Court File and Parties

COURT FILE NO.: CR-18-94 BR DATE: 20200727 ONTARIO SUPERIOR COURT OF JUSTICE

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

Counsel: Jenna Dafoe for the Crown Alison Craig for S.B.S.

HEARD BY TELECONFERENCE: July 21, 2020

RULING ON BAIL REVIEW APPLICATION NO. 2

C. BOSWELL J.

Overview

[1] SBS is in jail. There are two reasons why.

[2] First, SBS was convicted on May 24, 2019 of possessing cocaine and of possessing heroin for the purpose of trafficking in it. He is presently serving out the custodial sentence imposed on him for those offences.

[3] Second, SBS is detained pending trial on a number of other serious charges laid against him on March 11, 2019 and on May 16, 2019.

[4] The charges laid on March 11, 2019 are in the nature of human trafficking offences. They relate to three different complainants and include allegations of assault, administration of heroin and pimping. SBS was released on bail on those charges. One of his conditions was that he not be present in the City of Barrie except for scheduled court appearances. On May 16, 2019 he was located by the police in the City of Barrie. He did not have a court appearance that day. He was arrested and charged with breach of recognizance. The vehicle he was located in was searched and found to contain cocaine. SBS was charged with possession of cocaine.

[5] SBS has been in custody since May 16, 2019. He wants out. He says he is eligible for release on parole in relation to the sentence he is serving. And he wants to be released on bail in relation to his other outstanding charges.

[6] SBS consented to his detention on the outstanding charges on February 20, 2020. It made little sense to seek bail at that time when he was not going to be eligible for parole until July 2020. As July approached, however, SBS applied for a review of his detention pursuant to s. 520 of the Criminal Code. I heard and rejected his application for bail. My reasons are reported at 2020 ONSC 2759.

[7] SBS has returned on a second bail review application. He has presented a stronger plan of supervision – one that addresses many of the concerns I relied on when I rejected his prior application. The Crown continues to object to SBS’s release on bail arguing that his release poses an unacceptable risk to public safety and, more generally, to the reputation of the criminal justice system.

[8] For the reasons that follow, I find that SBS has met his onus to satisfy the court that his continued detention is not justified under s. 515(10) of the Criminal Code.

[9] I will proceed as follows. First, I will set out the legal principles that govern bail review applications under s. 520 of the Criminal Code. I will describe SBS’s first plan of supervision and summarize my reasons for rejecting that plan. I will then set out SBS’s revised plan of supervision and explain why I have concluded that it satisfies me that his continued detention is no longer justified. Finally, I will set out the conditions which will apply to SBS’s release.

The Governing Principles

Jurisdiction and Onus

[10] SBS’s application is brought pursuant to s. 520 of the Criminal Code. That section permits an accused person to apply to the court for a review of his detention at any time prior to his trial. Before such an application may be entertained by the court, however, the applicant must meet a jurisdictional threshold. The law recognizes three circumstances which will trigger the court’s jurisdiction to hear an application for bail review. Specifically:

(1) where there is admissible new evidence that shows a material and relevant change in the circumstances of the case; (2) where the reasons for the detention order contain an error in law; or (3) where the detention order is clearly inappropriate.

See R. v. St. Cloud, 2015 SCC 27, at para. 121.

[11] In this case, SBS asserted that his revised plan of supervision constituted a material change in circumstances that met the threshold for a rehearing. The Crown disagreed. In an earlier ruling I addressed the jurisdictional question and found that SBS’s new plan of supervision met the relevant and material change in circumstance threshold and I agreed to hear his renewed application for bail. My reasons on the jurisdictional question are reported as 2020 ONSC 4336.

[12] SBS bears the onus on this application to demonstrate that his continued detention is not justified. Usually it is the Crown who bears the onus to demonstrate that continued detention is justified. But because at least some of SBS’s alleged offences were committed at a time when he was subject to a recognizance of bail on other alleged offences, the onus is reversed. See s. 515(6) of the Criminal Code.

The Grounds for Continued Detention

[13] One of the so-called “golden threads” of our criminal justice system is the presumption of innocence. See Woolmington v. D.P.P., [1935] A.C. 462 (H.L.). When someone is charged with a criminal offence in Canada, they are presumed to be innocent of that offence until the Crown proves their guilt to the reasonable doubt standard in a fair and open hearing before an independent and impartial tribunal. See s. 11(d) of the Charter of Rights and Freedoms. Consistent with the presumption of innocence, those persons charged with a criminal offence in Canada are constitutionally entitled to reasonable bail unless there is just cause to deny it. See s. 11(e) of the Charter.

