Introduction

[1] The Crown brought this application pursuant to s. 521 of the Criminal Code, R.S.C., 1985, c. C-46 for an order vacating the Judicial Interim Release Order made by Justice of the Peace Finn on October 8, 2019 (“Release Order”) and substituting a detention order of Herbert Ward.

[2] After hearing submissions, I decided that the Crown had persuaded me there was a material change in circumstances within the meaning of R v. St. Cloud, 2015 SCC 27 at para. 121, since the decision of Justice of the Peace Finn in that evidence that existed at the time of the original hearing was not put before him, namely Mr. Ward’s criminal record, because of a legitimate and reasonable reason, and given that this fresh evidence is credible and relevant to whether or not Mr. Ward should be detained, that I should set aside the Release Order. I gave oral reasons for that decision (“Oral Reasons”). The hearing then proceeded to the second stage, a de novo bail hearing with the onus on the Crown to satisfy me that Mr. Ward should be detained.

The Allegations

[3] Mr. Ward faces charges of criminal harassment and uttering threats. The complainant is Tanya Card. It is alleged that she and Mr. Ward were in a romantic relationship for five years that ended in approximately May 2018. The complainant described Mr. Ward as “very possessive” and “very angry” and she told the police that she and Mr. Ward have had many arguments over the years that became physical fights. Following their separation in May, it is alleged that Mr. Ward showed up unexpectedly in the complainant’s presence for three months. It is alleged that he exhibited intimidating behaviour, including calling her names and accusing her of cheating on him.

[4] It is also alleged that on August 20, 2018 at approximately 12:30 a.m., Ms. Card was out walking her dog, and Mr. Ward approached Ms. Card and threatened that if she did not take him back, she was dead. It is further alleged that Mr. Ward made a cutting gesture with his hand across his throat and that he advised Ms. Card that he would hurt anyone that she was with. Finally, it is alleged that following the issuance of a warrant for Mr. Ward’s arrest, he phoned Ms. Card approximately 19 times, rambling about how he was going to get arrested because of her and that he continued to send harassing voice messages to the complainant through to December 2018.

[5] Mr. Ward was arrested on October 7, 2019 and held for show cause. He was released the next day because the police accidentally put the incorrect criminal record in Mr. Ward’s bail brief; a record that began in 2004 and ended in 2014 that in fact was a criminal record for another individual. That record was not only shorter, but much less serious than Mr. Ward’s criminal record. The Crown relied on the incorrect record and consented to Mr. Ward’s release on his own recognizance. The details of how this error was made and uncovered are set out in my Oral Reasons.

Position of Counsel

[6] Ms. Duffey, on behalf of the Crown, now submits that Mr. Ward should be detained on the secondary ground as set out in s. 515(10) of the Criminal Code, namely that because of his criminal record, there is a substantial likelihood that he will reoffend. Ms. Kelly, counsel for Mr. Ward, takes the position that Mr. Ward should be released upon his entering into a recognizance with a surety; Ms. Bibi Hassan.

The Evidence

The proposed surety

[7] Ms. Hassan was called by Ms. Kelly as a witness. She has known Mr. Ward for ten years and described her relationship with him as that of a sister or a mother. Mr. Ward began to help her with cleaning, vacuuming, shopping and other chores like painting after she had a heart attack and she pays him for this. This relationship has continued over the years and Mr. Ward regularly helps Ms. Hassan, often every other day, although she lost contact with him for a number of months after the warrant for Mr. Ward’s arrest was issued. Mr. Ward also helps other older people in the same way who live in her building. Ms. Hassan testified that after an accident Mr. Ward suffered some time ago, he does not otherwise work.

[8] It was clear from Ms. Hassan’s evidence that although she has never been in a romantic relationship with Mr. Ward, she cares for him and has his best interests at heart. Part of that connection is that she is sympathetic to the fact that Mr. Ward lost both of his parents. This connection is also clearly due to the fact that Mr. Ward suffers from depression and Ms. Hassan has a brother who also suffers from depression whom she cares for. That said, it is also clear that Ms. Hassan is serious and has rules and that if Mr. Ward were to breach any of the terms of release that I might impose, she would call the police. In fact, Ms. Hassan was the one who called the police when Mr. Ward came to her home, which resulted in his recent arrest.

