COURT FILE NO.: BR(P)101/20 DATE: 2020 03 12

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Paul A. Renwick, for the Crown

• and -

A.K. B. Hundal, for A.K.

HEARD: March 3, 2020

REASONS ON BAIL REVIEW

BARNES J.

OVERVIEW

1A.K. is charged with knowingly uttering a threat to the complainant to cause her death contrary to s. 264.1 (a) of the Criminal Code, R.S.C., 1985, c. C-46.

2After a bail hearing on January 24, 2020, Justice of the Peace M. Duggal released A.K. on a $1,500 surety release, with a promise to pay and certain conditions.

3Pursuant to s. 521(1) of the Criminal Code, the Crown seeks a review of the decision on two grounds:

(1) His Worship erred by depriving the Crown of the opportunity to cross-examine the proposed surety at a reverse onus bail hearing.

(2) His Worship’s decision to release A.K. was clearly inappropriate.

3For the reasons outlined below, the Crown’s application for a review of Justice of the Peace M. Duggal’s decision of January 24, 2020, is denied, except for the amount of security ordered. The amount of $1,500 ordered is varied to $3,500. All other conditions imposed by His Worship remain the same.

ALLEGATIONS

4The complainant is A.K.’s wife. They have been married for 15 years and have two children together.

5On January 26, 2020, when the complainant arrived home from work at midnight, A.K. accused her of infidelity, threatened to kill her and told her he had a gun which he would use on her one day. The complainant called the police at approximately 2:24 a.m. When the police arrived at the couples’ home, the complainant informed the police that A.K. was controlling and had threatened to kill her. She said she feared for her and her children’s safety. No injuries were reported.

6The complainant provided a statement to the police which included the following:

My husband keeps asking me about a phone number. He said he wanted to kill me while we were lying there in bed, around 12:30 a.m. He told me, ‘I will kill you one day.’ I was so scared I did not sleep that night. He told me he will kill me with his hands.

7The complainant expressed concern that A.K. may have mental health issues and had demonstrated suicidal ideation. A.K. was arrested for uttering a threat to cause death and was held for a bail hearing.

A.K.’s BAIL HEARING

8A.K. has a criminal record which includes one conviction for assault and one conviction for assault causing bodily harm. By virtue of A.K.’s previous convictions for violent offences and the fact that this is an intimate partner violence offence, there is a reverse onus requiring A.K. to demonstrate why he should be released: Criminal Code, s. 515(6)(b.1).

9A.K. proposed a surety at the bail hearing. The surety provided a sworn declaration as required by s. 515.1(1) of the Criminal Code. The surety had no criminal record, was employed, had an income of $60,000 per year, and pledged between $1,000 to $5,000 to the court without a deposit.

10The plan of release proposed by A.K. included the following conditions: supervision by the surety; to reside with the surety; not to contact the complainant; to stay away from the matrimonial home; and to only access the children through a third-party.

11The Crown opposed release on the secondary grounds and argued that detention was necessary for the protection or safety of the public: Criminal Code, s. 515(10)(b). In support of this position, the Crown cited:

• A.K.’s previous convictions for violent offences;
• The presence of risk factors that predicate domestic homicide (i.e. extreme jealousy);
• Allegations of assault that progressed over time;
• Potential alcoholism;
• Mental health issues;
• Threat to use a gun even though A.K. was subject to a weapons prohibition order; and
• The complainant’s expressed fear for herself and her children.

12The Crown sought to cross-examine the proposed surety on the proposed plan. This request was denied by His Worship.

BAIL DECISION

13His Worship acknowledged that it was a reverse onus situation. He concluded that the surety had knowledge of the allegations of violence between the complainant and A.K. He considered the surety’s work pattern and financial circumstances. His Worship also concluded that cross-examination of the surety was unnecessary as it would not serve to amplify the record in a meaningful way. He was satisfied that the surety was suitable.

14His Worship noted that A.K.’s last conviction for violence was approximately 13 years ago. He also noted that A.K. was subject to probation and weapons prohibition orders, and since 2012, had not breached any of these orders. A.K. also did not have any convictions for breaching his bail conditions. His Worship considered the risk factors for domestic partner homicide and the allegations described by the complainant. His Worship also acknowledged that A.K. was proposing a surety release.

15His Worship made inquiries of the surety to satisfy himself that the surety earned $60,000 per year and owned property with $250,000 in equity. His Worship concluded that a residential surety in the amount of $1,500 with no deposit, with standard intimate partner violence release conditions was appropriate.

