COURT FILE NO.: CR-21-00000137-00BR
DATE: 20210528
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TYLER VICKERS
Applicant
Monica Gharabaway, for the Crown
Royland Moriah, for the Applicant
HEARD: May 13, 2021
allen j.
REASONS FOR DECISION ON BAIL REVIEW
PUBLICATION RESTRICTIONS NOTICE
A non-publication order in this proceeding has been issued pursuant to subsection 486.4(1) of the Criminal Code of Canada. By order of this court, any information that could identify the complainant shall not be published in any document, broadcast or transmission.
TEMPORARY SUSPENSION OF THE COURT
[1] This application was heard and decided during the COVID-19 pandemic under the direction of the Chief Justice of the Ontario Superior Court of Justice’s decision to suspend regular court operations effective March 16, 2020. It has been decided that cases involving urgent matters, matters that can be decided on written materials or on consent and not requiring a courtroom would be conducted by teleconference or videoconference.
[2] The parties agreed that this bail review proceed by way of teleconference. A registrar and court monitor were present in a courtroom to maintain the court record. Documentary evidence and case authorities were filed electronically. No witnesses were called. The parties delivered oral arguments on the legal issues before the court.
FACTUAL BACKGROUND
[3] The Applicant, Tyler Vickers, was arrested on May 10, 2018 and stands charged under the Criminal Code with human trafficking related offences, committed against RW over the period of March 22 to April 21 of 2018, some jointly with co-accused for various of the counts. He is jointly charged with Daylo Robinson and Rebecca Horton with the following offences: (a) human trafficking, s. 279.01(1); (b) procuring, s. 286.3(1); (c) receiving material benefit for trafficking, s. 279.02(1); (d) material benefit from sexual services, s. 286.2(1); unlawful confinement, s. 279(2); (e) assault, s. 266. The Applicant is solely charged with (f) sexual assault, s. 271.
[4] On April 23, 2018, RW went to the American Consulate in Toronto and reported that she had escaped a human trafficking situation. She reported that over a period of two months, she was forced to engage in the sex trade by the Applicant and his co-accused Rebecca Horton and Daylo Robinson. She was also sexually assaulted by the Applicant on several occasions.
[5] The Applicant has criminal antecedents. When the Applicant was arrested on the human trafficking charges on May 10, 2018, he was on probation for failure to attend court and failure to comply with a recognizance. He has several convictions for failures to comply.
[6] The Applicant was released on the human trafficking charges on August 19, 2018 on a consent bail to reside at a designated residence in Wiarton, Ontario with no surety. The Applicant is of Aboriginal background and the court alluded to the Gladue principles which recognize that persons of Indigenous background belong to a vulnerable population that is overrepresented in the criminal justice system and is disadvantaged in obtaining release.
[7] The terms of the Applicant’s bail on the human trafficking charges required him to report to the Bail Supervision Program in Wiarton, be under the direction and rules of that program, attend and actively participate in any culturally appropriate programs as directed by the program and submit to the program monitoring his progress and to report any change of address within 24 hours.
Human Trafficking and Sexual Assault Charges
[8] RW met Mr. Robinson over social media about one year before her report to the police. At the time, RW was living in St. John’s Newfoundland and Mr. Robinson lived in Toronto. RW told Mr. Robinson that she was desperate for money. He offered her a job in Toronto where she could make up to $1,000.00 per week. He said he would fly her to Toronto and pay for her flight and accommodation. She never asked him about the type of work he was offering, and he did not tell her.
[9] On March 22, 2018, RW flew to Toronto and Mr. Robinson picked her up at the airport. On route to a Novotel Hotel, Mr. Robinson told RW she was his property and she owed him for the flight. He told her he was a pimp and she could repay him by working as an escort. RW told him she was scared and wanted to leave.
