Court File and Parties

Court File No.: CR-20-00000143-00BR Date: 2020-05-26 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – G.P., Applicant

Counsel: A. Del Rizzo, for the Respondent B. Kolman, for the Applicant

Heard: May 7, 2020.

Reasons for Decision

Schreck J.:

[1] What happens when there are secondary ground concerns about an accused person but he or she has already spent time in custody that is equivalent to or greater than any sentence he or she would receive if convicted?

[2] G.P. has been in custody on a number of charges for approximately eight months and is having his detention reviewed pursuant to s. 525 of the Criminal Code.[^1] He has a lengthy criminal record and a history of violating court orders. The Crown opposes his release on the secondary ground. G.P. submits that the release plan he has proposed is adequate to address the secondary ground concerns, but in any event the amount of time he has spent in custody will, after credit, be equivalent to any sentence he is likely to receive.

[3] The following reasons explain why I am granting the application. Although I have secondary ground concerns and concerns about the adequacy of the proposed plan, in my view there is a significant risk that if he is not released, the applicant will serve more time in custody than he would be sentenced to if found guilty. The principle of proportionality in sentencing requires that a sentence be as long as necessary to make it proportionate to the gravity of the offence and the moral blameworthiness of the offender, but no longer. In my view, that principle is an important factor in this case which tips the balance in favour of release.

I. FACTS

A. The Allegations

(i) July 2019 -- Assault and Fail to Comply With Probation

[4] In July 2019, the applicant was walking on the street with his 12-year-old daughter and became angry with her for not answering his questions about whether her mother was involved with someone. He allegedly grabbed her by the head, twice struck it against the window of a building and then grabbed her by the throat, causing her fall. She broke free with the assistance of a passerby and ran into a nearby store. The applicant followed her in, found her hiding behind a cashier’s booth, and then dragged her out of the store. When she continued to resist, he left the area. The police were called and arrived soon thereafter. At the time, the applicant was bound by a probation order requiring him to keep the peace and be of good behaviour.

[5] The police did not locate the applicant until the beginning of August 2019, at which time he was arrested. He was released on a recognizance.

[6] On September 17, 2019, the applicant was arrested on new charges that have since been dealt with and which are not relevant to this application. His bail was revoked and he has been in custody since that time.

(ii) October 2019 -- Aggravated Assault and Fail to Comply With Probation

[7] In October 2019, while in custody at the Toronto South Detention Centre (“TSDC”), the applicant became involved in an altercation with a correctional officer. The officer was escorting the applicant out of the shower area and apparently wished to take him somewhere other than where he expected to go. The applicant told the officer to “fuck off” and allegedly said “I’m going to knock you out.” At this point, the applicant was facing the officer and it is alleged that he stepped on his foot and pushed him. The officer fell over and injured his ankle, fracturing the bone and tearing the tendons. Other officers then subdued the applicant. The entire incident was captured on video.

[8] As a result of the incident, the correctional officer required surgery on his ankle. He has not returned to work since that time. He still cannot stand for long periods of time and cannot drive.

(iii) November 2019 -- Assault (Two Counts)

[9] In November 2019, the applicant was at a courthouse for a court appearance and became agitated while in the cells. When two court officers took physical control of him to put him into a cell, he allegedly spat on them. His spit hit one officer on her left leg, right forearm, chest and her hair and the other officer on the forehead and lip. He also allegedly threatened one of the officers.

(iv) December 2019 -- Assault (Two Counts)

[10] In December 2019, the applicant was at another court appearance. While in court, he allegedly attempted to spit on the presiding Justice of the Peace. His spit landed on the court clerk’s desk. Later, he allegedly spat on a court officer and bit another court officer’s finger. No injuries were suffered as a result of this incident.

B. The Applicant

[11] The applicant is 41 years old. He has a lengthy criminal record for a variety of offences, including numerous convictions for breaching court orders, mischief to property, assault, theft and possession of controlled substances. The longest sentence he seems to have served was the equivalent of about nine months in 2010 for a number of assaults and failing to comply with a recognizance.

[12] In December 2019, the applicant was assessed by Dr. Ian Swayze, a psychiatrist at the Centre for Addiction and Mental Health (“CAMH”). According to his report, the applicant has a significant intellectual disability. He cannot read or write, follow a schedule or follow simple written instructions. His mathematical abilities are at a Grade 1 level. Compared to other adults, his daily living skills are in the first percentile in the conceptual and social domains and the fifth percentile in the practical domains.

[13] The applicant completed Grade 9 in high school. He has only a limited employment history and survives on the Ontario Disability Support Program. According to Dr. Swayze, the applicant is disenfranchised from the community. His sole support is his mother, who is both a positive and negative influence for him.

