COURT FILE NO.: 20-9 DATE: 20200630 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Hifato

BEFORE: The Honourable Justice Laurie Lacelle

COUNSEL: B. Glendinning, Counsel for the Crown J. Langevin, Counsel for the Defense

HEARD: By teleconference on June 25, 2020 and written submissions received on June 29, 2020

REASONS FOR DECISION ON APPLICATION FOR BAIL REVIEW

Introduction

1Mr. Hifato faces several serious charges, including robbery, break and enter, assault with a weapon, and possession of a firearm contrary to a prohibition order. His counsel informs the court he has a trial scheduled on these charges in January of 2021.

2The accused has been in custody since the alleged offences occurred in September of 2019. He was denied bail after a bail hearing in October of 2019. At that point, the plan was that Mr. Hifato’s sister would act as his surety and he would reside with her in their family’s home in Ottawa.

3Mr. Hifato now applies for a bail review under s. 520 of the Criminal Code and asks to be released on bail. He has secured a placement at a residential drug treatment program. Initially, he applied to be released on his own recognizance, with a $2000 bond, with various conditions. Since the teleconference when his evidence was given, the accused’s counsel has confirmed that the residential treatment program director is not opposed to a release plan that would include a surety. Consequently, the accused has now presented evidence in writing that his sister continues to be willing to act as a surety for him and will co-ordinate with the proposed treatment program personnel in the supervision of her brother.

4The Crown concedes that the drug treatment component of the new plan is sufficient to be a material change in circumstances that permits me to re-consider whether the accused should be released pending his trial. However, the Crown argues that Mr. Hifato has not met his onus on this hearing because he has failed to present a plan that sufficiently addresses his risk to the public if he is released, and because his release would undermine confidence in the administration of justice.

5I have concluded that Mr. Hifato has not met his onus in showing that his detention is not justified under either the secondary or tertiary grounds established by s. 515(10) (b) and (c) of the Criminal Code of Canada. These are my reasons for that decision.

The evidence on the application

6This hearing was brief and the factual record for the application is clear. Accordingly, I will not extensively summarize the evidence. For the purposes of these reasons, I highlight certain features of the evidence.

7I also note that the evidence and submissions in this matter were presented either by teleconference or in writing. Where evidence or submissions were received by me in writing following the conclusion of the teleconference, those documents are to be entered as exhibits on the proceedings to complete the record.

8As regards the additional evidence that was submitted in writing (e.g. the affidavit of the proposed surety, Ms. Hifato), the Crown declined the opportunity to cross-examine on the affidavit. However, the Crown has made additional submissions which address the modified bail plan. The defence has declined the opportunity to file further submissions in reply.

The allegations

9Mr. Hifato is alleged to have participated in a robbery involving a number of weapons during a home invasion on September 20, 2019. The target of the robbery was at his girlfriend’s house in a rural location outside of Cornwall. Two children were also present at the residence.

10It is alleged that Mr. Hifato and three others travelled together to the residence in a single vehicle. After arriving, it is alleged that Mr. Hifato, along with two of the co-accused, made their way onto the back deck of the residence where the target of the robbery was confronted. After the target entered the house, one of the co-accused smashed the glass window of the patio door with a metal bar of some kind. A physical altercation then occurred between the target of the robbery and the three accused.

11At some point, it is alleged that the three accused entered the residence, where other persons, including two children, were present. Mr. Hifato is alleged to have wielded a machete-style knife and to have struck the target of the robbery with it, causing him a laceration near his elbow. Another of the three co-accused had a firearm described as a shotgun and was pointing it at the individuals in the home during the altercation.

12During these events, one of the occupants of the house heard the target of the robbery being asked for the location of drugs. Eventually, the target of the robbery threw his wallet to one of the co-accused. The co-accused left the house with the wallet and a cell phone which belonged to another occupant of the house. Police were then called.

