Court File and Parties
Court File No.: CR-19-50000258-00BR Date: 2020-01-24 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Applicant And: Edgar Phillips, Defendant/Respondent
Counsel: S. Leece, for the Crown Self-represented, for the Defendant/Respondent
Heard: January 22, 2020, at Toronto, Ontario
Before: Michael G. Quigley J.
Reasons for Ruling
Re: Bail Review under s. 521 of the Criminal Code
[1] On this application brought under s. 521 of the Criminal Code, Crown counsel asks the court to vacate the order of judicial interim release made by Justice of the Peace A. Dorrington (the “J.P.”) on the 19th day of November 2019 and substituting a detention order.
[2] The grounds for the Crown's request are that the J.P. erred in law in issuing a release order for Mr. Phillips, who sought bail following his arrest for aggravated assault against his domestic partner. The Crown contends that the J.P. erred in law and in principle by failing to properly assess the secondary ground concerns relating to this accused, which in her submission resulted in a clearly inappropriate decision. Moreover, Crown counsel contends that the J.P. erred by actually undercutting the defence position, which was that a bail consisting of house arrest and considerably more stringent conditions be imposed, and instead substituting four simple terms which amount to little or no control over the accused, which the Crown contends are woefully inadequate terms of release.
[3] The accused is charged with having assaulted, choked, and committed aggravated assault against his partner, the mother of his children, on November 17, 2019. He is alleged to have punched, slapped, kicked and choked the complainant. She contacted the police and requested that they attend. When they did, the accused stood between her and the door and would not let her answer the door. The following morning the accused woke the complainant. He was in a rage. He began to punch and kick her about the face, head and body. He then fled the residence.
[4] The complainant called 911 and police officers attended. The complainant sustained two black eyes that were so swollen that her eyes were swollen shut. She provided an oral statement and indicated that the accused had physically assaulted her several times in the past but she had not contacted the police. She was transported to the hospital where was she was treated for swelling to the face, a cut to her left ear, pain and tenderness in other various parts of her body, and a partially collapsed lung.
[5] The accused has a dated, but related criminal record. In 2010 he was convicted of two counts of assault for the domestic assault of a different complainant. He was also convicted of failing to attend court and sentenced to a period of presentence custody and probation. One of the terms of his probation order was to attend the Partner Assault Response Program (“PARS”), but in 2012 he was convicted of not attending that program and he received a suspended sentence and probation.
[6] At the November 19, 2019, bail hearing before the J.P., the primary focus of both parties and the court's ruling was on the secondary ground. The onus was on the Crown at that hearing to show cause why the accused ought to be detained. The defence sought the release of the accused to his sister as surety, with a plan of house arrest except for when he was engaged in work, or when he was in the company of his surety.
[7] Surprisingly, the J.P. did not accept the position of either counsel. He declined to impose house arrest and when the Crown requested, at a minimum, a curfew, he declined to impose that condition as well. As a result, there was no condition imposed requiring that the accused reside with his surety, and there was no condition imposed that he notify the officer in charge at any time of his address or of any change of address. Under the terms of the release order as granted, there is, quite frankly, no tracking of the whereabouts of this accused other than through his sister.
[8] It was interesting to me that in choosing to impose such a loose form of release, Mr. Phillips acknowledged that the J.P. said that there was no point in requiring Mr. Phillips to reside with his surety, his sister, because of the amount of time that he would spend travelling to his work in Hamilton, or being in Hamilton at work, all unsupervised, made it nonsensical to impose a residential requirement.
[9] On an application such as this, in reviewing the order of the J.P., this court is only entitled to vary or reverse a decision of the J.P., as stated in para. 121 of R. v. St.-Cloud, 2015 SCC 27, in the following circumstances:
It will be appropriate to intervene if the justice has erred in law. It will also be appropriate for the reviewing judge to exercise this power if the impugned decision was clearly inappropriate, that is, if the justice who rendered it gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge therefore does not have the power to interfere with the initial decision simply because he or she would have weighed the relevant factors differently.
