with the complainant or witnesses in this case; (6) that he not possess any weapons; and (7) that he not possess or consume any unlawful drugs unless with a valid prescription.
[13] The accused has no criminal record. He has an offer of employment from Belanger Construction where he has worked on a seasonal basis for several years. He cannot be certain that he would have work throughout the winter months but says he would look for other employment and would take educational upgrading if laid off.
[14] The proposed surety is his father. The plan is for the accused to live with a friend for a short period of time while he looks for an apartment. He would then move into an apartment on his own. His father would monitor his activities by daily telephone contact and regular personal visits.
In-Hearing Rulings
[15] Two evidentiary rulings were made during the course of the hearing for which I indicated additional written reasons would issue.
[16] The first concerned a defence objection to the Crown’s questioning of the surety about whether he and the accused had spoken of the events which lead to the charges. Although I allowed the Crown to ask if the events had been discussed, I did not allow the Crown to ask what specifically the accused said to the surety about those events. I did allow the Crown to question the surety about what, if anything, the accused said about the complainant and his ongoing attitude towards her.
[17] There are conflicting Superior Court decisions on the extent to which a surety can, at a bail or bail review hearing, be cross-examined on what he has been told by the accused about the offences before the court.
[18] In R. v. K.K., [2019] O.J. No. 1231, Harris J. determined that the Crown should not be permitted to question a surety about admissions made to him/her by the accused. He expressed the following concerns: (1) A bail hearing is for the purpose of determining whether and on what conditions the accused ought to be released from custody, and not for the ulterior purpose of augmenting the crown’s case or as a means to discovery of the defence position. (2) There is limited probative value to such questioning given the purpose of the bail hearing. (3) There is significant prejudice, including the forced incursion into the defence case, the sowing of dissension in the relationship between accused and surety and wasting judicial resources. This case is cited as authority for the notion that the Crown should never be allowed to ask these questions.
[19] A different view was taken by O’Marra J. in R. v. P.N. 2019 ONSC 2858. He found that such questions do not imperil the fair trial interest of the accused, that a presiding judge has an overriding discretion to limit such questions to prevent abusive or protracted proceedings, and the questions may be relevant to the strength of the Crown’s case and in some cases, to protection of the public. This case is cited as authority for the notion that the Crown should always be allowed to ask these questions.
[20] A third view was taken by Laliberte J. in R. v. Russell-Connolly [2019] O.J. No. 2533. He held that the proper limit of the Crown’s cross-examination of a proposed surety at a bail hearing should rest with the presiding judicial officer, to be determined based on the rules of evidence set out in s. 518 of the Criminal Code and relevancy to the ultimate purpose of such hearings with no predefined rules of automatic inclusion or exclusion.
[21] In my view, except perhaps in the rare circumstance in which the Crown has pre-existing knowledge of admissions concerning the offences made by the accused to the proposed surety, it is improper to allow the Crown to ask such questions in hope of shoring up the strength of its case or discovering potential defences. To find otherwise would be to leave the accused with an untenable choice: Withhold from a surety information about the offence that may be determinative of that surety’s willingness to act; or provide information to the surety about the offence in order secure the surety’s willingness to act, but with the knowledge that whatever is said will end up in the Crown’s hands.
[22] This is not to say that a surety cannot be questioned about other discussions had with the accused. As noted by O’Marra J. In R. v. P.N. the court will be very interested in any evidence held by the surety that indicates the accused will be a risk to the safety of a witness or the public. Such evidence is relevant and such questions entirely proper.
[23] The second evidentiary issue arises from the objection by the defence to the Crown’s questioning of the surety and the accused on subjects that fall outside of what was in their affidavits. In my view it is not the contents of an affidavit which dictate the parameters of cross-examination; rather, any question which is relevant to the substantive issues or the credibility of the witness is to be allowed, provided its probative value is not outweighed by its prejudicial effect.
Analysis
[24] A bail review hearing is not simply a new hearing on the issue of bail. Before exercising my power of review, I must be satisfied that one of the following three situations exist: (1) There is admissible new evidence that establishes a material and relevant change in the circumstances of the case; (2) The decision on bail contains an error of law; or (3) The decision on bail is clearly inappropriate. In this instance the accused argued that there have been the following material changes in circumstance:
The trial of this matter will be delayed until August 24, 2020;
The accused has been diagnosed with truncal obesity;
The accused has been successfully treated for mental health issues while in jail and has attended various programming to deal with anger management; and
The strength of the Crown’s case has diminished because of the prospect of a successful stay application for breach of his s. 11(b) right to trial within a reasonable time.
The Issue of Delay
[25] At the bail hearing, counsel for the accused asked the Justice of the Peace to consider that the trial of this matter would not take place for some time. He indicated that the preliminary hearing was scheduled for five days between January and April of 2019 and: “After that, in Superior Court, after the preliminary inquiry, I can anticipate, and we’ll be looking at dates, I would think in the range of 8 to 12 months for a trial of this magnitude.”. Accordingly, on the submissions of defence counsel the Justice of the Peace was aware that a trial would not be held until 2020 and perhaps as late as April of 2020.
