Court File and Parties

COURT FILE NO.: CR-20-120 BR DATE: 20200622 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – S.Q. Defendant

Counsel: Jennifer Armenise for the Crown/Respondent Bernard Cugelman for the Defendant/Applicant

HEARD BY TELECONFERENCE: June 18, 2020

RULING ON BAIL VARIATION APPLICATION

C. BOSWELL J.

Overview

[1] S.Q. is charged with a number of serious offences in relation to a domestic incident that allegedly occurred in mid-February 2020. He faces five counts: assault, assault causing bodily harm, threatening, forcible confinement and sexual assault with a weapon.

[2] On February 24, 2020 he was released on a consent bail with conditions. The conditions are onerous. S.Q. must reside with his surety – his father – who pledged $5,000. He is subject to house arrest. He may not be outside of his surety’s residence, unless in the direct company of his father or mother. He must also wear an electronic monitoring ankle bracelet. Finally, he is prohibited from having any direct or indirect contact with the complainant, who is his former common-law partner.

[3] S.Q.’s parents reside in Binbrook, which is near Hamilton. S.Q. owns his own residence in Barrie. The release order is sufficiently flexible to allow him to reside with his surety at either location.

[4] S.Q. has worked at the Honda manufacturing plant in Alliston, Ontario for twenty years. He has a supervisory position. He has been off work on a short disability allowance since the date of the alleged offences, but is scheduled to return to work on June 26, 2020.

[5] He applies to vary the conditions of his bail to facilitate his return to work. At the same time, he submits that many of the most onerous conditions of his release order are no longer necessary, given substantial improvement in his mental and emotional health.

[6] The Crown opposes any significant variation to the current release conditions, arguing, essentially, that S.Q. continues to pose a significant risk to the complainant.

[7] Understanding the issues, and the positions of the parties, will require some brief background about the alleged offences.

The Alleged Offences

[8] To be clear, I sourced the following information about the charged offences from the allegations laid out by the Crown at the original show cause hearing on February 24, 2020. They are allegations only. S.Q. is presumed to be innocent of all charges.

[9] S.Q. and his former common law partner, V.L., returned home in the early morning hours of February 16, 2020 after a night out partying. They had been with friends and had been consuming alcohol. An argument occurred. S.Q. became enraged. He grabbed V.L. by the shirt and put her to the floor. She got up and ran into a bedroom, planning to call 911. S.Q. followed her in, threw her to the floor and took the phone from her. He choked her almost to the point of unconsciousness, then banged her head into a dresser, causing a laceration and significant bleeding.

[10] S.Q. then went and obtained a fillet knife and threatened to kill himself. He purportedly told V.L. that he would rather die than go back to jail. By way of edification, in 1994 he served a sentence of two years less a day for convictions of assault with a weapon, forcible confinement and pointing a firearm.

[11] V.L. ran to a bedroom in the basement. S.Q. followed and blocked the door so she could not leave. V.L. curled up on the bed and vomited numerous times. She pleaded with S.Q. to let her leave to go to the hospital. S.Q. told her that if he was going to be heading to jail, he may as well have sex one last time. She said no, but he forcibly removed her pants and had sexual intercourse with her against her well, all the while holding the fillet knife beside her head.

[12] Eventually S.Q. allowed V.L. to leave the residence. She promptly called 911. When the police arrived, they found S.Q. in a crawl space in the basement. He had cut his carotid artery and was in grave peril. The police applied pressure to his neck until paramedics arrived. He was conveyed to the hospital for life-saving treatment.

[13] S.Q. spent five days in the hospital and then four days in jail until he was released on the conditions I referred to above.

[14] S.Q. has participated in a number of mental health programs since his release, including the following:

(a) Weekly counselling sessions through the Rapid Access Addiction Medicine Clinic from February 19 to April 29, 2020; (b) Counselling through his work benefits, delivered by Morneau Shepell. He attended six sessions throughout March and April and has recently enrolled in a further eight week program; (c) Eight therapeutic sessions during March and April with a registered nurse/psychotherapist at Royal Victoria Hospital; and, (d) The RVH mental health and addictions day program. This was an online program, 90 minutes a day, for two weeks.