[10] It is acknowledged that neither the primary nor the tertiary ground is engaged on this application. The entire focus of the Crown is on the secondary ground. As it relates to the secondary ground in the circumstances of this case, s. 515(10)(b) of the Criminal Code provides that the detention of an accused in custody is justified:
…where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, … 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.
[11] In the Reasons of the J.P. releasing the accused, at pages 40-43, among other things, he stated as follows:
As it relates to the secondary grounds, the nature of the allegations that bring you to court are serious, and the evidence that I have received as it relates to this hearing, indicates an aggravated assault and some very serious injuries to your partner.
I am not here to decide on your innocence or guilt, sir What I am trying to establish is whether there is a substantial likelihood that if you are released into the community you will engage in criminal activity, or more specifically in this case, whether the justifiable concerns that your partner has, that is the complainant, that her safety is paramount and that you should be detained in order to ensure that she is safe.
I am not persuaded that a house arrest is relevant or necessary in the circumstances. I stress, though, that I am trying to balance risk here, sir.
Whilst I believe there is some likelihood that your partner, the complainant in this matter has justified concerns, I believe those risks can be managed and I am persuaded that your sister is willing and able to supervise you in the community. I am not persuaded that a house arrest is necessary or adds significantly to her willingness and ability to supervise you.
[12] Mr. Phillips himself acknowledged in his comments that the relationship between members of his family has never been close. His sister did not know very much about his past and knew virtually nothing about his prior offences. This is not surprising given that they were not close despite her claim that they were. On this point, the J.P. stated at page 42 of the transcript:
…whilst they may be indicative that her relationship with you is not as close as might be hoped for, I am satisfied based on the latter principle that on a surety release she can be relied upon by this Court to supervise you in the public. Whether or not she has the ability to constrain your behaviour, whether she is able to influence you for the good, I believe can be buttressed by her knowing that if she does not wish to supervise you in circumstances where you are unwilling to be supervised, she can always come back to court and ask to be relieved of her responsibilities.
The J.P. then concluded relative to the secondary ground in the following words:
As it relates specifically to supervision whilst you are not home in the evenings, whilst you are at work, again I am trying to balance the risk. I am persuaded that whilst there is some possibility that you would engage in criminal behavior, or interfere with the complainant, I am not persuaded that the risk is so substantial as for you to need either house arrest or 24-hour supervision.
[13] In the Crown’s submission, this decision by the J.P. was clearly inappropriate. In her submission, the accused should not have been released, and certainly not with the insufficient conditions that were imposed, materially less than even what was suggested by Mr. Phillips’ own counsel, and terms which in their consequence of application effectively provide no mechanism for maintaining control and knowledge of the accused's whereabouts or his conduct, other than through the possibility that his sister will check in on him through a cell phone app, or can be relied upon as a surety to actually maintain supervision and a sense of control over the actions of the accused to ensure that secondary ground concerns are met.
[14] It is difficult for me when reviewing the transcript of the evidence and the testimony of the proposed surety, Mr. Phillips’ sister, to understand what it was about her testimony that caused the J.P. to conclude that she would be capable of controlling Mr. Phillips. She is only one year older than him, and has very limited knowledge of his criminal record, his job situation and his life in general. She claimed that this was a result of a poor memory caused by ADHD. Against that evidence, I found it difficult to understand what the reasons were for the J.P. determining that he could put faith in the surety to act effectively as the jailer of Mr. Phillips in the community.
[15] More importantly, having regard to the gravamen of the offences, the injuries alleged to have been inflicted on the complainant by the accused as reflected in the photographic exhibits at tabs 6, 7, 8, 9 and 10 of the Crown’s record on this application, the fact that the surety herself acknowledges that the accused has a largely uncontrolled anger management problem and has had that problem his entire life, the fact that the accused’s prior criminal antecedents were also for domestic violence, and the fact that the accused was convicted of failure to comply with a probation order because he failed to attend court mandated counselling, all cause me to call into question whether the J.P. erred in law, or reached a decision that was clearly inappropriate on the basis of having given excessive weight to one relevant factor or insufficient weight to another.