[9] Ms. Hassan was a surety for Mr. Ward before from July 2017, when he was charged with assault, until that charge was withdrawn in February 2018. Ms. Hassan testified that he lived with her for a couple of months at that time, that she had no issue supervising Mr. Ward and there were no allegations of any breach of the terms of his release. Ms. Hassan explained that under the current proposed plan of release, Mr. Ward would live with her for one or two months and possibly longer if necessary, until he finds his own place, and that while he lives with her, he would have an 11:00 p.m. curfew and would not be allowed to drink or smoke in her home. Ms. Hassan testified that she has never seen Mr. Ward drinking. Ms. Hassan clearly trusts Mr. Ward as she has left the key to her apartment with him before when she has gone home to Guyana and he would come in and water her plants.

[10] Ms. Hassan would recognize Ms. Card to see her and testified that she would ensure that Mr. Ward did not contact Ms. Card. Ms. Card lives a ten-minute walk from her home. Ms. Hassan is aware of Mr. Ward’s lengthy criminal record. She has seen him angry, but it does not make her fearful.

[11] Ms. Hassan is willing to pledge $500, which is a lot of money to her – one third of her savings. She did not know what would happen to this money if Mr. Ward breached the terms of release, but when I explained that she might lose the $500, she advised me that she was still prepared to be a surety for Mr. Ward.

Mr. Ward

[12] I asked to hear from Mr. Ward to have a few questions answered about his personal circumstances. Mr. Ward agreed to this and was asked questions by me and by counsel.

[13] Mr. Ward is now 56 years-old. He confirmed that he suffers from depression. He sees a doctor in a walk-in-clinic, whom I assume is a family doctor and he is prescribed an antidepressant, which he takes every morning. He is agreeable and consented to continuing to take this medication or any other medication for depression that a doctor might prescribe and to attending a counselling program for dealing with depression. Mr. Ward testified that he had not thought of counselling before for his depression, but he thinks it could be good for him.

[14] Mr. Ward acknowledged that he has had a problem with alcohol in the past and that it had done a lot of damage to his well-being and friendships. He testified that he has not had a drink in eight months. He is staying away from people who consume a lot of alcohol. He advised that he could comply with a term of his release providing that he not consume any alcohol.

[15] Mr. Ward described Ms. Hassan as a kind-hearted lady and my sense is that he respects her and appreciates how fortunate he is that she is prepared to be his surety and allow him to live with her.

Mr. Ward’s criminal record

[16] Mr. Ward has a lengthy criminal record that includes numerous custodial sentences for crimes of violence against women, sexual assault, criminal harassment, and breaching court orders. His criminal record starts in 1981, when he was 18, and most of the early convictions are for theft. There are many entries on his criminal record that involve incidents of violence against women (both assault and sexual assault) or violence intended against an intimate partner or person related to a previous intimate partner, namely in 1986, two convictions in 1993, 1997, two convictions in 1999, 2002 (a historical allegation from 1998), 2003 (a historical allegation from 1995), 2007, 2011 and 2012. His last conviction was in January 2014 when he was convicted of uttering a threat to punch two probation officers after becoming angry during a reporting appointment.

[17] In addition, Mr. Ward has 17 previous convictions for failing to comply with court orders, mostly probation orders. In 2007, Mr. Ward was convicted of failing to comply with a court order by repeatedly communicating with the complainant in an ongoing sexual assault complaint, thereby also committing the offences of obstruct justice and criminal harassment. In 2012, Mr. Ward was bound by a probation order not to consume alcohol after a finding of guilt in relation to a domestic partner. Mr. Ward breached that condition and committed a further offence against the same complainant after consuming alcohol. Some of Mr. Ward’s other convictions may have resulted in part from the consumption of alcohol.

[18] In addition, it must be noted that Mr. Ward evaded his arrest for about a year, including running when he saw police coming when he went to see Ms. Hassan on October 7, 2019.

General Principles With Respect to Bail

[19] The leading case on bail is now the Supreme Court of Canada’s decision in R. v. Antic, 2017 SCC 27. Antic firmly reminds all justice system participants of the presumption of innocence, the influence of s. 11(e) of the Charter on that presumption, and the codification of the “ladder principle” in s. 515(3) of the Criminal Code in consideration of the various forms of judicial interim release for accused persons. The Court stated at para. 1 that “[t]he right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons”.