[15] S.Q. reports experiencing great success with his counselling and therapy. He reports that he is feeling emotionally and psychologically sound.

The Legal Framework

[16] S.Q.’s application is brought pursuant to s. 520(1) of the Criminal Code , which allows an accused person to apply to a judge for a review of the terms of a release order at any time before the trial of the charges.

[17] The jurisdiction to vary release conditions is not unfettered. The Supreme Court has made it clear that the jurisdiction is only triggered in three circumstances: (1) where there is admissible new evidence that shows a material and relevant change in the circumstances of the case; (2) where the reasons for the detention order contain an error in law; or (3) where the detention order is clearly inappropriate. See R. v. St. Cloud, 2015 SCC 27.

[18] In this case, given that the release conditions were made on consent, the only applicable trigger is the first – that there has been a material change in circumstances. S.Q. points to two: (1) his anticipated return to work; and (2) his improved mental health.

[19] If I am satisfied that there is admissible new evidence that shows a material and relevant change in circumstances, then I am authorized to repeat the bail hearing, in accordance with s. 515(1) of the Criminal Code as if I was the original decision-maker. See St. Cloud, para. 138.

[20] There is presently no issue about whether S.Q. should be released on bail. This review is about what, if any, conditions are required to attenuate any of the risks identified in s. 515(10) of the Criminal Code. Specifically, the risk that S.Q. may abscond; the risk of recidivism; and the risk that his release, or the conditions of his release, will tarnish the reputation of the administration of justice.

[21] The Crown’s concerns on this application focused on the issue of recidivism. More particularly, the risks that S.Q. poses to the complainant and to the public at large. I will, accordingly focus on that issue.

[22] In considering the imposition of release conditions, I am required to follow the ladder principle. The ladder principle is grounded in the accused’s constitutional rights to be presumed innocent and to not be denied reasonable bail except for just cause. It must be strictly adhered to.

[23] The ladder principle and its application were recently addressed by the Supreme Court in R. v. Antic, 2017 SCC 27. To assist judicial officers in conducting bail hearings that adhere to the principle, the Supreme Court provided explicit directions, at para. 67, which include the following:

(a) Release is favoured at the earliest reasonable opportunity and on the least onerous grounds; (b) Save for exceptions, an unconditional release on an undertaking is the default position when granting release: see Criminal Code, s. 515(1); (c) If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form of release, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of release unless the Crown has shown it to be necessary having regard to the statutory criteria for detention; (d) Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release. Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of release without justifying the decision to reject the less onerous forms; and, (e) A recognizance with sureties is one of the most onerous forms of release. A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.

[24] The Supreme Court has been singularly consistent in its messaging on the law of bail over the past five years. Through four seminal rulings they have repeated the importance of adhering to the overarching principles of the presumption of innocence and the right to reasonable bail. See R. v. St. Cloud, as above, R. v. Antic, as above, R. v. Myers, 2019 SCC 18 and, most recently, R. v. Zora, 2020 SCC 14. Time and again they have affirmed that accused persons should be released as early as possible and on the least onerous terms possible.

[25] Zora represents the most recent word from the Supreme Court on the fundamental principles of the law of bail. The issue at the centre of the appeal in Zora was the requisite fault element for the offence of breaching the conditions of a release order. Nevertheless, the court took the opportunity to re-affirm the message that too many accused persons are being detained, or released on conditions that are far more onerous than can be justified – either constitutionally or rationally. Notwithstanding the court’s directions in Antic, there continues to be a “culture of risk aversion that contributes to courts applying excessive conditions.” (Zora, para. 77; see also R. v. Tunney, 2018 ONSC 961 at para. 29).

[26] Justice Martin, for a unanimous court, reiterated in Zora that the ladder principle is premised on the concept of restraint, which means that any conditions imposed on an accused person be no more onerous than necessary. (Para. 21). Each condition imposed reflects a further limitation on the liberty of a person who is presumed innocent and creates a new risk of criminal liability. (Para. 82).

