Court File and Parties

COURT FILE NO.: CR-20-30000250-00BR DATE RELEASED: 20200729 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – JOSIPH CARDLE Applicant

Counsel: Beverley Olesko and Anita Kocula, for the Crown Corbin Cawkell, for the Applicant

HEARD: July 24, 2020

T. Ducharme J.

Reasons for judgment on bail application

I. Introduction

[1] Mr. Cardle is charged with the first degree murder of his domestic partner of 20 years, Carolyn Campbell. He has brought an application for judicial interim release. His trial is currently set for November of this year. This hearing took place by teleconference with the consent of all parties.

[2] Mr. Cardle is a 46 year old Bosnian immigrant who came to Canada at the age of two or three and now has his Canadian citizenship. He has been diagnosed as bi-polar and suffers from post-traumatic stress disorder [PTSD]. He has long been estranged from his mother and has no other family or friends. He receives ODSP payments and has no other financial means. As a result, he is unable to offer a surety to the court. He has no residence and, if released, he intends to reside at a shelter until he can obtain more permanent housing.

II. Nature of the Alleged Offence

[3] P.C. Desrochers went to Mr. Cardle’s apartment on July 11, 2018 arriving there at 11:03 a.m. He was responding to a 911 call from the residence earlier that morning. Mr. Cardle answered the door and advised that Ms. Campbell was unresponsive. P.C. Desrochers followed Mr. Cardle into the apartment. As they made their way into the living room, P.C. Desrochers observed Mr. Cardle reach down and turn on the oxygen machine.

[4] When P.C. Desrochers entered the living room area he observed Ms. Campbell sitting in a chair. Her eyes were open. She was slanted over to the right. Her mouth was open. There was a cordless phone on her lap. She had tubes from the oxygen machine in her nose. The machine was at least two metres from Ms. Campbell. P.C. Desrochers checked for a pulse and, finding none, he placed her on the ground and began CPR.

[5] Mitchell Zwicker, a paramedic, took over care of Ms. Campbell when he arrived on the scene. She was in cardiac arrest and Mr. Zwicker said she was dead. He started administering cardiac medication through an intravenous injection. He obtained the return of circulation, but the deceased was not breathing on her own. The deceased was placed on a stretcher and transported to the hospital. She did not regain consciousness.

[6] Mr. Cardle made several statements. After Officer Desrochers started CPR on the deceased, he asked Mr. Cardle how long she had been like this. Mr. Cardle stated that he did not know because he went to bed. P.C. Desrochers asked Mr. Cardle why the 911 call was placed. He stated that he called because the deceased was not feeling well and she asked him to call. Mr. Cardle stated that she had trouble breathing. He stated that he called, gave her the phone and went to his room. P.C. Desrochers asked Mr. Cardle whether he tried to help the deceased. He replied, “I called.” P.C. Desrochers asked Mr. Cardle why the oxygen machine was off and he replied that he had turned it off.

[7] Mr. Cardle told PC Bertrand that he turned off the deceased’s oxygen to get a reaction out of her and then he went to bed. He assumed that she was going to turn it back on. He also told him that he did not call 911 and then he stated that he did call 911 and that the deceased took the phone and hung up. Mr. Cardle’s version of events seemed to change a couple of times. He told Officer Bertrand that he turned off the deceased’s oxygen, went to bed and he did not wake up until there was an officer at his door. Mr. Cardle also told Officer Bertrand that he woke up, saw the deceased slumped over in the rocking chair but sat down and watched TV and then heard a knock on the door and answered it.

[8] Mr. Cardle told Mitchell Zwicker that at approximately 9:20 in the morning the deceased was gasping for breath. She was on home oxygen because she had COPD. He said that he turned off the oxygen and left the unit to see if the deceased would improve. When he returned, at approximately 10:45 a.m., the deceased was not responding. He told Mitchell Zwicker that no CPR had been done prior to emergency services getting there.

III. The Law

A. General Principles About Bail

[9] The starting point for any informed discussion about judicial interim release must be a clear recognition of the overarching importance of the liberty of the subject. This is a central value of the Canadian legal system. On this point, I can do no better than quote from Justice Iacobucci's powerful dissent in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 at 335:

At the heart of a free and democratic society is the liberty of its subjects. Liberty lost is never regained and can never be fully compensated for; therefore, where the potential exists for the loss of freedom for even a day, we, as a free and democratic society, must place the highest emphasis on ensuring that our system of justice minimizes the chances of an unwarranted denial of liberty.