13The responding police officers located a vehicle matching the description of the perpetrators’ vehicle driving on a nearby road (it is not alleged that Mr. Hifato was the driver). The vehicle sped up upon police approaching and failed to observe the stop sign at an intersection. The vehicle continued to evade police, driving at high speeds and driving erratically. The vehicle was ultimately stopped after the use of a spike belt. The four occupants of the vehicle, including Mr. Hifato, were placed under arrest. In a subsequent search of the vehicle, police seized a hammer and metal bar and a machete. A shotgun shell was located as well.

14A search of the roadway near the scene of the crime was conducted the next day. The wallet belonging to the target of the robbery was found and returned to him.

15Crown counsel advises that the other two co-accused who were alleged to have entered the house with weapons have now pleaded guilty. They both received penitentiary sentences.

The accused’s prior criminal record

16The 31 year old accused comes before the court with an extensive criminal record dating from 2007 when he was a youth. The record includes multiple entries for offences of violence and offences involving firearms or weapons. In 2008, he was convicted of unauthorized possession of a prohibited or restricted weapon and unauthorized possession of a firearm in a motor vehicle. This resulted in a sentence of 2 years and a weapons prohibition order. In 2010, he was convicted of aggravated assault. In 2014, the accused was convicted of 6 counts of robbery and 6 counts of using an imitation firearm during the commission of an indictable offence.

17The accused has twice been sentenced to penitentiary length sentences and has twice been on parole. While one breach of his parole supervision is indicated on his record (it also resulted in a conviction for assault), the accused confirms there was another occasion when he violated the terms of his parole because he failed a drug test. The accused also has prior convictions for failing to comply with court orders and failing to attend court.

18At the time of the accused’s arrest for these offences in September of 2019, the accused had gone just over one year since his last convictions (entered on July 18, 2018) for assault, flight while pursued by police, and resisting arrest. He received a sentence of 180 days in addition to 180 days of pre-sentence custody for those offences.

The accused’s evidence

19The accused testified on the hearing. He testified that every entry on his criminal record is rooted in his substance abuse problem. He admits that he has managed to keep this problem from his family until very recently, though given his routine incarcerations he thinks his family knew he had a problem.

20The accused’s substance abuse issues are such that he has only been able to abstain from the use of drugs while in the community for a period of about two months. He indicates that cocaine and alcohol are his preferred choices. He testified he had lost a lot of jobs because he was avoiding doing the drug testing they required.

21The accused testified with sincerity about his intention to commit himself to addressing his substance abuse issues and not putting his family through further disappointments with him. This is the first time he has admitted he has a drug problem.

22While incarcerated, he has taken every course available to him at OCDC. These courses involve independent study after which he meets with a social worker. Mr. Hifato has also met with a psychologist on a few occasions. He says he now sees that he had bad relationships, which I infer was a reference to his chosen associates. He is reading books available to him from the library to continue his self-improvement.

23At the completion of his proposed drug treatment program, the accused indicates that he intends to remain in Ottawa with his family. Apart from times when he worked at various jobs in Alberta or was in jail, the accused has resided in the Ottawa area during his adult life.

24While at the initial bail hearing Mr. Hifato’s sister described the accused living with the family in the months leading up to his arrest on the current charges, the accused painted what I suspect is the more accurate picture. His evidence suggested that while he may have used his family’s residence as a home base, he was frequently elsewhere. He described occasions where he left the family home and stayed at friends and was “couch surfing”. It appears that this was when he consumed drugs and alcohol since he was able to abstain when at his family’s home. While his parents did ask him about his comings and goings, he would lie to them about where he was staying.

25The accused testified that he does not intend to continue to act this way with his family. He says that if he fails to complete the drug treatment program, and is still using, he will not lie to his family. He says he will turn himself back into custody or stay in a shelter.

