Court File and Parties
Court File No.: CR-20-00000190-00BR Date: 2020-06-01
Superior Court of Justice - Ontario
Re: Her Majesty the Queen v. Kevin Nomamien Ahanon
Before: Michael G. Quigley J.
Counsel: Sean Husband for the Crown/Respondent Jeffery Couse for the Defendant/Applicant
Endorsement
[1] The applicant, Kevin Nomamien Ahanon, presently faces charges in the Ontario Court of Justice arising out of two occurrences where he was the driver of a motor vehicle.
[2] On the first occasion, he was charged with the Criminal Code offences of obstructing a peace officer, public mischief, and impersonation with the intent to avoid arrest. These charges arose out of an incident that took place on February 21, 2018 when Mr. Ahanon was pulled over by a member of the Toronto Police Service for allegedly using a cellular phone while driving. The officer demanded that he produce his driver's license, but it was suspended at the time. So instead, Mr. Ahanon allegedly verbally identified himself to the officer as his brother, "Kelly Owie." The police officer was successfully deceived. He issued Highway Traffic Act tickets in the name of Kelly Owie.
[3] Evidently, Mr. Owie did not discover the impersonation for a year, but when he did learn of it in early 2019 he reported it. As a result Mr. Ahanon turned himself in to Toronto Police and was charged on May 21, 2019, with these offences.
[4] By that time, Mr. Ahanon was also on bail in respect of two sets of further charges. One was a domestic incident, which included two counts of Assault. He has since been convicted of one. The other comprised one count of Fraud Under $5000 and one count of Utter Forged Document. Those charges are still before the Courts.
[5] The first bail appearance relevant to this application was on May 21, 2019, before Justice of the Peace Finn, who accepted a joint submission of counsel and released Mr. Ahanon on a $1,500 recognizance to his surety, his mother, Ms. Juliet Owie, and was to reside with her. One of the conditions was that he is not permitted to occupy the driver’s seat of a motor vehicle. Otherwise, the bail terms are standard and innocuous.
[6] At that same appearance, Mr. Ahanon also entered into an Undertaking to Appear with respect to the Highway Traffic Act charges of Driving while Suspended, Failure to Provide Identification, and Driving while Using a Handheld Communication Device.
[7] On August 31, 2019, Mr. Ahanon was arrested in Peel region after he was allegedly found driving a motor vehicle following a traffic stop. He was charged with Fail to Comply with Recognizance and released on a Promise to Appear, but the information containing this charge went missing, so the Crown lost jurisdiction and that charge is no longer outstanding.
[8] Five days later, on September 4, 2019, Mr. Ahanon was arrested for Fail to Comply with Recognizance in Toronto after being observed parking and exiting a motor vehicle. He was held for a show cause hearing that took place before Justice of the Peace Ross-Hendricks the next day, September 5, 2019. On this appearance, once again counsel made a joint submission, which was accepted by Ross-Hendricks J.P. She released Mr. Ahanon to his mother again as surety with the condition that he “not occupy the front seat of a motor vehicle.”
[9] Ms. Owie was adamant before Ross-Hendricks J.P. that she would “monitor him”, that she would take the car keys away, that he “isn’t permitted to drive anymore”, and that she would immediately report him if he breached in any way. She acknowledged that as an ODSP recipient, she cannot afford to lose the $1,000 pledged as the basis of the recognizance.
[10] Mr. Ahanon’s failure to comply trial is set for August 13, 2020. The obstruct justice and driving while suspended trial is set for September 2, 2020. Of course at this time it is unknown whether these trials will proceed as scheduled given the continued disruption of COVID-19 on the Court’s operations.
[11] Now, on this application, Mr. Ahanon asks the Court to vary the terms of two of his bails to permit him to drive. He is presently unable to work because he is not permitted to drive. His former employer submitted a letter of support indicating his confidence in Mr. Ahanon, but acknowledging, given that he is a sort of delivery person, that if he cannot drive, he cannot work.
[12] In order for this Court to interfere with the decisions of the Justices who presided at the original bail hearings, R. v. St-Cloud, 2015 SCC 27 at para. 121, requires that the applicant be able to demonstrate the presence of either (i) an error of law, (ii) a clearly inappropriate decision, or (iii) evidence of a material and relevant change in circumstances. If one those three threshold conditions is established, the reviewing Court then conducts a bail analysis “as if he or she were the initial decision-maker”: R. v. St-Cloud, 2015 SCC 27 at para. 138.