[14] Dr. Swayze concluded that the applicant has an intellectual developmental disorder, antisocial personality disorder and polysubstance abuse disorders. In his view, the applicant would benefit from counselling in a variety of areas, including interpersonal skills, anger management and substance abuse.

C. The Proposed Release Plan

[15] The applicant proposes that he be released on a recognizance with his mother as a surety. He would not be able to live with his mother because she also has to care for her severely autistic daughter and because the applicant has a history of conflict with her husband. It is proposed that he reside with a friend whom his mother knows. His mother would do her best to ensure that he maintains contact with CAMH, attends rehabilitative programs and abides by his bail conditions. She has acted as a surety for him in the past and acknowledges that he has not always followed her direction.

II. ANALYSIS

A. The Nature of the Review

[16] This is a review conducted pursuant to s. 525 of the Criminal Code. Unlike a review conducted pursuant to ss. 520 or 521, this is not a review of any prior judicial order but, rather, a review of the detention itself. The question which the court must answer is whether the continued detention of the applicant is justified within the meaning of s. 515(10) of the Code, that is, whether detention is necessary on the primary, secondary or tertiary grounds set out in that section: R. v. Myers, 2019 SCC 18, at paras. 45-47.

[17] Where, as in this case, there has been a prior bail hearing, the reviewing court must show respect for any findings of fact made by the first-level decision maker if there is no cause to interfere with them: Myers, at para. 47. However, I must be careful not to simply “rubber-stamp” the prior decision: Myers, at para. 55.

B. The Secondary Ground

[18] In this case, the Crown opposes the applicant’s release on the secondary ground only. That ground is set out in s. 515(10)(b) of the Code, which states that detention is justified on the secondary ground where it is necessary for the protection or safety of the public “having 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.” In this context, a “substantial likelihood” means “a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely”: R. v. Manasseri, 2017 ONCA 226, at para. 87.

[19] The applicant’s history is cause for significant secondary ground concerns. He has a long history of committing various offences as well as breaching court orders. In this case, it appears that even being in custody does not deter him from continuing to engage in criminal conduct. The proposed plan has some shortcomings. The applicant would not be living with his surety, so it may be challenging for her to supervise him. Moreover, as she acknowledges, he has failed to follow her direction in the past.

[20] In these circumstances, the Justice of the Peace’s decision to detain the applicant at his initial bail hearing was fully justified, especially since at that time, the applicant was proposing that he be released on his own recognizance. The real issue on this application is whether the addition of a surety and the passage of time dictates a different result.

C. The Passage of Time

(i) Applicable Legal Principles

[21] The role played by the passage of time at a s. 525 hearing was explained in Myers, at paras. 50-53:

In determining whether the detention remains justified under s. 515(10) , the judge should also consider whether the time that has already elapsed has had — or the anticipated passage of time will have — an impact on the appropriateness or proportionality of the detention. In particular, it is necessary to be sensitive to whether the continued detention of the accused person could erode public confidence in the administration of justice: see, e.g., McCormack, [2014 ONSC 7123], at para. 29.

This is ultimately a question of proportionality. In some cases, the passage of time will have no impact on the necessity of continued detention. In other cases, it may be a very strong indicator that the accused should be released, with or without conditions. 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”: para. 10.

Determining, for the purposes of this analysis, the sentence the accused would potentially receive is not an exact science, nor does it require an exhaustive inquiry. However, the judge’s analysis should account for the circumstances of the case that were known at the time of the hearing and reflect the relevant sentencing principles: St-Cloud, at para. 65.

In other circumstances, accounting for the elapsed time or anticipated passage of time may require a more nuanced analysis of its impact on the three grounds which justify detention under s. 515(10). In St-Cloud, [2015 SCC 27, [2015] 2 S.C.R. 328], the Court indicated that a lengthy delay between the hearing and the eventual trial may be considered in determining whether detention is necessary to maintain confidence in the administration of justice, which is the tertiary ground: para. 71. … In an appropriate case, it may also be possible for the judge to conclude that a hypothetical risk in relation to the primary or secondary ground is simply outweighed by the certain cost of the accused person’s loss of liberty or of a loss of public confidence in the administration of justice. [Emphasis added.]

[22] As observed in R. v. Nahal, 2019 ONSC 6634, at para. 24, “[a] literal interpretation of the text of the secondary ground in Section 515(10)(b) of the Criminal Code does not seem to leave room for consideration of the delay in bringing a case to trial.” An accused who is likely to commit further criminal offences if released is not necessarily less likely to do so simply because he has spent time in custody. However, as noted in Nahal, the Supreme Court of Canada made it clear in Myers that this is a relevant consideration. The reason for this is the principle of proportionality.

