Court File and Parties
COURT FILE NO.: 0164/18 JJ DATE: 20200519 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – J.L. Applicant
Counsel: Matthew Bloch, for the Respondent Jennifer Myers, Amicus Curiae
HEARD: May 5 and 13, 2020
Restriction on Publication
Pursuant to sections 522(5) and 517(1) of the Criminal Code, an order issued prohibiting the publication in any document or broadcast or transmission in any way of the evidence taken, the information given, or the representations made, and the reasons issued, on this application. This prohibition applies until either the accused is discharged at a preliminary inquiry or his trial ends. This prohibition is subject to an exception that permits a lawyer to circulate these reasons to another lawyer or to rely on them before any court.
Reasons on Review of Detention – Section 525 of Criminal Code
mr. Justice peter bawden
[1] J.L. was arrested on November 24, 2019 and charged with committing an indecent act and failure to comply with probation. He has been in custody since that date and has never had a bail hearing. The matter came before me as a review of Mr. J.L.’s continuing detention under section 525 of the Criminal Code. In my view, Mr. J.L.’s detention is no longer justified in light of the pre-trial custody already served, the length of time which will be required to bring the matter to trial and the plan of release which has been arranged by amicus counsel, Ms. Jennifer Myers.
[2] Mr. J.L. does have a criminal record which is pertinent to this review. In 2010, he was convicted of sexual assault on an adult female and received a sentence of nine months incarceration in addition to 18 months of pretrial custody. In the years between 2013 and 2019, he was convicted of seven breaches of court orders. In August and September 2019, he was convicted of three counts of indecent act, all of which arose from occasions when Mr. J.L. was observed to be masturbating in public. He received a suspended sentence on those convictions in light of 300 days of pre-trial custody.
[3] On September 23, 2019, (ten days after having been sentenced on his last indecent act charge), Mr. J.L. was again observed exposing himself on a TTC subway train. He was arrested and held until October 22, 2019 when he was released under the supervision of the Bail Program. Roughly one month after that release, Mr. J.L. was again arrested after exposing himself, this time in a residential community in North York. He has been in custody ever since, a total of roughly 6 1/2 months of pretrial custody.
[4] Mr. J.L. was assessed by Dr. Alina Iosif at CAMH during his last lengthy period of pre-trial detention. In a report dated June 24, 2019, Dr. Iosif concluded that Mr. J.L. suffers from antisocial personality disorder, polysubstance use disorder and substance induced psychosis. Sexologically, he suffers from exhibitionism with a “likely” diagnosis of pedophilia. There is no evidence of Mr. J.L. having ever committed any offense against a child or having directly exposed himself to a child. It is fair to say, however, that he has been reckless as to whether children were in the vicinity on occasions when he has indecently exposed himself. Dr. Iosif made a number of recommendations for treatment which included treatment for antisocial issues, sex offender counseling and substance abuse counseling.
[5] This hearing commenced on May 5, 2020. Mr. J.L. did not have a plan for release at that time. He had not been able to contact any family members and Bail Program was no longer prepared to supervise him. Ms. Myers requested a one-week adjournment in order to investigate the availability of community-based supervision.
[6] Ms. Myers returned on May 13th with a letter from Sound Times Support Services (“Sound Times”), a mental health agency which provides community support for those who suffer from serious mental health or substance abuse problems including patients who are in conflict with the criminal justice system. In that letter, Ms. Samantha Dangubic indicated that if Mr. J.L. were to be released, Sound Times would provide him with a case worker, arrange appointments with professional caregivers, assist in arranging long term healthcare and in finding stable housing.
[7] In the course of the hearing, I was also able to contact Mr. J.L.’s Probation Officer, Mr. Christopher Broughton, by telephone. Mr. Broughton was familiar with Sound Times and advised that their office is a short walk from his own. Mr. Broughton also offered to assist Mr. J.L. in finding housing if he were released.
[8] Although Mr. J.L. has been in custody for over six months, it does not appear that there has been any material progress in his case. The fault for this may well lie with Mr. J.L. himself who has chosen to represent himself.
[9] It is clear that Mr. J.L.‘s most recent offences are the product of his mental illness. Further incarceration will provide no enduring protection for the public and is not justifiable where there are reliable community supports available which provide some hope of addressing the root causes of his offending behavior.
[10] I am deeply appreciative of Ms. Myers’s efforts as amicus counsel to have arranged a constructive plan of release.
[11] Mr. J.L. does not have a surety. He has a terrible history of failing to comply with court orders and, as he candidly acknowledged to Dr. Iosif, he is “not fond” of house arrest or bail conditions. I did review the proposed terms of release with Mr. J.L. and he indicated that he understood them. Mr. J.L. knows from experience that if he fails to abide by these release terms, he will soon return to jail for another lengthy period of pre-trial custody.
[12] Mr. J.L. will be released on his own recognizance without deposit. The terms will be as follows:
- Call Shelter Placement at 416 338-4766 when you are released from custody so that they can help you to find a shelter bed. Keep calling them until they are able to provide you with a place to live.
- Call Samantha Dangubic at Sound Times immediately after you are released. Her number is 416 873-1672.
- You must attend Sound Times at 280 Parliament Street immediately after you are released and no later than 4:00 pm on May 13, 2020.
- Attend for any appointments in the community which Samantha Dangubic or any other caseworker at Sound Times sets up for you.
- Do not attend within 300 metres of any place where children under the age of 16 are ordinarily present including a school, playground, daycare or swimming area.
- You have to call the officer in charge of your case within two days of your release to tell him where you will be living. The number to call is the front desk of 32 Division which is 416 808-3200. The name of the officer in charge is Detective Charles Wookey #4031. If the officer is there, you should speak to him but, if not, it is ok to leave a message giving him the address where you will be living. If you move to a new address, you must call 32 Division again and leave a message for Detective Wookey telling him your new address.
- You must call your Probation Officer, Chris Broughton, within two days of being released from custody. His cell phone number is 437 230-0387. He is expecting your call. If you have any problems finding a place to live, he can also help you.
[13] The next court date will be July 17, 2020 in Courtroom 301 for the case to be spoken to.
Justice Peter Bawden Released: May 19, 2020
Court File and Parties (Duplicate)
COURT FILE NO.: 0164/18 JJ DATE: 20200519 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – J.L. Applicant
Reasons for Judgment (Duplicate)
BAWDEN J. Released: May 19, 2020