[10] When they arrived at the hotel, Mr. Robinson took photographs of RW in lingerie with his cellphone. The Applicant and Ms. Horton arrived at the hotel later. Mr. Robinson directed RW to undress so she could take photographs of her with Ms. Horton to advertise for “duos” on Backpage.com. He posted the advertisements using his cellphone number and communicated with clients. RW, Ms. Horton, Mr. Robinson and the Applicant stayed at the Novotel for four nights.
[11] On March 26, 2018, RW was moved to an Airbnb condo on Blue Jays Way. While staying at the condo, RW saw a number of clients. She said that when she was not feeling well Ms. Horton would strike her. On March 29, 2018, RW, Ms. Horton, Mr. Robinson and the Applicant moved to the Rex Hotel on Queen St. W. in Toronto. They then moved to the Mississauga Gate Inn hotel.
[12] The money RW earned from clients she was forced to give to Ms. Horton who passed it to Mr. Robinson. Mr. Robinson and Ms. Horton set rules for RW that she could not have any friends, had to ask permission to call family and was not allowed to mention working in the sex trade. RW said that two weeks before she escaped, she went for a walk with Mr. Robinson and he threatened to kill her if she went to the police. RW alleges the Applicant sexually assaulted her on several occasions.
[13] On April 21, 2018, RW waited until Ms. Horton, Mr. Robinson and the Applicant were asleep and escaped. While she was staying with a friend for two days, she received threatening calls from Ms. Horton and Mr. Robinson. She then attended the United States Consulate and reported what happened. On May 10, 2018, Ms. Horton, Mr. Robinson and the Applicant were arrested and a search warrant was executed at an address associated to Mr. Robinson.
Subsequent Charges
[14] On March 25, 2020, while on a release on the human trafficking and sexual assault offences, the Applicant was arrested in Toronto on a charge of possession of property, a motor vehicle, obtained by crime.
[15] On July 22, 2020, while subject to two releases, the Applicant was arrested on an allegation of domestic assault. The Applicant was living in an intimate relationship with Melissa Moricz in a shelter hotel. They had a dispute over drugs. The allegation is that the Applicant grabbed Ms. Moricz by the back of the head and smashed her face into a wall.
[16] The police arrived and arrested the Applicant. The police observed that Ms. Moricz had a scrape to her left knee, scrape to the inside and outside of her right elbow, redness and slight swelling to the left side of her face. There were also blood spots on the bed and on the telephone receiver. The Applicant was released on a promise to appear due to the COVID-19 pandemic. He has remained in custody since that date.
GROUNDS FOR REVIEW
[17] A court on a bail review can vary an order on three bases: (a) where the justice has erred in law; (b) where the impugned decision was clearly inappropriate, such that the justice gave excessive weight to one factor or insufficient weight to another factor; or (c) where there is a material change in circumstances: [R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 121, (S.C.C.)].
[18] The Applicant seeks a de novo proceeding on the basis of errors in law and material changes in circumstance.
[19] On errors in law the Applicant raises the following:
- Employed the incorrect standard of proof of “substantial likelihood” under 515(10)(b) instead of assessing whether the Applicant had established there was no substantial likelihood he would reoffend in a manner that would endanger public safety or that any substantial likelihood was reduced to less than substantial.
- Failed to employ the correct standard of “good and sufficient” when determining the suitability of the proposed surety by holding the surety to a standard of perfection.
- Overemphasized the strength of the Crown’s case against the Applicant when assessing the Applicant’s likelihood to reoffend in a manner that would endanger public safety if released.
- Erred in law in his application of section 515(10)(c) of the Code in the following ways in determining that the Applicant had not met his onus in establishing that detention was not necessary to maintain confidence in the administration of justice.
- failed to particularize the analysis of the gravity of the offence as it relates to the specific allegations against the Applicant.
- failed to particularize the analysis of the circumstances of the offence as it relates to the specific allegations against the Applicant.
- overly relied on the factors enumerated in s. 515(10)(c)(i)-(iv) without sufficient regard to “all the circumstances” including the impact of the COVID-19 pandemic on congregate living facilities and the Gladue factors.
