Court File and Parties

COURT FILE NO.: CR-19-124-BR DATE: 20200720 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – J.B. Defendant

Counsel: Jenna Dafoe for the Crown Daniel Molloy for the Defendant

HEARD BY TELECONFERENCE: July 10, 2020

Ruling on Bail Review Application

C. Boswell J.

[1] One of the core principles that animate our criminal justice system is the presumption of innocence. It has been described as the “golden thread” that runs through the web of the criminal law. [1]

[2] When someone in Canada is accused of a criminal offence, they are presumed to be innocent of it until the Crown proves their guilt to the reasonable doubt standard before an independent and impartial tribunal in a fair and open hearing. [2] In light of their presumptively innocent status, accused persons are entitled to reasonable bail unless there is just cause to detain them. [3]

[3] The direction from our Supreme Court is clear: release is the rule; continued detention the exception. Accused persons are entitled to be released on bail at the earliest opportunity and on the least onerous terms possible. [4]

[4] For some accused persons, however, release is problematic. They may present a risk of flight, or of recidivism, or their release may shake public confidence in the bail system. JB unfortunately finds herself in the position of being a person whose release on bail is problematic, despite the fact that she is presumed innocent and is constitutionally entitled to reasonable bail.

[5] JB is 32 years old. She is a violent recidivist, which is relatively rare for females. And she has a history of breaching release orders and probation orders. She has a trial scheduled to commence in this court on July 28, 2020 on charges that include attempted murder and aggravated assault. She applies to be released on a surety bail, with a house arrest term, bolstered by electronic GPS monitoring through the use of an ankle bracelet.

[6] The Crown opposes JB’s release for a variety of reasons, which I will set out momentarily.

[7] The issue on this application is whether JB’s plan of release is sufficient to attenuate any concerns the court might have about releasing her, in light of the seriousness of her outstanding charges and her criminal history.

[8] I will begin with a brief overview of the circumstances of the offences JB is presently facing. I will follow that with a short history of her pre-trial detention. I will then set out the general principles that apply to bail reviews and the positions of the parties in terms of how those principles ought to be applied in this case. Finally, I will provide my analysis of the live issues and my decision about JB’s application.

The Alleged Offences

[9] The following overview of the circumstances of the charged offences is taken from a synopsis provided to the court by Crown counsel. None of the facts referred to have, as yet, been established at a trial. They are, at this stage, allegations only.

[10] JB and the complainant were involved in an intimate relationship in the spring of 2019. On March 16, 2019 they were together at a hotel in Barrie. They were consuming alcohol and the complainant was smoking marijuana. JB was working in the sex trade at the time and asked the complainant to leave the hotel room for a short time because she had a client coming over. He did. When he was invited to return everything was fine and they carried on as before.

[11] Subsequently, JB had to attend a call at another hotel. When she returned, she was in an agitated state. She accused the complainant of being a jinx. She said her phone stopped working and blamed him for jinxing her. They began to argue.

[12] During the course of the argument, JB stabbed the complainant twice in the torso. Once on the lower right side of his abdomen and once in the centre of his chest close to his collarbone. At some point the complainant fell to the floor and JB kicked him in the face.

[13] JB eventually became upset by what she had done and she called 911. She was found attending to the complainant by putting pressure on his wounds when paramedics arrived. They attended to the complainant then conveyed him to the hospital. He gave a video-recorded statement to the police, in two parts, while at the hospital. He described in detail an argument between him and JB and JB coming at him with a knife in a sustained attack. He said he lost consciousness briefly and when he came to, JB was attending to him and asking, aloud, “Oh, my God, what did I do, what did I do to you, why would I ever do this?”

J.B.'s Detention

[14] JB was arrested following the complainant’s statements and she was charged with assault, assault with a weapon, aggravated assault and attempted murder.

[15] On May 8, 2019, JB consented to a detention order and was remanded in custody until trial. One of the reasons for consenting to detention was apparently to obtain the earliest possible trial date. She also lacked a viable release plan.

[16] JB had a preliminary hearing on August 14, 2019, at the end of which she conceded committal on all charges. Subsequently, a trial date was set in this court for a date in April 2020. Given the impact of the COVID-19 pandemic, however, the April trial date was vacated.

