COURT FILE NO.: CR-20-00000242-00BR
DATE: 20200717
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
E.B.
Applicant
C. Langdon, for the Respondent
M. Rieger, for the Applicant
HEARD: July 3, 2020 (by teleconference).
REASONS FOR DECISION
SCHRECK J.:
[1] Section 493.2 of the Criminal Code requires a court making a decision as to bail to “give particular attention to the circumstances of (a) Aboriginal accused; and (b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.”
[2] The applicant, E.B., is charged with several serious offences and was detained following a bail hearing. He has applied to have his detention reviewed pursuant to ss. 520 and 525 of the Criminal Code. E.B. is by any measure a person to whom s. 493.2 applies. He is of Aboriginal descent, black, mentally ill, poor and suffers from addiction. At the same time, he is charged with serious offences and has a very lengthy criminal record that includes numerous convictions for offences of violence and for disobeying court orders. How s. 493.2 should be applied and what effect it has on the court’s ultimate determination is a central issue on this application.
[3] Following a hearing that took place by teleconference, I granted E.B.’s application and released him on very strict conditions with reasons to follow. These are those reasons.
I. FACTS
A. The Allegations
[4] The applicant is charged with break and enter, sexual assault, choking, mischief, breach of recognizance, assault with a weapon, breaking out of a place and possession of a weapon. The offences are alleged to have been committed in February 2020. Because there is a publication ban, I will not outline the allegations in detail. The applicant allegedly became involved in an altercation with two individuals, one of whom he has known for 10 years, while in their apartment and threatened them with a kitchen knife. He allegedly then left the apartment by breaking into another apartment through the balcony and while there choked the resident and touched her breasts. He then left that apartment and damaged the door while doing so. There is no indication of anyone suffering injuries.
[5] The applicant is also facing charges of aggravated assault and obstruct peace officer from May 2020 arising out of an altercation at the Toronto South Detention Centre (“TSDC”). He has not had a bail hearing on those charges and they are not before this court. It is alleged that the applicant participated in a group assault on an inmate. I note, however, that internal reports prepared by correctional staff state that the applicant was actually attempting to assist the staff in breaking up the altercation and he did not receive any institutional charges. Crown counsel provided me with several stills from a security video that recorded the incident, but not the video itself. I have reviewed those stills. In my view, they do not assist in determining whether the applicant was a party to the altercation or attempting to stop it.
[6] At the time of the alleged offence, the applicant was the subject of a recognizance to keep the peace issued pursuant to s. 810.2 of the Criminal Code. He had been reporting to the police once per month as required by the recognizance since October 2019.
B. The Applicant’s Background
[7] The applicant is 42 years old. He is black. He is also of Mi’kmaq descent on his father’s side but had little connection with his indigenous heritage until he served time in a federal penitentiary. While there, he attended sweat lodges and counselling sessions with Elders and also completed the Aboriginal Multi-Target High Intensity Program.
[8] The applicant’s father was frequently in prison for drug trafficking when the applicant was growing up and died during an altercation in prison when the applicant was 13 years old. The applicant’s mother abused alcohol while the applicant was growing up and he apparently suffered verbal and physical abuse at her hands while young, although it appears that they have a better relationship now and she is willing to act as his surety. The family lived in poverty in an area of Toronto which the applicant’s uncle and proposed surety described in his testimony as a “ghetto.” The applicant was in and out of foster care between the ages of nine and 16.
[9] The applicant has been diagnosed with Post-Traumatic Stress Disorder (“PTSD”) which resulted from being assaulted while in custody. He is prescribed medication for this condition.
[10] Prior to his arrest on these charges, the applicant was living with his mother and working part-time at a contracting business. In November 2019, he was the victim of a stabbing and was hospitalized for nine days. He suffered a permanent injury to his right hand and is unable to bend two of his fingers, which limits his ability to engage in manual labour. The applicant was also the victim of a stabbing in 2005, which resulted in chronic nerve pain in his back. He requires medication to control the pain, but it has not been provided to him while he was in custody.
C. The Applicant’s Criminal Record
[11] The applicant has a very lengthy criminal record which begins in 1991 while he was a youth. Between 1991 and 2005, he accrued 43 convictions, most of which were for drug offences and failing to comply with court orders resulting in sentences ranging from a few days to a few months in length. However, there was a conviction for robbery in 1997 for which he received a 12-month sentence. In 2005, the applicant received a 12-month conditional sentence for trafficking in a Schedule I substance. That sentence was converted to a custodial sentence four months later when the applicant was again convicted for trafficking and possessing the proceeds of crime. This time, he received a sentence of 452 days consecutive to the sentence being served, for a total of two years. This was his first penitentiary sentence.
