Court File and Parties

COURT FILE NO.: 18-91 DATE: 20210309

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – D.R. Defendant

Counsel: I. Blanchard, counsel for the Crown J. Hale, counsel for the Defendant

HEARD: February 12th, 2021, March 2nd, 2021 and March and 4th, 2021

Warning

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Reasons for Decision (S.524 Application)

Lacelle, J.

[1] The accused, Mr. R. is charged with several serious offences involving allegations of domestic violence against his former spouse, Ms. S. On April 6, 2020, I released him on a recognizance with terms including that he reside with his sureties (his parents) and that he wear an electronic monitoring device.

[2] Mr. R. assaulted his stepfather on October 20, 2020 and fled his parents’ residence. He turned himself into police approximately 5 days later. His whereabouts had been unknown to police, since Mr. R. had removed his electronic monitoring device.

[3] The Crown brings an application under s. 524 seeking an order cancelling Mr. R.’s release order and ordering his detention pending his trial. The trial is scheduled for September of this year. The defence concedes that the release order should be cancelled pursuant to s. 524(3). Consequently, the focus of the hearing before me has been on section 525(4) and in particular, whether Mr. R. has shown cause why his detention in custody is not justified under s. 515(10).

[4] For the reasons that follow, I am not satisfied that Mr. R. has met his onus and demonstrated that his detention is not justified under the secondary grounds of s. 515(10).

The background

[5] Mr. R. was initially charged in January 2018 with several offences of violence against his spouse Ms. S. He was released on consent by the Crown with conditions, including that he not have any contact with Ms. S., and that he not to be within 250 metres of any places where she might be and not to attend her place of residence.

[6] Shortly after being released, it is alleged that the accused breached these conditions by being in contact with Ms. S. It is alleged he attended at her residence several times a week. He was charged in relation to these allegations months later in September 2018, at which time he was also charged with further offences involving Ms. S., including assault, assault with a weapon, sexual assault and kidnapping.

[7] The sexual assault charge involves an allegation of forced oral sex and anal intercourse. On the evening of the alleged sexual assault, the accused is alleged to have told the complainant “I’m going to end it all”, which she understood to be a threat to kill her, which he had threatened to do earlier that evening. The kidnapping charge relates to the allegation that the accused drove the complainant to her workplace (where she was made to quit her job), and then took her and her children without her consent (since it was induced by fear) from the Cornwall area to Montreal. Additional breaches were alleged because the accused had not reported as required to the Bail Supervisor at the John Howard Society of Ottawa.

[8] In late September 2018, following a bail hearing, the accused was detained on all charges and a no contact order pursuant to section 515(12) of the Criminal Code of Canada was ordered with respect to the victim Ms. S. and her children, including the child she shares with the accused, who was then 10 months old.

[9] In October of 2018, the accused was charged for breaching the no contact order. The Crown alleged he had sent Ms. S. a letter from jail. The letter was addressed to their infant son and sent to her place of residence.

[10] In early November 2018, the accused had a bail review before me. He was released on November 2, 2018, on terms that provided for two sureties (his mother, Ms. R. and his stepfather, H.A.). The order required the accused reside in Ottawa at the ONYX program where he would receive some counselling and where he would be fitted with a GPS electronic bracelet monitoring system. The accused was ordered not to have any contact with Ms. S. The order permitted the accused to attend at his parents’ home in Montreal.

[11] Within a couple of weeks of his release, and while visiting his parents in Montreal, the accused was charged with contacting Ms. S. by phone.

[12] The accused was arrested and had a bail hearing in December 2018. He was detained.

[13] Ultimately, a trial date of March 2019 was scheduled on the charges from January 2018. The accused was convicted of various offences. They are summarized in the Crown’s Notice of Application as follows: 1) an assault on December 2nd, 2017 where an argument erupted in the bedroom while the victim, pregnant, was laying in bed. The accused climbed on top of the victim, started choking her and punched her on the left side of her face/neck area causing swelling to left side of her face. 2) Assault January 6th, 2018 where the victim and accused got into an argument. The accused grabbed the victim and pushed her onto the couch. He was threatening to leave with their child. After pushing her onto the couch he climbed on top of her and was holding her down with his forearm on her neck and chest area. She was not able to breathe. 3) Uttering threat on October 9th, 2017 where the accused told the victim he would kill her if she took his family away. 4) Assault of November 8th, 2017 where during an argument, the victim was trying to leave. The accused prevented her from leaving by pulling her back into the residence.

