COURT FILE NO.: CR-21-12-BR

DATE: 2021-04-22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Ms. L. Muller/Michael Godinho, for the Crown

Mr. Z., Self-Represented

Mr. B. Neil, as Amicus Curiae

HEARD: April 9, 2021

ENDORSEMENT – BAIL REVIEW APPLICATION

Note that this Endorsement has been edited by the Court so that it can be published without compromising the publication ban in place.

CONLAN J.

The Charges

[1] A direct indictment has been filed in this case, approved not long ago by the Deputy Attorney General of Ontario. It contains five counts – two charges under section 280(1) CCC, attempted child abduction, and two charges under section 266 CCC, simple assault, and one charge under section 279(2) CCC, forcible confinement.

[2] The accused is charged with these offences emanating from three alleged incidents that took place on December 11 and 12, 2018. The details alleged are set out in the affidavit of Sabrina Baglione, of the Crown office, sworn on February 24, 2021. They may be briefly summarized as follows.

[3] The accused was formerly involved in a relationship with a woman, Y. They share one child together, K., who is in elementary school. A March 2017 Family Court Order granted sole custody of the child to the mother, with access between the child and the accused to be in the sole discretion of the mother.

[4] On December 11, 2018, without permission from the mother, the accused attended at the child’s school. He attempted to abduct the child after the school day ended by motioning to the child to come with him. When the child did not comply, the accused chased after the child, but the child got away.

[5] On December 12, 2018, again without permission from the mother, the accused returned to the school. Just before 9:00 a.m., he approached another boy named T., who was unknown to the accused. The accused grabbed T. by the arm and held him momentarily. T. ran to a crossing guard. The theory of the police and the Crown is that the accused mistook T. for his own son and tried to abduct him.

[6] That same day, December 12^th, shortly after the incident involving T., the accused grabbed his son and tried to pull the child into a motor vehicle. The child broke free and ran to a nearby adult. The accused then approached the adult and grabbed the child’s arm, trying to pull the child away from the other adult. Other nearby persons intervened and walked the child towards the school. The accused followed them and continued to repeat that the child was his son. Shortly afterwards, the police arrived on scene and arrested the accused.

The Current Recognizance of Bail

[7] The accused was released on bail, on consent of the Crown, by way of a recognizance entered into on December 27, 2018. It has these six conditions:

i. reside with surety (the accused’s mother) at a specific address;

ii. remain in residence daily except for medical emergencies or in the presence of the surety;

iii. do not contact T., or the accused’s son, or the mother of the accused’s son, except through legal counsel;

iv. do not be within 25 metres of any place where any of those persons lives, works, goes to school, frequents, or is known to be;

v. do not attend at the school in question; and

vi. do not possess any weapon or firearm.

[8] The pledge was $2000.00 for the surety and $2000.00 for the accused.

The Application

[9] The accused has brought a bail review application. He represents himself. The Court previously appointed an amicus curiae, Mr. Neil. The accused’s application is opposed by the Crown.

[10] The accused’s principal position is that all of the terms of the recognizance should be vacated; he would simply be released on his own accord and be required to attend Court as directed.

The Hearing of the Application

[11] The application was heard at Court in April 2021. It had been outstanding for more than two months. Present, via Zoom, were the accused, Ms. Muller for the Crown, and Mr. Neil as amicus.

[12] Several documents had been filed by the accused in advance of the hearing – a Notice of Application dated January 22, 2021, five affidavits, and two facta. In addition, the Crown’s additional evidence, that being the affidavit of Ms. Baglione, was filed. A transcript of Y.’s audio statement to the police, given on December 12, 2018, was filed by the accused. An assessment report completed by Dr. Chaimowitz, dated September 17, 2019, was filed by the Crown.

[13] It should be noted that none of the materials filed by either side was objected to by the other.

[14] The Dr. Chaimowitz report confirmed that the accused, at that time, was fit to stand trial, although the report also confirmed that the accused suffers from persecutory delusions. Although I had not reviewed that report at the time that I made the amicus Order, I am not surprised by it given the reasons why I made the amicus Order, R. v. Z., 2021 ONSC 1893.

[15] At the hearing, the accused called two police officers to testify – Constable Brown and Constable Verreault. Officer Brown testified that he can understand how the accused could have been mistaken when he made the unwanted contact with the child, T. Officer Verreault, the lead investigator, stated that “I believe the accused mistook [T.] for his son”. Both officers told the Crown in questioning that they support the maintenance of the current recognizance of bail.

[16] At the hearing, the Crown called no viva voce evidence.

The Submissions of the Accused, Ms. Muller, and Mr. Neil

[17] The accused submitted that the current recognizance is far too strict. His mother is his surety, and she is 84 years old, and he cannot leave his residence without his mother accompanying him.

