COURT FILE NO.: CR-20-013-BR
DATE: 2021/04/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
BENJAMIN ADAMS
Defendant
S. Seguin, for the Plaintiff
C. Bracken, for the Defendants
HEARD: March 31, 2021
ellies R.S.j.
REASONS FOR DECISION
OVERVIEW
[1] Benjamin Adams (the “accused”) applies under s. 520 of the Criminal Code (the “Code”) for the review of a detention order made by Justice of the Peace Kitlar (the “JP”).
[2] The accused submits that the JP made two legal errors in deciding to detain him. Based on these errors, he submits that this court should interfere with the detention order and that he should be released with Sarah Chadbourne as his surety.
[3] As I will explain, the JP made no legal error. Even if he did, I would not interfere with his decision.
BACKGROUND
The charges
[4] The accused is presently charged with four offences, namely:
(1) failing to stop a motor vehicle while being pursued by a peace officer,
(2) dangerous driving,
(3) driving while prohibited, and
(4) breaching a probation order.
[5] The allegations underlying the charges relate to a series of earlier offences of which the accused was convicted on September 23, 2020. The eleven convictions registered on that date included dangerous driving, failing to appear in court, and three counts of failing to comply with the terms of his release. The accused was given credit for 473 days of pre-trial custody, sentenced to a further period of incarceration of four months, and placed on probation for 36 months. On December 11, 2020, he was released from custody after serving his sentence on those offences and the probation order began to take effect.
[6] It is alleged that, a little more than one month after being released, the accused was seen by a police officer driving a motor vehicle in contravention of a driving prohibition arising from his earlier convictions. The Crown alleges that, on January 19, 2021, a police officer observed a vehicle being driven by the accused which failed to stop for a red light, requiring other vehicles to take evasive action. When the police officer attempted to pull the vehicle over, it sped away. That led to a brief high-speed chase through the City of North Bay, which ended when the officer decided to break it off in the interest of public safety.
[7] Officers located the suspect vehicle a short while later, but it was abandoned. Witnesses interviewed at the scene led the police to a residence on Tackaberry Drive, where the accused was arrested for the charges he now faces.
The bail hearing
[8] The bail hearing into these charges took place on January 21, 2021. The accused was represented by counsel (not Mr. Bracken). He took the witness stand himself and called one other witness: the proposed surety, his girlfriend, Melanie Gingras.
[9] The accused was cross-examined on the facts underlying his September 2020 convictions. He admitted that he had been released four times while awaiting trial on those charges and that he had breached the terms of three of those release orders. But he testified that he now understood the severity of his conduct. In her evidence, Ms. Gingras testified that she was at home “24/7” to supervise the accused and was willing to pledge up to $1,000 to ensure that he abided by the terms of his release. However, Ms. Gingras admitted in cross-examination that she was the one who gave the accused the license plates that were seen on the vehicle that the accused is alleged to have been driving and that she knew at some point before the hearing that he was prohibited from driving it.
The JP’s decision
[10] Although he kept his comments about it cryptic, it is fair to say that the JP was not impressed with the proposed surety and her involvement in the offences which were the subject of the bail hearing.
[11] For brief reasons delivered orally immediately after the hearing, the JP ordered that the accused be detained on the secondary grounds set out in s. 515(10)(b) of the Code, namely the substantial likelihood that, if released, the accused would commit further offences.
ISSUES
[12] In R. v. St-Cloud, 2015 SCC 27, the Supreme Court of Canada held that, before a reviewing court can interfere under s. 520 with a detention order under made under s. 515 of the Code, an accused must establish one of three things:
(1) that the detaining judicial official made an error in law;
(2) that the decision to detain was clearly inappropriate in the sense that the judicial official gave too much or too little weight to one factor or another; or
(3) that there has been a material change in circumstances since the detention order was made.
[13] The accused submits that the JP erred in law, first, by conflating the secondary and tertiary grounds for detention under s. 515(10) of the Code and, second, by failing to apply the “ladder” principle set out in s. 515(2.01) of the Code.
[14] I will deal with each of these issues in that order.
ANALYSIS
Did the JP error in law by conflating the secondary and tertiary grounds?
[15] The three grounds for detention are set out in s. 515(10) of the Code, which read:
For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) 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; and
(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.