[10] While Iacobucci was in dissent in Hall, [1] Wagner J. spoke of the importance of bail and how it protects both the presumption of innocence and the liberty of accused persons when, for a unanimous court in R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 he observed at para 1:

The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pre-trial stage of the criminal trial process and safeguards the liberty of accused persons.

[11] The right to bail is enshrined in section 11(e) of the Canadian Charter of Rights and Freedoms which guarantees any person charged with an offence the right “not to be denied reasonable bail without just cause”. In R. v. Pearson, [1992] 3 S.C.R. 665 Chief Justice Lamer held that s. 11 (e) contained two distinct elements. The first is the right to bail that is “reasonable” in terms of quantum of any monetary component and other applicable restrictions. The second element, the right not to be denied bail without “just cause”, means that bail can only be denied in “a narrow set of circumstances” where denial is necessary to promote the proper functioning of the bail system. Consequently, s.11(e) makes it clear that “pre-trial detention is extraordinary in our system of criminal justice.” [2]

[12] In St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, Wagner J. emphasized that “the release of accused persons is the cardinal rule and detention, the exception.” [3] This is based on the constitutional right to bail guaranteed in s. 11(e) of the Charter which rests in turn on “the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter.” [4] Wagner J. also recognized the many deleterious effects that pre-trial custody can have on the “the mental, social, and physical life of the accused and his family”. [5] Indeed, he observed that pre-trial detention may also have a “substantial impact on the result of the trial itself”. [6]

[13] The implications of s. 11(e) of the Charter for the judiciary are clear and significant. As Iacobucci J. put it in Hall at paras 49 and 50:

Section 11(e) of the Canadian Charter of Rights and Freedoms calls particularly on courts, as guardians of liberty, to ensure that pre-trial release remains the norm rather than the exception to the norm, and to restrict pre-trial detention to only those circumstances where the fundamental rights and freedoms of the accused must be overridden in order to preserve some demonstrably pressing societal interest.

The duty to protect individual rights lies at the core of the judiciary’s role, a role which takes on increased significance in the criminal law where the vast resources of the state and very often the weight of public opinion are stacked against the individual accused.

[14] This weighty responsibility of the judiciary remains the same despite shifting public opinion. As Iacobucci J. further observed in Hall at para. 128:

Finally, I emphasize that the role of this Court, and indeed of every court in our country, to staunchly uphold constitutional standards is of particular importance when the public mood is one which encourages increased punishment of those accused of criminal acts and where mounting pressure is placed on the liberty interest of these individuals. Courts must be bulwarks against the tides of public opinion that threaten to invade these cherished values. Although this may well cost courts popularity in some quarters, that can hardly justify a failure to uphold fundamental freedoms and liberty.

B. Section 515(10) of the Criminal Code

[15] Section 515(10) of the Criminal Code sets out the analytical framework for bail known as the primary, secondary, and tertiary grounds. For all of these grounds both the Crown and defence are entitled to call evidence. I shall discuss each of these grounds in turn.

1. Section 515(10)(a) - The Primary Ground

[16] Section 515(10)(a), the primary ground, provides that the detention of an accused person may be justified “where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law.” That necessity requires that the accused be such a flight risk that their attendance in court cannot be guaranteed by other means.

2. Section 515(10)(b) - The Secondary Ground

[17] Section 515(10)(b), the secondary ground, provides that the detention of an accused person may be justified “where the detention is 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.” The secondary ground is also to be strictly applied. As Lamer C.J.C. said in R. v. Morales, [1992] 3 S.C.R. 711 at:

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. [Emphasis added.]

3. Section 515(10)(c) - The Tertiary Ground

[18] Section 515(10)(c), the tertiary ground, provides that the detention of an accused person may be justified,

(c) if the detention is 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.

