Superior Court of Justice - Ontario

Court File No.: DR (P) 248/20 Date: 20200424

B E T W E E N:

HER MAJESTY THE QUEEN Respondent Ms. Carla Agatiello, for the Crown

• and -

SAMER DAGHER Applicant Ms. Golta Vahid Shahidi, for the Applicant

Heard: April 16, 2020, by teleconference

Reasons for Judgment – Bail Review

F. Dawson J.

[1] This is a bail review application pursuant to s. 520 of the Criminal Code. I heard the application on April 16, 2020 by way of telephone conference, due to the Covid-19 pandemic. At the conclusion of the hearing I ordered that the applicant be released on his own recognizance with conditions. No surety was required. I advised counsel my reasons would follow. These are those reasons.

[2] No order for non-publication was made at the original hearing and none was sought on this review application.

Background Information

[3] On March 25, 2020 the applicant was charged with one count of assault on his wife. On March 26, 2020 a bail hearing was held before Justice of the Peace G. Lin. Crown counsel appearing at the bail hearing acknowledged that the onus was on the Crown to show cause why the applicant should not be released. Crown counsel submitted that the applicant could be released but only with surety supervision. The applicant does not have a criminal record or outstanding charges.

[4] The applicant was represented by legal aid duty counsel at the original bail hearing. Duty counsel advised the justice of the peace that the applicant did not have a surety but informed the court that the applicant had been approved for supervision by the John Howard Society Bail Program. Duty counsel made it clear that requiring a surety would likely lead to the applicant remaining in custody until he pleaded guilty or had a trial.

[5] Without providing much in the way of reasons, the justice of the peace ordered that the applicant would be released upon his entering into a recognizance in the amount of $200 with one surety. Conditions imposed included that the applicant was to reside at an address approved of by the surety and not contact the complainant or attend at any location where she was known to frequent or reside.

The Evidence at the Bail Hearing

[6] No witnesses were called at the bail hearing. Crown counsel provided a summary of the allegations. Duty counsel provided information about the proposed plan of release. The applicant provided some unsworn information from the prisoner’s dock.

[7] The justice of the peace was advised that the applicant and the complainant met in 2003 and married in 2009. They have two school aged children. At the time of the alleged assault they were living together but were in the process of obtaining a divorce. On March 25, 2020 a verbal argument occurred at 3:00 p.m. regarding financial problems. The argument escalated to the point where the applicant pushed the complainant onto a bed. The argument moved into the kitchen, where it is alleged the applicant grabbed the complainant by the hair, threw her to the ground and hit her head on the floor.

[8] The complainant suffered scratches and a bump on her forehead and a scratched nose. She did not require medical attention. She called the police later in the evening when the applicant was in the shower.

[9] Crown counsel advised the justice of the peace that the applicant had no criminal record and no outstanding charges but said that the police had been involved in domestic incidents at the home on three prior occasions. The justice of the peace was also advised that on one occasion the applicant was taken to a hospital under the provisions of the Mental Health Act, R.S.O. 1990, c. M.7 and was “diagnosed with schizophrenia”. The applicant advised the justice of the peace repeatedly that the information about his mental health was incorrect. He stated from the prisoner’s box that he was observed in hospital for five days and was told that he was “mentally normal” and did not require medication.

[10] Crown counsel provided the justice of the peace with some information from a domestic violence management report (DVMR) but did not produce the report. The court was told that the couple’s children were exposed to the violence, that the complainant alleged that the applicant had a history of unstable behaviour, that the complainant was fearful and advised that the applicant was not taking his medication. She believed that the applicant’s instability was worsening. There were financial problems due to the applicant losing his employment.

[11] While the justice of the peace did not provide any legal analysis supporting the order that was made, this review application proceeded on the basis that an inference is available that a surety was required for the protection of the victim having regard to the “secondary ground” provided for in s. 515(10)(b) of the Criminal Code.

Governing Legal Principles

[12] The nature of a review pursuant to s. 520 of the Criminal Code was comprehensively dealt with in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 120-139. The review is neither an appeal restricted to demonstrating an error on the record, nor a de novo proceeding. It is a hybrid remedy. The decision below is open to review only: (1) where there is admissible new evidence which demonstrates a material change in circumstances; (2) where the decision below contains an error of law; or (3) where the original decision was clearly inappropriate. The decision may be clearly inappropriate if the justice gave excessive weight to a relevant factor or insufficient weight to another factor. However, the reviewing judge does not have the power to interfere just because he or she would have weighed the factors differently.

[13] Should the reviewing judge conclude that one or more of these three factors has been established by the applicant the reviewing judge may consider the question of judicial interim release afresh, applying the Criminal Code provisions and legal principles that govern a bail hearing.

Analysis

[14] I am satisfied that the applicant has demonstrated a material change in circumstances. There are several reasons for this. First and foremost, as of the date of the bail review hearing the applicant had spent 22 days in custody. That is equivalent to over a 30-day sentence, applying the usual 1.5 to one ratio of credit for pre-sentence custody. Crown counsel agrees that if the applicant were to plead guilty the Crown would not be seeking a further custodial sentence. Rather, the Crown would be seeking a suspended sentence and a period of probation.