[17] Facing an adjournment of indefinite duration, JB reconsidered her detention and elected to bring a bail application in early June 2020. Through inadvertence, that application proceeded in the Ontario Court of Justice on June 3, 2020. Following submissions, but before a decision was rendered by the presiding justice, it was determined that the Ontario Court did not have jurisdiction to hear the bail application and it was abandoned. It was reinstated in this court and heard by teleconference on July 10, 2020.

[18] In the meantime, the Superior Court resumed limited in-court operations as of July 6, 2020. JB was able to obtain a new fixed trial date of July 28, 2020.

[19] JB has been in custody since May 16, 2019. She was originally detained at the Central North Correctional Centre in Penetanguishene. Due to issues of overcrowding she was moved at some point to a remand facility in Sudbury.

The Governing Principles

[20] Detaining an accused person pending trial is, as I noted, the exception. Release is heavily favoured. Detention is justified in only a narrow set of circumstances. Specifically, where denial of bail is “necessary to promote the proper functioning of the bail system.” [5]

[21] Parliament has established three specific grounds where continued detention may be justified in order to promote the goals of the bail system. They are found in s. 515(10) of the Criminal Code and are conventionally referred to as the primary, secondary and tertiary grounds for detention. The Supreme Court has concluded that these grounds are constitutionally compliant, provided they are properly applied. [6]

The Primary Ground

[22] The primary ground is set out in s. 515(10)(a) of the Criminal Code which provides that continued detention is justified:

where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law.

[23] The primary ground reflects concerns about the potential for those on release to abscond. The bail system obviously malfunctions if an accused person fails to show up for his or her scheduled court appearances.

The Secondary Ground

[24] The secondary ground is found in s. 515(10)(b) of the Criminal Code which provides that detention is justified:

where…necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, 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.

[25] The focus of the secondary ground is public safety. The bail system does not function properly if those on release endanger public safety through the commission of further offences, or otherwise interfere with the administration of justice.

[26] We do not, however, generally detain people in preventative custody just because there is a likelihood that they will commit a criminal offence. The secondary ground has a narrower focus. As former Chief Justice Lamer described it:

Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied 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 safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous. [7]

[27] The “substantial likelihood” threshold does not require the court to make exact predictions about future dangerousness. Instead, it has been described as a slightly enhanced balance of probabilities standard. [8]

[28] The assessment of the likelihood of re-offence or interference with the administration of justice, and of the protection of the public more generally, requires a consideration of a cluster of factors. The nature of the offence, the criminal record of the accused, the strength of the Crown’s case and whether the accused was already on bail or probation at the time of the alleged offence(s) are all relevant considerations. [9]

[29] If the court determines that there is a substantial likelihood of re-offence that endangers the safety of the public, then the burden shifts to the accused to demonstrate that he or she has a plan in place that will sufficiently manage any risks such that release becomes feasible. In other words, the accused must satisfy the court that any proposed plan will manage the risk to the point that the likelihood of further offences occurring is no longer substantial.

The Tertiary Ground

[30] There may be some circumstances where the alleged offences are so serious and the Crown’s case so strong that pre-trial release would tend to undermine the public’s confidence in the bail system and the administration of justice more generally. The tertiary ground is concerned with the maintenance of that confidence.

[31] The tertiary ground is expressed in s. 515(10)(c) of the Criminal Code, which provides that continued detention is justified:

if…necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[32] The Supreme Court has recently provided a summary of the principles that should guide the court’s consideration of the tertiary grounds. [10] They include:

(a) The tertiary ground is not a residual ground for detention that applies only where the first two grounds for detention are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused; (b) The tertiary ground is not restricted to rare cases or exceptional circumstances or only to certain types of crimes; (c) The four listed factors listed in s. 515(10)(c) of the Criminal Code are not exhaustive. The court may consider other relevant factors based on the circumstances of any given case; (d) The court must not order detention automatically even where the four listed circumstances support such a result. The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances; (e) No single circumstance is determinative. The court must consider the combined effect of all the circumstances of each case to determine whether detention is justified; (f) After balancing all relevant circumstances, the ultimate question to be asked is whether detention is necessary to maintain confidence in the administration of justice. To answer this question, the court must adopt the perspective of the "public", that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused; and, (g) A reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