[14] As a result of these convictions, the accused received a jail sentence of 4 months pre-sentenced custody (at 1.5 for the equivalent of 6 months custody) followed by a period of probation of 2 years. He continued to be detained on the charges involving Ms. S. from September 2018.

[15] On the 6th of April 2020, the accused had a second bail review before me in relation to those charges. He was released on that date on strict conditions with an electronic monitoring device and with both his mother and stepfather as sureties. The accused was ordered to reside with his parents at their home in Montreal. He was not permitted to be outside of their residence without a surety except in limited circumstances, such as a medical emergency.

[16] In their evidence on this hearing, the accused’s parents confirm that two months after his release, on June 6th, 2020, the accused attempted to commit suicide. He was taken to hospital where he was placed in a medically induced coma. He was in the intensive care unit for over 4 weeks and then discharged.

[17] Following his discharge, according to his mother, the accused continued to be depressed and have suicidal thoughts. In August of 2020, the accused voluntarily admitted himself into a psychiatric hospital (“the Douglas”).

[18] Ms. R. testified that she advised the electronic monitoring provider of these hospitalizations. There is no evidence that this information was provided to police or the Crown. No bail review was initiated.

[19] After two months at the Douglas, the accused was discharged for not following the instructions and recommendations of the doctors. He had consumed marijuana while in hospital. He returned to his parents’ home and resumed residing with his sureties, as his release order required him to do.

[20] On the night of October 19 to 20th, 2020, the accused had been back in his parents’ home for about 4-5 days. An argument occurred between the accused and his stepfather about the accused making himself some tea. His step-father testified that he had set a rule that the accused not be in the kitchen at certain times because he was concerned about the ready availability of cutlery in the kitchen and the possibility that the accused might try to harm himself. The accused’s stepfather confirmed in his testimony that the accused “head-butted” him and bit his finger. The accused’s mother and the accused’s brother had to intervene. The accused went downstairs and came up with a scratch to his face. The Crown alleges this wound was self-inflicted. The accused’s stepfather confirmed he did not believe he had done anything to cause this injury to the accused during the altercation.

[21] Ultimately, the accused cut his ankle bracelet off and fled.

[22] The accused’s mother was in contact with the accused by phone in the days that followed. She tried to convince him to turn himself in. It was her understanding that the accused’s probation officer was also in touch with him and making similar efforts.

[23] On October 25, 2020 the accused was still at large and could not be located. He finally turned himself in later that night.

[24] The accused was charged with various offences in Quebec as a result of his conduct on October 20th, 2020. He remained in custody pending a trial date scheduled in January 2021. The accused’s parents did not attend for the trial. The Crown withdrew charges of assault and theft (the accused was alleged to have stolen $1000 from his stepfather’s pocket). The accused was convicted of the breach charges. He has remained in custody on the outstanding Ontario charges since the trial in Montreal.

[25] The parties agree that the accused’s criminal record now consists of the following convictions registered in the years indicated:

1. Breach of recognizance in 2010;
2. Assault x 3 (relating to Ms. S.) in 2019;
3. Uttering threats (relating to Ms. S.) in 2019;
4. Breach of recognizance (relating to contact with Ms. S.) in 2020;
5. Breach of recognizance (relating to events of October 2020) in 2021.

[26] The primary issue in this hearing relates to whether the accused has met his onus under the secondary ground in s. 515(10).

[27] The question to be determined under the secondary ground is whether, if released, there is a “substantial likelihood” that the accused will commit further offences or interfere with the administration of justice. In this instance, pursuant to s. 524(4), it is the accused who bears the onus of satisfying the court that the bail plan proposed meets this threshold.

[28] The meaning of “substantial likelihood” has been considered by the Supreme Court. The court confirmed in R. v. Morales, [1992] 3 S.C.R. 711 that bail cannot be denied simply because a risk is posed by the offender, but 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 the safety of the public. Detention is justified only when it is “necessary”. It is not justified where it would merely be convenient or advantageous.

[29] Making predictions about dangerousness is not an exact science. Morales and other cases recognize the difficulties in making exact predictions about future dangerousness. In Morales, the court indicated that exact predictions are not required. It held that “the impossibility of making exact predictions does not preclude a bail system which aims to deny bail to those who will likely be dangerous”.

[30] So, what does the “substantial likelihood” standard require? In The Law of Bail in Canada, (G.T. Trotter, Second edition, at p. 136) it is suggested that “[t]he proper, and accepted approach is a slightly enhanced balance of probabilities standard. This is a suitable standard, as it reasonably protects the accused from being detained on a mere suspicion of future criminal activity”. In R. v. Manasseri, 2017 ONCA 226, Watt J.A. held at para. 87 that “substantial likelihood” refers “to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely”.