[19] In St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 the Supreme Court of Canada made it clear that Section 515(10)(c) is not a residual ground for detention and itself provides a basis for detention. The tertiary ground requires that an effort be made to strike an appropriate balance between the rights of the accused and the need to maintain justice in the community. [7] In conducting this inquiry the Judge “must adopt the perspective of the public in determining whether detention is necessary.” [8]

[20] For this purpose, the public are “reasonable, well-informed persons, and not overly emotional members of the community.” [9] Such a person is:

familiar with the basics of the rule of law in our country and with the fundamental values of our criminal law, including those that are protected by the Charter. Such a person is undoubtedly aware of the importance of the presumption of innocence and the right to liberty in our society and knows that these are fundamental rights guaranteed by our Constitution. He or she also expects that someone charged with a crime will be tried within a reasonable period of time, and is aware of the adage that “justice delayed is justice denied”... Finally, a reasonable member of the public knows that a criminal offence requires proof of culpable intent (mens rea) and that the purpose of certain defences is to show the absence of such intent. However, it would be going too far to expect the person in question to master all the subtleties of complex defences, especially where there is overwhelming evidence of the crime, the circumstances of the crime are heinous and the accused admits committing it.

In short, the person in question in s. 515(10)(c) Cr.C. is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society's fundamental values. But he or she is not a legal expert familiar with all the basic principles of the criminal justice system, the elements of criminal offences or the subtleties of criminal intent and of the defences that are available to accused persons. [10]

[21] In conducting this balancing exercise, the Justice must consider the four enumerated factors and any other relevant factors and consider their combined effect in order to determine whether detention is necessary to maintain confidence in the administration of justice.

[22] Importantly, in St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 Wagner J. quoted with approval the following passage from the decision of Baudouin J.A. in R. v. Lamothe (1990), 58 C.C.C. (3d) 530, at p. 541:

With respect to the perception of the public, as we know, a large part of the Canadian public often adopts a negative and even emotional attitude towards criminals or [potential] criminals. The public wants to see itself protected, see criminals in prison and see them punished severely. To get rid of a criminal is to get rid of crime. It [unjustifiably] perceives the judicial system ... and the administration of justice in general as too indulgent, too soft, too good to the criminal. This perception, almost visceral in respect of crime, is surely not the perception which a judge must have in deciding the issue of interim release. If this were the case, persons charged with certain types of offences would never be released because the perception of the public is negative with respect to the type of crime committed, while others, on the contrary, would almost automatically be released where the public's perception is neutral or more indulgent... . Therefore, the perception of the public must be situated at another level, that of a public reasonably informed about our system of criminal law and capable of judging and perceiving without emotion that the application of the presumption of innocence, even with respect to interim release, has the effect that people, who may later be found guilty of even serious crimes, will be released for the period between the time of their arrest and the time of their trial. In other words, the criterion of the public perception must not be that of the lowest common denominator.

[Emphases in St. Cloud.]

[23] While Lamothe was a pre-Hall decision concerning the “public interest” ground formerly provided for in s. 515(10)(b), Wagner J. stated that these comments were still relevant to the balancing exercise that a Judge must engage in when considering the tertiary ground. [11]

(i) Apparent Strength of the Prosecution’s Case

[24] At an application for bail more flexible rules of evidence apply and this can make assessing the strength of the Crown’s case more difficult to determine. Indeed, the Crown’s case may seem stronger at the point of the bail application than it does at trial. Nonetheless the Judge must determine the apparent strength of the Crown’s case. In doing so she must also consider any defences raised by the defence.

(ii) Gravity of the Offence

[25] For the purposes of this branch of the tertiary ground, the justice must determine the objective gravity of the offence in comparison with the other offences in the Criminal Code. This is a straightforward process and can be assessed based on the maximum sentence and any minimum sentence provided for the offence in the Criminal Code.

(iii) Circumstances Surrounding the Commission of the Offence, Including Whether a Firearm Was Used

[26] Here the Judge is to consider the circumstances surrounding the offence. In St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, Wagner J. declined to set out an exhaustive list of circumstances but suggested that such they might include:

the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). [12]

Wagner J. also spoke of the extent of an accused’s person participation in the crime as well as the aggravating or mitigating factors that are considered by courts for sentencing purposes. [13]

(iv) Fact That the Accused Is Liable for a Potentially Lengthy Term of Imprisonment

[27] St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 makes it clear that a lengthy term of imprisonment does not refer only to life sentences. At a bail application the Judge is not required to enter into a lengthy and complex consideration of the likely sentence. However, she can consider mitigating and aggravating circumstances in this regard and she should assess this factor subjectively.