Jurisdiction

[33] JB consented to her continued detention pending her trial. She now asks the court to review the detention order that was made with her consent. This court does not have an open-ended discretion to do so. The Supreme Court has directed that the jurisdiction to review a detention order is only triggered where at least one of the following three circumstances is present:

(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. [11]

[34] In this instance, only the first circumstance is relied upon by JB. She asserts that her proposed release plan is admissible new evidence that constitutes a material change from the state of affairs that existed when she consented to her continued detention. The Crown did not dispute this position and I agree that I have jurisdiction to hear this application on the basis of a material change.

The Parties’ Positions

[35] Crown counsel submits that JB’s continued detention is justified on each of the primary, secondary and tertiary grounds.

[36] The Crown is understandably concerned about JB’s criminal antecedents and the increasingly violent nature of her offences. I will review her criminal record momentarily, but suffice it to say it is considerable and includes numerous convictions for offences of violence and numerous convictions for breaches of court orders.

[37] The Crown argues that the convictions for the index offences alone may attract significant sentences in view of JB’s record. Additionally, however, the Crown may pursue a dangerous offender designation which could result in a custodial term of indefinite duration. In view of that, the Crown asserts that the risk of flight is significant.

[38] On the secondary grounds, the Crown argues that JB has an egregious history of serious personal injury offences and that she is becoming increasingly violent. She also has a conviction from 2015 for attempting to persuade a complainant not to testify at trial against her. The Crown contends that she presents a serious risk of violence not only to the public generally, but also to her proposed surety, should a disagreement arise between them. Her violence tends to be reactionary, sudden and passionate. Almost no release plan is capable of managing the risks posed by JB and certainly not the plan proposed in this instance.

[39] On the tertiary ground, the Crown submits that the case against JB is a very serious one and a very strong one. There were two people in a hotel room and one was seriously stabbed. The complainant provided a statement to the police within about an hour of the incident in which he vividly implicated JB. It is anticipated that JB will raise the issue of self-defence, however, the Crown contends that its case is extremely compelling.

[40] JB, the Crown says, has a strong propensity for unpredictable violence. She is a danger to the public. And that public would be shocked to learn that a dangerous individual like her was released ten days before her trial into a plan of supervision clearly not capable of managing her.

[41] Defence counsel acknowledges, as he must, that JB has a troubling criminal record. He appreciates that there are concerns about release, but argues that those concerns are attenuated by a strong proposed plan of release.

[42] The proposal is for JB to be released into the care of her mother, who will act as a residential surety at her apartment in Sudbury. Her mother has a good relationship with JB and is, she says, willing and capable to act as her surety. Her mother has recently had shoulder surgery and will be off work for some time recuperating. She offers 24/7 supervision. JB will be on a house arrest condition and will not be permitted out of her mother’s residence unless in the direct and continuous presence of her mother. All of this will be supported by electronic monitoring by way of an ankle bracelet.

[43] Once the trial commences in Barrie, JB will either commute with her surety, or they will obtain temporary accommodation in the Barrie area until it is completed.

[44] JB’s counsel contends that the proposed plan of release is a strong one. He urges the court to conclude that it is sufficient to manage any risks that JB poses in terms of flight or recidivism. He submits that the public would not be shocked to learn that JB was released on this form of house arrest.

Discussion

[45] I am not satisfied that continued detention is required on the primary ground. I am, however, satisfied that it is required on both the secondary and tertiary grounds.

[46] JB has not had a good life. I am in no position to offer much insight into the many factors that undoubtedly have contributed to JB’s difficulties. I am aware that her father was murdered in 2009 and his death understandably had a significant impact on her. She suffers from bipolar disorder and has been addicted to opiates. Whatever the reasons, JB has amassed a significant record of convictions, with an increasing trend towards serious violence.

[47] The charges that JB now faces are very serious. She is alleged to have stabbed an intimate partner in the course of an argument two times in the torso. Anyone who thrusts a blade into another person’s stomach and chest, absent self-defence, has little regard for the life of the other person.

[48] I appreciate that there may well be a self-defence argument. I am also alive to the fact that the complainant’s evidence at the preliminary hearing could arguably be perceived as supportive of a self-defence argument. He also emphasized how high he was at the material time, on Xanax and alcohol. There are undoubtedly triable issues.