[20] As already stated, the Crown seeks Mr. Ward’s detention on the secondary ground. In my experience, the decision most often cited as the test is a statement by former Chief Justice Lamer in R. v. Morales (1992), 1992 CanLII 53 (SCC), 77 C.C.C. (3d) 91 (S.C.C.), where at para. 39 he observed:

…. Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose “a substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous.

[21] Ms. Duffey relied on R. v. Young, 2010 ONSC 4194, a decision of Justice Clark, for what “a substantial likelihood” means. At paras. 20-21 Clark J. stated:

[20] The word ‘substantial’ is defined in the Concise Oxford Dictionary, [Oxford, Oxford University Press, 1964], in part, as follows: ‘having substance, actually existing, not illusory’. The word ‘likelihood’ is defined in the same source, in part, as ‘being likely’. The word “likely” is defined, in part, as ‘such as might well happen’. Therefore, so long as the prosecutor demonstrates that the applicant might well commit another offence if admitted to bail, such that the risk is real or tangible, and not simply fanciful or imaginary, she has met her burden.

[21] Moreover, in my view the likelihood of a particular risk materializing cannot be looked at in the abstract. Rather, it must be weighed against the gravity of the harm that will ensue if the risk comes to pass. For example, even a very grave risk that an incorrigible petty thief will shoplift again if granted bail is one that the court might be willing to take when balanced against the accused's constitutional right to reasonable bail. On the other hand, where the anticipated harm is very grave, a more remote risk may be sufficient [to] meet the test of substantial likelihood. That is of import in this case, where the applicant, for no apparent reason, suddenly engaged in an act of extreme violence, leaving his victim grievously injured and possibly permanently disabled. [Emphasis added]

[22] This case seemed to me to use a “possibility” standard; “might well happen”, rather than a “probability” standard, which concerned me as that is not how I have interpreted Morales. Ms. Kelly took the position that this was too low a test. She advised me of one older case and asked for time to provide further case law on the point. We had run out of time in any event, and I still wanted to hear from Mr. Ward, and so it was agreed that the hearing would continue today. I advised counsel that I would request the assistance of my Law Clerk on the point and her research was provided to counsel in advance of the continuation of the bail hearing today.

[23] Based on the cases my Law Clerk found, it seems that although Young is good law, most of the cases since Young have followed the more exacting “probability” standard. In a 2014 Yukon Supreme Court case (H.M.Q. v. Murphy, 2014 YKSC 37), the judge rejected Clark J.’s interpretation and took issue with the “might well happen” standard. Justice Gower noted, at paras. 19-20 [emphasis added]:

[19] With respect to Clark J., ‘might well commit another offence’ sounds like it is closer to the possible rather than the probable end of the spectrum. In the Concise Oxford Dictionary of Current English, 8th ed., the first definition of ‘likelihood’ is “probability” and the first definition of ‘likely’ is ‘probable’. I am also of the view that the words “substantial likelihood”, in this context, focus on the potential consequences if the accused is released from custody. Therefore, the definition of ‘probable consequence’ in Black’s Law Dictionary, 9th ed., is helpful here: ‘An effect or result that is more likely than not to follow its supposed cause.’ Thus, I prefer the view that, in a Crown onus situation, the prosecutor must demonstrate on a balance of probabilities that the accused will, if released from custody, more likely than not commit a criminal offence or interfere with the administration of justice. In a reverse onus situation, the accused must demonstrate the opposite, i.e. that it is not a probable consequence, in the sense described above, that they will do so if released.

[20] This suggested interpretation would seem to be more in keeping with what the Supreme Court said about these words in R. v. Morales, [citation omitted] at para. 39.