[12] The applicant’s record became much more violent following the penitentiary sentence, which he served most of because he repeatedly violated conditions of his statutory release. He was convicted of aggravated assault in 2007 for which he received 18 months and assault causing bodily harm in 2009 for which he received two years. He also continued to accumulate convictions for drug offences and failing to comply with court orders. In 2013, he was convicted of aggravated assault and assault causing bodily harm after stabbing one man in the neck and breaking the jaw of another. His most recent conviction is from April 2018 for uttering threats to a former intimate partner. The applicant was denied parole and remained in the penitentiary until October 2019. At the time of his release, he was ordered to enter into a recognizance pursuant to s. 810.2 of the Criminal Code for a period of two years.
D. Risk-Assessments From Correctional Services Canada
[13] A significant amount of Correctional Services Canada (“CSC”) documentation was filed at the initial bail hearing and in this court. It appears that various actuarial risk assessment tools were administered in 2017. The Violence Risk Appraisal Guide (“VRAG”) apparently indicated that the applicant has a 44% probability of violently re-offending within seven years and a 58% probability of doing so within 10 years. It is unclear whether these numbers apply to circumstances where the applicant is subject to some sort of supervision. The applicant’s results on the Psychopathy Checklist-Revised (“PCL-R”) apparently reveal that he has a “valid profile for psychopathy”, although there is no indication as to what that means or what his actual score was. The applicant’s CSC Case Management Team concluded that overall, the applicant’s risk of re-offending generally was “moderate-high”. I will discuss the CSC risk assessment tools later in these reasons.
E. The Bail Hearing
[14] The applicant’s bail hearing took place on March 25 and 26, 2020 and the presiding Justice of the Peace released her reasons for detaining him on April 1, 2020. The Crown bore the onus of justifying the applicant’s detention. The applicant proposed that he be released on house arrest conditions with his mother and his girlfriend as his sureties. As in this court, the Crown opposed his release on the secondary and tertiary grounds.
[15] The Justice of the Peace was satisfied that the applicant’s detention was not necessary on the tertiary ground. However, she detained the applicant on the secondary ground after concluding that his mother was not a credible witness because she had purportedly misled the court about the details of an assault conviction in 2002 in which she was the victim. I will discuss this finding respecting the applicant’s mother’s credibility later in these reasons.
[16] Before this court, the applicant once again proposes his mother and girlfriend as sureties but has also added a third surety, his uncle. He proposes that he be subject to house arrest, reside with and work for his uncle, and be electronically monitored.
II. ANALYSIS
I. Grounds For Review
[17] The applicant is entitled to have his detention reviewed pursuant to s. 525 of the Criminal Code because he has spent more than 90 days in custody and also applies for a review of the decision detaining him pursuant to s. 520. The basis for the s. 520 review is an error of law on the part of the Justice of the Peace as well as a material change in circumstances based on the addition of his uncle as a proposed surety.
[18] The alleged error of law is based on the Justice of the Peace’s finding respecting the applicant’s mother’s credibility. During the mother’s testimony at the bail hearing, she was asked about an incident in 2002 which led to the applicant being convicted of assaulting her. She testified that this assault consisted of the applicant throwing an orange at her. Her evidence in this regard was not challenged in cross-examination. During submissions, Crown counsel referred the Justice of the Peace to a CSC document which mentioned a Toronto Police “Supplementary Report” respecting the 2002 assault. The description of the assault in that report was far more serious than the orange-throwing incident described by the applicant’s mother. Based on this, the Justice of the Peace concluded that the applicant’s mother “did not tell the truth” and was not credible. This in turn led her to reject the proposed release plan as unsuitable.
[19] With respect, the Justice of the Peace erred in relying on the information in the CSC document. There was no indication in the material as to the source of the information. During submissions before me, Crown counsel was unable to provide me with the source of the information in the Supplementary Report other than to say that it came from “the police file”, which she submitted meant that it was credible and trustworthy. I do not agree. In all likelihood, the information came from a police synopsis prepared at the time of the applicant’s arrest and may have been completely different than the facts acknowledged by the applicant when he pled guilty to the offence.[^1] At the very least, the discrepancy should have been put to the applicant’s mother so that she could have an opportunity to explain: R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81, at paras. 76-79. While it was open to the Justice of the Peace to reject the mother’s testimony, it was not open to her to do so on the basis that her recollection of events that took place 18 years ago differed from the description in a document of unknown provenance which the witness had no opportunity to explain.
[20] Given that there is a material change in circumstance in the form of a new surety who was not available at the initial bail hearing, a de novo consideration of the applicant’s bail is appropriate regardless of any error. However, the error is of some significance as the Justice of the Peace’s reasons strongly suggest that but for the adverse finding of credibility with respect to the mother, she would have released the applicant. At the conclusion of the hearing, in response to the applicant’s questions about why he was being detained, the Justice of the Peace replied that “the primary reason” was because his mother was not credible. I am of course not bound by the Justice of the Peace’s conclusions. However, apart from the error I have identified, the reasons are detailed, careful and well-articulated. In my view, it is appropriate to give weight to those portions of the reasons that are untainted by error.
