Court File and Parties
COURT FILE NO.: CR-20-0617 DATE: 2020 04 20 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – DELANO KINGHORN Defendant
COUNSEL: T. Meehan for the Crown H. Saini for the Defence
HEARD: April 7, 2020
RULING ON SECTION 520 BAIL APPLICATION
ENDORSEMENT
Issue
[1] Mr. Kinghorn is charged with assault, aggravated assault, unlawful confinement, uttering a threat to cause death, and failing to comply with a term of his probation order. All of the charges relate to an altercation between Mr. Kinghorn and his spouse.
[2] At his bail hearing on October 18, 2019, Mr. Kinghorn was detained by the presiding Justice of the Peace on the primary and secondary ground. He now seeks to review that order. He submits that the Justice of Peace erred in law in his analysis of whether he should be released. He also submits that a change in his release plan and the current COVID-19 pandemic constitutes a material change in circumstances since that hearing. The Crown submits that the Justice of the Peace made no error, there has been no material change and that Mr. Kinghorn should continue to be detained on all three grounds.
[3] As a result of the closure of the courts, Mr. Saini and I appeared by video conference while the Crown and Mr. Kinghorn attended by audio conference. Mr. Kinghorn’s surety, his brother, appeared by video conference and was cross-examined by the Crown. All parties agreed with this manner of proceeding.
[4] At the end of the evidence and submissions, I advised the parties that the application was dismissed for written reasons to follow. These are those reasons.
The Applicant
[5] Mr. Kinghorn is 33 years of age. He and the complainant have one child together who is now in the custody of Mr. Kinghorn’s sister.
[6] Mr. Kinghorn’s adult criminal record runs from 2006 to 2017. It includes one count of threatening, 19 counts of breach of probation or fail to comply, 6 offences involving violence, 5 counts of assault, 2 offences involving drinking, 1 offence involving drugs and 2 weapons offences. Some of the entries in 2015 and 2016 relate to this complainant. In 2017, Mr. Kinghorn was convicted of assault and assault with a weapon with respect to this complainant. For those offences, he received a sentence of approximately eight months in custody.
[7] Mr. Kinghorn has outstanding charges in Brampton for failing to report to his probation officer.
[8] He acknowledges his record as “unenviable.”
The Evidence
[9] The Crown summary of the case was provided at both hearings. Briefly, it is alleged that Mr. Kinghorn has been known to become violent after consuming alcohol. On April 28, 2019, the complainant contacted Mr. Kinghorn’s sister to pick Mr. Kinghorn up from the complainant’s residence because of his intoxicated state. Mr. Kinghorn became enraged by that contact and got into a verbal argument with the complainant. That escalated into violence and it is alleged that Mr. Kinghorn placed the victim in an arm chokehold. While in that chokehold, Mr. Kinghorn stated to the complainant “This is the last day you’re going to see your son. Don’t worry. I’ll tell him that you love him.” The complainant is said to have advised the police that she believed that she was going to die.
[10] The chokehold caused the complainant to lose consciousness. Mr. Kinghorn then released the pressure around her neck. Once she regained consciousness, he again choked her until she lost consciousness. This continued numerous times over approximately two hours before the complainant was able to free herself and escape. Her struggle to escape was observed by neighbours.
[11] The complainant was taken to the local hospital and received treatment for her injuries. The injuries were consistent with the description of the events as well as a strangulation. Hospital staff have rendered an opinion that the injuries were near fatal.
The Release Plan
[12] In essence, the present plan is that Mr. Kinghorn will reside with his brother under strict house arrest. At the time of the bail hearing, Mr. Kinghorn’s brother was to be a surety in the amount of $2,000.00. His brother worked in a restaurant as a chef and lived nearby in Mississauga. He hoped to find employment for Mr. Kinghorn at the same restaurant. When the surety was at work, he proposed to co-ordinate with other family members to supervise Mr. Kinghorn. At the bail hearing, this was described by the defence as “basically, 24-hour supervision” and “to the top of the rung as far as the Antic decision is concerned.” It was also noted that “[t]his is his last form of release that this court has to seriously consider before this Court decides to detain him.”
[13] Since that time, because of the pandemic, Mr. Kinghorn’s brother has lost his employment but has moved into an apartment over the restaurant. Accordingly, with the current quarantine, he would always be able to supervise Mr. Kinghorn under strict house arrest. Mr. Kinghorn’s brother was confident that, with a term that Mr. Kinghorn not drink any alcoholic beverages, he would be able to ensure that Mr. Kinghorn would attend court and not be a risk to reoffend.