[14] Detaining an accused person prior to trial is not easy to reconcile with the presumption of innocence and the right to reasonable bail. Yet in Canada, we have significantly more people in remand custody (in other words, presumptively innocent people awaiting trial) than we have in sentenced custody.

[15] Detention of accused persons pending trial is all about risk management. The significant numbers of accused persons detained in remand facilities and the concerning ratio of those in remand custody to those in sentenced custody in this country suggest that courts are perhaps being a little heavy-handed in their management of the risks associated with release.

[16] As my colleague Justice Di Luca observed in R. v. Tunney, 2018 ONSC 961 at para. 29, “it is clear that the culture of risk aversion must be tempered by the constitutional principles that animate the right to reasonable bail.”

[17] The Supreme Court has weighed in on the right to reasonable bail in a number of seminal decisions over the past three decades including R. v. Morales, [1992] 3 S.C.R. 711; R. v. Pearson, [1992] 3 S.C.R. 665; R. v. Hall, 2002 SCC 64; R. v. St. Cloud, 2015 SCC 27, as above; R. v. Antic, 2017 SCC 27; R. v. Myers, 2019 SCC 18; and R. v. Zora, 2020 SCC 14. They have repeatedly re-affirmed the following principles:

(a) The statutory right to bail has a constitutional dimension; (b) Release is the norm; detention is the exception; (c) Accused persons are to be released at the earliest possible opportunity and on the least onerous terms possible; (d) Denial of bail is only constitutionally permissible in a narrow range of circumstances and only where necessary to ensure the proper functioning of the bail system; and, (e) The imposition of bail conditions must be guided by the principle of restraint.

[18] Our bail regime recognizes three grounds upon which bail may be denied for just cause. The first is where detention is necessary due to a risk of flight. The second is where detention is necessary to ensure the safety and protection of the public. The third is where detention is necessary to ensure the public’s continued confidence in the administration of justice. These three bases that may justify continued detention are conventionally referred to as the primary, secondary and tertiary grounds.

[19] In this case, the Crown concedes that the primary ground is not in play. In the result, it falls to SBS to satisfy the court that his continued detention is not justified on either the secondary or tertiary grounds.

The Secondary Ground

[20] The secondary ground is expressed 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.

[21] In R. v. Morales, [1992] 3 S.C.R. 711, as above, at para. 39, former Chief Justice Lamer instructed that the focus of s. 515(10)(b) is a narrow one. Just cause to deny bail does not exist just because there is a chance that an accused person might commit further offences if released. Instead:

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.

[22] Assessing whether there is a “substantial likelihood” of the commission of further offences requires the court to make predictions about future dangerousness, often through the use of propensity reasoning. Such predictions are invariably inexact. But the “substantial likelihood” threshold does not require exactness. Instead, it has been described as a slightly enhanced balance of probabilities standard. See Trotter, Mr. Justice Gary T., The Law of Bail in Canada, 3rd ed. Toronto: Carswell, 2020 (loose-leaf updated 2019, release 1).

[23] A cluster of factors must be considered when assessing future dangerousness and whether the substantial likelihood threshold has been met. The nature of the index offences, 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.

[24] If the court determines that there is a substantial likelihood of recidivism that will endanger the safety of the public, then the accused must demonstrate that he has a plan in place that will manage the risk to the point that the likelihood of further offences occurring is no longer substantial.

The Tertiary Ground

[25] Most of the time the release of an accused person on bail will not shock reasonable members of the public or cause them to lose confidence in the administration of justice. But in some cases the alleged offences are so serious and the Crown’s case so strong, that release would tend to undermine public confidence in the justice system.

[26] The tertiary ground addresses those circumstances where detention is necessary to maintain confidence in the administration of justice. It 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.

[27] In R. v. St. Cloud, 2015 SCC 27, as above, the Supreme Court provided a summary of the principles that should guide the court’s consideration of the tertiary grounds. 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) 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.

The Original Plan of Supervision

[28] SBS comes from a large family. He has six brothers and sisters. He is the oldest. He has an extended family of aunts, uncles and cousins who appear to be a close-knit group.