B. [Section 493.2](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)
(i) The Purpose of the Section
(a) The Recent Amendments
[21] Section 493.2 was recently added to the Criminal Code together with a number of other amendments.[^2] The full text of the section is as follows:
493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of
(a) Aboriginal accused; and
(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
Section 493.2 was enacted at the same time as s. 493.1, which provides as follows:
493.1 In making a decision under this Part, a peace officer, justice or judge shall give primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in subsection 498(1.1) or 515(10), as the case may be.
[22] Like all new enactments, the amendments are presumed to be remedial by virtue of s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21: R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at paras. 25-26; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. Their clear purpose is to remedy the problem of overuse of pre-trial custody as well as the overrepresentation of certain populations in the criminal justice system in general and the remand population in particular.
(b) Section 493.1
[23] Section 493.1 codifies the principles enunciated in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, which affirmed the importance of the “ladder principle” that the least onerous conditions must be imposed on an accused at a bail hearing unless the Crown can justify why more onerous conditions are necessary. The Court in Antic was clearly concerned about the growing increase in the remand population in Canada (at paras. 64, 66):
One commentator, Kent Roach, observes an element of incongruity in the bail system: “Although the Charter speaks directly to bail, the bottom line so far has been that remand populations and denial of bail have increased dramatically in the Charter era”: K. Roach, “A Charter Reality Check: How Relevant Is the Charter to the Justness of Our Criminal Justice System?” (2008), 40 S.C.L.R. (2d) 717, at p. 727.
It is time to ensure that the bail provisions are applied consistently and fairly. The stakes are too high for anything less. Pre-trial custody “affects the mental, social, and physical life of the accused and his family” and may also have a “substantial impact on the result of the trial itself”: Friedland, Detention before Trial, [Toronto: University of Toronto Press, 1965] at p. 172, quoted in Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857, at para. 24; see also Hall [2002 SCC 64, [2002] 3 S.C.R. 309], at para. 59. An accused is presumed innocent and must not find it necessary to plead guilty solely to secure his or her release, nor must an accused needlessly suffer on being released: [Canadian Civil Liberties Association and Education Trust, Set Up to Fail: Bail and the Revolving Door of Pre-Trial Detention, by A. Deshman and N. Myers, 2014], at p. 3. Courts must respect the presumption of innocence, “a hallowed principle lying at the very heart of criminal law. . . . [that] confirms our faith in humankind”: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at pp. 119-20.
[24] More recently, in R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at paras. 26-27, the Court stated:
Nonetheless, on any given day in Canada, nearly half of the individuals in provincial jails are accused persons in pre-trial custody: Statistics Canada, Adult and youth correctional statistics in Canada, 2016/2017 (June 2018), at p. 7; Statistics Canada, Trends in the use of remand in Canada, 2004/2005 to 2014/2015 (January 2017). In 2016-2017, approximately 7 percent of those in remand were still in custody after 3 months, and some spent upwards of 12 or even 24 months awaiting trial in detention: Statistics Canada, Table 35-10-0024-01 — Adult releases from correctional services by sex and aggregate time served (online). It must be said that the conditions faced by such individuals are often dire. Overcrowding and lockdowns are frequent features of this environment, as is limited access to recreation, health care and basic programming: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at paras. 2 and 28; Canadian Civil Liberties Association and Education Trust, Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention, by A. Deshman and N. Myers (2014) (online). Moreover, as is the case elsewhere in our criminal justice system, Indigenous individuals are overrepresented in the remand population, accounting for approximately one quarter of all adult admissions: Statistics Canada, Trends in the use of remand in Canada, 2004/2005 to 2014/2015.
As this Court has recognized, the experience of pre-trial detention can have serious detrimental impacts on an accused person’s ability to raise a defence: see R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 59. It also comes at a significant cost in terms of their loss of liberty, the impact on their mental and physical well-being and on their families, and the loss of their livelihoods: Friedland [supra], at p. 172; Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857, at para. 24; Antic, at para. 66. The high cost of pre-trial detention was recognized at the time the Bail Reform Act was before Parliament: House of Commons Debates [vol. III, 3rd Sess., 28th Parl., February 5, 1971], at p. 3115. The issue remains just as relevant today.
(c) Section 493.2
[25] Section 493.2 also clearly addresses a problem in need of remediation. As noted in Myers, Indigenous individuals account for approximately one quarter of the adult remand population. The Court made a similar observation earlier in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 67, where it cited statistics showing that “Aboriginal people are more likely to be denied bail, and make up a disproportionate share of the population in remand custody.”