[14] A further change since the first bail hearing is that the complainant has lost custody of the child she shares with Mr. Kinghorn. At the time of the first bail hearing, the complainant had custody of their child. Access visits appears to have been a time of conflict between the parties and the child now lives with Mr. Kinghorn’s sister. The complainant resides in Guelph. Accordingly, there is no further need for any contact, whatsoever, between the complainant and Mr. Kinghorn.
[15] Mr. Kinghorn’s brother has been a surety for him on two occasions. The first time, his brother called the police when he believed that Mr. Kinghorn was going to breach a condition of his bail. The second bail went without incident. Mr. Kinghorn’s brother is still prepared to pledge up to $2,000.00 for the release of Mr. Kinghorn.
Analysis
Change in Circumstances
[16] The Crown submits that there has been no change in circumstance and no error by the justice of the peace to allow for a review.
[17] Mr. Kinghorn first submits that the Justice of the Peace made an adverse finding on the primary ground based on unproven allegations that were yet to be tried. Further, he submits that the Justice of the Peace was so unclear in his reasons that those reasons do not allow for proper appellate review.
[18] I need not spend any time on Mr. Kinghorn’s argument that the Justice of the Peace erred. While I do not accept that the Justice of the Peace erred as described by Mr. Kinghorn’s counsel, I am satisfied that there has been a material change such that Mr. Kinghorn is entitled to a review.
[19] Those material changes are as follows.
[20] First, the plan put before the Justice of the Peace left a great deal of time when Mr. Kinghorn would be unmonitored by his surety. The present plan leaves no gaps and ensures 24 hour a day supervision.
[21] Second, Mr. Kinghorn has been released on the Brampton charges and his trial on all of the charges will be delayed from what was in the mind of the Justice of the Peace.
[22] Third, I accept the opinion of my colleagues that the present pandemic does amount to a material change such that there can be a consideration of the plan on review, particularly with respect to the tertiary ground. However, those circumstances are only a factor; they do not allow for release simply because of the health crisis. A review of a bail order is still to be determined on a case-by-case basis: see: R. v. T.L., 2020 ONSC 1885, R. v. Morgan, 2020 ONCA 209, R. v. J.S., 2020 ONSC 1710, R. v. Nelson, 2020 ONSC 1728, R. v. T.K., 2020 ONSC 1935.
[23] The Crown relied upon three “Briefing Notes” from the Ministry of Community Safety and Correctional Services (dated March 26, 2020, April 1, 2020 and April 6, 2020) with respect to the conditions in the correctional facilities. The defence allowed the memos to be filed but submitted that I should put little weight on them.
[24] While the courts need to be practical with respect to evidence in these circumstances, the memos stretch the limits of the evidentiary principles upon which I can rely. The documents are unsigned. They do not have any name attached to them as an author. They refer to “risk factors” which suggests some sort of an expert opinion. I have put little weight upon those documents. However, judicial notice of the current circumstances brought about by the pandemic is enough for my purposes. See: R. v. C.J., 2020 ONSC 1933.
Primary Ground: Ensure Attendance
[25] I am satisfied that Mr. Kinghorn’s brother understands his role and risk. The Crown does not dispute the competence of the surety. He has been in that role twice before and has shown an ability to supervise Mr. Kinghorn. The Crown does not raise any issues with respect to his sincerity and ability to fulfill that role.
[26] Mr. Kinghorn’s record is lengthy and detailed, but it does not seem that he has ever failed to appear for court. He was convicted of “escape lawful custody” but that was 13 years ago, and I am not aware of the facts that led to the charge. I am satisfied on the primary ground that, if he were to be released, Mr. Kinghorn will attend in court to be dealt with according to law.
Secondary Ground: Protection or Safety of the Public
[27] Like the Justice of the Peace, however, I cannot find that the plan will “protect or keep safe the public or any victim or witness to the offence.” Although I have found that the new plan is materially better than what was put before the Justice of the Peace, I cannot find that it is sufficient to ensure the protection and safety of the public. In all of the circumstances, I find that there is a substantial risk that Mr. Kinghorn, if released, will commit an offence or interfere with the administration of justice.
[28] Mr. Kinghorn’s brother acknowledges Mr. Kinghorn’s history of alcohol-induced violence. However, he says that he is willing to make a “leap of faith” and that he is “hopeful for the future” that his brother “will wake up” to his alcohol problems and the ensuing violence.
[29] I am certainly satisfied that Mr. Kinghorn’s brother means well and would do his best. But I am not prepared to make such “a leap of faith” that he can control his brother. Mr. Kinghorn’s brother believes that Mr. Kinghorn should “definitely go and seek some help” since “he’s got some kind of medical issues which have not been addressed.” However, Mr. Kinghorn says nothing of that. He has made no acknowledgment of any difficulties other than his record. I have no confidence that Mr. Kinghorn will be able to live up to his terms of release and comply with his brother’s direction.