[13] The core of Mr. Ahanon’s submissions is there has been a material change in circumstances that merits relief from the prohibition against driving. There are two main reasons. The first is that Mr. Ahanon has already been prohibited from driving for a period of time that exceeds any license suspension he would receive if convicted: R. v. Myers, 2019 SCC 18, at paras. 51-53.
[14] When an accused is convicted of driving under suspension, their license is suspended for 6 months under s. 53(3) of the Highway Traffic Act in addition to any other period of suspension. As such, counsel argues that had Mr. Ahanon pleaded guilty to driving while suspended prior to July 30, 2019, his license would have been suspended until January 30, 2020. By the time of his trial, however, as presently scheduled and with no assurances that it will proceed, he will have been prevented from driving for 13 months. This exceeds the penalty for drive while suspended by 7 months.
[15] Further, if he is ultimately convicted of driving while suspended on September 2, 2020, his license will be suspended for 6 months until March 2, 2021. As such, he would have effectively served a 19-month suspension because of the terms of his recognizance. Counsel argues this is grossly disproportionate to the offence of driving while suspended.
[16] The Applicant further submits there has been a material change in circumstances in that (i) his license is no longer suspended, (ii) he has the ability to work but has been significantly and disproportionately constrained by this condition, and has suffered financially, and finally, (iii) that the driving condition has made it more difficult to care for his ill mother during COVID-19.
[17] Crown counsel opposes the proposed variation in terms to permit Mr. Ahanon to drive again. He correctly observes that Mr. Ahanon has not alleged any error of law or clearly inappropriate decision. That is not surprising and would always be an unlikely argument where the prior order was a result of a Justice of the Peace agreeing to a joint submission of counsel. Instead, Mr. Ahanon relies exclusively on the existence of a material and relevant change in circumstances, but Crown counsel argues that his application does not establish a material change in circumstances, and therefore does not meet the condition precedent for a fresh inquiry.
[18] The central thrust of his argument, and the focus of the hearing before me, was that the amount of time he has spent being unable to drive exceeds the maximum 6-month license suspension for the HTA offence of driving while suspended. However, Crown counsel asserts this argument rests on a fundamental misapprehension of the purpose and nature of the bail condition he seeks to vary. Crown counsel claims that the impugned bail condition does not relate to the HTA charges but rather in respect of his significantly more serious charges under the Criminal Code. Importantly, it is claimed the driving suspension bail condition directly addresses the alleged secondary ground concerns relating to Mr. Ahanon: that if Mr. Ahanon drives, he may falsely identify himself to, or otherwise obstruct, police officers enforcing the Highway Traffic Act.
[19] Crown counsel argues that Mr. Ahanon’s bail conditions must be evaluated against that risk, rather than the potential punishment for a provincial offence, and Crown counsel asserts that Mr. Ahanon faces the potential for a custodial sentence on these criminal charges. I reject both of these submissions, but first will address the presence here of a material change in circumstances.
[20] First, I accept Crown counsel’s correct observation that the fact that the prohibition on driving as reflected in the earlier consent bail orders limits what jobs Mr. Ahanon is able to perform, is not a material change in circumstances. This was an effect that each bail had from its outset. It plainly would have been fully within the intendment and contemplation of the presiding Justices.
[21] However, as has been extensively judicially noted by judicial colleagues across this Province and the nation as a whole, the COVID-19 pandemic on its own does create a material change in circumstances. The existence of the pandemic is generally now conceded by the Crown to constitute a relevant material change, consistent with the burgeoning bail review case law: see, amongst others, R. v. E.M, 2020 ONSC 3099 at paras. 6 and 52-66 and numerous other cases referenced there. The pandemic is not only a material change generally, but particularly in the circumstances of this case, if somewhat unusually as I will explain. Further, the delay occasioned by the present cessation of Court activity is a further material change consequence of the presence of the virus amongst us: R. v. Myers, above, at para. 53, R. v. T.L. 2020 ONSC 1885, R. v. J.R., 2020 ONSC 1938 at para. 52.