ISSUES

16The issues to be determined on this bail review are as follows:

1. Did Justice of the Peace Duggal err in depriving the Crown of the opportunity to cross-examine the proposed surety at A.K.’s bail hearing?
2. Was Justice of the Peace Duggal’s decision to release A.K. clearly inappropriate?

DISCUSSION

Streamlined, Efficient and Fair Bail Hearings

17The purpose of a bail hearing is to determine which type of release should govern the liberty of the defendant pending trial of the charges against them. This determination is governed by the statutory considerations of: 1) risk of flight: s. 515(10) (a); 2) protection of the public and risk of interference to the administration of justice: s. 515(10) (b); and 3) concerns regarding confidence in the administration of justice: s. 515(10) (c). This is the context that gives rise to words such as a “streamline”, “efficiency”, “summary” and “fairness” being used to describe the bail process.

18Parliament’s intent in enacting the legislative framework for bail in Canada is reiterated in the comments explaining recent amendments to s. 515 of the Criminal Code. At the 42nd Session of Parliament, on May 24, 2018, the Minister of Justice and Attorney General of Canada, the Honourable Jody Wilson-Raybould, explained:

As noted, the first area of reform would modernize and streamline the bail regime. Under the charter, an accused person is presumed innocent until proven guilty. If charged with an offence, that person has the right not to be denied bail without just cause. The Supreme Court of Canada has repeatedly stated that bail, including the types of release and conditions imposed, must be reasonable, yet we know that police and courts routinely impose conditions that are too numerous, too restrictive, and at times directed toward improper objectives, such as behaviour and punishment. These objectives do not protect public safety.

We also know that there are more individuals in remand than those convicted of a crime. In other words, our correctional facilities are more than half-filled with people who have not been convicted of an offence.

In addition, the current approach to bail uses a disproportionate amount of resources, taking away from more serious cases. It perpetuates a cycle of incarceration.

Consistent with the 2017 Supreme Court of Canada decision in R. v. Antic, the proposed bail reforms would codify a principle of restraint. This would direct police and judges to consider the least restrictive and most appropriate means of responding to criminal charges at the bail stage rather than automatically detaining an accused. The individual circumstances of an indigenous accused and a vulnerable accused, such as a homeless person or one with mental illness and addiction issues, would become required considerations when making bail decisions. This means that an accused's circumstances would have to be considered prior to placing conditions upon them that were difficult or impossible to follow.

The principle of restraint would make bail courts more efficient by encouraging release at the earliest possible opportunity, without the need for a bail hearing in every case, and would take significant steps to reduce costs associated with the growing remand population currently detained in custody awaiting trial.

19The receipt of evidence at a bail hearing vis-a-vis a trial is aptly described by Baynton J. in R. v. Wilson, [1997] S.J. No. 610 (Sask. Q.B.), at para. 4 as follows:

The rules of evidence applicable to a trial do not apply to judicial interim release hearings. These proceedings by their very nature must in most cases be conducted summarily and on short notice. If the rigid procedures of a trial have to be met, the result will be delay, inconvenience, and additional expense, and the spirit and intent of the bail provisions will be defeated.

20Section 518(1) of the Criminal Code outlines the procedure utilized to receive evidence and the types of evidence admissible at a bail hearing. Section 518(1) exemplifies the legislative intent to promote efficiency and fairness at a bail hearing. In s. 518(1), Parliament has sought to address the obvious tension in a bail hearing between efficiency and ensuring a fair and full hearing. Given the issues framed by the parties, an analysis of the intricacies of s. 518(1) is unnecessary. However, a reference to this description in Justice Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Thomson Carswell, 2010) at pp. 5-48-5-48.1 is appropriate:

Section 518(1) exemplifies a minimalist approach to evidence at a bail hearing. It confers broad discretionary powers on the justice or judge conducting a bail hearing. For instance, the justice may make “inquiries, on oath or otherwise” (ss. (1)(a)), take into consideration “any relevant matters agreed upon” by counsel (ss. (1)(c)), and base his or her decision on “evidence considered to be credible and trustworthy … in the circumstances of each case” (ss. (1)(e)).

Examination of the Surety

21A bail hearing is a bifurcated process. The first stage considers which level of release is appropriate. If a surety release is appropriate, the second stage considers the suitability of the proposed surety. Viva voce evidence and/or a more formal process is not required as a precursor to a determination of whether a surety is suitable. What is appropriate depends on the circumstances: R. v. Tunney, 2018 ONSC 961, at paras. 39-41, 51-55; R. v. Brooks, [2001] O.J. No. 1563 (S.C.), at para. 22.