[16] While delivering his decision, the JP said (transcript, p. 43., l. 5):
Now someone would say the substantial likelihood of conviction. There was evidence that was drawn by the Crown that there was some witnesses to these alleged [sic] his entrance into a Tackaberry residence and that will be determined at trial, however if these charges, if convictions are entered, which there is a substantial likelihood at least on a few of them, this gentleman is going to go jail.
[17] On behalf of the accused, Mr. Bracken submits that this passage demonstrates that the JP conflated the secondary and tertiary grounds for detention. As counsel correctly points out, the secondary ground set out in s. 515(10)(b) requires the court to have regard to the substantial likelihood of re-offending while on release, not the substantial likelihood of conviction on the charges at issue. That consideration is, instead, one of the four factors listed under the tertiary ground set out in s. 515(10)(c). As a result, Mr. Bracken submits that the JP erred in law.
[18] I am unable to agree. The strength of the Crown’s case and the potential for a jail sentence may be relevant considerations on all three grounds for detention under s. 515(10), even though they are not expressly set out in the Code sections dealing with the first two such grounds.
[19] The relevance of these considerations is obvious in some cases. On the primary ground, for example, it is obviously open to a JP to consider whether an accused who faces almost certain conviction and a jail sentence will be less likely to attend court than one who faces a hopeless Crown case: see The Honourable Justice Gary T. Trotter, The Law of Bail in Canada, loose-leaf, 3rd ed. (Toronto: Thomson Reuters, 2017), at §3.2(ii). On the secondary ground, it is likewise obviously open to a JP to consider whether an accused facing a strong Crown case and a jail sentence will be more likely to interfere with the administration of justice, for example, by threatening or intimidating a witness: Trotter, at § 3.3(c).
[20] The relevance of a strong Crown case and potential jail sentence is less obvious when it comes to the question of whether an accused will commit offences unrelated to the prosecution of the ones for which he stands to be convicted. Nonetheless, courts have held that these are relevant considerations under this aspect of the secondary ground. In R. v. Rondeau (1996), 1996 CanLII 6516 (QC CA), 108 C.C.C. (3d) 474 (Que. C.A.), for example, the Quebec Court of Appeal held that the judge who released an accused on a heinous, execution-style murder had improperly failed to take into account the nature of the allegations and the strength of the Crown’s case when it came to considering the protection of the public under the secondary grounds. As Justice Trotter points out in his text, these cases admittedly allow considerations under the tertiary grounds to bleed into the secondary grounds. But it appears to be well-accepted that the nature of the allegations and the likelihood of conviction can be relevant factors to consider under the secondary grounds, nonetheless: Trotter, at §3,3(b)(iii).
[21] In these cases, the courts have examined the strength of the Crown’s case to determine the potential harm that might arise if the accused does re-offend while on release. However, I believe that the nature of the offences and the strength of the Crown’s case may also be relevant to determining the potential for re-offending, not just the harm that might arise if that occurs. In other words, the nature of the charges and the strength of the Crown’s case may be relevant not just to assessing the risk of greater harm, but also to assessing the greater risk of harm.
[22] That is true in this case. The offences faced by the accused include dangerous driving, driving while prohibited, and breaching a probation order. Depending on the likelihood of conviction, the breach charges are relevant to determining the likelihood the accused would re-offend. The dangerous driving charge is relevant to the seriousness of the harm that might result if he did.
[23] I believe that the comments relied upon by the accused in support of his argument that the JP conflated the secondary and tertiary grounds demonstrate, instead, that he was assessing the nature of the present offences and the likelihood they would be proven as part of his risk assessment under the secondary grounds. Just after he made those comments, he said:
What judge, looking at a record such as this gentleman had and he’s out of custody for a very short time, a month and a week, and the allegations are so serious I have fear for the public in regard to this individual because he doesn’t seem to get it.
[24] These were proper considerations, in my view.
Did the JP fail to apply the “ladder” principle?
[25] Except for certain types of offences that are not at issue here, the presumption under s. 515 of the Code is against pre-trial detention. Sections 515(1) and (2) provide for a “ladder” of release orders, beginning with an order with no conditions and no surety and escalating to an order with conditions, with a surety or sureties, and in some circumstances, with a cash deposit. Section 515(2.01) of the Code provides that an accused must be released on the least onerous terms unless the Crown shows why more onerous terms are required. In R. v. Antic, 2017 SCC 509, the Supreme Court of Canada made it clear that the “ladder” principle is a fundamental part of our bail system.