(v) Other Observations About the Tertiary Ground

[28] Importantly the Supreme Court in St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 rejected the Crown’s submission that detention must be ordered when each of the four factors in s. 515(10)(c) weigh in favour of detention. At para 69, Justice Wagner stated:

the automatic detention argument disregards the fact that the test to be met under s. 515(10)(c) is whether the detention of the accused is necessary to maintain confidence in the administration of justice. The four listed circumstances are simply the main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. This is the provision's purpose. Although the justice must consider all the circumstances of the case and engage in a balancing exercise, this is the ultimate question the justice must answer, and it must therefore guide him or her in making a determination. [Emphasis added.]

[29] While the Court did not set out to define the “circumstances surrounding the commission of the offence” Justice Wagner said that factors such as the “personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant.” [14]

[30] Justice Wagner also observed at para 86 of St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 observed that “there is not just one way to undermine public confidence in the administration of justice. It may be undermined not only if a justice declines to order the interim detention of an accused in circumstances that justify detention, but also if a justice orders detention where such a result is not justified.”

C. The Section 515 Factors in this Case

1. Section 515(10)(a) - Primary Ground

[31] Mr. Cardle received a conditional discharge for assaulting Ms. Campbell on July 15, 2017. Mr. Cardle pleaded guilty two days after being charged and it was a minor assault. He has had no other involvement with the criminal justice system.

[32] The Crown submits that the fact that Mr. Cardle is facing a life sentence gives him a powerful incentive not to show up for court. I do not find this argument particularly compelling in the absence of other primary ground concerns. The same submission could be made with respect to any person accused of a serious crime and such persons are routinely released and, according to St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, should be released.

[33] In his affidavit Mr. Cardle indicated that he was prepared to wear an electronic monitoring bracelet, however I understand that that he cannot apply to the Electronic Supervision Program without an address. He clearly lacks the means to privately pay for an electronic monitoring bracelet. Thus, Mr. Cardle’s willingness to wear an ankle monitor is of no assistance on the primary ground.

[34] But I am satisfied that there is nothing in Mr. Cardle’s past that suggests that he will not show up for Court. He does not have a current passport and he lacks the financial means to flee the jurisdiction. He also lacks friends that might help him to do so. Finally, of course, the current Covid-19 pandemic would make it even more difficult for him to leave Toronto.

[35] I am satisfied that the primary ground does not require Mr. Cardle’s continued detention.

Section 515(10)(b) - Secondary Ground

[36] The Crown also argues that Mr. Cardle should be detained on the secondary ground. This position is based on (1) the fact that Mr. Cardle has various mental health issues, he has not adequately explained the current state of his mental health and he has not outlined a treatment plan; and (2) the proposed plan of release does not involve close supervision of Mr. Cardle.

[37] Mr. Cardle has been diagnosed with bi-polar disorder and post-traumatic stress disorder. While I do not have the details of Mr. Cardle’s current condition there is nothing in his personal history that suggests that these problems incline him towards criminal behaviour.

[38] As for the fact that the proposed release plan involves minimal supervision of Mr. Cardle, this is certainly true. This application would be easier to determine if he were able to offer the supervision of a surety. But there is nothing that credibly suggests that there is a “substantial likelihood” that Mr. Cardle will commit a criminal offence or interfere with the administration of justice if he were released. Nor can it be said that his release would pose a threat to the safety of any witnesses or the public. The secondary ground does not require Mr. Cardle’s detention.

Section 515(10)(c) - Tertiary Ground

[39] The defence correctly concedes that the second and fourth factors are fully made out. As well, in terms of the circumstances of the offence, the defence submits that while this is not the most violent of offences, the third factor is made out in this case.

[40] The focus of the defence submissions is on the first factor, the apparent strength of the Crown’s case. In this case the defence seeks to exclude the statements made by Mr. Cardle to P.C. Desrochers, P.C. Bertrand and Paramedic Zwicker. The defence also raises issues of causation, i.e. whether turning off the oxygen machine actually led to Ms. Campbell’s death. Finally, the defence raises the issue of whether Mr. Cardle actually understood that turning off the oxygen machine could harm or kill Ms. Campbell.

[41] The Crown submits that their case is strong. They point to the following points of evidence: (1) P.C. Desrochers witnessed Mr. Cardle turn the oxygen machine on as they approached the deceased; (2) Mr. Cardle admitted to P.C. Desrochers and P.C. Bertrand that he had turned the oxygen machine off; and (3) Mr. Cardle told Paramedic Zwicker that Ms. Campbell had been gasping for breath and he turned off the machine to see if she would improve; and (4) the expert evidence that the deceased required oxygen from the machine to survive.