[26] Indigenous people are not the only historically disadvantaged group to be over-represented in the criminal justice system. Racialized individuals, particularly those who are black, are also over-represented: R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 83; R. v. Jackson, 2018 ONSC 2527, 46 C.R. (7th) 167, at paras. 40-48; R. v. Elvira, 2018 ONSC 7008, at para. 22; R. v. K.H., 2019 ONCJ 525, at paras. 59-60; R. v. Dykeman, 2019 NSSC 361, at para. 11. The same is true of those who suffer from mental illness: R. v. Ejigu, 2016 BCSC 1487, 340 C.C.C. (3d) 53, at para. 300; Hon. R. Schneider, “The Mentally Ill: How They Became Enmeshed in the Criminal Justice System and How We Might Get Them Out,” (2015), Department of Justice Canada Provocative Paper Series, at p. 3.
[27] The reasons why certain populations are overrepresented in the criminal justice system are complex. However, in my view it is beyond dispute that systemic racism in the justice system is part of the cause. Where the overrepresentation relates not to those who have been convicted of crimes, but those who are presumed innocent, the problem is all the more dire. This is a problem that must be remedied. Section 493.2 is clearly intended to be part of that remedy.
[28] While the purpose of s. 493.2 is clear, how it is to be implemented so as to achieve that purpose is less so.
(ii) Applying R. v. Gladue in the Bail Context
(a) The Approach Set Out in R. v. Gladue
[29] Consideration of the unique circumstances of Indigenous individuals in the context of sentencing as required by s. 718.2 of the Criminal Code is a longstanding requirement about which there is a substantial body of appellate caselaw, beginning with R. v. Gladue. How these types of unique circumstances affect the sentencing process will depend on the facts of each case, but will generally require consideration of two distinct issues, as identified in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 72:
The methodology set out by this Court in Gladue is designed to focus on those unique circumstances of an Aboriginal offender which could reasonably and justifiably impact on the sentence imposed. Gladue directs sentencing judges to consider: (1) the unique systemic and background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (2) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection. Both sets of circumstances bear on the ultimate question of what is a fit and proper sentence.
[30] There are two reasons why exporting the need to consider “the unique systemic and background factors which may have played a role in bringing the particular Aboriginal offenders before the courts” to the bail context presents difficulties.
(b) Obtaining the Necessary Information
[31] The first difficulty is that the type of information available to a sentencing judge is unlikely to be available at a bail hearing. Sentencing judges often do and always should have the benefit of extensive information about the individual’s background and circumstances, usually in the form of a Gladue report. However, such reports take time to prepare and cannot be obtained for a bail hearing, which is intended to proceed expeditiously.
[32] In Ipeelee, at para. 59, the Court stated that “Judges may take judicial notice of the broad systemic and background factors affecting Aboriginal people generally, but additional case-specific information will have to come from counsel and from the pre-sentence report (Gladue, at paras. 83-84)”. As noted, the latter type of information may be limited at a bail hearing. However, the former type of information can be the subject of judicial notice and therefore available to the bail court. Courts should be prepared to rely on credible and trustworthy information that may come through counsel’s submissions and may be in the form of hearsay: R. v. Magill, 2013 YKTC 8, at paras. 28-29.
(c) Preserving the Presumption of Innocence
[33] The second difficulty in exporting Gladue principles to the bail context is that in the sentencing context, Gladue requires the court to consider the “unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts.” A sentencing hearing of course only occurs after a finding of guilt, so it makes sense to consider the factors that may have led the particular offender to commit a crime. At a bail hearing, the individual is presumed innocent. He is not an “offender” and there is no proven crime in relation to which inquiries about systemic or background factors can be conducted.
[34] Applying Gladue principles to the bail context without due regard to the important distinction between bail and sentencing can do significant violence to the presumption of innocence, as was explained in J. Rogin, “Gladue and Bail: The Pre-Trial Sentencing of Aboriginal People in Canada,” (2017), 95 Can. Bar. Rev. 325, at pp. 333-334:
Read as a whole, Gladue bail decisions reflect the origins of section 718.2(e) in the Criminal Code; it is a sentencing provision and the bail courts have fallen into a trap of treating Aboriginal bail hearings as sentencing proceedings. Transposing the sentencing regime into the context of bail, without modification or accounting for the differing legal contexts, necessarily violates the presumption of innocence that all accused are entitled to at the bail phase.
Persons facing charges are not offenders, and an inquiry into what brings the person before the courts is necessarily an inquiry into what caused their criminal behaviour. If the presumption of innocence is to have any life at the bail phase, the only possible factor that brings the person before the court is the fact of his or her arrest. If an accused is legally innocent until proven guilty, inquiries into the causes of criminal behaviour must remain in the domain of sentencing, after a conviction has been entered.
[35] While I agree that importing Gladue principles without modification risks eroding the presumption of innocence, it does not follow that the type of inquiries Gladue requires at a sentencing hearing are wholly irrelevant in the bail context. This is so for two reasons.
[36] First, while an accused at a bail hearing is presumed innocent, the allegations he or she faces are not irrelevant for the reasons outlined by Trotter J. (as he then was) in R. v. R.H., 2006 ONCJ 116, 38 C.R. (6th) 291, at para. 29:
While still unproven, it is an important fact that should be considered in the determination of whether the public is at risk. Indeed, it would be artificial to gauge the potential risk to the public without looking at the features of the index offence. The fact that, at present, it is a mere allegation is offset by the strength of the Crown’s case.
