Superior Court of Justice - Ontario

COURT FILE NO.: CR-19-32-BR

DATE: 2020-11-17

RE: R. v. C.O.

BEFORE: Justice C. Boswell

COUNSEL: Jennifer Armenise for the Crown Alison Craig for C.O.

HEARD: November 16, 2020 (by Zoom Conference)

ENDORSEMENT

The Application

[1] CO is charged with assault and sexual assault in relation to an incident that is alleged to have occurred on June 24, 2018. The allegations against him are quite serious. Moreover, CO has an extensive criminal record which includes numerous offences of violence. He elected to consent to his continued detention after being charged on July 18, 2018.

[2] CO’s trial was scheduled to commence on April 27, 2020. It was unable to proceed because the normal operations of the court were suspended in mid-March 2020 in the face of the COVID-19 pandemic.

[3] Faced with an uncertain delay, CO elected to bring a bail review application, which I heard on April 22, 2020. I ordered his release on April 24, 2020 on stringent terms, which included a house arrest condition. Since his release he has resided with his surety, JN, in Toronto. He is subject to a curfew and otherwise may only be out of the residence when in the direct and continuous company of his surety. The specific release terms and my reasons for them are set out in my prior ruling, reported at 2020 ONSC 2514.

[4] CO has been subject to my release order for the better part of seven months. There have been no issues with compliance. In fact, the police have attended at his surety’s residence more than fifty times to check on him and have found him in compliance each time.

[5] A new trial date has been fixed to commence on March 1, 2021. CO asks the court to loosen his restrictions pending his trial, to permit him to be out of his residence at times without the accompaniment of his surety.

The Evidence of the Surety

[6] CO’s surety was cross-examined by Crown counsel. She testified that CO has been a model releasee. He has been compliant with all of his conditions and he has been helpful around the house, assisting her with renovations. But her own schedule is very busy. She is working from home and at the same time home-schooling her two children because of the pandemic. She is concerned that she has not been able to get CO out of the home and into the community much because of the constraints on her time. He is, according to her, getting out of the home only to grocery shop with her once a week.

[7] The surety would like CO to be able to get out on his own. She anticipates that he could run errands for her, including walking the dog, picking up her daughter from work and obtaining the materials needed for her ongoing renovations. She also thinks he would benefit from some counselling for some mild depression he has experienced since being released from custody. She wishes him to have the freedom of movement to attend such appointments on his own.

Counsel’s Positions

[8] CO’s lawyer argues that his lengthy period of compliance should give the court confidence that he can be trusted to abide by less stringent terms. Moreover, his surety has proven herself more than capable and the court should put great weight on her views. The application of the ladder principle, in defence counsel’s submission, tends to support the conclusion that the most stringent of conditions are no longer necessary.

[9] The Crown is opposed to the requested variation. The charged offences involve an allegation of egregious violence against a vulnerable complainant. The complainant remains fearful of CO, for sound reasons in the submission of the Crown.

[10] CO has a long and concerning criminal record. The Crown highlights findings I made on the original bail review hearing, including that CO posed a substantial risk of re-offence if released. I noted that he has dedicated himself to a criminal lifestyle over a forty year period. He has been convicted of offences of dishonesty, violence, sexual violence and homicide. At the time of the alleged offences he was associating with members of the Hells Angels Motorcycle Club.

[11] CO is not a great candidate for release, in the Crown’s view, and the fact that he has been compliant with his conditions over the past seven months does not mean those conditions are no longer warranted.

Discussion

[12] I agree with the Crown that C.O. was never a great candidate for release. It is a rare individual, fortunately, who can boast of record of criminal offences spanning more than four decades. While there are some gaps, the longevity of CO’s criminal antecedents is concerning. Moreover, his record abounds with convictions for very serious offences. The charges he is presently facing are similarly very serious. I need not get into them in detail because I reviewed them in my prior ruling. The gist of the allegations is that he cornered the complainant in her garage after a bonfire at a neighbour’s home which they both attended. He purportedly punched her in the face as many as three times, pushed her up against a vehicle, pulled down her pants, attempted unsuccessfully to penetrate her with his penis, then digitally penetrated her instead.

[13] At his original bail review hearing, CO offered a very stringent plan of release, supported by a strong surety. I accepted his plan, largely on the strength of his surety. I also found that concerns about the COVID-19 virus in congregate living facilities, like jails, tipped the scales in favour of release.