Additional evidence

26The accused has also filed a letter of support from his parents. The letter confirms their support and love for their son and his valued contributions to their family. The letter is also frank, insofar as the accused’s parents describe him as “impulsive and naïve”. They make clear their belief that with the right supports and treatment, their son can once again be a “bright man who thinks before he acts”. They ask that he be permitted to get the support he needs to be rehabilitated.

27As I have explained above, the accused has also now filed an affidavit from his sister who confirms her continued willingness to act as a surety for him.

28The evidence of the accused’s sister on the initial bail hearing is also available to me. Her evidence makes clear that the accused has the support of his family and that they are close-knit. With the exception of one sister, all the accused’s siblings continue to reside with their parents. It is also clear from the evidence at the initial bail hearing that the accused’s family have understood very little about the accused’s issues and the cycle that sees him returning to jail at regular intervals.

29The accused’s sister indicates that she is mainly working from home during the pandemic. I have no additional evidence about schedules in the household at this time.

The secondary grounds

The legal principles

30The issue under the secondary ground is whether, if released, there is a “substantial likelihood” that the accused will commit further offences or interfere with the administration of justice. In this instance, where the accused has been charged with a robbery alleged to involve a firearm while he was bound by the terms of a weapons prohibition order, pursuant to ss. 515(6)(a)(vii) and (viii) of the Criminal Code, it is the accused who bears the onus of satisfying the court that the bail plan proposed meets this threshold.

31The meaning of “substantial likelihood” has been considered by the Supreme Court. The court confirmed in R. v. Morales, [1992] 3 S.C.R. 711 that bail cannot be denied simply because a risk is posed by the offender, but only for those who pose a “substantial likelihood” of committing an offence, or interfering with the administration of justice, and only where this substantial likelihood endangers the protection or the safety of the public. Detention is justified only when it is “necessary”. It is not justified where it would merely be convenient or advantageous.

32Making predictions about dangerousness is not an exact science. Morales and other cases recognize the difficulties in making exact predictions about future dangerousness. In Morales, the court indicated that exact predictions are not required. It held that “the impossibility of making exact predictions does not preclude a bail system which aims to deny bail to those who will likely be dangerous”.

33So, what does the “substantial likelihood” standard require? In The Law of Bail in Canada, (G.T. Trotter, Second edition, at p. 136) it is suggested that “[t]he proper, and accepted approach is a slightly enhanced balance of probabilities standard. This is a suitable standard, as it reasonably protects the accused from being detained on a mere suspicion of future criminal activity”. In R. v. Manasseri, 2017 ONCA 226, Watt J.A. held at para. 87 that “substantial likelihood” refers “to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely”.

34Justice Watt also clarified in Manasseri at para. 88 that where “the onus of showing cause for release falls on an accused, that accused must demonstrate not only that his or her detention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public” [emphasis in original].

35The appropriate factors to consider in assessing the “substantial likelihood” the accused will re-offend may vary from case to case. One factor may be the strength of the case and the nature of the offences charged. As Justice Trotter reasoned in his book, while the accused is presumed innocent at this stage of the proceedings, the strength of the Crown’s case on the charges may affect the court’s assessment of the weight that can be attributed to the index offences in assessing the substantial likelihood of re-offence: The Law of Bail in Canada at p. 142; see also R. v. H., 2006 ONCJ 116 at para. 29 per Trotter J. (as he then was).

36Another relevant factor will be the stability of the accused person and any prior record the accused may have. All of the relevant factors are to be considered, including the nature of the proposed bail plan and its strength.

Analysis

37Mr. Hifato’s criminal record and his recent circumstances while living in the community suggest that he has very little stability. The criminal record further suggests he is capable of significant violence and harm to others, both on a physical and psychological level. Mr. Hifato attributes his past criminal conduct to his substance abuse problem. The evidence before me is unequivocal that this problem is long-standing and has led Mr. Hifato to increasingly lengthy jail terms throughout his adult life.

