Court File and Parties
Court File No.: CR-20-0000109-00BR Date: 2020-07-05 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: Michael Haughton, Applicant
Counsel: Eadit Rokach and Rhianna Woodward, for the Crown Kristin Bailey, for the Applicant/Accused
Heard: June 22, 2020
Garton J.
Endorsement Re Bail Review Application
[1] On April 23, 2020, the applicant, Michael Haughton, age 47, brought an application under s. 520 of the Criminal Code, R.S.C. 1985, c. C-46, for a review of a detention order made by a Justice of the Peace on September 30, 2019. The review was brought on the basis of a material change in circumstances, which included the current COVID-19 pandemic.
[2] On April 29, 2020, I dismissed the application. I found that the Crown had met its onus on both the secondary and tertiary grounds. My written reasons were released on May 8, 2020: see R. v. Haughton, 2020 ONSC 1890.
[3] Mr. Haughton has brought this second application for a review of the detention order on the basis of another change in circumstances; namely, a proposal that electronic monitoring be added as a condition of his release. Counsel for Mr. Haughton submits that electronic monitoring would address the deficiencies that I found in the plan of release proposed at the first bail review.
[4] I am satisfied that the electronic monitoring component of the proposed plan of release constitutes a material and relevant change in circumstances. Defence counsel has indicated that the Electronic Supervision Program (“ESP”), which is run through the Ontario Monitoring Centre (“OMC”), was put on hold just a few days prior to the first bail review. It was therefore not possible for Mr. Haughton to avail himself of the program at that time. The program is now back in operation. As there were legitimate and reasonable reasons why the evidence relating to electronic monitoring was not tendered at the first bail review, the “due diligence” component of the criterion set out in Palmer v. The Queen, [1980] 1 S.C.R. 759, has been met.
[5] The charges that Mr. Haughton is facing are as follows: i) Break and enter and commission of an indictable offence (39 counts); ii) Break and enter with intent to commit an indictable offence; iii) Possession of property obtained by crime; iv) Possession of break-in instruments; v) Failing to comply with probation (29 counts); vi) Dangerous driving; vii) Flight from police; and viii) Failing to stop for a red light (s. 144(18) of the Highway Traffic Act, R.S.O. 1990, c. H.8).
[6] The 40 break-ins were perpetrated over the four-month period between October 19, 2018 and February 14, 2019. However, 32 of the break-ins were committed within a span of only six weeks. The targeted premises were independent store fronts, almost all of which were located in commercial plazas or strip malls. Twenty-eight of the businesses were restaurants, some of which were victimized more than once. In nearly every break-in, the perpetrator immediately targeted the cash register and either removed the cash or took the entire register with him. Property other than cash was also stolen, such as iPads, laptops, a computer monitor, and bottles of wine and liquor.
[7] Property damage was not limited to smashed glass in the front door. Alarm systems were damaged using an axe or other tool. In one instance, a hatchet was used to break the front door and then used again to break off the doors of locked cupboards, leaving the premise in disarray. In some break-ins, bottles of wine and liquor were smashed. In another case, walls were damaged and tables were overturned.
[8] All the break-ins took place between 12:00 a.m. and 5:00 a.m. In the majority of occurrences, the perpetrator was in and out of the store in less than two minutes. The longest time spent in a store was between five and six minutes. The offences are described in more detail in my earlier reasons.
[9] The plan of release proposed at the first bail review was that Mr. Haughton be released on a recognizance in the amount of $3,000 with his 87-year-old father, Vincent Haughton, acting as his surety. It was proposed that he live with his father and mother and be subject to house arrest unless he was in the direct company of his father or for medical reasons. In addition to those terms, it is now proposed that Mr. Haughton be monitored through the ESP, which has contracts with Jemtec Inc. for monitoring equipment and software. According to the OMC’s description of the program, which was filed with the court, the equipment is installed at an accused’s residence approximately 48 hours following their release. In the event of an alert being generated as a result of an accused’s non-compliance or equipment tampering, such as the cutting off of the ankle bracelet, the OMC staff will attempt to make contact with the accused for up to one hour before the alert is escalated to the authorities for enforcement.