[15] In R. v. Myers, 2019 SCC 18, Chief Justice Wagner was dealing with the 90-day detention review provided for in s. 525 of the Criminal Code. When Myers and St-Cloud are read together there is no doubt that the approach that should be taken under ss. 520 and 525 of the Criminal Code is the same. In Myers, at para. 51, the Chief Justice wrote that in some cases the passage of time since an accused was detained “may be a very strong indicator that the accused should be released, with or without conditions.” He went on in para. 51 to indicate:

Reviewing judges must be particularly alert to the possibility that the amount of time spent by an accused in detention has approximated or even exceeded the sentence he or she would realistically serve if convicted: see, e.g., Sawrenko, 2008 YKSC 27 at para. 43. The assessment must be informed by the need to reduce the risk of induced guilty pleas, which are profoundly detrimental to the integrity of the criminal justice system. As was noted in R. v. White, 2010 ONSC 3164, “public confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if [they were] convicted” …

[16] Applying these considerations, it is manifest that the order made by the justice of the peace, which although an order for release has kept the applicant in custody due to his inability to provide a surety, is ripe for review. A material change in circumstances has been demonstrated.

[17] There are other considerations which support a conclusion that there has been a material change in circumstances. Additional disclosure has been provided to the applicant. While some of the information contained in that subsequent disclosure may have been available to the Crown at the time of the original hearing, it appears that the documents containing the information were not available and had not yet been provided to the applicant’s counsel.

[18] At the original hearing the justice of the peace was advised of a history of domestic incidents requiring police attendance at the residence. However, the subsequently disclosed information shows that there had been no prior physical violence. In the additional disclosure the complainant also stated that the applicant had not displayed threatening behaviour in the past. The justice of the peace was advised that the children were exposed to the violence the led to the charge. The subsequent disclosure suggests that was inaccurate.

[19] It is also now clear that the complainant’s assertions that the applicant has mental health concerns is rooted in a diagnosis the applicant received in Lebanon over 20 years ago and three years before she met the applicant. In addition, an email sent by the complainant indicates that when the applicant was released from the hospital after being apprehended under the Mental Health Act, he was released “with no significant evidence of behavioural abnormalities”. This tends to confirm the applicant’s statements to that effect. The additional evidence tends to tie the complainant’s understandable fears to her belief that the applicant is mentally ill.

[20] In my respectful view, the justice of the peace also erred in law and/or made a decision that was clearly inappropriate because the justice of the peace failed to take into account that, particularly in the current circumstances where the Covid-19 pandemic has impacted the ability of the courts to provide trials on a timely basis to those in custody, there was a very real possibility that the applicant, due to his inability to obtain a surety, would spend more time in pre-trial custody then he would receive if convicted. This was an important factor that should have been considered. The reasons below give no indication it was factored into the court’s decision.

[21] For the reasons I have given so far it was apparent to me at the s. 520 hearing that I should exercise my power of review.

[22] This is a Crown onus situation. Crown counsel does not attempt to show cause for the continued detention of the applicant on either the primary or tertiary grounds set out in ss. 515(10)(a) and (c) of the Criminal Code. Crown counsel bases her submission in favour of continued detention entirely on the secondary ground set out in s. 515(1)(b) of the Criminal Code. The submission is that continued detention of the applicant is necessary for the safety of the complainant.

[23] I am sensitive to the understandable fears of the complainant. Crown counsel also points to indications in the record that the applicant told the police that he wanted to go back to his home and that he only had enough money for a hotel for one or two nights and then would have to go to a shelter.

[24] I have taken all these submissions into account. I note that s. 515(10)(b) requires me to have “regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice”.

[25] It is well known that circumstances of domestic discord often give rise to intense emotions. In circumstances where there have been threats, controlling behaviour or violence, there is always some risk of further irrational and violent behaviour. Occasionally that leads to tragedy. Courts dealing with circumstances involving domestic violence must be aware of these concerns and take them into account in applying the principles which govern judicial interim release and I do so here.

[26] I have examined the DVMR. While some risk factors are present many are absent. There is no prior history of actual violence or threats of bodily harm or death. The applicant has no criminal record or history of violating court orders. There is no clear evidence of mental illness that poses or adds to the risk. The applicant is presumed to be innocent. It is clear that even if he were to be convicted further time in custody would not be warranted. The words of Chief Justice Wagner in Myers, quoted above, impact my decision.

[27] In addition, the proposed plan of release comes close to providing the kind of supervision that would be received if the applicant was to be found guilty and placed on probation. I also point out that the original order was a release order which has only become a de facto detention order due to the applicant’s inability to provide a surety. The original order does not require that the applicant live with the surety but only that he reside at a place approved of by the surety. I am of the view that the John Howard Society Bail Program is able to offer a similar level of supervision. In addition, I accept the submission of counsel for the applicant that she spoke with a representative of the bail program who advised her that the conditions suggested would allow the bail program to require that the applicant attend counselling if deemed appropriate.

[28] For all of these reasons I was well satisfied by the end of the s. 520 hearing that the applicant should be released on conditions. The precise conditions were reviewed with the applicant at the hearing and were transmitted to the trial office for inclusion in the recognizance to be signed by the applicant. The applicant stated on the record that he understood the conditions and he promised to abide by them. I advised him of the consequences of his failure to do so.

[29] I will not repeat the conditions verbatim in these reasons. They include that the applicant is to contact the John Howard Society of Peel-Halton-Dufferin Bail Program by telephone within 24 hours of his release. He is to be under the direction and supervision of the John Howard Society Bail Program and be amenable to its rules and regulations and participate in any programs as required by the Bail Program. Other terms were imposed designed to keep the applicant away from the complainant. Provision was made for him to contact his children through a third party. He is prohibited from possessing any firearms or other weapons.

[30] In my view, this plan of release is appropriate. With such a plan in place the Crown has failed to demonstrate that detention is required to protect the complainant or the public. I am not satisfied that, with such a plan in place, there is a “substantial likelihood” that the applicant will commit a further criminal offence or interfere with the administration of justice.

F. Dawson J.

Released: April 24, 2020