[20] On a claim of material change in circumstance a de novo hearing is not appropriate unless there is new evidence adduced at the bail review: R. v. St-Cloud, at para. [118]. Whether new evidence constitutes a material change of circumstance is governed by a flexible interpretation of the criteria for fresh evidence on appeal set out in R. v. Palmer. The Palmer criteria are well-known:
a) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial.
b) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.
c) The evidence must be credible in the sense that it is reasonably capable of belief, and
d) The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[R. v. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759 at p. 775, (S.C.C.); R. v. St Cloud, at paras. 127-129].
[21] The Applicant seeks a review based on what he submits are material changes in circumstances as follows:
- the delay until March 28, 2022 in scheduling a jury trial;
- the lengthy 36-month period in pre-trial custody given the delay with the new trial date;
- the withdrawal of the March 25, 2019 theft charge;
- the new plan of release which proposes that the Applicant reside in a supervised residence for Indigenous males in Toronto;
- Toronto Bail Program facilitating programs dedicated to addressing health and social issues faced by Aboriginal people; and
- the Applicant’s asthma which was not before the court at his initial bail hearing
[22] I will not address all of the errors of law and material changes in circumstance asserted by the Applicant. I find it sufficient for the purpose of my decision, as to whether to conduct a de novo proceeding, that I need not address each factor the Applicant has cited.
[23] I find the Justice committed an error in law which, as it happens, is connected to one of the material changes claimed by the Applicant.
[24] The Justice merely alluded to the Applicant’s Indigenous background and the importance of recognizing this in deciding bail. However, he did not actually apply the Gladue principles to the life conditions of the Applicant to assess the influence of those factors on the prospect of release. He did not cite s. 493.2 of the Criminal Code which came into effect on June 19, 2019. The Justice nonetheless concluded there was nothing on the record to counterbalance his concerns on the tertiary grounds.
[25] I also find a basis for review in a material change in relation to the proposed plan of supervision before this court which is directed toward addressing the Applicant’s particular circumstances as an Aboriginal person in Toronto. In the new plan there are no individual residential surety or sureties. Rather, the Applicant will be supervised in the community through the Toronto Bail Program and its connection and cooperation with Aboriginal social and health services. The Applicant will reside in an Indigenous men’s shelter which provides social services, support and supervision for its residents.
[26] The plan of supervision is a Toronto-based plan. His previous plan made a residential surety available to him who resided in Halifax. He does not have a proposed residential surety in Toronto, and I take it that was the case on his previous bail. I find the new plan meets the Palmer criteria as it satisfies the requirements of relevance, credibility and the expectation that it will influence the outcome.
ANALYSIS
[27] This is a reverse onus case. The Applicant bears the burden to prove on a balance of probabilities that he satisfies the requirements under s. 515(10) of the Criminal Code. The Crown seeks detention on primary, secondary and tertiary grounds. I do not find detention is necessary on primary grounds.
[28] The primary ground under s. 515(10)(a) of the Criminal Code requires an inquiry into whether it is necessary to detain the accused on the basis that they pose a flight risk, the risk of not attending court.
[29] The Crown raises the Applicant’s past history of non-compliance with court orders and a failure to attend court. The Crown also points to the fact that the Applicant is from British Columbia and has lived in several different locations in Canada. There is no specific evidence that the Applicant has left a location such that this affected his attendance at any of his criminal proceedings. I note that the failure to attend court occurred three years ago and it appears that in recent times since 2018 he has been consistent in attending court and in reporting to the Bail Program in Wiarton. I find the Applicant has met his burden on the primary ground.
Indigenous Persons in the Criminal Justice System
[30] The paramount principle governing decisions whether to detain or release an accused are the presumption of innocence and the right to reasonable bail as guaranteed by s. 11(e) of the Charter. As the Supreme Court of Canada observed:
In Canada, the release of accused persons is the cardinal rule and detention, the exception. To automatically order detention would be contrary to the ‘basic entitlement to be granted reasonable bail unless there is just cause to do otherwise’ that is guaranteed in section 11(e) of the Charter.