[42] The defence concedes that P.C. Desrochers can testify that he saw Mr. Cardle turn the oxygen machine on. While the defence might succeed in getting Mr. Cardle’s statement to P.C. Desrochers excluded, they will have a harder time excluding the statements made to P.C. Bertrand. Moreover, they will have great difficulty in excluding the statements made to Paramedic Zwicker. For these reasons I think the Crown has a strong case that Mr. Cardle turned off the oxygen machine.

[43] However, I do think the defence has raised legitimate issues with respect to causation. A careful examination of the testimony at the preliminary inquiry suggests that the expert evidence was more ambiguous than the Crown suggests. Dr. Von Both, the forensic pathologist, testified that Ms. Campbell suffered anoxic brain injuries which left her brain dead. His theory was that the anoxic injuries resulted from cardiac arrest and the corresponding failure to deliver oxygen to the brain. However, he did not clearly state that the cardiac arrest could have been the result of the oxygen machine being turned off and he conceded that Ms. Campbell, given her condition, could have had a heart attack at any time. Dr. Kargel, one of Ms. Campbell’s respirologists, testified that she had very advanced COPD, her prognosis was poor and she could have died at any point in time in a variety of ways due to the state of her health. Dr. Kargel testified that it was hard to know what impact the oxygen from the machine had on Ms. Campbell and he did not know if her supplemental oxygen was equivalent to life support for her. He did not testify that her death was the result of the oxygen machine being turned off.

[44] Not only is there an issue with respect to causation, there is also an issue with respect to Mr. Cardle’s understanding of why Ms. Campbell was using the oxygen machine and what would happen if it were shut off. Based on the evidence at the preliminary inquiry it is not clear that the oxygen machine was essential life support for Ms. Campbell and that turning it off would kill her. If that is not true, it supports the idea that Mr. Cardle would not know that shutting off the oxygen machine would harm or kill Ms. Campbell.

[45] Depending on the findings of the jury, Mr. Cardle could be convicted of second degree murder, attempted murder or criminal negligence causing death. Mr. Cardle could also be acquitted outright. The evidentiary basis for first degree murder is much more nuanced than the Crown suggests. For these reasons, I reject the submission that the Crown’s case for first degree murder is strong. This factor does not support the continued detention of Mr. Cardle, and, despite my conclusion with respect to the second, third and fourth factors, I would not detain Mr. Cardle on the tertiary ground.

D. Other Considerations

1. Covid-19

[46] There can be no question this is a relevant concern that can be considered under the tertiary ground. While I accept that the correctional institutions are doing their best to adopt best practices to control the spread of the virus, congregate settings like jails are danger zones for the spread of the virus. I have no difficulty concluding that inmates of these institutions are at an extremely heightened risk to contract the disease.

[47] This is a factor that supports the release of any incarcerated person who can otherwise be released safely into the community. But in this case, Mr. Cardle’s plan is to reside in a shelter which, given the transient nature of the population there, may be an equally problematic environment for Covid-19 transmission as a jail. Thus, Covid-19 has not played a large role in my decision. However, I do think the reality of the pandemic might temper any concerns that might otherwise exist in the mind of the public about Mr. Cardle’s release.

2. Financial Means, Homelessness and Eligibility for Bail

[48] There can be no doubt that the greater the financial means of an accused are, the more likely it is that they will be able to obtain judicial interim release. They will have more resources in terms of such variables as where they can stay, the availability of sureties, the amount that their sureties can pledge or deposit and the potential for electronic monitoring. This comparative advantage will continue throughout a person’s interaction with the criminal justice system, including through trial, sentencing, imprisonment and eventually release. The more resources a person can bring to bear on their defence the greater advantage they will enjoy.

[49] The reality that financial resources are always beneficial to a criminal accused does not mean that they should be the determining issue in an application for bail. In Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, Justice Wagner referred to Professor Friedland’s 1965 study, Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts, in which Professor Friedland observed that there was an “undue preoccupation with [bail’s] monetary aspects.” [15] Justice Wagner stated that it would be “unconscionable” if a person’s ability to be released depended on their financial means. He also explained that this was the reason that the 1972 Bail Reform Act, S.C. 1970-71-72, c. 37 placed strict limits on cash bail. [16]

[50] Eligibility for release must not be determined on the basis of financial means. This is a necessary conclusion from the constitutional right to a reasonable bail enshrined in in section 11(e) of the Canadian Charter. This right applies to everyone charged with a criminal offence, both rich and poor. No person should be detained because of their lack of financial resources.