[18] The accused indicated that he initially agreed to the current terms just to get out of jail.

[19] The accused is not a hunter and has no interest in guns. He does not know T. He thinks that his son still attends the same school.

[20] According to the accused, although he could not answer this Court’s questions about whether the lower Court had made any error or whether anything had changed since late December 2018, the charges against him are very weak, and there is no prima facie case that he has to meet, and his mental health is not relevant to the application.

[21] Ms. Muller, in able submissions, stated that there is no basis for this Court to review the current recognizance because (i) no error had been committed below (in fact, it was a consent release), and (ii) the decision below was not clearly wrong (again, it was a consent release, and the accused was assisted by duty counsel at the time), and (iii) there has been no material change in circumstances since late December 2018.

[22] The accused cannot be left unsupervised in the community, Ms. Muller submitted. He does not recognize the wrongfulness of his conduct. He thinks that what he did was justified and normal parenting behaviour. As such, there is a significant risk that he will try to abduct his son again, and/or harm the boy’s mother.

[23] The Crown relies on the Dr. Chaimowitz report as part of the evidence that supports the risk posed by the accused if left unsupervised in the community. From that report, there is a concern that the accused does not take his prescribed medication. He is preoccupied with Y. and thinks that he is saving his son from her. He is delusional.

[24] Mr. Neil, as amicus, whose assistance was very helpful to this Court, submitted that there was likely a basis to find that the constellation of several things sufficiently establishes a material change in circumstances: (i) the recent filing of the direct indictment, (ii) Constable Verreault’s clear testimony that the incident with T. was a matter of mistaken identity, (iii) the passage of some 28 months now since the current recognizance was entered into, with no breaches of bail, and now with us all in the grips of the COVID-19 pandemic, and (iv) some other charges against the accused having now been stayed or withdrawn.

[25] Does the accused really need to be on effective house arrest, asked Mr. Neil, rhetorically. Is that consistent with the “ladder principle” that applies to our bail system? There is a Family Court Order in effect, and that will remain in effect regardless of this Court’s decision.

The Accused’s Criminal History

[26] Essentially, for this Court’s purposes on this application, the accused has no criminal record. He has one prior conviction, totally unrelated (fraud over $5000.00), from eleven years ago (May 2010), and for which the accused received a conditional sentence.

[27] There have been no breaches of bail for the accused over the last 28 months.

Decision

[28] I agree with amicus counsel. I find that to deny the accused’s application, in part, would be inconsistent with the law of bail as set down by the Supreme Court of Canada in decisions like R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 and R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105.

[29] The accused is presumed to be innocent of these charges. He has a constitutional right to reasonable bail. He is entitled to the least onerous form and terms of bail that are reasonable in the circumstances.

[30] The primary and tertiary grounds are not relevant here. Effectively, the Crown’s position is that to relax the current terms at all would invoke the secondary ground and present a significant risk that the accused will reoffend. I respectfully disagree.

[31] But first, I agree with Mr. Neil that the combination of the four factors outlined above establishes a material change in circumstances. The filing of the direct indictment has serious consequences for the accused in that it forces him to trial in the Superior Court of Justice regardless of whether a preliminary inquiry took place and/or the result of that inquiry. The police evidence at the hearing of this application is very relevant to the strength of the charges involving T., and in particular the mens rea component. For well in excess of two years now, the accused has lived under strict bail conditions, with no compliance issues at all, and now he must depend on his 84 year-old mother to venture out in the virus-infected community and monitor him every time that he leaves his residence. Finally, the Crown has elected not to proceed with other charges against the accused. In totality, things are materially different now than they were in late December 2018.

[32] Thus, I find that there is a basis to review the current recognizance of bail.

[33] Next, as to the terms of the current recognizance, for a man with no related criminal history, and with a Family Court Order already in place that protects the accused’s son and his mother against any contact between the child and the accused except with the mother’s express permission (which, presumably, is not forthcoming), I do not think that it is justified to have this accused confined to his home except when with his own mother.

[34] The other conditions of the recognizance will remain, however. The accused has not persuaded me that they should be vacated.

[35] I am well aware of the accused’s mental health issues. Even taking those into account, though, I am of the view that the degree of strictness in the current recognizance is simply not justified.

[36] The application is, therefore, allowed in part. The current recognizance of bail shall be varied as follows, subject to this Court speaking with the surety, which we will discuss in a moment: conditions (i), (iii), (iv), (v), and (vi) remain. Condition number (ii) is deleted. The form of the release remains the same, including the pledge amount.

(“Original signed by”)

Conlan J.

Released: April 22, 2021