[R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at para. 24, (S.C.C.)]
[31] The secondary ground under s. 515(10)(b) of the Criminal Code requires considering whether the accused should be detained on the basis of a substantial likelihood they will commit further offences while on bail or interfere with the administration of justice. On the tertiary ground under s. 515(10)(c), the question to be addressed is whether it is necessary to detain an accused in order to maintain public confidence in the administration of justice.
[32] The unique circumstances of Indigenous people must be considered when addressing persons of Indigenous background at the various stages of the criminal justice system. Section 718.2(e) of the Criminal Code amended s. 718.2 to codify sentencing principles set down by the Supreme Court of Canada in 1999 in R. v. Gladue: [R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688 (S.C.C.)]. The amendment provides that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”.
[33] In this case, the question is whether, in all the circumstances of the case, the proposed Indigenous community-centred plan of supervision is sufficient for the protection of the public, looking at whether, if released, there is a substantial likelihood that under the plan the Applicant will reoffend or interfere with the administration of justice, with the further consideration of whether detention is necessary to maintain public confidence in the administration of justice.
[34] The secondary and tertiary grounds must be assessed on the totality of the evidence through the lens of the distinct life experiences Indigenous accused persons face in the community and the criminal justice system.
[35] The law acknowledges the problems presented by the over-representation of Indigenous people lingering for prolonged periods in remand custody. The particular concern with Indigenous persons endures against a backdrop of the general concern about the overall growing numbers of accused in the remand populations in Canada. The Supreme Court of Canada introduced the “ladder principle” as a concept to capture the idea that the least onerous conditions must be imposed on an accused at a bail hearing unless the Crown can justify why more onerous conditions are necessary: [R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at paras. 64 and 66, (S.C.C.)]. Section 493.1 codifies the principles enunciated in R. v. Antic. In a more recent case, the Supreme Court of Canada observed:
Nonetheless, on any given day in Canada, nearly half of the individuals in provincial jails are accused persons in pre-trial custody: Statistics Canada, Adult and youth correctional statistics in Canada, 2016/2017 (June 2018), at p. 7; Statistics Canada, Trends in the use of remand in Canada, 2004/2005 to 2014/2015 (January 2017). In 2016-2017, approximately 7 percent of those in remand were still in custody after 3 months, and some spent upwards of 12 or even 24 months awaiting trial in detention: Statistics Canada, Table 35-10-0024-01 — Adult releases from correctional services by sex and aggregate time served. It must be said that the conditions faced by such individuals are often dire. Overcrowding and lockdowns are frequent features of this environment, as is limited access to recreation, health care and basic programming: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at paras. 2 and 28.
[R. v. Myers, at paras. 26 - 27]
[36] Section 493.2 is a recent addition to the Criminal Code which directs the criminal justice system’s attention to consider the unique conditions confronting Indigenous people in the community and in the criminal justice system:
493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of
(a) Aboriginal accused; and
(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
[37] Courts can take judicial notice of the pervasive background factors that impact Indigenous people generally. The general information can be available at the bail hearing, since at the early bail stage, case-specific information from counsel may not be available: [R. v. Gladue, at paras. 83 - 84]. “Courts should be prepared to rely on credible and trustworthy information that may come through counsel’s submissions and may be in the form of hearsay.”: [R. v. Magill, 2013 YKTC 8, at paras. 28 - 29 (Y.K.T.C.)].
[38] Schreck, J. of this court, in R. v. E.B. offers a helpful examination of the factors in the life circumstances of Indigenous accused that can affect the formulation of a fit release plan, factors that should be considered in fashioning a culturally sensitive release plan.
However, the types of supervision or measures that can be included in a bail plan may in some cases be different for Indigenous individuals. To the extent that they are, this would be a proper consideration at a bail hearing: R. v. Robinson (2009), 2009 ONCA 205, 95 O.R. (3d) 309 (C.A.), at para. 13; R. v. C.W., 2020 ONSC 2943, at paras. 47-48. For example, an Indigenous accused may not have a surety available because he or she grew up displaced from his or her community and family, as was the case in R. v. Sledz, 2017 ONCJ 151.