[27] Bail conditions should never be imposed, she said, for reasons of convenience, or because they would be “good to have” or “couldn’t hurt”. (Para. 85). Conditions must be designed to curtail statutorily identified risks posed by a particular person. (Para. 25).

[28] Courts are directed to consider which, if any, of the three risks identified in s. 515(10) are in play. In other words, is there a risk the accused may not attend court as required? Will release pose a risk to public safety? Or will release erode public confidence in the administration of justice? Only after identifying the particular risk(s) created by release can a court craft conditions which are necessary to allay those risks. (Paras. 83-83). Even then, the conditions should be defined as narrowly as possible to meet their objective (Para. 86) and they should be “clear, minimally intrusive, and proportionate to any risk.” (Para. 87).

[29] At para. 89, Martin J. offered the following series of questions one might consider when crafting appropriate bail conditions:

(a) If released without conditions, would the accused pose any specific statutory risks that justify imposing any bail conditions? (b) Is this condition necessary? If it was not imposed, would that create a risk of the accused absconding, harm to public protection and safety, or loss of confidence in the administration of justice which would prevent the court from releasing the accused on an undertaking without conditions? (c) Is this condition reasonable? Is the condition clear and proportional to the risk posed by the accused? Can the accused be expected to meet this condition safely and reasonably? Based on what is known of the accused, is it likely that their living situation, addiction, disability, or illness will make them unable to fulfill this condition? (d) Is this condition sufficiently linked to the grounds of detention under s. 515(10)(c)? Is it narrowly focussed on addressing that specific risk posed by the accused’s release? (e) What is the cumulative effect of all the conditions? Taken together, are they the fewest and least onerous conditions required in the circumstances?

The Parties’ Positions

[30] There seems to be little doubt that S.Q. was in a perilous state of despair on February 16, 2020. It was of paramount importance to him to get out of jail and into counselling and therapy. His counsel explained that he consented to onerous bail conditions on February 24, 2020 because the only thing that really mattered to him at that time was being released from custody so that he could get the help he needed.

[31] S.Q.’s counsel was under the impression that the Crown would look favourably on alleviating the conditions of release if S.Q. could demonstrate that his mental and emotional health had stabilized and that he was obtaining counselling.

[32] S.Q. contends that he threw himself into counselling and therapy with great zeal. He says he has made remarkable progress. He now wishes to return to work which is significantly important to his sense of identity and self-worth. He understands that the complainant wants to have no contact with him and he intends to strictly abide by any condition that he not communicate with her in any way.

[33] More than twenty friends, relatives and co-workers have written to the court to attest to the good character of S.Q., including two former girlfriends. The allegations against him are out of character they say, and do not reflect the responsible and generous person they know.

[34] S.Q.’s counsel asserts that in the present circumstances, the principle of restraint supports a release with only a condition that S.Q. not communicate with the complainant. Nothing further is necessary in terms of the statutorily identified risks. That said, S.Q. is prepared to continue with a surety release because he understands the practical realities of his situation. He asks for the following amendments to his current release order:

(a) The removal of the electronic monitoring provision; (b) The removal of the requirement that he reside with his father; (c) Permission to be outside of his residence, unaccompanied, for the purpose of attending work; (d) Removal of the requirement that he be in the company of his father or mother at all times when outside of his residence; (e) The addition of a new surety – a tenant who lives in a basement apartment at S.Q.’s house in Barrie. This will be a residential surety in place of his father.

[35] The Crown agrees that S.Q.’s release order should be varied to permit him to return to work. The Crown is also not opposed to the addition of the proposed second surety. But that is as far as the Crown is prepared to go in terms of consenting to the changes requested.

[36] The Crown points to the seriousness of the offences, the strength of its case, unresolved issues with substance abuse, and the impact the proposed changes will have on the sense of security and well-being of the complainant in support of its position that it is too soon to remove conditions that were agreed to as appropriate only four months ago.