[24] Justice Trotter, in his publication Trotter on Bail, 3rd ed, Thomson Reuters, wrote that Clark J.’s approach was “thoughtful” and added the following considerations:

The definition given to ‘substantial likelihood’ must be faithful to the spirit of the constitutional considerations discussed above. A standard that is too low will fail to satisfy the ‘just cause’ requirement that bail be denied only in a narrow set of circumstances. A standard that is too exacting will undermine the Supreme Court's handling of the predictive efficacy issue. The proper, and accepted, approach is an enhanced balance of probabilities standard. This is a suitable standard, as it reasonably protects the accused from being detained on a mere suspicion of future criminal activity. This standard applies to both the public protection and interferences with the administration of justice arms of s. 515(10)(b). [Emphasis added]

[25] The decision that in my view clears up any doubt on this issue is a decision from the Ontario Court of Appeal, R. v. Manasseri, 2017 ONCA 226, where Watt J. A. speaking for the Court stated:

[87] Second, in connection with the specified circumstances encompassed by the clause ‘including any substantial likelihood that the accused will, if released from custody, commit…’, the italicized words refer to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely. [Emphasis added]

Analysis

[26] Mr. Ward is entitled to be released on the least restrictive form of bail and conditions that address the concerns of s. 515 (10) of the Criminal Code. The main issue before me is whether, given the proposed plan of release, the Crown has satisfied me that his detention is necessary for the protection or safety of the public, including the complainant, having regard to all the circumstances including any substantial likelihood that Mr. Ward will commit further offences while released on bail or interfere with the administration of justice.

[27] In considering this issue I will apply the test as articulated by Justice Watt in Manasseri that I have already set out.

[28] With respect to the nature of the offence, this is an offence of criminal harassment by repeated communication over a prolonged period of time in the context of an intimate partner relationship that recently ended. I agree with Ms. Duffey, that the Crown’s case is of moderate strength. It does not rely solely on the evidence of Ms. Card. Her account is corroborated by the statement of her daughter, who was in a position to hear what Mr. Ward said to Ms. Card on the phone. The Crown also has recordings of six messages left for Ms. Card by Mr. Ward and alleges that these messages are clearly of a threatening nature and would reasonably cause the recipient to be afraid for their safety. Ms. Card told police that she was concerned about her safety as the she is worried about what Mr. Ward is capable of doing.

[29] Mr. Ward’s long criminal record is of concern in two respects. First of all, he has a pattern of committing acts of physical and sexual violence against women generally, and of violent behaviour toward intimate partners, particularly following a separation. There is no evidence, however, that this behaviour has persisted over the past eight years (I assume the last conviction for this type of behaviour in July 2012 occurred in 2011). Furthermore, as Ms. Kelly points out, Mr. Ward is now older; 56, an age when the rate of recidivism often declines.

[30] The second concern that arises from Mr. Ward’s record, is as Ms. Duffey argued, that as the case progresses there is a particular risk that Mr. Ward will reoffend in relation to Ms. Card and in particular, will try to interfere with the administration of justice by contacting her. He has been found guilty of attempting to obstruct justice in the past. Given that Mr. Ward knew of the arrest warrant and repeatedly contacted Ms. Card, I appreciate that concern. The other concern with Mr. Ward’s record is that he has a significant number of convictions for breaching a court order. However, I must also consider the fact that Mr. Ward has made no attempt to contact Ms. Card directly or indirectly for the past year, including the two months since Mr. Ward’s release, there is no evidence to suggest that he has made any effort to contact Ms. Card.

[31] Ms. Duffey provided a great deal of information in her factum of the harm that is caused by intimate partner violence in Canada and the challenges when considering bail. Ms. Duffey also submitted that I should consider existing research about what circumstances surrounding intimate partner violence entail greater risk which she submits can assist this Court in determining whether in these circumstances, Mr. Ward continues to pose a risk to reoffend.

[32] As Justice Trotter stated in Trotter on Bail at 3.3(B)(iii):

Another type of offending that causes an apprehension of repetition is domestic violence, particularly if there has been a history of this type of behaviour. Numerous bail judges have recognized the volatile nature of these situations, especially when alcohol is added to the mix. …

The criminal justice system has been forced to take a hard look at the way it deals with spousal assault. Awareness of the ‘cycle of violence,’ typical in many abusive relationships, along with certain catastrophic and highly publicized failures of the criminal justice system (especially the bail system) in this context, have created real concern about offending while on bail for spousal assault. Unless conditions of release can meaningfully protect the physical integrity of the victim, then the detention of the accused person pending trial may be the only alternative.

[33] Ms. Duffey also referred to the passing of Bill C-75, which is not yet in force. Once it is, in cases where an accused person has previously committed a violent offence against an intimate partner, they shall face a reverse onus and be required to show cause for why they should not be detained.

