Court File and Parties

COURT FILE NO.: BR(P)49/20 DATE: 2020 03 09

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN J. Sone, for the Crown

- and -

MANI MICHEL C. Goldsmith, for the Accused

Heard: February 7, 2020

Reasons for Judgment

[1] The Applicant Crown applied under Section 521 of the Criminal Code to review the defendant’s release on bail pending his trial. The application to reverse his release and detain him or to add surety supervision was denied at the oral hearing. These reasons discuss that issue but are primarily to comment on a procedural issue raised by the Crown’s application.

The Respondent Should not be Detained Pending Trial

[2] The Respondent is charged with assaulting his mother and two people who were trying to defend her. Mother and son got into a heated argument at the mother’s residence. The respondent son got very agitated and broke some picture frames. He then assaulted his mother and choked her. He repeatedly punched and kicked her.

[3] The victim fled the residence and went to a nearby gas station. She returned with an employee from the gas station. When the employee called 911 on her cell phone, the respondent knocked the phone away.

[4] The respondent again followed his mother to the gas station and assaulted her again, as well as assaulting a by-stander who attempted to intervene. He was arrested at the scene.

[5] The respondent’s mother suffered bruises but was not seriously injured. The respondent has a spate of youth offences from 2016 which include assaults, fail to comply with bail, fail to attend court, theft and dangerous driving.

[6] He was originally released on a surety bail but the surety rendered him the next day for reasons which had nothing to do with the respondent. The surety’s circumstances changed and he could no longer perform his duties. The defendant was in custody from November 20, 2019 until December 11, 2019 before a bail hearing came on before Justice of the Peace M. Duggal. After the hearing, Justice Duggal released the respondent on his own recognizance. He has now been at liberty for two months without incident. Apparently he now lives in an apartment in Toronto and is on social assistance.

[7] Whatever the merits of release at the time of the hearing before Justice of the Peace Duggal, it would be particularly unwise to reincarcerate him now. If consideration is given to the spirit of the Bail Reform Act and the Supreme Court cases on bail in the last several years (R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328; R. v. Oland 2017 SCC 17, [2017] 1 S.C.R. 250; R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509; R. v. Myers, 2019 SCC 18, 2019, 375 C.C.C. (3d) 293) to accede to the pre-trial detention of the respondent would be wrong. The offences, while not minor by any means, are not of the utmost seriousness, his record is four years old and it was acquired when he was in the throes of adolescence.

[8] Given the allegations and his record, I would have preferred that the respondent be supervised on bail rather than be out on his own bail release. But the bail program here in the courthouse would not take him on as client. The recency and content of his criminal record precluded his acceptance into the program.

[9] However, between incarcerating the respondent and taking a risk on him unsupervised out in the community, the latter was clearly the only viable option. Amongst other considerations, it is quite likely that the respondent has already banked sufficient time approaching what he would receive as a sentence. The decision in Myers at paras. 51-53 discusses the proportionality between an accused’s liberty interest and the protection of the public. The respondent’s liberty interest in this instance was disproportionate and outweighed the protection of the public.

[10] Furthermore, our law recognizes the deleterious effects of re-incarceration. This is often referred to when an appellate court concludes on a Crown appeal against sentence that the trial sentence was unfit and should have been higher. There can be unjustified hardship in forcing an individual back to jail after being released, particularly when they have been doing well in the community: see e.g. R. v. Dufour 2015 ONCA 426, 21 C.R. (7th) 184; R. v. Davatgar-Jafarpour, 2019 ONCA 353, [2019] O.J. No. 2264 at para. 50.

[11] In the context of bail, re-incarcerating a relatively young man in the present circumstances would send the wrong message to him and to the community. It should only be done if necessary. It is not in this case.

[12] Justice Di Luca’s judgment in R. v. Tunney, 2018 ONSC 961, 406 C.R.R. (2d) 143 reminds us that the proper question to be asked on bail is bifurcated: 1. Ought the accused be released? if so, 2. What ought to be the type of release? In this instance, the answer to the first question is in the affirmative. The answer to the second question is that a surety or supervised release was simply not available. Release of the respondent should be affected despite the lack of supervision.

The Bail Hearing

[13] The Crown’s primary thrust in this review was with respect to the conduct of the original bail hearing. The submission is that the hearing was unfair to the Crown.

The Tension Between the Importance of Bail and the Need for Efficient Bail Hearings

[14] Bail has enormous significance for both the accused, who has his or her liberty hanging in the balance, and for the Crown, who is under an onerous duty to protect the public and ensure that the accused attends court if released. There are less obvious implications which are of significant moment. When an accused does not get bail, the incentive to plead guilty is greatly increased. Also, the defendant’s ability to prepare for trial is hampered: R. v. Myers 2019 SCC 18, 375 C.C.C. (3d) 293 at paras. 22, 51.