[26] Due to issues with judicial complement in Sudbury, the trial will not take place until late August 2020, some 4 months later than would have been anticipated by the Justice of the Peace based upon counsel’s representations.
[27] In my view, this does not amount to a material change in circumstances. The Justice of the Peace was surely aware of the seriousness of the charges, was aware that a preliminary hearing was scheduled to take place over five days and was aware of the obligation of the Superior Court to have the accused tried within 30 months of his arrest date. As a result, and notwithstanding the representations of counsel, she was undoubtedly aware that the detention of the accused could continue until the end of September 2020.
[28] This is not a case in which the length of pre-trial delay will exceed the sentence the accused will received if convicted. The caselaw is quite clear that a range of 8.5 years to life is appropriate for domestic attempt murder. Although I acknowledge that the court has a residual discretion to sentence outside of prescribed ranges, it seems unlikely that the accused would receive a sentence of less than 45 months, which is the amount of pre-trial custody he will have served, once enhanced at the rate of 1.5 to 1.
[29] In these circumstances, the time to trial does not constitute a material change in circumstances.
Diagnosis of Truncal Obesity
[30] Truncal Obesity simply means that the accused has gained weight which he is carrying predominantly in his mid-section. Weight gain does not constitute a material change in circumstances, particularly when the gain is the result of food consumption and exercise habits over which the accused has some control.
[31] There was little evidence led at the bail hearing concerning the mental health of the accused. There was testimony that two or three years prior, something had happened at work and he was taken to a hospital for some sort of mental health evaluation and released a few days later. There was no evidence of any mental health diagnosis, treatment or ongoing issues.
[32] The evidence before me was that the accused had been seeing Dr. Joseph, a psychiatrist at the jail, on a regular basis. Indeed, records from December 2018 and February 2019 completed by Dr. Joseph indicate that the accused was doing well. Although it appears that a DSM 5 diagnosis may have been made, any such diagnoses were redacted from the materials put into evidence.
[33] Accordingly, when the bail hearing was held there was no indication of any current mental health issue. Today there is no evidence of any mental health issue. There has been no material change in circumstances.
[34] Also in the evidence was a certificate of completion for “Men’s Education Session: Changing Habits”. It should be noted that the certificate indicates that the course was for a single hour. There was no other evidence confirming the successful completion of anger management courses.
[35] The accused gave evidence that he attended AA and NA meetings while in jail, but he testified that he has no alcohol or drug addiction issues.
[36] I am not satisfied that the programming or counselling he has accessed while in jail amounts to a material change in his circumstances.
The Prospect of a s. 11(b) Stay
[37] The accused argued that even though he will be tried within the 30-month ceiling prescribed by R. v. Jordan, he has a very good chance of having his charges stayed on the basis of delay. In support of that position, he points out that he has been responsible for no delay in having his matters proceed and that his counsel sent an email to the trial coordinator on June 28, 2018, asking that the court consider an earlier date for trial.
[38] A successful s. 11(b) application for cases to be tried within the 30-month ceiling requires the accused to establish that the delay has been unreasonable. To do so, he must satisfy the court that he took meaningful steps that demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer to be tried than it reasonably should have.
[39] On the evidence before me at this time, neither of these factors is made out and the prospect of a stay based on delay is remote. I am not satisfied that this is a material change in circumstances.
[40] It follows that I am not satisfied that there has been a material change in circumstances that are sufficient to warrant review of the detention order.
[41] Even if I am mistaken in this regard, it is my view that the continued detention of the accused is appropriate on the tertiary grounds. In this regard I note as follows: (a) the prosecution case is very strong; (b) the offence of attempted murder is a grave offence that can attract imprisonment for life; (c) the circumstances of the offence involve egregious acts of domestic violence on an indigenous complainant while the offender was on a recognizance for domestic violence that required him to have to no contact with her; (d) the accused is liable, on conviction, for a potentially lengthy term of imprisonment (the court of appeal having established a range of 8.5 years to life for domestic attempted murder); and (e) the plan of release proposed by the accused provides for his living alone, with necessarily limited direct supervision by his surety.
[42] In all of the circumstances, the continued detention of the accused is necessary to maintain confidence in the administration of justice.
Conclusion
The bail review application is dismissed.
The Honourable Mr. Justice Robbie D. Gordon
Released: November 29, 2019
COURT FILE NO.: CR-1053-19
DATE: 2019-11-29
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
D.L.
Information contained herein is prohibited from publication pursuant to ss. 517(1) and 486(5) of the Criminal Code
DECISION ON BAIL REVIEW
Gordon R.D., J.
Released: November 29, 2019