[10] The ESP is only available for up to 90 bail releases. If Mr. Haughton were granted bail with a term that he be subject to electronic monitoring, but no equipment was available, he would go on a waiting list. Counsel for Mr. Haughton advises that if that were the case, Mr. Haughton’s parents, who are of modest means, would try to negotiate a contract for electronic monitoring with Recovery Science Corporation (“RSC”). RSC’s Director of Operations, Stephen Tan, has testified in many other proceedings relating to the monitoring that RSC offers.
[11] At the first bail review, I found that the plan of release was wholly inadequate, given Mr. Haughton’s lengthy criminal record and history of failing to comply with court orders. Mr. Haughton’s involvement with the criminal justice system began over 30 years ago in 1988 as a young offender. His adult record commenced in 1991 and runs through to 2018, when he was convicted of robbery, two counts of theft, and three counts of breach of probation.
[12] Mr. Haughton has four convictions for failing to comply with a recognizance. Two of those convictions relate to two breaches of the same recognizance where his father and mother had signed as sureties in the amount of $5,000. His record also includes ten convictions for failing to comply with a probation order. He was the subject of four probation orders at the time of his arrest on the current charges, which include 29 counts of breach of probation.
[13] Mr. Haughton’s record also includes, among other entries, 14 convictions for breaking and entering and three counts of attempting to break and enter. There are entries on his record for break and enter offences in every year between 2011 and 2018. The most recent entries on his record – two counts of theft and three counts of breach of probation – are dated November 20, 2018. He was arrested on the present charges less than three months later.
[14] As I observed in my reasons with respect to the first bail review, Mr. Haughton’s criminal activities have been driven by his addiction to crack cocaine, which has held him in its grip for over a decade and for which he has, to date, received no treatment. Over that period of time and while out of custody, Mr. Haughton has never followed through with any appointments or treatment plans in order to deal with his addiction. It is obviously a strong or powerful addiction, and one that Mr. Haughton has been unable to deal with on his own.
[15] At the initial bail review, I found that one of the key issues with respect to the plan of release, given Mr. Haughton’s criminal antecedents and proclivity to breach court orders, was the ability of the proposed surety to control him and proactively prevent him from breaching his conditions. As stated in my earlier reasons, Mr. Haughton Sr. appears to be well-meaning and obviously wants to help his son. I accept that he would take his role as surety seriously. However, there is little evidence that Mr. Haughton Sr. has had any success over the years in influencing Mr. Haughton’s behaviour and steering him away from a life of crime. Moreover, Mr. Haughton Sr. has not played and is not capable of playing any significant role in terms of assisting Mr. Haughton with his drug addiction. He knew virtually nothing about his son’s addiction, which has been the driving force behind the accused’s criminal activities since 2009, if not earlier. Mr. Haughton Sr. had no idea what drug his son was addicted to and apparently never asked him. He testified that he encouraged him to get treatment, but that encouragement bore no fruit, as Mr. Haughton has consistently failed through the years to follow through with any treatment program when out of custody.
[16] At the initial bail review, I found that there was a substantial likelihood that if Mr. Haughton were released from custody, he would repeat his past pattern of conduct – that is, he would seek to fuel or finance his addiction by committing criminal offences. I found that it was highly unlikely that any fear that Mr. Haughton may have about returning to custody and contracting COVID-19 would deter him from engaging in criminal activity and that it was more than likely that any such fear would take a back seat to, or be overpowered by, his need to satisfy his longstanding addiction to crack cocaine. For these reasons, coupled with a concern about insufficient monitoring by the surety, especially during the night, I found that the proposed plan of release was inadequate and that the risk of Mr. Haughton’s re-offending was extremely high.
[17] Counsel for Mr. Haughton submits that electronic monitoring would address these concerns. More specifically, it would provide a disincentive for Mr. Haughton to breach the house arrest condition, particularly at night, while his surety is sleeping. If he cut off the ankle bracelet, the authorities would know about it. There is no way that Mr. Haughton could sneak out of the house, commit a series of break-ins, and return home without the police being aware that he had breached the house arrest condition. Defence counsel submits that if Mr. Haughton did not return home and went on the lam, a warrant for his arrest would likely be executed fairly promptly, given the fact that he is known to the police.