[31] Justice Watt also clarified in Manasseri at para. 88 that where “the onus of showing cause for release falls on an accused, that accused must demonstrate not only that his or her detention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public” [emphasis in original].

[32] The appropriate factors to consider in assessing the “substantial likelihood” the accused will re-offend may vary from case to case. One factor may be the strength of the case and the nature of the offences charged. As Justice Trotter reasoned in his book, while the accused is presumed innocent at this stage of the proceedings, the strength of the Crown’s case on the charges may affect the court’s assessment of the weight that can be attributed to the index offences in assessing the substantial likelihood of re-offence: The Law of Bail in Canada at p. 142; see also R. v. H., 2006 ONCJ 116 at para. 29 per Trotter J. (as he then was).

[33] Other relevant factors are the stability of the accused person and any prior record the accused may have. All of the relevant factors are to be considered, including the nature of the proposed bail plan and its strength.

The positions of the parties

[34] Counsel for Mr. R. emphasizes that the accused was suffering from significant mental health issues when he was released to his parents, and that the circumstances of the pandemic, particularly in Montreal, made conditions for all people in the household worse. In effect, the argument is that the events between April and October of 2020 need to be understood in that context. Counsel argues that the events of October 2020 should not be met with an order that the accused be detained pending trial, in large part because they did not involve the complainant. The defence submits that what is important is that the accused complied with the terms that were most important in this case. The defence argues that the new plan is an improvement over the last plan of release since it will see the accused enrolled in residential treatment. The proposed program (“Vilavi”) will provide an excellent environment for the accused and is geographically further away from the complainant. Counsel emphasizes that the accused has not contacted the complainant during his most recent release and argues that the accused’s release after this hearing will not put her at risk. He also emphasizes the positive aspects of the accused’s conduct in seeking assistance for his mental health issues.

[35] The Crown argues that the accused has now established a pattern of breaching and acting violently. She submits that the accused does not like to abide by rules set out for him – by the court, by his parents, and by the medical staff at the Douglas. She submits the court should have no confidence he will abide by its conditions now. She submits that the new plan has gaping holes when it comes to supervising the accused, since it is proposed that the accused be permitted to attend a residential program without any security or mechanism to report if he leaves. Further, it is now suggested that he be released without electronic monitoring. Counsel argues that protection of the public includes more than the protection of the complainant – it also includes the proposed sureties for the accused, regardless of their personal feelings about whether the accused presents a risk to their safety. The Crown argues the secondary grounds most forcefully, but also argues that the accused has not met his onus under the tertiary grounds.

Analysis

[36] As I have said, I find that the accused has not met his onus and demonstrated that his detention is not justified under the secondary grounds of s. 515(10). This is because the proposed plan does not sufficiently mitigate the risk posed by the accused to both reoffend and interfere in the administration of justice. I remain mindful that the standard is not that there is no risk, but that it does not rise to the level of a substantial likelihood of reoffending.

[37] I arrive at this conclusion having considered the very serious nature of the charges, which involve allegations of assault and sexual assault, and the strength of the Crown’s case. As I said in my ruling releasing Mr. R. on the last occasion, the case is of at least moderate strength.

[38] I consider that the accused has now been convicted of domestic violence offences in relation to the same complainant. Thus, the record shows he has been violent towards her in the past. The complainant and the accused share a young child. My concern for the protection of the public is focused particularly on the need to protect the complainant from ongoing contact from the accused or further violence he might commit. I am particularly concerned about the need to protect the complainant and her children given the evidence of the accused’s recent volatility and suicidal ideation (which I will discuss further below), given a proven prior threat by the accused to kill the complainant if she took his family away, and an additional allegation that he would “end it all” after the alleged sexual assault in September of 2018.

[39] The events of October of 2020 when the accused head-butted his surety (there is no evidence to the contrary and I accept Mr. A.’s evidence that this is how he was assaulted by the accused) show that the risk the accused presents to the public is even broader, however. I agree entirely with the Crown that the court’s concern in this analysis is broader than just the protection of the complainant. It includes anyone who might act as a surety for the accused.

[40] In considering whether the proposed release plan mitigates the risk that the accused presents to an acceptable level, I also consider that the assault on Mr. A. was a significant one. It was not a minor act of non-consensual touching. He required medical attention as a result. Further, it occurred because of a dispute over the rules of the house established by the accused’s parents. These circumstances demonstrate a degree of instability and volatility on the part of the accused and a capacity to cause real harm with his violence.