[15] From the Crown perspective, the highest purpose of pre-trial detention is to protect the public. This is not open to dispute. Second, despite its fundamental importance to both Crown and defence, due to sheer volume, the nature of the process and other circumstances, the majority of bail hearings are extemporized to some extent. They are conducted on the fly. The Crown and defence have little opportunity to prepare. It can be difficult for the participants to give bail the calm deliberation that it deserves.

[16] A good part of the reason why bail hearings can be disjointed and frenetic is that if bail hearings become drawn out and sluggish, there will almost certainly be additional deprivation to an accused’s liberty. A bail hearing is not a trial. It is important that the bail hearing process not stagnate.

[17] Expedition in the bail process protects the liberty of accused persons. If bail hearings get bogged down, the result could be substantial detriment to an accused’s liberty. The Supreme Court has recognized “the backlog plaguing the bail courts” in Ontario: Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721 at para. 55; also see R. v. Jevons, 2008 ONCJ 559. Justice Trotter has written in his book that time is a “monumental concern when it comes to bail”: “The Law of Bail in Canada” (3rd ed, 2017) at Section 5.3(a).

[18] In the pressure-cooker environment that is Central West, this is only intensified. The spectre of delay is a black cloud hanging over the bail process. The Supreme Court said thirty years ago that Central West was, in terms of delay, the “worst district … north of the Rio Grande.” R. v. Askov, [1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106 at para. 125. This affects every aspect of the criminal process, including bail.

[19] Although Askov is now 30 years old, there are still major delay problems. [1] It is the obligation of all counsel to take a hard look at the causes for delay, big and small, and ensure that steps are taken to alter the culture of complacency which exists towards delay: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 at para. 4. This includes delay in the bail hearing system.

The Bail Hearing in This Case

[20] The tension between the importance of bail and the need for efficiency and expedition is apparent in the bail hearing in this case. The hearing began with Crown counsel, as is the practice at least in the GTA, requesting of defence counsel whether she was content that the allegations be read in. Defence counsel was agreeable. After the synopsis was read in, the Crown indicated that she wanted to read in an excerpt from the victim’s KGB statement. The Justice of the Peace questioned why it was necessary to read anything beyond the synopsis which had already been read. When asked, defence counsel objected to it being read as she had not seen it yet. She claimed that she was being ambushed. The Crown suggested that defence counsel be given time to review the statement.

[21] When asked by the Justice of the Peace what the KGB statement would add, the Crown said that it would describe the children’s involvement in the situation which was not in the synopsis. The Crown said that she herself had not had time to prepare for the bail hearing and did not know there would be a request—presumably from the assisting officer—to read in the KGB statement. Defence counsel said that if it was to be read in, she should have the opportunity to cross-examine. She pointed out that the bail hearing was not a trial.

[22] The Justice of the Peace agreed and said,

THE COURT: … Bail hearings are not trials. It’s not the forum for the Crown to read every iota of evidentiary- every iota of evidence that’s in the Crown brief. If you’re saying there are concerns for the children, then just set it out and we can go from there. I’ve already heard the synopsis, it’s been detailed. That’s enough. I don’t need to hear from the statement. I – whatever inferences you wish me to draw, you can send them to my attention, okay. Ms. Zager?

MS. ZAGER [the Crown]: So ….

THE COURT: Okay, what else?

MS. ZAGER: To be clear, Your Worship, I’m not ….

THE COURT: Ms. Zager, I made a …

MS. ZAGER: …permitted….

THE COURT: …ruling. I, I made a ruling and I think the way it works, I make a ruling, you accept the ruling, you move on, okay? So what else do you wish to address?

[23] The Crown then stated that she was going to read in a statement from the respondent. Defence counsel again objected. When the Justice of the Peace asked whether it was exculpatory or inculpatory, the Crown said it was inculpatory. The Justice of the Peace then said:

THE COURT: That’s fine, you can indicate there’s an inculpatory statement. Okay? Let’s continue. Anything else, Ms. Zager?

MS. ZAGER: …No, Your Worship...

[24] In the context of the prior exchange in which the Justice of the Peace prevented the Crown from reading in the KGB statement, this was a clear indication that the Crown would not be allowed to read in the accused’s statement.

[25] The Justice of the Peace turned to defence counsel and asked for a summary of her client’s situation. Counsel went on in some detail about her client. When counsel stated that she proposed to call her client to testify, the Justice of the Peace said that the whole point of the Tunney decision was to “do abbreviated hearings” and said it would not be necessary.