[51] Equally, the fact that a person is homeless should not lead to their detention. There are more than 9,000 homeless people in Toronto who every day spend the nights outside or in shelters, health, or correctional facilities. There are many reasons that people are homeless. Among them the loss of employment, family disintegration, family violence, mental or physical illness, physical, sexual, or emotional abuse or alcohol or drug addiction. Homelessness can be exacerbated by systemic or societal barriers, a lack of affordable and suitable housing, racism, or discrimination. Homelessness is not an indicator of a criminal character nor that a person’s release would pose a risk to the broader community. It is, of course, always easier to release someone to a fixed address. But where the person is homeless the question becomes whether they can be released safely considering all the factors set out in s. 515(10) of the Criminal Code.

[52] The Crown is not arguing that Mr. Cardle should be detained because he is poor and homeless. Rather they focus on the rather porous nature of the release plan and the limited supervision that Mr. Cardle will actually have. But these limitations in the release plan are each a function of the fact the Mr. Cardle is poor and homeless. To insist on a surety or a fixed residential address in this case, where none is possible, would be to detain Mr. Cardle because of his poverty and homelessness. The question must be whether he can safely be released on the terms he seeks.

[53] No doubt many people charged with murder are detained in custody before trial. Those who are released are invariably released under the supervision of one or more sureties. In Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 Justice Wagner stated at para 67 that “A recognizance with sureties is one of the most onerous forms of release. A surety should not be imposed unless all the less onerous forms of release have been considered and rejected as inappropriate.” If I can conclude that it can be done safely, the clear direction of Antic is that I must consider releasing Mr. Cardle without surety supervision.

E. Conclusion

[54] Having carefully considered all of the factors in s. 515(10) of the Criminal Code, I am satisfied that Mr. Cardle can be released without a surety and without a fixed residential address. I am confident that releasing Mr. Cardle on the following conditions does not create a situation where he would be able to evade justice, harm others or interfere with the administration of justice while awaiting trial. Nor do I believe that releasing him in these circumstances would undermine public confidence in the administration of justice. Indeed, I believe that detaining Mr. Cardle, in effect because of his poverty and homelessness could have that effect.

[55] Mr. Cardle, I release you on the following conditions:

1. Your own recognizance in the amount of $1,000;
2. Report to the Toronto Bail Program forthwith upon release, and thereafter as required, but not less than twice per week;
3. Reside at an address approved by the Toronto Bail Program and not move from that address without obtaining prior approval for a new address from the Toronto Bail Program;
4. Notify the MTPS Reporting Centre at 2440 Lawrence Avenue East at 808-5700 of your address within 24 hours of your release;
5. Report to the MTPS Reporting Centre at 2440 Lawrence Avenue East at 808-5700 on Mondays and Fridays;
6. Notify the MTPS Reporting Centre at 2440 Lawrence Avenue East at 808-5700 of your address in writing within 24 hours of any change of your address;
7. Attend and actively participate in any programs as directed by the Toronto Bail Program and sign all forms necessary for the Toronto Bail Program to monitor your progress;
8. Remain in the City of Toronto, Ontario;
9. Not to apply for or possess a passport or any other travel permits or documents;
10. Not to possess any firearms, weapons, or imitations thereof; and
11. Not to possess any non-prescribed drugs.

T. Ducharme J. Released: July 29, 2020

[1] The majority opinion did not disagree with any of Iacobucci J.’s general observations about the importance of bail. [2] R. v. Morales, [1992] 3 S.C.R. 711 at 728. Wagner J. referred to this passage approvingly at para 70 of R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328. [3] St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, supra, at para. 70. [4] Ibid. [5] St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, supra, at para 66. [6] Ibid. [7] St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, supra, at para 4. [8] Ibid. [9] St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, supra, at para 77. [10] St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, supra, at paras. 79 and 80. [11] St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, supra, at para 76. [12] St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, supra, at para 61. [13] Ibid. [14] St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, supra, at para 71. [15] Friedland at p. 176. [16] Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, supra, at para 28.