[18] Although electronic monitoring may provide a degree of comfort, it has its limitations in the sense that it only monitors the whereabouts of an accused – for example, that he or she is complying or not complying with a house arrest condition. It does not supervise an accused: R. v. Nelson, 2020 ONSC 1728, at para. 14.
[19] In R. v. Osman, 2020 ONSC 965, Akhtar J. made similar observations with respect to the limitations of electronic monitoring, at paras. 31-35: Electronic monitoring is a tool that reports con-compliance of bail conditions but does not prevent reoffending. It places an accused in a particular location but does not identify what they are doing at that time. Mr. Russomanno is correct in stating that electronic monitoring would be able to identify situations where Mr. Osman left his residence thereby disclosing a breach of the house arrest condition. However, in my view, it would not be able to report an offence that was being committed by Mr. Osman much less prevent it.
The weaknesses in the system are acknowledged by RSC itself. For example, at para. 16 of its program summary, RSC makes clear that even though they may receive a violation alert “quickly, typically in 1-10 minutes,” they do not encourage reliance on rapid response time as a factor in making a decision to release rather than detain an accused. In their words, this is for two reasons: “firstly, because there are many factors that create the potential for delay in the chain of communications that lead from a violation event to the ultimate police response and, secondly, because even when there are no such delays and the police response is immediate, that still may not be sufficient to prevent an accused from fleeing or committing an offence.”
At para. 17 of the same document, RSC concedes that electronic monitoring is a risk management tool rather than a prevention tool.
I would add that even though the plan proposed by Mr. Russomanno amounts to strict house arrest, it would be very unusual for a court to make such an order with no exceptions. In any house arrest bail, an accused would be permitted to leave their residence for medical appointments, shopping, religious reasons and seeking employment. These absences would require out of the house supervision by third parties.
For these reasons, electronic monitoring is only useful if it supplements what is already a strong supervisory surety plan.
[20] In the present case, electronic monitoring would disclose whether Mr. Haughton had breached the house arrest condition. It would not, however, be able to report an offence that was being committed by Mr. Haughton or be able to prevent it.
[21] The commission of further offences by Mr. Haughton is a real concern, given his lengthy criminal record, his history of failing to comply with court orders, a drug addiction that has been the driving force behind his criminal activities for over a decade, and a surety who has not played – and is not capable of playing – any significant role in terms of assisting Mr. Haughton with his drug addiction. I also note that there is little evidence that Mr. Haughton Sr. has had any success over the years in influencing Mr. Haughton’s behaviour and steering him away from a life of crime.
[22] Mr. Haughton has shown time and again that as a result of his longstanding addiction to crack cocaine, he is not prepared to follow court orders or refrain from criminal activity. Mr. Haughton has relied on the fruits of his crimes to finance his addiction. If Mr. Haughton were released on the proposed plan of supervision and became bent on committing an offence in order feed his addiction, he would most likely do what he had to do in order to accomplish that end – that is, he would cut off the ankle bracelet or simply walk out of the house. It is more than likely that any fear Mr. Haughton may have about returning to custody would be overpowered by his need to satisfy his addiction to what is recognized as a highly addictive drug.
[23] In summary, although electronic monitoring can act as a deterrent, it is unlikely to be a sufficient deterrent in this case. I find that if Mr. Haughton were released under the proposed plan, which includes a condition of electronic monitoring, there is a substantial likelihood that he would re-offend. His continued detention is necessary for the safety of the public.
[24] I also find that confidence in the administration of justice would be seriously eroded if Mr. Haughton were released on bail under the proposed plan.
Conclusion
[25] For the reasons given, I find that the release plan falls short of what is required to adequately supervise Mr. Haughton, even if the plan included a condition that he be subject to electronic monitoring. The Crown has met its onus on the secondary and tertiary grounds. The application is therefore dismissed.
[26] As I stated in my reasons with respect to the initial bail review, it is difficult to predict with any certainty how long the present health crisis will last and the impact that it will have on the scheduling of trials. However, Mr. Haughton’s case should be given priority, given the fact that he is in custody.
Garton J. Released: July 5, 2020