[22] As such, it is open to me to revisit the outcomes of the two initial bail hearings, even if reached on consent and pursuant to joint submissions. I have asked myself whether the joint submissions that were made at the time of those earlier hearings, and acceded to by both learned Justice of the Peace at that time, would have given rise to this result if the existence of COVID-19 and its impact on all of us had been known at those times. In my view, they would not, because the factors that now compel me to revisit these orders would have been squarely before both Finn J.P and Ross-Hendricks J.P. In my view, those factors would have resulted in the imposition of the very bail terms that defence counsel now seeks, while permitting Mr. Ahanon to drive.
[23] Crown counsel’s core position is the impugned bail condition does not relate to the HTA charges but rather in respect of Mr. Ahanon’s significantly more serious charges under the Criminal Code. Importantly, Crown counsel argued the driving suspension bail condition directly addresses the alleged secondary ground concern that if Mr. Ahanon drives, he may falsely identify himself to, or otherwise obstruct, police officers enforcing the Highway Traffic Act.
[24] In my view, this perspective is entirely misguided in the context of this review application. As stated by Crown counsel, there is a secondary ground concern that if Mr. Ahanon drives, he may falsely identify himself to, or otherwise obstruct, police officers enforcing the Highway Traffic Act. There are two problems with this position. The first is that it ignores the standard imposed by the secondary ground.
[25] The conditions of bail are designed to ensure, as required by s. 515(10)(b) of the Criminal Code, that detention is justified only 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.” Here, there was no need for detention, but the presence of the no driving condition is said to be present out of concern that Mr. Ahanon may “falsely identify himself to, or otherwise obstruct, police officers enforcing the Highway Traffic Act.”
[26] However, the presence and maintenance of a restrictive bail condition, just like detention, should be warranted only where there is a substantial likelihood in all the circumstances, not just a possibility, that the accused will commit a criminal offence or interfere with the administration of justice absent the presence of the condition, in this case, the driving suspension. What the condition ignores, is that Mr. Ahanon is not charged with Criminal Code driving offences. He is not charged with dangerous driving, or street racing or driving while impaired or any other substantive driving related criminal charge. He is charged with failure to properly identify himself, and with obstructing justice by impersonating his brother. He is charged with personation.
[27] Mr. Ahanon’s bail conditions must be evaluated against that alleged risk, rather than the potential punishment for a provincial offence, and Crown counsel asserts that Mr. Ahanon faces the potential for a custodial sentence on these criminal charges. First, there was no evidence there, or before me, of any substantial risk that Mr. Ahanon will commit a substantive criminal driving offence, nor was there any evidence that unless he is prohibited from driving, there is a substantial likelihood he will again fail to identify himself to the authorities. And there was no evidence or suggestion how the public risk that underlies the importance of the secondary ground was engaged in any way on this case. In my view, in the circumstances of this case, the driving suspension bail condition, which I accept now temporally exceeds the maximum suspension he could receive for HTA offences, is effectively a Criminal Code bail restriction, but one that is not directly and necessarily related to the criminal offence alleged. Mr. Ahanon could as easily have been charged with failure to self-identify in another circumstance, where it would be obvious that a driving suspension, now potentially extended due to COVID-19 delay, would be inappropriate.
[28] Secondly, Crown counsel asserts that Mr. Ahanon faces the potential for a custodial sentence on these criminal charges. While I accept that is a possibility, I regard it as an unlikely one in these times, due to the presence of COVID-19 in correctional facilities relative to the severity of the crime. That is not to suggest the offences alleged are not serious, but rather to retain perspective. The point is that it does not matter in the context of the issues that are before me.
[29] The simple answer as suggested by defence counsel is to address any secondary ground concerns about the actual charges in issue, that is of further offending by misidentifying, by requiring Mr. Ahanon to be in possession of government issued identification at all times, and to forthrightly identify himself when asked his identity by any peace officer. Further, the Crown’s alleged concern can be met by limiting Mr. Ahanon’s driving freedom to specific purposes and times of the day. In the result, this is what I have found to be most appropriate.
[30] I would be remiss in concluding these reasons, however, without also addressing the Crown’s argument related to the COVID pandemic.
[31] The evidence shows that Ms. Owie is a woman with significant health issues. She is diabetic. She has regular medical appointments with a number of doctors, and other health professionals. She previously had her son, Mr. Ahanon, available to drive her to these many appointments and it was her evidence that he did so regularly and that was of significant assistance to her. Nevertheless, she acknowledged before Justice of the Peace Ross-Hendricks that she intended to make sure he would no longer be driving, and she testified before me in cross-examination on her affidavit that since his license was suspended, she has had to take the bus or other public transit to try to attend these appointments. The position of defence counsel was that the driving condition has made it more difficult to care for his ill mother during COVID-19. That is one of the claimed material changes, that in his submission favours the variation of the condition.