[16] Moreover, there is the question of whether it is an error of law for the J.P. to ignore submissions of both counsel, including the contention of Mr. Phillips’ counsel that a strict plan of release including house arrest was the plan for release that was appropriate. Instead, he substituted his own de minimis conditions on the basis, as Mr. Phillips acknowledges, that there was no point in requiring Mr. Phillips to reside with his surety, his sister, because of the amount of time that he would spend travelling to his work in Hamilton, or being in Hamilton at work, all unsupervised, made it nonsensical to impose a residential requirement.
[17] Mr. Phillips told the court that he has tried to apply to PARS, however, they will not accept him, but he had no evidence of that to provide to the court. Despite the alleged fear of the complainant relative to the accused, Mr. Phillips told the court that he has learned through intermediaries that Mavis is not afraid of him at all. This is also difficult to accept from the court's perspective in the context of the very severe injuries that were inflicted upon his domestic partner, while yet unproven, allegedly by this accused.
[18] In my view, it is appropriate for this court to intervene in this case for two reasons.
[19] First, in failing to choose between the two release propositions put to him by counsel at the bail hearing, that is detention as requested by the Crown, or a strict house arrest residential surety as requested by Mr. Phillip’s counsel, the J.P. erred in law.
[20] Second, and more importantly, again I note the J.P.’s conclusion relative to the secondary ground:
As it relates specifically to supervision whilst you are not home in the evenings, whilst you are at work, again I am trying to balance the risk. I am persuaded that whilst there is some possibility that you would engage in criminal behavior, or interfere with the complainant, I am not persuaded that the risk is so substantial as for you to need either house arrest or 24-hour supervision.
[21] I find that explanation to be conclusory and inadequate as a set of reasons to meaningfully permit review by this court under this s. 521 application.
[22] The decision of the Supreme Court of Canada in R. v. Sheppard, 2002 SCC 26 makes clear that judicial decision makers need to give reasons that are transparent and permit their reasoning and process of logic to be understood by a reviewing court. They need to explain findings of fact, credibility and conclusions of law to make the reasoning process transparent. The question here is whether the reasons of the J.P. in this case permit meaningful review on this s. 521 application. If not, the decision must be set aside.
[23] In this case, while the conclusion is there, I cannot discern from the brevity of the J.P.’s reasons or his subjective statements of satisfaction that release is appropriate, what the evidential foundation was for those conclusions. Put differently, given the serious evidence that was advanced at the hearing of serious concerns relative to the secondary ground, the absence of a close relationship with the surety and her own acknowledgement of the accused’s serious anger management problem, I cannot discern that in reaching the conclusions he did, the J.P. adequately addressed the concerns expressed in s. 515(10)(b) of the Criminal Code.
[24] In my view, this decision cannot stand. It cannot stand, not only because the J.P. erred in law in undercutting the defence plan, a strict plan of release including house arrest, but also because the actual terms imposed effectively maintain no control or supervision over the accused, other than through potential daily communications between the accused and his sister. There is nothing in the reasoning of the J.P. that adequately addresses secondary ground concerns of potential interference with the administration of justice or with the potential risk of harm that could be caused to the complainant.
[25] For this reason, while it gives me no pleasure, I must ask you Mr. Phillips to step into custody. The Crown's application to revoke the accused’s bail is granted, in order to protect the complainant, Mavis Small, and to ensure that there is no opportunity, given his anger management issues, for the accused to pose a public risk.
[26] In conclusion, I will add that it may well be that the accused is releasable if stringent and appropriate terms are imposed and adhered to by a surety who is capable of doing so and who can command the confidence of the court. However, that is not the decision for today but it will remain open for the accused to bring a further bail review as time progresses, should circumstances change or a better plan of release be put before the court for consideration.