38While he has been incarcerated for lengthy periods of time in the past, and placed on probation, there is no evidence that Mr. Hifato has ever meaningfully engaged with treatment or counselling opportunities to address his substance abuse. His commitment to sobriety and treatment is untested in the community.

39While I accept his sincerity about making a change, which is demonstrated in part by the courses and other self-help work he has done while at OCDC, there is little in the evidence that gives me confidence that the accused will be able to manage his substance abuse issues sufficiently to avoid committing further criminal offences. At most, the evidence leads me to the conclusion that there is a possibility that he might succeed in turning his substance abuse problem around if released on bail prior to his trial. The possibility of a relapse is, given the history here, equally strong and probably much stronger. In other words, I am not satisfied that this part of the release plan is sufficient to ensure that the accused will not commit a further criminal offence if released.

40Given his past criminal history, I find that were Mr. Hifato to relapse, his risk of harm to the public would be significant. I am concerned that the conduct Mr. Hifato would engage in would not only be criminal, but that it would endanger the safety of the public.

41In arriving at this conclusion, I am mindful that Mr. Hifato is presumed innocent of the most recent allegations. But I also consider that the Crown case against Mr. Hifato, at least at this stage, appears very strong. Mr. Hifato was arrested a short time after the offence on a nearby rural road in a car with three others, two of whom have now admitted their guilt in relation to these offences. He is alleged to have assaulted the target of the robbery with a machete, and a machete was found in the vehicle. I agree with Crown counsel that while the evidence about the nature of Mr. Hifato’s role in certain aspects of the offences may be the subject of challenge, the case establishing that he was at least a party to a number of very serious offences has considerable strength at this point.

42Considering all of the evidence on this application, which also includes evidence that Mr. Hifato has breached court orders and parole conditions in the past, I have concluded that Mr. Hifato’s ability to control himself at this time cannot be counted on to ensure he does not commit a criminal offence if released on bail. Consequently, there needs to be a strong plan which includes external controls which will both diminish the opportunities available to the accused to commit an offence and which will allow for a quick response to any breach of the conditions of bail.

43The linchpin of the plan is that Mr. Hifato would attend a residential treatment program for his substance abuse issues. Certainly, the accused’s willingness to attend a treatment program is to his credit. My concern about the treatment program proposed in this instance is that while it offers a residential component, it is not secure. Quite understandably, the individuals responsible for administering a treatment program cannot also act as jailers or sureties for individual accused persons in the program. It may be that they would make efforts to communicate either with the police or a surety were the accused to relapse or leave the program, once they had made that discovery. In some cases, this might be an adequate level of security and supervision for an accused person. In this case, I am not satisfied that it is.

44The possibility of having a surety remotely supervise Mr. Hifato while he is in the program is an improvement over the plan that was presented during the course of the bail review hearing. However, in the end, the evidence does not satisfy me that there will be sufficient control over Mr. Hifato to give me confidence that he will not relapse and commit a further criminal offence. All the good faith efforts by Mr. Hifato’s sister and family, and those of the treatment program providers, cannot adequately address the risks that remain to the public should Mr. Hifato walk away from the program and relapse.

45For these reasons, I am not satisfied that the accused has met his onus under the secondary grounds.

The tertiary grounds

46The tertiary grounds relate to whether detention is justified because it is necessary to maintain confidence in the administration of justice. Whether detention is necessary or not “is to be determined by a consideration of all the circumstances, but in particular, the four factors Parliament has marked out for specific consideration in s. 515(10) (c)” [emphasis in original]: Manisseri at para. 90, citing R. v. Hall, 2002 SCC 64 and R. v. St-Cloud, 2015 SCC 27. These four factors are not dispositive, however: Manisseri at para. 91.

47In considering whether detention is justified under this ground, I consider the further direction provided on the approach to assessing the tertiary ground provided in St-Cloud. As summarized in Manisseri, this includes the presumption that

[a] “reasonable member of the public” is familiar with the basics of the rule of law in Canada and with the fundamental values of our criminal law, including those protected by the Charter. He or she knows the importance of the presumption of innocence and the right to liberty and these are fundamental rights guaranteed by our Constitution. The reasonable member of the public also expects, perhaps even more so now, that anyone charged with a crime is entitled to be tried for it within a reasonable time: St-Cloud, at para. 79.