[32] In this respect alone, Crown counsel concedes that the onset of the COVID-19 pandemic, which has made it more important for Ms. Owie to have assistance, is indeed a “significant” change, but not a “material” one. However, he argues it is one that weighs against, rather than in favour, of removing this bail condition.
[33] He takes the position that if that condition were to change, it will now put Ms. Owie in a compromised position as surety, where she will be dependent on Mr. Ahanon for support and that such dependence would interfere with her ability and promise to the Court to discharge her duties as a surety.
[34] If permitted to drive, Mr. Ahanon intends to assist his mother Ms. Owie. Both he and she indicate in their affidavits that this would make a considerable difference to Ms. Owie’s wellbeing. Yet, Ms. Owie is Mr. Ahanon’s surety. She is responsible for supervising Mr. Ahanon, and for calling the police if he breaches his bail so that he may be arrested. Crown counsel argues that in light of the breach of recognizance allegation, Ms. Owie’s continued appropriateness to act as Mr. Ahanon’s surety is somewhat doubtful, but would be rendered ineffective if she were to become dependent on Mr. Ahanon for her quality of life.
[35] It is interesting to consider whether COVID-19 may constitute a material change in circumstances, not only with respect to the person who is the subject of the bail conditions, but also the surety who is charged with enforcing those conditions, or revoking bail, under threat of loss of the monies pledged owing to estreatment. I see no reason why a material change in circumstances must relate solely to the accused, rather than to the conditions of the bail order as a whole, including the terms that relate to and bind the sureties.
[36] It is allegedly correct that Mr. Ahanon may have breached the terms of his bail, although I accept the position of defence counsel that at those times, having had his drivers license reinstated, he may well not have understood that he was still bound to stay out of the front seat of a motor vehicle due to the Criminal Code bail terms, even if not the HTA simple undertaking to appear once his license suspension was lifted. If he did not understand that difference, it will go to the question of whether he has the intent necessary to make out the offence. At present, on this bail hearing he is presumed to be innocent.
[37] However, despite the potential reasonability of this potential defence, Crown counsel claims that his conduct demonstrates his unwillingness to abide by bail conditions and the inability of his surety Ms. Owie to enforce them.
[38] It is said that I cannot have confidence that Mr. Ahanon would abide by his bail conditions if granted a variation, and thus, his existing bails should not be replaced with the proposed bails, which exclude the prohibition on driving.
[39] I reject this argument in all of its aspects. First, the COVID-19 virus is a material change in this case relative to Ms. Juliette Owie, the surety. Because of its presence, and having regard to her medical conditions and the unquestionable compromised immunity she has as a diabetic in the face of that virus, she can no longer safely go to appointments with doctors and other health providers using public transit, despite that she has willingly done so since the bail terms were imposed well before the pandemic arose.
[40] I accept that she needs the assistance of her son, this applicant, to convey her safely to those appointments. There must always be room for humanity and compassion, whether with respect to an accused or his or her surety, but I reject that this will in anyway undermine the firm and direct promises she has made to the Court to abide by her obligations as surety: to report any breach first and immediately, and ask questions later. She was firm and unequivocal in her response that it would not. I accept that Ms. Owie was telling the truth when she gave those answers. The strength and tenor of her voice as she gave that response made it clear to me that she will still be able to be relied upon as Mr. Ahanon’s surety, even if the driving suspension condition is removed.
[41] For all of these reasons, the application to vary is granted. The existing condition prohibiting Mr. Ahanon from operating or being located in the front seat of a motor vehicle will be deleted. Instead, upon agreement of counsel, the following exceptions are to be added to condition 4 of the Old City Hall bail dated May 21, 2019 and condition 2 of the 2201 Finch bail dated September 5, 2019, and both bails will now carry an additional condition relative to identification:
(i) Do not occupy the front seat of a motor vehicle except: i. For the purposes of travelling to and from work and while at work; ii. If you are in the presence of your surety; or, iii. Twice a week to attend to the necessities of life. (ii) You must carry with you your driver’s license while driving and you must present that driver’s license to a peace officer upon request.