[26] The Justice of the Peace then asked to be advised of the plan for the respondent’s release. Defence counsel made submissions for release. The respondent had attempted to make a life for himself in Montreal but it had not worked out. He was prepared to live with friends in Toronto or to stay in a shelter. Counsel said that the original surety was proposed again but was not present in court but there were obviously some problems with him. In the end, she said that the respondent should be released on his own recognizance.

[27] The Crown was then called on to make submissions. She asked for a detention order on the secondary ground, pointing to the seriousness of the current offence and the criminal record. Defence counsel replied briefly. Justice of the Peace M. Duggal released the respondent on his own recognizance.

The Problems with This Bail Hearing

[28] In this instance, defence counsel was well within her rights to object to the Crown reading in material that she had not seen. This was entirely reasonable. As the Crown suggested, the bail hearing could have been held down for a brief period to enable defence counsel to review the KGB statement and the accused’s statement. The difficulty with defence counsel’s alternative position that she be entitled to cross-examine, was that it would have potentially led to an adjournment and delayed her client’s release.

[29] It would have been better if the Crown had advised defence counsel before the hearing began that she wanted to read in the KGB statement and the accused’s statement and given defence counsel an opportunity to review them. The tough spot defence counsel found herself in could have been avoided.

[30] The Crown upon this review was primarily concerned with the Justice of the Peace’s refusal to hear excerpts from the KGB statement and accused’s statement. Before examining this, it must first be put in context. The Justice of the Peace was attempting to run an efficient hearing and to limit undue delay. That can be seen in his request to hear about the accused from counsel and then indicating that there was no need for him to take the witness stand. This was an appropriate step to take for the purpose of moving the hearing along.

[31] We do not know what the rest of the day was like, whether a real push was necessary to complete the hearings that day. However, whatever the state of the list, great caution should be exercised before the Crown is restricted in the material they choose to put forward in order to support their argument for a detention order. Only instances of clear prolixity and the blatant wasting of time ought to lead to curtailing the Crown in this respect.

[32] In the first instance, with respect to the excerpt from the KGB statement, the Justice of the Peace may have been wise to ask for a summary of the statement first. However, the Crown was not given a proper opportunity to respond. As she was speaking, she was cut off and told that a ruling had been made and that she was obligated to adhere to it. But there was no indication that the Crown was failing to respect the ruling. In any case, it was an error not to hear the excerpt from the KGB statement.

[33] When the Crown next asked to read in a statement from the accused respondent, as with the KGB statement, the Justice of the Peace after learning that the statement was inculpatory, refused to hear it. With respect, this too was in error. The Crown wanted to go further than just state that it was inculpatory and read in some of the content. She ought to have been allowed to do so. This went directly to the strength of the Crown case, a key element on the secondary ground. There may have been some parts of the statement, like evidence of a continuing animosity, which would have been germane to the issue of bail.

[34] The KGB statement and the accused’s statement were produced as fresh evidence for the purpose of this review. Both counsel made submissions about what the contents would have added, or not added, to the hearing. However, the main point is that whatever the content, the Justice of the Peace ought to have been allowed them to be read in. He knew virtually nothing about these statements and was not in a position to say there were irrelevant or that he ought not to hear about them. It is the procedural error of not permitting the Crown to read in the statement which is paramount.

[35] However, perusing the KGB statement fortifies the conclusion that it was error to restrict the Crown. The statement referred to prior assaults by the accused on the complainant, there was a mention that there was a 7 year-old child who attempted to restrain the respondent during the incident, it added that the complainant knew that the accused had a knife in his pocket and also that made it clear that the choking was quite serious. These were important pieces of evidence on the bail hearing. It is beyond question that the judiciary must be particularly careful in the context of domestic assault as it is a notorious fact that the frequently high emotions produced can easily escalate into violent behaviour.

[36] Although defence counsel on the review disagreed, the accused’s statement could have, at the same time as it supported the already strong case against the accused, pointed to the appropriateness of release. The accused took responsibility for the assault on his mother and admitted that he “lost it” and that he “freaked out” yelling at her. In a domestic context, this statement reflected some insight into his actions. It may have given the Justice of the Peace some comfort that the alleged assault would not re-occur if the respondent were released on bail.

[37] In conclusion, it can be challenging to balance efficiency against procedural fairness to the parties in the high stakes context of a bail hearing. In retrospect, in this instance, there was a lack of fairness afforded the Crown in presenting its case for detention. Expedition ought not to be achieved at the expense of the Crown’s right to be heard.

Harris J. Date: March 9, 2020

[1] See Regional Senior Justice P. Daley’s remarks about the chronic delays in Brampton. Cases are still being sent to outlying jurisdictions because of lack of court space:The Globe and Mail, February 19, 2018: https://www.theglobeandmail.com/canada/article-brampton-ont-judge-denounces-ontario-government-over-lack-of/