[29] When SBS was first released on bail in relation to human trafficking charges, his mother acted as a residential surety for him. SBS returned to live with his mother and siblings in their seven-bedroom home in Brampton. He was permitted to be out of the residence for work, or otherwise with a written letter of permission from his mother. It is this release order he is alleged to have breached.

[30] When SBS brought his first bail review application, he proposed that he return to live with his mother and siblings in Brampton. His mother was no longer proposed as a surety however. Instead, an aunt, SS, who resides in Whitby was proposed, together with SBS’s 23 year old sister and 21 year old brother. He proposed a house arrest condition, supported by electronic monitoring.

[31] I rejected SBS’s initial bail application for reasons which included the following:

(a) I concluded the charges against SBS are very serious and the Crown’s case is reasonably strong; (b) The Crown’s case is particularly strong on the alleged breach of recognizance. The purported breach occurred when SBS was on a release order that involved him living in his mother’s residence in Brampton and under her supervision. She is a single mother of seven children, who works at Peel Transit. She pledged $10,000 which he has put in jeopardy. If he is found guilty of the breach allegation, it will demonstrate an appalling lack of respect or concern for his mother; (c) None of the proposed sureties were in a greater position of authority over SBS than his mother. I had significant concerns that his younger sister and brother would be incapable of managing him; (d) I concluded that he required 24/7 supervision, but would not have received it under his initial proposal; and, (e) His aunt, I concluded, was not capable of providing much supervision given that she lives in Whitby. Moreover, she had refused to read all of the allegations against SBS because they were “ugly”. She was therefore unaware of what exactly she was up against as a surety.

The New Plan of Supervision

[32] SBS has revised his proposed plan of release. Some elements are similar, but others have been strengthened.

[33] First, the similar. SBS proposes to live in the family home in Brampton, with his brothers and sisters and mother. He again proposes a house arrest condition, supported by electronic monitoring.

[34] Next, the changes. SBS once again proposes three sureties. Only his aunt, SS, however, is the same. His brother and sister are no longer proposed as sureties. Instead, two other aunts, DB and TL, are offered. SS has now familiarized herself with all of the allegations against SBS. She is having a hard time believing any of them, but at least she knows what they are. SS is going to move into SBS’s family residence in Brampton. She will offer 24/7 supervision, except when she is at work. She works at Sunnybrook Hospital Mondays to Thursdays from 8 a.m. to 2 p.m.

[35] While SS is at work, SBS will be supervised by either DB or TL. Each of them will cover 2 days a week. It is proposed that SBS be required to be in the presence of a surety at all times.

[36] It is also proposed that SBS not possess a cell phone or have access to the internet, other than under the direct supervision of a surety.

Analysis

The Secondary Ground

[37] I do not propose to review in detail the circumstances surrounding the alleged offences against SBS. I set out those circumstances in some detail in my prior bail ruling.

[38] I concluded that SBS is alleged to have participated in some egregiously abusive behaviour involving three young women. And I concluded that the Crown’s case is reasonably strong. To be fair, Crown counsel has alerted me to the fact that one of the complainants, JW, has recently ceased to communicate with the police. There is some concern that she may not be a willing witness at trial and if so, that may lead to an application to introduce her police statement as substantive evidence.

[39] Issues with JW’s testimony may weaken the Crown’s case somewhat, but from my limited vantage point it is difficult to say.

[40] SBS has a limited criminal record, consisting only of the drug convictions registered against him in May 2019. One of those convictions was for possessing heroin for the purposes of trafficking in it. He is currently alleged to have injected one of the complainants with heroin on a number of occasions to get her addicted to it and dependent upon him. He is further accused of exploitation and violence.

[41] In my first bail ruling I drew the following conclusions about SBS:

SBS is a serious threat to the community because he does not value other human life and he is not committed to following the rules. In all the circumstances, I am not satisfied that SBS has met his onus to establish that he will not pose a risk to public safety or protection if released. He has a demonstrated commitment to selfish and hurtful behaviour. He has a lack of respect for court orders and for any rules imposed upon him by his own mother. In my view, there is a substantial likelihood that he will breach the conditions of any release and that he will commit further offences if released.

[42] Nothing has occurred since that ruling was released on May 6, 2020 to change my views about SBS. There is a substantial likelihood that he will commit further offences if released and he poses a risk to public safety.

[43] The question is really about whether his current plan of release is sufficient to attenuate the risks to the public created by his release. I am satisfied that it is.