Insofar as the allegations are to be considered, they should be considered in the context of the type of systemic and background factors described in Gladue. A failure to do so may well lead to erroneous conclusions about the level of risk presented by the accused.
[37] The second reason is that while an accused is presumed innocent of the charges that bring him or her before the bail court, any past convictions to which the presumption of innocence no longer applies will be relevant in determining whether bail is appropriate. Again, considering the nature and extent of such past convictions without due regard to Gladue factors can lead to erroneous conclusions.
[38] Before the Standing Committee on Justice and Human Rights, which was considering the amendments that led to the enactment of s. 493.2, Shannon Davis-Ermuth, Legal Counsel with the Department of Justice Criminal Law Policy Section, testified that the purpose of the section was to get those who make decisions about release to “try to remove any kind of discriminatory thinking about people who don’t fit their mould of the ‘good citizen’, keeping the rest in jail”: House of Commons, Standing Committee on Justice and Human Rights, Evidence, No. 113, 1st Sess., 42nd Parl., October 24, 2018, at p. 1540. One way in which systemic factors may be considered in the context of an accused’s antecedents at a bail hearing was explained in “Gladue and Bail: The Pre-trial Sentencing of Aboriginal People in Canada” at p. 355:
Courts must consider the potential for institutional bias in the arrest and charging of the accused, including the possibility of over-policing and over-charging. Both the charges against the accused as well as any prior criminal antecedents should be viewed with the current and historical context of the over-zealous policing of Aboriginal people in mind;
To the extent that the accused’s criminal antecedents are attributable to systemic factors deriving from colonialism, such as poverty or substance abuse, courts should view prior convictions as systemically motivated rather than as intentional disregard for the law, particularly in relation to conviction for failing to attend court or failing to comply with conditions. Any allegations of failing to attend court should be scrutinized to determine whether there was an intention to abscond or evade the law or whether systemic factors prevented the accused from appearing in court; ….
(d) Modifying the Release Plan
[39] The second Gladue consideration relates to “the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular Aboriginal heritage or connection.” There are obviously no “sanctions” at a bail hearing, nor is there an “offender.” However, the types of supervision or measures that can be included in a bail plan may in some cases be different for Indigenous individuals. To the extent that they are, this would be a proper consideration at a bail hearing: R. v. Robinson (2009), 2009 ONCA 205, 95 O.R. (3d) 309 (C.A.), at para. 13; R. v. C.W., 2020 ONSC 2943, at paras. 47-48. For example, an Indigenous accused may not have a surety available because he or she up grew up displaced from his or her community and family, as was the case in R. v. Sledz, 2017 ONCJ 151.
(e) Other Vulnerable Groups
[40] The discussion thus far as been about Aboriginal accused and relates to s. 493.2(a). This is because there is a significant body of jurisprudence on how the unique circumstances of Aboriginal people should be considered at a sentencing hearing. There are fewer cases dealing with members of other vulnerable and disadvantaged populations that are over-represented in the criminal justice system, although there are some: Jackson; R. v. Morris, 2018 ONSC 5186, 422 C.R.R. (2d) 154; R. v. Kandhai, 2020 ONSC 3580, at paras. 60-77; R. v. Husbands, 2019 ONSC 6824, at paras. 75-83. In my view, the approach taken to s. 493.2(b) should be similar to the one taken to s. 493.2(a). The accused’s history and antecedents must be considered in light of systemic issues to ensure that the accused is not unfairly disadvantaged in obtaining bail.
(iii) The Relationship Between s. 493.2 and s. 515(10)
[41] Section 515(10) of the Code sets out the situations in which an accused’s detention is justified, often referred to as the primary, secondary and tertiary grounds. Detention is justified if it is “necessary” to (a) ensure the accused’s attendance in court (the primary ground); (b) to the protect the safety of the public (the secondary ground); and (c) to maintain confidence in the administration of justice (the tertiary ground). The use of the term “necessary” sets a high standard, but also one in relation to which there is little discretion. If detention is “necessary” on any of the three grounds, then detention must be ordered.
[42] While s. 493.2 requires the court to consider the circumstances of Indigenous accused and members of vulnerable groups, it does not supersede s. 515(10). What this means is that regardless of the accused’s circumstances, if his detention is necessary on the primary, secondary or tertiary ground, then he cannot be released. If there is a substantial likelihood that the accused will commit further offences if released and thereby compromise public safety, the fact that systemic or background factors contributed to that substantial likelihood does not change the result. A dangerous person is no less dangerous because he or she is a member of a vulnerable group: R. v. Sim (2005), 2005 CanLII 37586 (ON CA), 78 O.R. (3d) 183 (C.A.), at para. 18.