(ii) The Principle of Proportionality

[23] The principle of proportionality was described in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 41-42, in the following terms:

It is clear from [ss. 718.1 and 718.2 of the Criminal Code] that the principle of proportionality is central to the sentencing process (R. v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309, at para. 12). This emphasis was not borne of the 1996 amendments to the Code but, rather, reflects its long history as a guiding principle in sentencing (e.g. R. v. Wilmott (1966), 58 D.L.R. (2d) 33 (Ont. C.A.)). It has a constitutional dimension, in that s. 12 of the Charter forbids the imposition of a grossly disproportionate sentence that would outrage society’s standards of decency. But what does proportionality mean in the context of sentencing?

For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused (R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicial and social censure (J.V. Roberts and D.P. Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary. [Emphasis added.]

[24] It is clear that the principle of proportionality serves a limiting function. An offender should receive a sentence that is commensurate with the gravity of his offence and the degree of his culpability, but no more. A sentence beyond what is proportionate cannot be imposed to achieve some other objective, such as treatment for the accused: R. v. B.(M.) (1987), 36 C.C.C. (3d) 573 (Ont. C.A.), at p. 200; R. v. Luther (1971), 5 C.C.C. (2d) 354 (Ont. C.A.), at pp. 355, 357. The same principle applies to a sentence beyond what is proportionate that is imposed to prevent the commission of further offences. Even those found to be dangerous offenders or long-term offenders are sentenced for the offences they have committed, not those they may commit in the future: R. v. Lyons, [1987] 2 S.C.R. 309, at paras. 24-25.

(iii) Proportionality and the Ability to Obtain Bail

[25] There are various reasons why a trial might be delayed, including situations that are not the fault of either party. For the reasons outlined earlier, it would be unjust if the operation of s. 515(10)(b) of the Code allowed for situations in which accused persons ultimately served disproportionate sentences. It would also create a disparity between accused who are granted bail and those who are not.

[26] Whether or not detention is warranted on the secondary ground does not only depend on the accused’s personal characteristics but must also take into account the proposed plan of release and whether it sufficiently reduces the likelihood that the accused will commit further offences: R. v. Tully, 2020 ONSC 2762, at para. 23. There are some situations where sufficiently stringent conditions allow for the release of an accused who would otherwise be detained. However, whether or not an accused has an appropriate release plan available to him or her may depend on factors beyond the accused’s control. For example, one accused may come from a wealthy family willing to arrange for around-the-clock supervision with electronic monitoring while another accused charged with the same offence and having the same criminal record is unable to find anyone to act as a surety. If the first accused ultimately receives a proportionate sentence but the latter is kept in pre-trial custody longer because of secondary ground concerns, there will be a lack of parity between the accused based on the ability to obtain bail, a circumstance that is irrelevant to the sentencing process.

[27] This point was made in a different context in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at paras. 65-67:

… [I]t is difficult to see how sentences can reliably be “proportionate to the gravity of the offence and the degree of responsibility of the offender” (s. 718.1) when the length of incarceration is also a product of the offender’s ability to obtain bail, which is frequently dependent on totally different criteria.

Judicial interim release requires the judge to be confident that, amongst other things, the accused will neither flee nor reoffend while on bail. When an accused is able to deposit money, or be released to family and friends acting as sureties (who often pledge money themselves), this can help provide the court with such assurance. Unfortunately, those without either a support network of family and friends or financial means cannot provide these assurances. Consequently, as the intervener the John Howard Society submitted, this means that vulnerable and impoverished offenders are less able to access bail.

For example, Aboriginal people are more likely to be denied bail, and make up a disproportionate share of the population in remand custody. A system that results in consistently longer, harsher sentences for vulnerable members of society, not based on the wrongfulness of their conduct but because of their isolation and inability to pay, can hardly be said to be assigning sentences in line with the principles of parity and proportionality.

Applying the same reasoning, an individual should not serve a longer sentence because he was unable to obtain bail, even where there are secondary ground concerns. Returning to the earlier example, the accused from the wealthy family who obtained bail may pose a risk to re-offend once he completes his sentence. However, this would not justify a sentence beyond what is proportionate. The same limit should apply to the accused who is unable to obtain bail: R. v. Bond, 2015 ONSC 4710, at paras. 24-25.