[44] SBS has not presented a perfect or foolproof plan. But he is not required to. He need only satisfy me that the risk of re-offence has been reduced below the substantial likelihood threshold.

[45] SBS’s proposal to return to his family residence is not ideal. He was living in that environment when he allegedly breached his last release order. He will be among his siblings, a number of whom could conceivably give him access to their cell phones. His mother, the owner of the residence, is not putting herself forward as a surety. In theory, she could ask him or any of the sureties to leave the home at any time, resulting in a breach.

[46] Each of SBS’s proposed sureties said they had discussed it and decided that it was the best location for him. In their view, he needs to be with his family so that he can see what he will be missing if he continues down the path in life he appears to have chosen. I respect that decision. I also respect the fact that the three proposed sureties have discussed the plan of supervision in significant detail.

[47] The possibility that a sibling will give SBS access to a phone or that SBS’s mother will evict him, is nothing more than speculative. I think either event is unlikely. SBS’s mother clearly wants him home. The release plan would not have been put together in this form if she did not.

[48] The proposed supervisory plan is just about as close to air tight as one can make it. Bail is not jail, so there is always a chance of flight, or of breach. But in this instance, SBS is going to be in the direct company of at least one surety 24 hours a day, 7 days a week.

[49] I have confidence in the sureties. SS does not believe any of the allegations against SBS. Perhaps that’s a little naïve. But I’m prepared to allow her that. She understands her obligations as a surety and I am confident she is earnest about them. DB and TL both have experience as sureties. One acted as a surety for a former partner. The other for their father. In both cases, there were no breaches. They are aware of the charges against SBS, they understand their roles as sureties and they are prepared to do what it takes to make sure SBS is compliant.

[50] In addition, there will be 24/7 electronic monitoring. Electronic monitoring has its well-known shortcomings. It cannot prevent a breach. Its impact is more a deterrent. It is another set of eyes on the accused, at least from a location point of view. On its own it may not be enough to allay secondary ground concerns, but there will be at least some deterrent effect on SBS and that will supplement an already strong plan of supervision.

[51] Crown counsel rightly submitted that with secondary ground concerns we are playing the long game. That has never been more true than it is today given the impact that the COVID-19 pandemic has had on the operations of the court. SBS has been offered dates in late August for a preliminary hearing, but those dates are dependent on his continued detention. In-custody accused are given priority in terms of fixing dates. It is not clear when SBS will have a preliminary hearing otherwise. It is even less clear when his trial date will be.

[52] The upshot of all of this is that his bail release may go on for a considerable time. It is easily conceivable that it will last more than a year. The Crown raised concerns about the sustainability of the plan over the long haul. For instance, will the sureties become fatigued with the requirement of 24/7 supervision? Will DB and TL be able to sustain their involvement once their children are back in school? Will SS’s work schedule increase once the COVID restrictions ease? DB is off work presently, but at some point she expects to return to work. How will that impact on the ability to achieve 24/7 supervision? There are certainly questions to be asked.

[53] Having said all of that, the proposed sureties are alive to the fact that changes in their lives may require a revisiting of their plan. They are committed to making it work. I am not sure the court can ask much more of them.

[54] I am satisfied that the proposed plan is one that can work and that will reduce the likelihood that SBS will commit further offences that endanger the safety of the public or interfere with the administration of justice to well below the substantial likelihood level. In the result, continued detention is no longer justified on the secondary ground.

The Tertiary Ground

[55] This case “ticks all the boxes” in terms of tertiary ground concerns. SBS is accused of committing very serious offences. Offences that make our communities worse places to live. Offences that degrade and exploit other human beings. Offences that show a complete disregard for law and order.

[56] The circumstances of the offences are egregious. While there are no weapons charges, there are allegations that SBS possessed a firearm. Moreover, SBS is alleged to have weaponized heroin as an instrument of exploitation.

[57] The strength of the Crown’s case is significant.

[58] SBS faces a considerable jail sentence if convicted of the human trafficking offences he is facing.

[59] The fact that some of the offences were committed while SBS was on a bail release is also very concerning.

[60] The circumstances are such that reasonable members of the public may very well be disturbed to learn that SBS has been released to walk among them once again, while he awaits trial.

[61] But of course the court must consider that the release proposed is not unconditional. In fact, the proposed terms are very stringent. The court must consider the perspective of the reasonable person. That person is not only disturbed by the allegations against SBS, but he or she is also aware of the principles that apply to bail reviews and to the Charter values that animate them.