[26] On behalf of the accused, Mr. Bracken submits that the JP failed to apply the ladder principle by failing to order that the accused be released with a surety or sureties other than Ms. Gingras. Once again, I am unable to agree. As I interpret the JP’s reasons, he concluded that no surety was capable of mitigating the substantial risk that the accused would re-offend if he was released. I can no error in this conclusion.
[27] The September 2020 convictions are the only ones on the accused’s criminal record. However, a close examination of the facts underlying those convictions demonstrates that there is a substantial likelihood that the accused will commit further criminal offences if released, even if released on onerous terms. It also demonstrates not only the risk that the accused will re-offend, but also the great risk he poses to the public if he does.
[28] On January 28, 2019, the accused was charged with assaulting a police officer with intent to resist arrest. He was released on that date on a Promise to Appear (a “PTA”) and an Officer in Charge Undertaking (an “OIC”).
[29] On February 9, 2019, the accused was arrested and charged with breaching the OIC by changing his address without notifying the police. He was again released on a PTA and an OIC. However, the accused also breached that OIC. On March 12, 2019, he failed to appear in court.
[30] On May 9, 2019, the accused was arrested for failing to appear. He was released again the next day on a recognizance that named Sarah Chadbourne as his surety. As the defence points out, the accused did not breach that recognizance. However, the recognizance was only in place for a short while.
[31] On June 22, 2019, the accused was arrested on a warrant for an offence or offences that occurred prior to his release on May 10. On June 27, 2019, he was again released, this time with his girlfriend, Katelin Burns, acting as surety.
[32] The accused breached the terms of that release, as well. In early November 2019, he was arrested for failing to comply with his recognize by operating a motor vehicle. On November 15, 2019, he was released once more on a recognizance. The surety this time was Kaylee Gauthier. Ms. Gauthier pledged $3,000, which was everything she had at the time. The recognizance required the accused to remain in his residence except when in the presence of his surety and not to operate a motor vehicle. Yet, five days later, the accused was observed by the police driving a truck. When an officer attempted to arrest the accused while the truck was parked in a busy commercial parking lot, the accused not only resisted arrest, but smashed the truck repeatedly into the parked police cruiser while the officer was hanging off the side of the truck.
[33] The accused managed to get away, but he was arrested for dangerous driving and mischief endangering life, among other offences, about a week later. He remained in custody until he pleaded guilty on September 23, 2020 to these and the other offences now comprising his criminal record.
[34] In detaining the accused, the JP said (transcript, p. 43, l. 23):
On a balance of probabilities, just looking at the secondary ground and looking at the plan that’s in place that’s just about exactly the same as the last one, and he breached that within five days.
[35] The JP was referring to the plan that saw Ms. Gauthier pledge everything she had to ensure that the accused complied with the terms of his release, a plan that failed and failed quickly. In these circumstances, after at least two other release plans had failed, the JP committed no error in concluding that there was no plan for release which could mitigate against the substantial likelihood that the accused would re-offend if released.
[36] Even if he did, I would not interfere with his order. In the same way that I believe the JP was, I am of the view that no plan of release would be sufficient to overcome the very strong evidence that the accused will re-offend if released and, given his history of dangerous driving, the risk to the public is too great to take that unwarranted risk.
CONCLUSION
[37] The JP made no legal errors in detaining the accused. The nature of the charges made an inquiry into the strength of the Crown’s case a relevant consideration on the secondary ground in the circumstances of this case. Given the number of times the accused had breached the terms of his previous release orders by re-offending and onerous terms of the last of those release orders, the JP committed no error in concluding that there was no plan of release capable of mitigating the substantial risk of re-offending and the risk of substantial harm if he did.
[38] For the foregoing reasons, the bail review is dismissed.
M.G. Ellies R.S.J.
Date: April 1, 2021
COURT FILE NO.: CR-20-013-BR
DATE: 2021/04/01
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Plaintiff
– and –
BEN ADAMS
Defendant
REASONS FOR DECISION
M.G. Ellies R.S.J.
Released:April 1, 2021