(iv) Determining the Likely Sentence

[28] Ensuring that the time spent in presentence custody does not exceed a proportionate sentence obviously requires knowing what a proportionate sentence would be. However, a judge hearing a s. 525 application cannot determine this with any degree of precision: R. v. Linklater, [2014] O.J. No. 6516 (C.J.), at para. 29. The judge who ultimately sentences the accused if he or she is convicted would have the benefit of findings of fact made at trial (or agreed facts on a guilty plea), full submissions by counsel, and possibly a pre-sentence report and victim impact statements. None of this is available to the s. 525 judge. This difficulty was recognized in Myers, at para. 52:

Determining, for the purposes of this analysis, the sentence the accused would potentially receive is not an exact science, nor does it require an exhaustive inquiry. However, the judge’s analysis should account for the circumstances of the case that were known at the time of the hearing and reflect the relevant sentencing principles: St-Cloud, at para. 65.

[29] The language is Myers suggests that what the s. 525 court must consider is whether the amount of time the applicant has served has “approximated” the appropriate sentence. Courts have used different language to describe this approximation, including “approaching” the time-served point (R. v. Hastings, 2020 ONSC 2083, at para. 56; R. v. Caldwell, 2016 ONSC 4638, at para. 21), whether the time that has been served is “in the range” (R. v. Momolu, [2019] O.J. No. 5069 (S.C.J.), at para. 57; R. v. Hadi, 2016 ONCJ 81, at para. 34), whether the time served “could well exceed [the] ultimate sentence if convicted” (R. v. Codina, 2017 ONSC 1384, 51 Imm. L.R. (4th) 129, at 26), whether there is a “real risk” of incarceration for a longer period than he would be sentenced to (R. v. Riaz, 2017 ONSC 3751, 14 M.V.R. (7th) 254, at para. 24), or whether the time spent in custody is “close to an appropriate sentence” (R. v. Piazza, 2015 QCCS 706, [2015] Q.J. No. 7230 (S.C.), at para. 80).

[30] In my view, the best approach is for the s. 525 court to determine an appropriate range of sentence, considering the accused’s history and the allegations, as well as any strengths or weaknesses in the evidence that are evident from the disclosure in counsel’s possession. The court should aim to ensure that the time the accused spends in custody does not exceed what may be a realistic sentence at the lower end of that range. As observed in Myers, this is “not an exact science.” The s. 525 court must continue to balance the need to protect the public. Where there are strong secondary ground concerns and a sentence at the lower end of the range is possible but unlikely, the court may conclude that detention remains necessary. At the same time, in many cases the fact that the accused has spent time in presentence custody may alleviate secondary ground concerns to some extent: R. v. Whyte, 2014 ONCA 268, 119 O.R. (3d) 305, at paras. 36-37.

[31] In considering issues of this sort, it is important to remember that “[l]iberty lost is never regained and can never be fully compensated for”: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 47, per Iacobucci J., dissenting; Whyte, at para. 28. If the sentencing judge ultimately imposes a sentence at the higher end of the range, the accused can serve more time if necessary, but no accused can be given back time he has unnecessarily served.

[32] When determining whether the amount of time spent in custody counterbalances any secondary ground concerns, it must be kept in mind that as noted in Myers, at para. 53, the “hypothetical risk in relation to the … secondary ground” must be weighed against “the certain cost of the accused person’s loss of liberty.” The significance of this was recently explained by Pomerance J. in R. v. Elliott, 2020 ONSC 2976, at paras. 26-27:

The court [in Myers] referred above to a “hypothetical risk” in relation to the primary or secondary ground. The secondary ground only warrants detention when there is a “substantial likelihood” that “the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice”. If something is substantially likely, it is arguably more than hypothetical. On the other hand, the risks addressed by the primary and secondary ground are hypothetical in the sense that they are predictive rather than descriptive. The risk of misconduct may or may not be realized.

By way of contrast, there is nothing hypothetical about detention. If someone is in custody, the impact on their liberty is very real and can be tangibly measured against the sentence that would likely attach to the charges. Detention orders are not made in the abstract. They are linked to a material event: the trial. If an accused person pleads guilty in exchange for a sentence of time served, he or she is obviously released from custody. What of a case where the accused has pleaded not guilty, but has already served the equivalent of a post-trial sentence? That factor weighs in favour of release pending the trial. An accused person should not have to plead guilty to receive the benefit of time already served. To hold otherwise is to risk coercing false guilty pleas from those who are factually innocent.

See also R. v. Ahmad, 2017 ONSC 3364, at para. 24.

[33] As a matter of common sense, the more serious the offence with which the accused is charged, the more likely it will be that the appropriate sentence will exceed the period spent in presentence custody. As a result, the issue that arises in this case is unlikely to arise in cases involving more serious offences.