[37] In the Crown’s submission there is a significant risk to the complainant should S.Q. be permitted outside of his residence without supervision. Though S.Q. has been diligent in pursuing counselling it has all, by necessity, been online. Due to the pandemic S.Q. has not be able to obtain in-person therapy and may not be able to do so for some considerable time. Under the circumstances, Crown counsel is very concerned that it is premature to pronounce S.Q. recovered. There is simply too great a risk to the complainant in removing all supervision at this stage.

Discussion

[38] As I noted, my jurisdiction to vary S.Q.’s bail conditions depends on the conclusion that there has been a material change in circumstances. This issue was not disputed by the Crown. I am satisfied that the change in S.Q.’s mental health status, as a result of the extensive counselling he has received, and his impending return to work, are both material changes that trigger my jurisdiction under s. 520 of the Criminal Code. I am entitled, in the result, to consider anew the conditions of S.Q.’s release.

[39] S.Q. is alleged to have confined, beaten and raped a woman at knifepoint while in a state of advanced intoxication. He is alleged to have then cut his own throat, severing his carotid artery, in a failed suicide attempt.

[40] S.Q.’s lawyer argued that while a nasty situation obviously occurred, there are serious triable issues with respect to precisely what happened. His argument is undoubtedly true, given that there are two witnesses to what happened and they presumably have different accounts of how things played out.

[41] On a bail hearing at an early stage in the proceedings, it is almost invariably difficult to gauge the strength of the Crown’s case. In my view, however, the Crown’s case appears to be at least a compelling one, even from my limited vantage point.

[42] I am satisfied that the complainant is fearful of S.Q. and that she has reason to be. I am also satisfied that S.Q. was in a state of deep emotional disturbance in mid-February 2020 and that, by his own admission, he suffered from a substance (cocaine) abuse problem.

[43] I agree with S.Q. that he has made admirable attempts to address his emotional and substance abuse issues and it would appear that he has made great strides. It would, however, be naïve to accept at face value that he has beaten whatever demons have been plaguing him after four months of online counselling sessions. Depression and addictions, which so often go hand in hand, are insidious afflictions. They pushed S.Q. to the brink just four months ago. While there are good reasons to be optimistic about his recovery, particularly given his motivated approach to treatment, a cautious approach remains warranted.

[44] All of this is to say that S.Q. remains a risk to the safety and security of at least one member of the public. The risk is not so significant that pre-trial detention is required, but it is certainly significant enough in my view that an unconditional release on an undertaking to appear is not appropriate.

[45] The risk to the complainant’s safety is the only statutorily identified risk flagged by the Crown on this bail review hearing. To attenuate that risk, the Crown seeks to continue the following conditions:

(a) A non-communication order; (b) Two sureties, each in the amount of $5,000; (c) Reside with one or the other surety at all times; (d) Remain in the residence at all times unless in the direct and continuous company of a surety, except to attend work, though he must be driven to and from work by a surety; and, (e) Electronic monitoring through an ankle bracelet.

[46] In accordance with the Supreme Court’s directions in Zora, I must now ask, with respect to each condition: is it necessary; is it reasonable and proportionate; is it sufficiently linked to a s. 515(10) ground; and, taken together, are the conditions sought be the Crown the fewest and least onerous conditions required in the circumstances?

[47] I will consider each condition in turn.

The Non-communication Condition

[48] A non-communication provision is absolutely necessary in my opinion. S.Q. should at no time and by no means be communicating with the complainant. This is a no-brainer condition and not at all onerous. It is a de minimis restriction on S.Q.’s liberty, it protects the due administration of justice, and it respects the equality and privacy rights of the complainant.

The Requirement of Sureties

[49] S.Q. consents to a provision for two sureties. His release order shall, in the result, include two sureties: his father, J.Q., and his tenant, R.W., each in the agreed amount of $5,000.