22Section 515.1(1) of the Criminal Code requires a proposed surety to provide a sworn declaration which contains the information enumerated in that section. The enumerated items are relevant to an assessment of whether a surety is suitable. Pursuant to the enumerated circumstances in s. 515.1(2), a judge, justice or court may dispense with the need for a surety declaration.

23Trotter J. in The Law of Bail in Canada at pp. 7-22, 7-24, describes the surety approval process as follows:

[An] inquiry may be undertaken by the presiding judicial officer as to the suitability of a proposed surety. Indeed, s. 515(2.1) of the Criminal Code permits a "judge, justice or court" to name persons as sureties. The process involved in deciding whether the offered person is a viable surety often involves viva voce evidence, according to the standard examination in chief/cross-examination format. But it need not be addressed in this formal manner. There are other methods that may be used. Section 518(1)(a) permits the justice or judge to make inquiries about the accused "on oath or otherwise" just as 518(1)(e) allows a decision based on "evidence considered credible and trustworthy." The justice may also take into consideration relevant matters "agreed on by the prosecutor and the accused or his counsel": s. 518(1)(d). Each of these provisions offers a potentially less time-consuming approach to determining the suitability of a surety in open court. A justice or judge may simply ask questions of the surety not under oath and make a determination based on the response. Similarly, the same decision may be based on affidavits of prospective sureties or a questionnaire completed by the person wishing to act as surety. The proper method will be governed by the circumstances of the case and local practices.

Whether sureties should be examined during a bail hearing is a matter that should be decided on a case by case basis. In some cases, where the allegations are not serious, but it is determined that a surety release is appropriate, it may not matter who will stand as the accused's surety(ies). In other cases, it will be crucial. Justices and judges should determine whether it is necessary for the issue to be addressed in court and then consider how it may be effectively done. Some of the less formal procedures referred to above, including surety affidavits and questionnaires, are options for consideration.

24It is apt to note that in practical terms, there is a distinction between the suitability of a surety and the suitability of a release plan. It reasonably follows that a determination of whether a surety is suitable is governed by matters relevant to whether the surety can meaningfully and effectively supervise the defendant. The considerations listed under s. 515.1(1) of the Criminal Code can be broadly characterized as:

1. Whether the surety has good character;
2. Whether the surety has meaningful links to the defendant;
3. Whether the surety has knowledge of and can discharge the duties and responsibilities of a surety;
4. Whether the surety has knowledge of and an appreciation of the consequences of failing to discharge their obligations; and
5. Any other matters relevant to s. 515(10) considerations.

25One can envisage a circumstance where the surety is suitable, but the proposed plan of release is not. An example of such a circumstance is as follows. A plan of release under the supervision of a surety with house arrest conditions with some reasonable exceptions is proposed. The proposed surety is suitable as per the criteria previously articulated. However, further inquiries on the plan of release reveal that the proposed surety works full time and will be unavailable to enforce the house arrest conditions. Further inquiries may also reveal that supervision will be conducted by a third party who will report any infractions to the surety. In effect, in such circumstances, the actual proposed surety is only a surrogate and there is no way to determine whether the person doing the actual supervision is suitable because that person was never proposed as a surety. This is one example of an instance where the proposed surety is suitable, but the plan of release is not. In practical terms, there is usually some link between the suitability of the surety and the suitability of the plan.

Cross-Examination of the Surety

26The distinction between the suitability of the surety and the suitability of the plan of release is a crucial aspect of the Crown’s position. In this case, the Crown submits that in a reverse onus situation, the Crown has the right to cross-examine a surety on the suitability of the release plan. A.K. takes the opposite view.

27Subject to a few exceptions, the right to test evidence proffered by the opposing side is a fundamental component of the criminal trial process. However, this right is not absolute: R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343, at para. 3. As noted by Charron J. in Pires, at para. 3:

There is no question that the right to cross-examine is of fundamental significance to the criminal trial process. However, it is neither unlimited nor absolute. The extent to which it becomes a necessary adjunct to the right to make full answer and defence depends on the context.