[14] One could be forgiven for wondering what change in circumstances has occurred that might warrant loosening the terms of release. CO still has the same criminal background and he still faces the same serious charges.

[15] To be fair, there are two changes in circumstances that tend to support CO’s request. First, when I ordered him released on stringent terms in April 2020 I optimistically suggested that his trial might be scheduled as early as September, 2020. It is now known that his trial will not, in fact, proceed until March 2021. By then he will have spent the better part of two years in pre-trial custody, plus almost another year on stringent bail conditions.

[16] Second, he does have a track record now of seven months’ issue-free compliance with the terms of his release order.

[17] C.O.’s changed circumstances must be viewed through the lens of the principles that animate the law of bail in Canada. Those principles have been re-affirmed repeatedly by the Supreme Court over the past half-decade in cases that include R. v. St. Cloud, 2015 SCC 27, R. v. Antic, 2017 SCC 27, R. v. Myers, 2019 SCC 18 and, most recently, R. v. Zora, SCC 2020 14.

[18] Our bail system rests on two constitutional pillars: the presumption of innocence and the right not to be denied reasonable bail without just cause. These two pillars inform the principles that govern bail review hearings including the presumption that accused persons should be released as soon as possible and on the least onerous conditions possible.

[19] C.O. has already been released. This hearing is limited to a consideration of whether his existing terms of release ought to be modified. It is the court’s function, in the circumstances, to determine which of the risks identified in s. 515(10) of the Criminal Code are in play and to craft conditions as narrowly as possible to attenuate those risks. The court must adhere to the concept of restraint. Any conditions imposed must be rationally connected to the risks posed in the particular circumstances of the case and they must be “clear, minimally intrusive and proportionate.” See R. v. Zora, as above, at paras. 82-87.

[20] There is no serious debate about the nature of the risks in play in this instance. They relate to public safety; to the risk that CO will commit further offences or interfere with the administration of justice. The question to be answered is whether anything less than stringent house arrest will sufficiently attenuate these risks.

[21] In my view, there is value in CO’s record of close compliance with the terms of his release and to the confidence his surety places in him. I observed in my earlier ruling that one would be naïve to place any trust in CO given his history. That history now includes seven months of unblemished compliance. Fifty police spot checks over the course of seven months is a lot. That number suggests that someone has been hoping to catch CO in breach and to see him returned to custody. But he is 50 for 50.

[22] CO still has a terrible criminal history. That history includes offences against the administration of justice. There is good reason to remain concerned about his commitment to compliance. It is impossible to know whether his compliance to date is the result of his own desire to comply or whether it is the result of close supervision by his surety, or a combination of both.

[23] I have, at any rate, more confidence in CO now than I did in April. That confidence is far from boundless, but it is sufficient to modify his release conditions to provide him with modest additional freedoms.

[24] In my view, the risk that CO poses to public safety can be sufficiently attenuated by a somewhat less stringent package of conditions. I amend them as follows:

(i) CO is to reside full-time with JN in her home at 49 Woodycrest Avenue, Toronto;

(ii) CO is to observe a curfew and not be out of the said residence at any time between the hours of 10:00 p.m. and 6:00 a.m. except in the case of a medical emergency;

(iii) CO is to otherwise to remain in the said residence at all times unless in the direct and continuous company of his surety, save for the following:

(a) pre-arranged medical appointments or medical emergencies;

(b) pre-arranged appointments with his legal counsel; or,

(c) Mondays, Wednesdays and Saturdays, when he may out of the residence with the written permission of his surety, between the hours of 10:00 a.m. and 6:00 p.m., provided he remains within the borders of the City of Toronto;

(iv) CO is to present himself at the front door of the residence within 5 minutes of any attendance there by the police;

(v) CO is not to have any direct or indirect contact with JR or be within 200 metres of anywhere he knows JR to live, work, worship, frequent or be, save for scheduled court appearances;

(vi) CO is not to be present within the boundaries of Simcoe County save for court appearances;

(vii) CO is not to possess any weapons as defined by the Criminal Code;

(viii) CO is not to be in the company of any known member of the Hells Angels Motorcycle Club or any known associate of that Club; and,

(ix) CO is to abstain from the consumption of alcohol or any non-prescription drugs.

[25] CO is otherwise remanded to the assignment court for pre-trial motions, which is January 20, 2021 at 2:15 p.m.

Boswell J.

Date: November 17, 2020