[62] In my view, reasonable people will understand why SBS is being released on very stringent bail conditions.

[63] Reasonable people will further appreciate that the COVID-19 pandemic also favours release where reasonably possible. It is not a particularly strong factor when, as here, the accused is alleged to have committed offences of violence. It is also not a particularly strong factor where, as here, there is no case-specific evidence that SBS has any particular vulnerability to the virus. Nevertheless, where the accused has a stringent release plan in place, it is one more factor that tends, at least somewhat, to favour release.

The Terms of Release

[64] In the result, I am vacating SBS’s detention order and ordering that he be released on the following terms. I note that these terms have been proposed by the Crown and agreed to as appropriate by SBS’s counsel:

Residence

1. SBS must reside at 31 El Camino Way, Brampton, Ontario, each and every night.

Residence Restrictions

2. SBS must remain in his residence, or in the front or rear yards connected to the residence at all times and be in the physical presence of a surety EXCEPT (a) for medical emergencies involving SBS or a member of his immediate family (spouse, child, parent, sibling); (b) to attend pre-scheduled appointments with his legal counsel, in which case he must be in the direct and continuous presence of a surety when travelling to and from his counsel’s office; or (c) when attending scheduled court appearances when he must be in the direct and continuous presence of a surety when travelling to and from the court house.
3. SBS must present himself at his door within five minutes when asked to do so by a police officer to ensure compliance with this Order.

Electronic Monitoring

4. SBS shall, at his own expense, be subject to GPS Monitoring by Recovery Science Corporation (“RSC”) within 24 hours upon his release from custody and he shall: (a) Enter into RSC’s participant agreement and comply with its terms; (b) Wear a GPS ankle bracelet at all times; (c) Permit RSC to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary; (d) Comply with RSC leave notification and battering charging requirements; (e) Consent to all RSC leave notifications being emailed directly to the Barrie Police Service; (f) Co-operate fully with RSC staff; (g) Consent to login credentials being provided to the Barrie Police Service by RSC for the purposes of obtaining current, historical and GPS location information at any time; and, (h) Consent to RSC providing information to the sureties upon their request for the purposes of current location and location history.

Travel Restrictions

5. SBS must remain in Ontario.
6. SBS must not attend in the County of Simcoe EXCEPT for travelling directly to, from and while at required court attendances.

No contact/No communication/No attendance: Domestic/Other Complainant(s)

7. SBS must not contact or communicate in any way either directly or indirectly, by any physical, electronic or other means, with the following: AS, JW, SS, KK, TV, AV or NB.
8. SBS must not be within 500 metres of any place where he knows any of the persons named above live, work, go to school, frequent or any place he knows the persons to be except for required court appearances.
9. SBS must not attend at any adult entertainment business, women’s shelters or youth drop in centres.
10. SBS must not attend at any hotel or motel or short-term rental property.

Weapons and permits

11. SBS must not possess a firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all these things, until dealt with according to law.
12. SBS must not possess any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).
13. SBS must not possess any imitation of the above.
14. If SBS now possesses any weapon(s) as defined in the Criminal Code, he must deposit them, along with every authorization, license and registration certificate relating to any of these items, to the York Regional Police Service at 2 District, 171 Major Mackenzie Drive West, Richmond Hill, Ontario within 48 hours of his release from custody.
15. SBS must not apply for any authorization, license or registration certificate for any weapon as defined by the Criminal Code.

Alcohol/drugs/substances

16. SBS must not possess or consume any unlawful drugs or substances (as defined in the Controlled Drugs and Substances Act) except with a valid prescription in his name.

Cell phones and Internet

17. SBS must not possess any cell phone, pager or personal digital assistant.
18. SBS must not possess or use any computer or any other device that has access to the Internet or other digital network EXCEPT for Recovery Science Corporation equipment installed as a part of Electronic Monitoring through that company, or when in the direct and continuous supervision of a surety;

Credit or Debit Cards

19. SBS must not possess any identification, card with a data strip or security chip, credit or debit card, credit or debit card data, a blank card with a magnetic strip, cheque, negotiable instrument or banking document unless it has been lawfully issued in his name.

Other Terms

20. SBS must not be in contact with any known sex trade worker.
21. SBS must not be in the company of TB unless under the direct and continuous supervision of a surety.

Boswell J. Released: July 27, 2020.