48As was recently observed by Schreck J. in R. v. S.A., 2020 ONSC 3622 at para. 45, where detention is required under the secondary ground, there may be little utility in addressing the tertiary grounds. As Schreck J. explained,

[t]he secondary and tertiary grounds are distinct and, in some cases, detention will be warranted on the tertiary ground even where it is not justified on the secondary ground: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 30; St-Cloud, at para. 34. However, the converse will rarely be true. In my view, when there is a substantial likelihood that an individual will commit further offences if released, that person’s detention will almost always also be justified on the tertiary ground because public confidence in the administration of justice requires that those who are likely to commit further offences be detained.

49I agree with that general assessment. I would also add, however, that in the circumstances of this case, if it can be said that the accused’s proposed plan comes close to the mark of ensuring that there would not be a substantial likelihood of the commission of a further offence, I find the tertiary grounds would compel detention.

50All of the enumerated factors in s. 515(10) (c) are strongly implicated here. The Crown’s case is very strong (s. 515(10) (c)(i)). The offences, while not the most serious in the Criminal Code, are in the upper range of seriousness (s. 515(10) (c)(ii)). Insofar as the circumstances surrounding the commission of the offence are concerned, a number of weapons are alleged to have been used during the commission of the offences, including a firearm which was pointed at individuals in the residence. The accused is alleged to have assaulted an individual with a machete after entering the house and thus he is alleged to have played a significant role in the offences. Further, the offences included a home invasion type offence, and are alleged to have been carried out in the presence of children (s. 515(10) (c)(iii)). Finally, the accused is liable on conviction to a lengthy term of imprisonment. Given his prior record, any sentence imposed if the accused is found guilty will likely include a significant penitentiary term (s. 515(10) (c)(iv)).

51Given my conclusion on the secondary grounds, and considering all the circumstances, I am not satisfied that public confidence in the administration of justice would be maintained if the accused were released.

Conclusion

52Before concluding my decision, I confirm that I have considered the impact that the pandemic may have on the grounds for an accused person’s detention. This is a factor which may be considered when making a decision about the accused’s eligibility for bail. In the circumstances of this case, the implications of the pandemic for the accused have not been the focus of the hearing. Counsel advises that a trial date has been set for January. Consequently, Mr. Hifato is not like some accused who are detained without the ability to even set a trial date because of the pandemic, and whose pre-trial detention may therefore exceed any sentence that might be imposed if found guilty. While the circumstances of pre-trial detention have undoubtedly changed for the accused since the pandemic was confirmed, and I accept he feels fear and anxiety about his circumstances while in jail, the implications of the pandemic for him do not weigh heavily in any part of the analysis I am required to conduct in deciding this application.

53I have also considered the very clear message sent by the Supreme Court of Canada in its recent cases that accused persons awaiting trial are presumed innocent and they have a right not to be denied reasonable bail without just cause under s. 11(e) of the Canadian Charter of Rights and Freedoms: R. v. Zora, 2020 SCC 14 at paras. 1 and 20. As stated in Manisseri, “[i]n Canada, pre-trial release of those charged with crime is the cardinal rule and detention, the exception: St-Cloud, at para. 70; R. v. Morales, [1992] 3 S.C.R. 711 at p. 728. That said, sometimes, as here, the onus of demonstrating release is shifted to an accused who is required to demonstrate that detention is not necessary on the primary, secondary or tertiary ground.”

54For the reasons I have outlined, I find that Mr. Hifato has not met his onus under the secondary and tertiary grounds. There is just cause to deny bail in this case. The application is therefore dismissed.

The Honourable Justice Laurie Lacelle