[41] The events in October and in the months prior to that demonstrate a concerning degree of instability on the part of the accused. I appreciate that much of this instability may be rooted in mental health issues, and that the accused and his family would have me take a therapeutic approach in considering what conditions might protect the public. However, the focus of this court in this hearing is on whether the accused’s release plan adequately protects the public, and not whether it is responsive to the accused’s mental health needs. While it may be that a residential treatment program would benefit the accused and reduce his risk, I am not persuaded that his compliance with this program is assured, nor given the very limited information I have about the program, that it would sufficiently reduce the risk to the public posed by the accused. The volatility the accused has demonstrated while in the community, recently and historically, leaves me with insufficient confidence that he will abide by the terms of the Vilavi program. If he does not, and he leaves the program or is discharged, I am not satisfied there will be any mechanism in place to ensure that the accused would be appropriately supervised.

[42] When I reference the accused’s lack of stability, I am also concerned about the evidence before me that the accused continues to use drugs, and that he did so contrary to the recommendations of the mental health hospital to which he was voluntarily admitted. Since his last release, the accused has also engaged in a very serious suicide attempt that resulted in him being placed in a medically-induced coma and kept in intensive care for over 4 weeks. Understandably, these events have been traumatic for his family to witness. All in all, the events that transpired since the accused’s release in April of 2020 to October of 2020, which included approximately 5 days when the accused was “on the run” and his whereabouts were unknown, demonstrate that the accused is unstable and volatile. The fact that the accused turned himself in after five days gives me no confidence that he would again turn himself in if discharged from Vilavi, or in the event of another allegation of breach. The accused should not have been at large at all. That this time was limited to five days does not reassure me that the accused can and will abide by bail conditions.

[43] The events since April 2020 also leave me with significant concerns about releasing the accused on terms that would once again involve his parents as sureties, even if the accused were to immediately enroll in the residential treatment program. To the extent that it would be possible to release the accused to his sureties without a term that would permit him to attend the residential treatment program, I decline to do so. While the sureties may have been able to justify and contextualize the accused’s violent behavior towards his stepfather in their home, I do not approach this issue from the same perspective. My duty is to ensure that any release would adequately protect the public, which includes the persons with whom the accused may reside.

[44] I also am left with significant concerns about the objectivity of the accused’s parents at this point. I well understand that they are extremely concerned about their son’s mental health. They have been trying to help him for years. Their focus continues to be on helping him. While they have acted appropriately in many respects, for instance in convincing the accused to turn himself in to police on at least two occasions, their conduct in the aftermath of the assault in October makes clear that the sureties are also susceptible to prioritizing their son’s interests when these conflict with the administration of justice. I am referring here to the fact that the accused’s father did not respond to a subpoena to attend court to give evidence about the assault he described in this hearing. In other words, evidence about this event has been freely given where it might support his stepson’s release, but not when the Crown was seeking to have it considered for the benefit of the public interest.

[45] While I can appreciate that following the accused’s suicide attempt the focus was on his health and this circumstance might have been viewed as an emergency that permitted him to reside in hospital (at least initially), I do not understand how the conditions of my order of April 6th, 2020 could be viewed as permitting the accused to voluntarily admit himself to another program that would have him residing away from his parents’ house, contrary to his bail terms. Counsel has confirmed during submissions what circumstances led to the fact that no bail review was sought. In the circumstances, I do not fault the sureties. I remain very concerned, however, that these circumstances were not raised with police or the Crown by the operator of the electronic bracelet. Manifestly, the accused was not residing where he was supposed to reside in accordance with an unambiguous term of his release. While electronic monitoring is no longer proposed by the accused, given that it appears that the monitoring company lapsed in its obligations, and the accused defeated the supervision provided by the bracelet when he cut it off, this is not a tool whose use would reassure me about the mitigation of risk were the accused to be released again.

[46] For these reasons, I am not satisfied the accused has met his onus under the secondary ground. In view of that conclusion, it is not necessary to consider the Crown’s additional argument about the tertiary ground.

Conclusion

[47] Pursuant to s. 524(3), the accused’s prior release order is cancelled. The accused shall be detained in custody pending his trial.

[48] Pursuant to s. 515(12), the accused shall not communicate with the persons previously listed in various non-communication orders (their names will all be included in a new order), including Ms. S. and her children. With respect to contact with the child they share, there shall be an exception to that order to permit family court proceedings to further address the issue.

The Honourable Justice Laurie Lacelle Released: March 9, 2021