[30] Mr. Kinghorn’s brother testified at the bail hearing before the Justice of the Peace. He said that “I’m going to have a little bit of trust and faith that he’s going to go to work when he’s supposed to be going to work.” While I appreciate that Mr. Kinghorn complied with the terms of his release on the last occasion, his record shows that to be a limited experience.
[31] Both brothers have testified that Mr. Kinghorn looks up to the proposed surety. His brother says that “I see him frequently and feel that I am involved in his life. I feel like I have a good relationship with the Applicant and as an older brother, I believe that I will be able to exercise a significant amount of authority over him.”
[32] However, Mr. Kinghorn’s record confirms that his brother has not influenced his behaviour over the last 13 years. I do not share the surety’s optimism. I accept that even with Mr. Kinghorn’s record, a strong plan could still allow for his release, but this plan is not strong enough to allow that release.
[33] Mr. Kinghorn’s record, and particularly his record related to this complainant, is such that supervision with his well-meaning brother is insufficient to reduce the substantial risk that he will reoffend.
[34] On this plan, I am not satisfied that Mr. Kinghorn’s proven inability to control his drinking and conduct toward the complainant is mitigated by the proposed plan.
Tertiary Ground: Maintain Confidence
[35] This third factor of s. 515(10) of the Criminal Code requires that I consider if the detention is necessary:
... to maintain confidence in the administration of justice having regard to all of the circumstances, including:
i. The apparent strength of the prosecution’s case; ii. The gravity of the offence; iii. The circumstances surrounding the commission of the offence, including whether a firearm was used; and iv. The fact that the accused is liable on conviction for a potential lengthy term of imprisonment.
[36] In R. v. Lesniak, 2012 ONSC 6687, Durno J., referring to this tertiary ground said:
[86] The law favours release unless there is some factor or factors that would cause "ordinary reasonable, fair-minded members of society", or persons informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case, to believe that detention is necessary to maintain public confidence in the administration of justice…
[37] In R. v. St. Cloud, 2015 SCC 27, Wagner J. (as he then was) described "ordinary reasonable, fair-minded members of society" in the following manner:
[80] In short, the person in question in s. 515(10)(c) is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society’s fundamental values. But he or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences that are available to accused persons.
[81] It is of course not easy for judges to strike an appropriate balance between the unrealistic expectation they might have for the public on the one hand, and the need to refuse to yield to public reactions driven solely by emotion on the other. This exercise may be particularly difficult in this era characterised by the multiplication and diversification of information sources, access to 24-hour news reports and the advent of social media.
[82] Canadians may in fact think they are very well informed, but that is unfortunately not always the case. Moreover, people can also make their reactions known much more quickly, more effectively and on a wider scale than in the past, in particular through the social media mentioned above, which are conducive to chain reactions. The courts must therefore be careful not to yield to purely emotional public reactions or reactions that that may be based on inadequate knowledge of the real circumstances of a case.
[83] However, the courts must also be sensitive to the perceptions of people who are reasonable and well informed. This enables the court to act both as watchdogs again mob justice and as guardians of public confidence in our justice system. It would therefore be dangerous, inappropriate and wrong for judges to base their decision on media reports that are in no way representative of a well-informed public.
Apparent Strength of the Case
[38] This is more than a simple domestic assault. Some of the events were witnessed by neighbours. It appears that objective medical evidence is consistent with the complainant’s evidence. Mr. Kinghorn is presumed innocent and is entitled to a trial; however, at this point, the case against Mr. Kinghorn appears strong.
Gravity of the Offence
[39] These are serious offences made more so by the fact that they relate to Mr. Kinghorn’s spouse who has been his victim in the past.
Circumstances of the Offence
[40] There do not appear to be any mitigating factors to the offences.
Period of Imprisonment
[41] There is no doubt that if convicted, Mr. Kinghorn will be receiving a substantial period of imprisonment.
Balancing
[42] Taking all of these circumstances into account, I would expect that an informed person would lose confidence in the administration of justice if an individual facing a strong case alleging that he committed repeated offences against the same victim and with a lengthy history of failing to comply with terms of court orders were released to his optimistic brother prior to trial.
[43] The defence submits that, considering the global pandemic, the court should adopt a more expansive approach to bail and detention orders and, given the circumstances, the public would not be offended by releasing Mr. Kinghorn according to the proposed plan.
[44] That submission is supported by some cases to date and rejected by others. Both counsel agreed that “the line” for release has been varied by the COVID-19 outbreak; they disagree on where the line should be drawn. I do not need to resolve that issue here. Given Mr. Kinghorn’s circumstances, I cannot find that his record and the proposed plan can support his release regardless of the pandemic.
Result
[45] Accordingly, the application is dismissed.
“Justice Lemon” Justice G.D. Lemon