[43] Where s. 493.2 comes into play, in my view, is in the court’s examination of the type of factors that are relied upon to make the determination of whether detention is necessary. For the secondary ground, which is at issue in this case, this usually consists of the accused’s criminal antecedents as well as the nature of the allegations. Making an accurate determination of whether those factors lead to the conclusion that detention is necessary requires that they be considered having regard to the unique circumstances of the accused, including any relevant systemic factors. This was the approach taken in R. v. Chocolate, 2015 NWTSC 28, at paras. 49-50:
In my view, honouring the constitutional right to reasonable bail requires consideration of the socio-economic factors present in the life of any accused, regardless of whether they are Aboriginal. For many Aboriginal people who come before the courts, however, the factors identified in Gladue will form a large part of their overall socio-economic context. It would be unreasonable and unfair to conclude detention is justified based solely on an accused’s criminal record and/or the circumstances of the alleged offence without considering the role Gladue factors may have played in leading to that person committing criminal acts in the past, being charged again and, consequently, seeking bail. There simply must be more than a superficial review of an accused's past criminal conduct and/or the circumstances leading to the current charge.
An examination of the intergenerational impact of the residential school system, cultural isolation, substance abuse, family dysfunction, poverty, inadequate housing, low education levels and un- or underemployment on an Aboriginal offender may inform questions about why an accused has an extensive criminal record and, if applicable, why that person has demonstrated an inability to comply with pre-trial release conditions in the past. They will also inform the decision about whether, given the accused's circumstances, there are release conditions which can be imposed so that future compliance is realistic and concerns about securing attendance at trial, public safety and overall public confidence in the justice system are meaningfully addressed.
See also Magill, at para. 26; R. v. Gibbs, 2019 BCPC 335, at para. 23; R. v. Silversmith (2008), 77 M.V.R. (5th) 54 (Ont. S.C.J.), at paras. 23-25. These types of factors are relevant not only to an accused’s antecedents, but also to his alleged involvement in the index offence: R. v. C.W., 208 ONSC 4783, at para. 46.
[44] With this approach I mind, I turn now to the applicant’s circumstances.
C. The Applicant’s Circumstances
(i) Prior Criminal Record
(a) Failing to Comply With Court Orders
[45] As noted earlier, the applicant has a very lengthy criminal record. By my count, it contains 67 convictions. Of these, 25 are for failing to comply with court orders. Not surprisingly, the Crown relies heavily on the applicant’s history of failing to comply with court orders in support of the submission that he should be detained on the secondary ground.
[46] Breaches of court orders are not all created equal. They can consist of being out of one’s home a few minutes after a curfew, missing an appointment with a probation officer, or possessing drugs when prohibited from doing so. These have been referred to as “system-generated offences”: R. v. N.H., 2020 ONCJ 295, at paras. 14-20; T. Quigley, “Has the Role of Judges in Sentencing Changed … Or Should It?” (2000), 5 Can. Crim. L. Rev. 317. At the other end of the spectrum, a breach can result from the commission of a serious criminal offence.
[47] I have not been provided with the particulars of any of the applicant’s convictions for failing to comply with probation orders or recognizances. Some of them occurred on the same dates as convictions for other offences, which suggests that the breach may have consisted of the commission of the other offences. However, it may also be that the applicant decided to resolve a number of outstanding charges at the same time.
[48] In my view, s. 493.2 requires me to consider the applicant’s membership in vulnerable and overrepresented populations when determining what weight to assign to his criminal record for failing to abide by court orders. In doing so, there are certain facts about which I take judicial notice. The first is that as was recently recognized in R. v. Zora, 2020 SCC 14, at para. 26, there are “widespread problems … with the ongoing imposition of bail conditions which are unnecessary, unreasonable, unduly restrictive, too numerous, or which effectively set up the accused to fail.” The effect of imposing such conditions was described in Zora at para. 57:
… [B]reach charges often accumulate quickly…. People with addictions, disabilities, or insecure housing may have criminal records with breach convictions in the double digits. Convictions for failure to comply offences can therefore lead to a vicious cycle where increasingly numerous and onerous conditions of bail are imposed upon conviction, which will be harder to comply with, leading to the accused accumulating more breach charges, and ever more restrictive conditions of bail or, eventually, pre-trial detention (C.M. Webster, “Broken Bail” in Canada: How We Might Go About Fixing It (June 2015), at p. 8 (“Webster Report”); Canadian Civil Liberties Association and Education Trust, Set Up to Fail: Bail and the Revolving Door of Pre-trial Detention, by A. Deshman and N. Myers (2014) (online), at pp. 49 and 66 (“CCLA Report”); M.E. Sylvestre, N. K. Blomley and C. Bellot, Red Zones: Criminal Law and the Territorial Governance of Marginalized People [Cambridge: Cambridge University Press, 2019], at p. 132; Pivot Legal Society, Project Inclusion: Confronting Anti-Homelessness & Anti-Substance User Stigma in British Columbia, by D. Bennett and D.J. Larkin (2019) (online), at p. 101 (“Pivot Report”)).