[49] The vantage point of a judge on a bail hearing is typically quite limited in terms of assessing the strength of the Crown’s case. But despite that limited vantage point, I do believe the Crown has a compelling case.

[50] As I have noted, JB’s criminal record is particularly troubling. By way of overview, her first criminal convictions were recorded when she was just shy of her 15th birthday. The convictions kept coming, almost unabated, until 2015. To be fair, there is a gap in her record from 2015 until the present. Some of that gap is explained by the fact that she has been in custody for about two years of it. But the balance of the gap should be, and is, duly noted.

[51] As a youth, JB was convicted of five counts of assault, one count of assault with a weapon, one count of assaulting a police officer, one count of resisting arrest, one count of possessing a weapon, three counts of uttering threats, five counts of failing to adhere to a disposition, three counts of breach of recognizance and two counts of mischief.

[52] As an adult, JB has been convicted of one count of assault, one count of assault with intent to resist arrest, one count of aggravated assault, one count of assault causing bodily harm, three counts of assault with a weapon, three counts of breach of recognizance, seven counts of breach of probation, one count of failing to attend court, four counts of theft under $5,000, one count of attempting to obstruct justice, one count of obstructing a peace officer and three counts of possession of a controlled substance.

[53] The Crown urged the court to conclude that JB has a propensity for violence and that her violent outbursts have become more serious and troubling over time.

[54] In November 2010 JB was caught stealing some small items from a Metro grocery store in Ottawa. She fought with the store’s loss prevention officer as he was attempting to arrest her. During the course of the struggle she menaced the officer with a syringe filled with a bloody substance.

[55] In June 2011 JB was back before the court for sentencing on a charge of assault with a weapon. She brandished a weapon during an argument with another female. She took an overhead swipe at the woman who jumped back and managed to avoid being struck.

[56] On Oct 20, 2011 JB was involved in another violent offence, this time at a Tim Horton’s restaurant in Sudbury. JB began a conversation with a male who was previously unknown to her. She sat down at a table with him. He thought she was becoming erratic and asked her to leave. She became upset. She stood up and asked him if he thought she was a joke and she slapped him in the back of the head. The complainant stood up and as he did so, JB pulled a knife out of her purse and made a stabling motion towards the complainant, striking him in the arm. Fortunately, the knife did not penetrate his clothing.

[57] In September 2012 JB was back in Ottawa and was together with a number of other people in an apartment. She got into an argument with another female during the course of which she grabbed hold of a pair of scissors and stabbed the female twice in the shoulder.

[58] On July 30, 2013, while in Sudbury, JB stabbed a female twice in the course of a drug deal. JB attended at the complainant’s residence to sell her crack cocaine. They got into an argument over the particulars of the transaction, during which JB pulled out a three inch knife and stabbed the complainant twice – once above the right breast and once in the left chest. One of the puncture wounds caused a collapsed lung which required surgery.

[59] On September 8, 2015, JB was before the provincial court in Sudbury for sentencing on a conviction for aggravated assault. The assault took place in a domestic context. JB and the complainant were arguing over a break up. She stabbed the complainant once in the chest near his heart. She later attempted to persuade the complainant to change his testimony.

[60] The circumstances of the current charges JB is facing are remarkably similar to those of the aggravated assault she was convicted of in September 2015.

[61] In total, JB has been convicted of fourteen assault-related offences, the last three of which have involved stabbings with serious consequences.

[62] JB is a dangerous person. It would appear that substance abuse was likely a factor in each of the violent incidents between 2010 and 2015. But I am unable to say whether substance abuse is the principal driver of JB’s violent tendencies. I do not know what causes JB to repeatedly act out in a violent way. I know only that she is a violent recidivist and as such is a significant safety risk to the public if released.

[63] I am mindful that JB’s current detention must not be continued as additional punishment for offences she has previously been convicted of and for which she has already served any sentences imposed. JB’s continued pre-trial detention must be grounded in the factors set out in s. 515(10) of the Criminal Code.