D. Application to the Case at Bar

[34] The applicant has been in custody for approximately eight months. Applying the usual credit, this is the equivalent of 12 months: Summers, at paras. 70-71. It is likely that he would receive at least some additional credit because of the conditions at the TSDC and because he was incarcerated during the COVID-19 pandemic: R. v. Brown, 2020 ONCA 196, at paras. 11-12; R. v. Laurin, [2020] O.J. No. 1266 (C.J.), at paras. 57-62; R. v. Morgan, 2020 ONCA 279, at paras. 8-9; R. v. Studd, 2020 ONSC 2810, at paras. 41-43; R. v. O.K., 2020 ONCJ 189, at paras. 32-44; R. v. Hearn, 2020 ONSC 2365, at para. 20; R. v. Kandhai, 2020 ONSC 1611, at paras. 6-7. Counsel for the applicant submits that it is unlikely that he would receive any additional time in custody if found guilty. Counsel for the respondent submits that he likely would receive additional time in custody and that the Crown would be seeking a sentence of 18 months on the aggravated assault charge alone.

[35] The applicant’s trial on the aggravated assault charge is scheduled for May 15, 2020 but will not proceed on that date because the operation of the courts is currently suspended because of the COVID-19 pandemic. No trial dates have been set on his other charges. At this point, it is unknown when the applicant’s trial will take place. It is not known when the courts will resume operations and there will be a significant backlog of cases when they do. In these circumstances, it is likely that the applicant will serve at least several more months in custody.

[36] The Crown has elected to proceed summarily on all charges except for the aggravated assault. The applicant faces a maximum sentence of six months on the July 2019 charges and two years less a day on the November and December 2019 charges.[^2] While it would be appropriate for the sentences for most of these offences to be consecutive to each other, the principle of totality would apply.

[37] If proven, the assault on the applicant’s daughter would be very serious in my view, as it would involve an assault on a vulnerable child who was reliant on the applicant. A sentence close to the six-month maximum would likely be appropriate. The assaults on the court officers were also serious, but less so. The real issue, in my view, is the appropriate range of sentence for the aggravated assault. If it would be around 18 months as the Crown suggests, the applicant would not be approaching a time served position.

[38] As noted earlier, the altercation leading to the aggravated assault charge was captured on video. The video was provided to me and I have viewed it several times. It is unclear what the applicant does that leads to the correctional officer falling to the ground. That he pushed him is certainly a reasonable inference. However, in my view, the Crown will have a difficult time proving that the serious injuries to the officer were objectively foreseeable. Even if they were, it is doubtful that the applicant subjectively foresaw the injuries, much less intended them. As noted earlier, it is difficult to accurately predict an appropriate sentence without a full sentencing hearing. However, based on the information available to me, in my respectful view, an 18-month sentence for this offence is likely to be outside of the reasonable range.

[39] Based on the information available to me about the applicant’s record, his personal circumstances including his intellectual disability and substance abuse issues, and the nature of the offences, if the applicant is convicted of all of the charges he is facing, the appropriate range would be 12 to 15 months. Given the applicant’s background, the sentencing judge would likely also impose a lengthy period of probation.

[40] Given my conclusion, there is a real risk that the applicant will serve more time than necessary if he is denied bail. He has already served the equivalent of at least 12 months at the TSDC and is likely to be given additional credit for the time he has spent at the institution during the COVID-19 pandemic. If he is denied bail, he will spend at least several more months in custody.

[41] While I continue to have some concerns on the secondary ground, the addition of the applicant’s mother as a proposed surety strengthens the former release plan to some extent. As well, the fact that the applicant has now spent as much if not more time in custody as he ever has while serving a sentence has likely driven home to him the need to abide by the conditions of his bail: Whyte, at paras. 36-37. Having considered these factors together with the real risk to the principle of proportionality in sentencing, I am satisfied that it would be appropriate to release the applicant at this time.

III. DISPOSITION

[42] For the foregoing reasons, the application is granted and the applicant is ordered released on a recognizance with his mother as a surety and on conditions that were agreed upon by counsel.

Justice P.A. Schreck

Released: May 26, 2020

[^1]: The application was heard by teleconference as a result of the suspension of the court’s operations due to the COVID-19 pandemic.

[^2]: Section 316 of An Act to Amend the Criminal Code, the Youth Criminal Justice Act and Other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25, raised the six-month maximum for most summary conviction offences in s. 787(1) of the Criminal Code to two years less a day. However, s. 405 provides that the amendment does not come into force until 90 days after Royal Assent, which was on June 21, 2019. As a result, the applicant faces a six-month maximum for the July 2019 charges.