[49] The accumulation of breach convictions also has another potential effect. As noted in Zora, accumulated breach convictions will eventually lead to detention before trial. This in turn leads to an incentive to plead guilty, regardless of whether one actually is guilty. This is especially true with respect to more minor offences that result in sentences of imprisonment for a few months, for it is those where the accused risks spending more time in pre-trial custody than he would otherwise serve unless he pleads guilty: Antic, at para. 66; Myers, at para. 51; C. Leclerc and E. Euvrard, “Pleading Guilty: A Voluntary or Coerced Decision?” (2019), 34 Can. J. L. & Soc’y 457. These types of short sentences make up the bulk of the first 14 years of the applicant’s record before he served his first penitentiary sentence.
[50] I should not be taken as having concluded that all of the applicant’s breach convictions related to unnecessary or unreasonable bail conditions. However, in my view, a proper contextual consideration of his record means that I should exercise caution before relying on his numerous breach convictions to conclude that he is incapable of abiding by bail conditions.
(b) Drug Offences
[51] As noted, the applicant has a history of addiction. Sixteen of his convictions are for possessing or selling drugs, and many of his breach convictions occur on the same day as drug offence convictions. Repeated drug offences by an addict are consistent with an inability to overcome addiction and should not be viewed as “an affront to the court”: R. v. J.H. (1999), 1999 CanLII 3710 (ON CA), 135 C.C.C. (3d) 338 (Ont. C.A.), at para. 23. This is especially true with respect to convictions for possession, as opposed to trafficking.
(c) Over-Policing
[52] In R. v. Le, 2019 SCC 34, at paras. 89-97, based on a number of authoritative studies, a majority of the Supreme Court of Canada found that there is “disproportionate policing of racialized and low-income communities” in Canada.
[53] In my view, the fact that individuals such as the applicant are over-policed must be taken into account when assessing the weight to be given to this criminal record: R. v. King, 2019 ONSC 6851, at paras. 35-46.
(ii) Risk Assessment Tools
[54] As outlined earlier, the Crown in this case relied on the results of various actuarial risk assessment instruments that had been used by the CSC while the applicant was in federal custody. The use of such instruments, and in particular the PCL-R and the VRAG, was the subject of the Supreme Court of Canada’s decision in Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165. In that case, a Métis federal inmate challenged CSC’s use of these types of instruments on the basis that they had not been validated for use on Indigenous inmates, contrary to the requirement in s. 24(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”) that reasonable steps be taken to ensure that information it uses about an offender be accurate and the requirement in s. 4(g) that correctional policies respect ethnic and cultural differences and the special needs of disadvantaged groups. The Court concluded as follows (at paras. 63-65):
The trial judge found that the impugned tools were susceptible to cultural bias. He also found that, although the CSC was aware of this concern, it had not conducted any research to confirm the validity of the tools when used in respect of Indigenous inmates. The CSC failed to address a concern that the psychological and risk information generated by these tools — information that influences the CSC’s decisions — may be less accurate in the case of Indigenous inmates. This failure is contrary to the direction set out in s. 4(g) that correctional practices must respect cultural and linguistic differences.
Thus, the clear danger posed by the CSC’s continued use of assessment tools that may overestimate the risk posed by Indigenous inmates is that it could unjustifiably contribute to disparities in correctional outcomes in areas in which Indigenous offenders are already disadvantaged.
[55] The applicant’s actuarial assessments were conducted prior to the release of Ewert and I have not been made aware of what steps, if any, the CSC has taken to ensure that their results are valid. Since Ewert, some courts have accepted, based on evidence before them, that these actuarial assessments may be “moderately reliable” when applied to Indigenous individuals, although cultural bias remains a concern: R. v. Haley, 2016 BCSC 1144, at paras. 260-264; R. v. Awasis, 2016 BCPC 219, at paras. 100-122; R. v. Gracie, 2019 ONCA 658, 147 O.R. (3d) 385, at para. 51; R. v. Durocher, 2019 NWTSC 37, at paras. 204-206
[56] To be clear, I make no finding that the actuarial assessments in this case are invalid. However, in my view, s. 493.2 requires that I take into account the possibility that the types of actuarial assessments the Crown is relying on to meet its onus on the secondary ground may be affected by cultural bias. In this case, I was provided with the results of the risk assessments without any explanation as to how those results are to be interpreted. I do not say this to be critical of counsel. Calling expert evidence of this nature is inconsistent with the expeditious nature of bail hearings. However, its absence necessarily limits the extent to which this type of evidence may be properly relied upon As was noted in Hon. G. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto: Carswell, 2020), at sec. 1.4(e), it is very difficult to predict future dangerousness accurately and “the problem of prediction ought to be a troubling concern in the area of bail.”