[64] In terms of the primary ground, I am not satisfied that there is a pressing concern about JB absconding. She has, by and large, appeared in court on the many occasions she has previously been required to attend. I am not persuaded that the fact that she is facing serious charges is a sufficient basis to infer that she is a serious flight risk.

[65] In terms of the secondary ground, in my view, given JB’s criminal antecedents, it is all but axiomatic that there is a substantial likelihood that she will commit further offences and that those further offences will create a safety risk to the public. The live question is really about whether the proposed release plan is sufficient to attenuate the risk. I conclude that it is not.

[66] Like most proposed sureties, I found JB’s mother to be well-intentioned and earnest. She genuinely wants to help her daughter and is prepared to make significant sacrifices to do so. I commend her for that.

[67] Having said that, I have a number of concerns. First, JB has not had a particularly close relationship with her mother over the years. I am not persuaded that she is clear on what she will be up against trying to supervise her.

[68] Second, JB has a substance-abuse problem. She insisted during the bail review hearing that she does not, but that is not credible in light of her history of drug and alcohol abuse. JB will have many contacts in the Sudbury area capable of acquiring drugs for her and she is resourceful enough to make that happen, even under her mother’s nose. If she is able to obtain drugs or alcohol, trouble will inevitably ensue.

[69] Third, JB’s mother is recovering from shoulder surgery. She has been unable to sleep for more than an hour or so at a time. She sleeps in fits and starts through the day and night, making continuous supervision of JB impossible. And JB will absolutely require 24/7 supervision.

[70] Finally, though there is an indication that electronic monitoring may be in play, I have no evidence that it has been arranged or is capable of being installed as needed. Moreover, there are limitations to what it can do. It certainly cannot prevent breaches. Its value is really based on the notion that it will deter the wearer of the ankle bracelet from committing any geographic breach because of the high chance of detection. Based on JB’s history, I am not persuaded that its deterrent effect will be all that significant.

[71] In summary, I am not satisfied that the proposed release plan is sufficient to attenuate concerns on the secondary ground and I find that detention is justified on that ground.

[72] In terms of the tertiary ground, the outstanding charges are very serious. The Crown has a strong case. JB is facing a significant term of imprisonment if found guilty of, once again, stabbing someone in the chest area. Arguably most significant of all is JB’s criminal history. She is a person capable of sudden and extreme violence. That she has not killed someone already is a matter of pure chance. She is violent. She is unpredictable. She is dangerous. And her release on the terms proposed would, in my view, be shocking to reasonable members of the public.

[73] I find that her continued detention is justified on the tertiary ground as well.

[74] There was some brief discussion about the COVID-19 pandemic and the unquestionably higher risk it poses to persons in congregate living facilities, like jails. But there is no specific evidence that suggests that JB has any particular vulnerability to the virus. Moreover, the pandemic is not a stand-alone basis for release. It may tip the scales in some cases, particularly where the alleged offender is not accused of violence. It is a non-factor here.

[75] In the result, JB’s detention will continue pending trial.

Boswell J. Released: July 20, 2020

Footnotes:

[1] Woolmington v. D.P.P., [1935] A.C. 462 (H.L.) [2] Canadian Charter of Rights and Freedoms, s. 11(d) [3] Canadian Charter of Rights and Freedoms, s. 11(e) [4] See R. v. St. Cloud, 2015 SCC 27; R. v. Antic, 2017 SCC 27; R. v. Myers, 2019 SCC 18; and R. v. Zora, 2020 SCC 14 [5] R. v. Pearson, [1992] 2 S.C.R. 665 at para. 58; R. v. Antic, 2017 SCC 27 at para. 40 [6] R. v. Morales, [1992] 3 S.C.R. 711; R. v. Hall, 2002 SCC 64 [7] R. v. Morales, [1992] 3 S.C.R. 711 at para. 39 [8] Trotter, Mr. Justice Gary T., The Law of Bail in Canada, 3rd ed. Toronto: Carswell, 2020 (loose-leaf updated 2019, release 1). [9] See R. v. K.D., [2006] O.J. No. 2616 (S.C.J.) and R. v. Vairavanathan, [2006] O.J. No. 3053 (S.C.J.) [10] See R. v. St. Cloud, 2015 SCC 27 [11] R. v. St. Cloud, 2015 SCC 27 at para. 121