28As noted previously, context is everything. In the bail hearing, the right to cross-examine is adjusted as is appropriate in the circumstances. Context drives the analysis of what is appropriate. The right to test evidence by cross-examination at a bail hearing is acknowledged in R. v. John, [2001] O.J. No. 3396 (S.C.), at para. 61, R. v. Stephenson, [2006] O.J. No. 5033, at paras. 16-17.; and R v Renaud, 2010 ONSC 5300, 2010 O.J. No. 4322, at para. 30. However, these cases do not stand for the proposition that leave is not required or that no limits can be placed on the ambit of cross-examination at a bail hearing. In the context of bail, an automatic right of cross-examination, irrespective of the circumstances, is inconsistent with Parliament’s legislative intent to create a streamlined, efficient and fair bail process. Such an approach will unnecessarily consume inordinate resources and lengthen bail proceedings.

29Following a review of the above-cited authorities, I conclude that in the bail context, the right to cross-examine is modified and leave of the court to cross-examine is required. A party must request leave to cross-examine a proposed surety either on the issue of suitability of the surety and or on the suitability of the release plan. In some circumstances, these two components may be linked to some degree.

30The party seeking leave must articulate why informal inquiries are insufficient to address either or all three of the factors in s. 515(10). This should include an articulation of why cross-examination is necessary to address either or all three of the s. 515(10) factors.

31The party proposing the release should amplify the record by articulating relevant aspects of the release plan for the court’s consideration. Relevance is determined by the criteria enumerated in s. 515(10) of the Criminal Code.

32A request for leave to cross-examine should not be arbitrarily denied. Reasons for the decision denying leave should be provided. There are circumstances where it is appropriate for leave to cross-examine to be granted, for example, in circumstances where the judge or justice determines that cross-examination of the surety is necessary because a concern about the adequacy of supervision is “well-grounded in the criminal record of the accused and the circumstances of the charges before the court”, or if it is relevant to one of the s. 515(10) factors: R. v. Renaud, 2010 ONSC 5300, at para. 30. If the Crown embarks “upon extended or irrelevant cross-examination, the justice [has] the power to limit the questioning”: Renaud, at para. 30.

33It is contrary to the previously articulated legislative intent to require reasons for the court’s decision to grant or deny leave to cross-examine a proposed surety to contain significant detail and analysis. At a practical level, such a requirement fails to take into account the busy nature and heavy workloads of bail courts and will unnecessarily slow down the conclusion of bail hearings. Reasons for decision may be perfunctory. However, they must be sufficient to convey to the parties the basic reasons for the decision and to allow for meaningful review.

34It remains within the discretion of the judge, justice or court to request the examination or cross-examination of a surety. However, as Hill J. noted in Brooks, “a blanket requirement that all prospective sureties, in every case, must appear before the Court in the show cause hearing amounts to an abuse of discretion”: para. 37. The same can be said for a blanket requirement that all prospective sureties be cross-examined at the bail hearing.

Decision on Bail Review

35The reviewing judge may only interfere with the original bail decision where: 1) the justice has erred in law; or 2) the decision to release is clearly inappropriate: R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 121.

36First, I find that His Worship did not err in law by depriving the Crown of the opportunity to cross-examine the proposed surety at A.K.’s reverse onus bail hearing. In this case, A.K. has a criminal record for violence. However, inquiries by the justice properly and sufficiently addressed the adequacy of supervision and the suitability of the surety. Granting leave to cross-examine a surety is within the court’s discretion, and here, the request for leave was not arbitrarily denied. Thus, in these specific circumstances, the justice did not err in law by refusing to permit cross-examination of the proposed surety or the release plan.

37Second, I find that His Worship’s decision to release A.K. was not clearly inappropriate. The justice gave sufficient consideration to the complainant’s safety and security as required by s. 515(13). While there may have been a path to detention, I cannot conclude that the decision to release was clearly inappropriate, except in one respect. I find that the question of security to be given by the surety was clearly inappropriate. Given A.K.’s past convictions for violence, a higher quantum of security was warranted.

CONCLUSION

38For the reasons outlined above, I find that His Worship did not err in law by depriving the Crown of the opportunity to cross-examine the proposed surety at A.K.’s bail hearing. I also find that His Worship’s decision to release A.K. was not clearly inappropriate, except for the amount of security ordered to be paid by the surety.

39The Crown’s application for a review of Justice of the Peace M. Duggal’s decision of January 24, 2020, is therefore denied, except for the amount of security ordered. The amount of $1,500 ordered is hereby varied to $3,500. All other conditions imposed by His Worship remain the same.

Barnes J.