The Residence Condition

[50] S.Q. consents to a provision that he reside with one or the other of his sureties. I would have ordered him to do so in any event. This is obviously a more onerous condition and one that entrenches on S.Q.’s liberty in more than a de minimis way, though to some extent its intrusiveness is attenuated by the fact that S.Q. will be permitted to reside in his own home, with his tenant, which is essentially little more than a confirmation of the status quo.

[51] My conclusion that a residential surety remains necessary is grounded in a concern about S.Q.’s ongoing mental health and addiction issues and the risk they may present to public safety. The assertion is that S.Q.’s mental health and substance abuse were causative features in whatever nasty situation developed on February 16, 2020. Again, while I am satisfied that S.Q. is making positive strides, it is premature to declare him out of the woods. And while his mental health and substance abuse issues remain in play, he remains a risk to public safety. Continuing to reside with his surety will help attenuate any such risk.

The House Arrest Condition

[52] The requirement that S.Q. remain in his residence unless supervised by a surety is the most disputed condition on this bail review. I completely understand why the Crown wishes to have S.Q. supervised whenever he is out of his residence. It obviously adds a layer of protection for the complainant. Indeed, the complainant has expressed significant fear of S.Q. and indicates that she will have to quit her job and remain home if he is permitted to be out and about without supervision.

[53] I am sympathetic to the concerns of the complainant. In my view, however, constant supervision is a disproportionate restriction on S.Q.’s liberty, in view of my assessment of the limited risk he poses to the complainant. My conclusion is based on the following factors:

(a) S.Q. has not attempted to communicate with the complainant in any way since he was released on bail on February 24, 2020. In other words, he has a demonstrated history of compliance; (b) S.Q. will have two sureties who are charged with supervising him and ensuring that he complies with the conditions imposed on him. I am satisfied that the sureties are sincere, earnest and informed about what issues they need to be attentive to; (c) S.Q. has lived, as his counsel said, a creditable life. While he has a criminal record it is more than twenty-five years old. S.Q. has worked at Honda Manufacturing for twenty years, much of that in a supervisory role. He will be returning to that work, which should aid in his well-being and stability; and, (d) S.Q. has a significant support network of family, friends and co-workers. A large number of them wrote letters to the court in support of him, attesting to his good character.

[54] I am not satisfied that S.Q. requires supervision when outside of his residence. This is a provision that might be “good to have” but when the conditions are viewed as a whole, it cannot be said to be part of the least onerous conditions necessary to attenuate the identified risk.

The Electronic Monitoring Condition

[55] In my opinion, this provision was overkill when it was imposed. I am not sure what it was meant to add, when S.Q. was never allowed to be out of the presence of his surety.

[56] Going forward, I do not believe the ankle bracelet is required. I am not imposing a house arrest provision. Electronic monitoring will do nothing to prevent any other breach. In my view, there is no rational basis to continue with it.

Other Conditions

[57] S.Q. consents, as I understand it, to continuing the condition that he not possess any weapon as defined by the Criminal Code. I will continue that provision in the result. I am also imposing a condition that he not consume alcohol or non-prescription medication. Given the connection between the events of February 16, 2020 and substance abuse, I think it warranted.

Conclusion

[58] In summary then, the February 24, 2020 release order is varied so that it now provides that S.Q. is to be released on the following conditions:

(a) He shall have two sureties, J.Q. and R.W., each in the amount of $5,000, without deposit; (b) He shall reside, every night, with either J.Q. at 1545 Binbrook Road, Binbrook, Ontario, or with R.W. at 39 Oren Crescent, Barrie, Ontario; (c) He shall not communicate, directly or indirectly, by any physical, electronic or other means, with V.L. and shall not be within 200 metres of V.L.’s residence, place of employment, or anywhere else she is known to be, except for required court appearances; (d) He shall not possess any weapon as defined by the Criminal Code; and, (e) He shall not consume alcohol or any non-prescription drugs.

[59] S.Q. is otherwise remanded to his next appearance in the Ontario Court of Justice at 75 Mulcaster Street, Barrie, on August 10, 2020 at 9:30 a.m.

Boswell J.

Released: June 22, 2020