[34] All the sources of information that Ms. Duffey relies upon deal with intimate partner violence in the form of physical abuse. However, not that I wish to understate the significance of the type of harassment that is alleged in this case, this is not a case where the complainant has alleged physical abuse despite Mr. Ward’s history of this as reflected in his criminal record. Furthermore, as already stated, there is an eight-year gap in his record since the last conviction for this type of behaviour.

[35] This is certainly a troubling case because of Mr. Ward’s lengthy and serious criminal record. However, I am impressed with Ms. Hassan and her relationship with Mr. Ward. If he is required to live with her, at least for a time so that his behaviour on release can be further assessed, and if conditions are imposed upon him requiring him to abide by Ms. Hassan’s rules and that he avoids any contact with Ms. Card, I believe that any risk of reoffending will be reduced. Perhaps the best evidence of this is the fact that Ms. Hassan supervised Mr. Ward for eight months without any difficulty and for the past year there is no evidence of Mr. Ward having any contact with the complainant or engaging in any criminal behaviour. Although he has demonstrated a pattern of breaching probation orders, I am satisfied that he respects Ms. Hassan and cares for her such that he will abide by her terms. I have no doubt that if he fails to do so she will call the police.

[36] It was proposed that once Mr. Ward found a place to live that he be able to move out of her residence but as I advised counsel, I was not comfortable with that. In my view, if Mr. Ward complies with his terms of release and finds a place to live, he should come back before me for a bail variation so that I can consider the request and the position of the Crown.

[37] For these reasons, in all of the circumstance I find that the Crown has not met its burden of satisfying me that there is a substantial likelihood that Mr. Ward will re-offend such that he should be detained on the secondary ground.

Disposition

[38] For these reasons, I order that Herbert Ward continue to be released but that his release is conditional upon his entering into a recognizance with Bibi Shamdma Hassan as a surety in the amount of $500 without deposit of money or other valuable security, pending his trial and on the following conditions:

a) keep the peace and be of good behaviour;

b) reside at 1420 Victoria Park, Apartment #906, Toronto, Ontario, M4A 2P7, with your surety, Bibi Shamdma Hassan and follow the rules she sets for your behaviour in her home;

c) obey a curfew and be in Ms. Hassan’s residence between the hours of 11:00 p.m. to 8:00 a.m., seven days a week, except for a medical emergency involving you or Ms. Hassan;

d) continue to take your current medication or any new prescriptions for medication as prescribed by your physician for depression;

e) seek out and fully participate in any counselling or treatment for depression as recommended by your physician or as required by your surety, Ms. Hassan, and to sign any necessary authorizations so that your compliance with this condition can be monitored;

f) do not consume and/or possess any of the substances listed in the schedules to the Controlled Drugs and Substances Act, S.C. 1996, c. 19, or any other non-medically prescribed drugs;

g) do not consume and/or be in possession of alcohol;

h) do not contact or communicate, in any way either directly or indirectly, including by any physical, electronic or other means, with Tanya Card or her daughter Rebecca Hack;

i) do not be within 100 metres of any place where you know Tanya Card or Rebecca Hack to live, work, go to school, frequent or any place you know them to be except for required court appearances;

j) do not possess any weapons as defined by the Criminal Code;

k) do not apply for an authorization, license or registration certificate for any weapon as defined by the Criminal Code;

l) attend court on December 13, 2019 at 2:00 p.m. at Court Room #505, College Park and thereafter as and when required;

m) have a copy of your conditions of release on your person at all times while outside of Ms. Hassan’s residence and produce them to any police officer if requested.

Spies J.

Date of Oral Reasons: December 6, 2019

Written Reasons Released: December 11, 2019

COURT FILE NO.: CR/19/10000233/00BR

DATE: 20191211

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

and -

Herbert Ward

DECISION ON CROWN BAIL REVIEW APPLICATION

Spies J.

Released: December 11, 2019

R. v. Ward, 2019 ONSC 7176

Case Summary

Introduction

The Allegations

Position of Counsel

The Evidence

The proposed surety

Mr. Ward

Mr. Ward’s criminal record

General Principles With Respect to Bail

Analysis

Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 4