(iii) The Allegations
[57] For the reasons I have explained, I do not intend to discuss the allegations in detail. They are serious. The most concerning are the sexual assault and choking charges. I note, however, that there are no sexual offences on the applicant’s record.
[58] All of the alleged conduct took place in an area of the city that has historically been associated with the applicant’s addiction issues and his association with others who are entrenched in a criminal lifestyle. The complainants on the assault with a weapon charge, one of whom the applicant has known for some time, can be said to fit this description.
(iv) Conclusion
[59] The foregoing discussion should not be taken to mean that the applicant’s antecedents are not a cause of significant concern. They clearly are, even when subjected to the type of contextual examination I believe s. 493.2 requires. There is no question that the applicant has a long history of failing to abide by court orders and that he had repeatedly engaged in criminal conduct, including serious crimes of violence. However, giving particular attention to the applicant’s circumstances as an Indigenous accused and one who belongs to a vulnerable and overrepresented population means that I should not simply write him off as “just a recidivist”, as he was referred to by one of the judges who sentenced him in a decision provided to me by counsel.
D. The Secondary Ground
[60] Section 515(10)(b) of the Code states that detention is justified on the secondary ground where it is necessary for the protection or safety of the public “having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.” In this context, a “substantial likelihood” means “a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely”: R. v. Manasseri, 2017 ONCA 226, at para. 87.
[61] The consideration of the applicant’s circumstances mandated by s. 493.2 obviously does not lead to the conclusion that secondary ground concerns can be discounted in this case. There are clearly significant secondary ground concerns. However, as was observed in R. v. Tully, 2020 ONSC 2762, at para. 23, “the relevant question is not whether secondary ground concerns exist, but whether they can be adequately addressed by the proposed release plan, having regard to all of the relevant factors.” Those relevant factors include the circumstances which s. 493.2 requires the court to consider.
[62] In this case, the applicant proposes that he reside with and work for his uncle and be subject to house arrest with electronic monitoring. The applicant’s uncle testified before me. He described being the only member of his extended family to attend university and achieve a measure of financial success. He owns his own business providing physical rehabilitation to accident victims. His contact with the applicant has been minimal in recent years, but it was clear from his testimony that he is aware of the applicant’s history as well as what his obligations as a surety would be. The applicant’s uncle has never acted as a surety for him before. I am satisfied that he would supervise him closely and would not hesitate to contact the authorities in the event of a breach.
[63] The proposed plan also includes two additional sureties: the applicant’s mother and his girlfriend. While not as a strong as the uncle, I am satisfied that both also understand their obligations and would fulfill them. The applicant’s mother has made arrangements for the applicant to attend counselling.
[64] Under the terms of the proposed plan, the applicant would remain in his residence at all times unless attending work, scheduled court appearances or scheduled appointments with a physician, dentist, lawyer or counsellor. When outside his residence for one of these purposes, he would be required to be in the company of a surety. The plan would be supplemented be electronic monitoring, which would provide some independent assurance that the applicant is either at home or with a surety.
[65] The proposed plan is by no means foolproof. Nor is it required to be. However, it does prevent the applicant from attending certain parts of the city which have proved problematic for him and also minimizes the prospect of him finding himself in the types of situations where he has in the past resorted to violence. Having carefully considered the applicant’s antecedents, the allegations, and the details of the proposed plan, I am satisfied that there is not a substantial likelihood that the applicant will commit further offences if released.
E. The Tertiary Ground
[66] The Crown also relies on the tertiary ground in s. 515(10)(c) of the Code, which justifies detention where it is necessary to “maintain confidence in the administration of justice, having regard to all the circumstances.” The Justice of the Peace at the initial bail hearing was not satisfied that detention was required on the tertiary ground. Nor am I. While the alleged offences are serious, the strength of the Crown’s case is unclear and there is no allegation of the use of a firearm.
[67] The tertiary ground requires the court to consider the perception of reasonable members of the community who are informed about the philosophy behind the bail provisions in the Code, Charter values and the actual circumstances of the case: R. v. St.-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 75-80. This would include the type of circumstances referred to in s. 493.2 of the Code.
[68] In my view, an informed member of the public would not lose confidence in the administration if the applicant is released on strict conditions: R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 29.
III. DISPOSITION
[69] For the foregoing reasons, the application is granted and the applicant is admitted to bail on the terms and conditions described earlier, as set out in the Order issued on July 8, 2020.
Justice P.A. Schreck
Released: July 17, 2020
COURT FILE NO.: CR-20-00000242-00BR
DATE: 20200717
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
E.B.
REASONS FOR DECISION
P.A. Schreck J.
Released: July 17, 2020
[^1]: I am advised that no transcript of the 2002 guilty plea is available.
[^2]: An Act to Amend the Criminal Code, the Youth Criminal Justice Act and Other Acts and to make consequential amendments to other Acts, S.C. 2019, c. 25, assented to June 21, 2019.