[R. v. E.B., 2020 ONSC 4383, at para. 39, (Ont. S.C.J.)]
[39] Schreck, J. also presses the necessity of ensuring that such plans accord with the principles enunciated under s. 515(10) of the Charter:
While s. 493.2 requires the court to consider the circumstances of Indigenous accused and members of vulnerable groups, it does not supersede s. 515(10). What this means is that regardless of the accused’s circumstances, if his detention is necessary on the primary, secondary or tertiary ground, then he cannot be released. If there is a substantial likelihood that the accused will commit further offences if released and thereby compromise public safety, the fact that systemic or background factors contributed to that substantial likelihood does not change the result. A dangerous person is no less dangerous because he or she is a member of a vulnerable group: R. v. Sim (2005), 2005 CanLII 37586 (ON CA), 78 O.R. (3d) 183 (C.A.), at para. 18.
[40] The record reveals that the Applicant has experienced unstable living conditions and other problems for some time. Letters filed by the defence from the Toronto Bail Program and the NaMeRes Native men’s shelter detail the many medical and social services and culture-specific programs available to residents. I will expand on this below.
[41] The evaluation of the proposed plan requires a balancing of the Indigenous factors with the concerns that underly the secondary and tertiary grounds.
THE SECONDARY GROUND
[42] A number of inquiries must be top of mind when considering the secondary ground. The court must ask: whether there is a risk the accused will commit an offence; if there is a risk, whether the risk amounts to a substantial likelihood of reoffence; whether the risk constitutes a danger to public safety; and whether any potential danger to public safety can be nullified or diminished to an acceptable level by the bail conditions: [R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711 (S.C.C.) and R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665 (S.C.C.)].
[43] Among the factors that should be considered are the surrounding circumstances of the offence and the offender, the seriousness and nature of the offence, the accused’s criminal record, their history of complying or not complying with court orders and bail conditions, and possible harm to the complainant and the public.
[44] The offences the Applicant faces are serious. Human trafficking and the related offences constitute heinous crimes that understandably attract lengthy penitentiary sentences. It is a crime that confines vulnerable victims, entraps them into prostitution, and takes advantage of and exploits them for the perpetrator’s financial gain. Domestic assault and sexual assault too are serious crimes that with convictions will add time to the sentence on the human trafficking charges.
[45] In terms of the circumstances surrounding the offences, the Applicant seems for a prolonged period to have had transient housing and living conditions. Currently he does not have a permanent residence in the community. Also to be considered in the surrounding circumstances of the offences, is the role the Applicant played in the crimes. He played a lesser role than his two co-accused. I will address that issue more fully below.
[46] The Applicant will be 30 years of age next month. He has a criminal record which dates back to 2008 when he was a youth and extends to 2018. He has six non-compliance convictions including a failure to attend court, non-compliance with recognizances and a promise to appear and a breach of probation. His substantive offences are an assault and two thefts under $5,000.00. The assault is in common with one of the offences before this court. The Applicant however has no history of involvement in human trafficking.
[47] The plan of supervision is not the strictest. There is no 24/7 supervision on house arrest in a home with sureties and an electronic ankle bracelet. As R. v. Antic directs, when considering restrictiveness of a proposed plan, regard must be had to the ladder principle - that the least onerous conditions must be imposed on an accused at a bail hearing unless the Crown can justify why more onerous conditions are necessary, in this case, keeping in mind the unique conditions of Indigenous persons.
[48] As other courts have observed, the circumstances of many Indigenous people require consideration of the suitability of alterative types of plans of supervision that will accommodate the frequent realities of an accused being separated from his family and Indigenous community, where the availability of an individual residential surety is an entirely unfeasible expectation.
[49] As regards potential harm or danger to the complainant if the Applicant is released, this appears to be highly unlikely as she has returned to the United States and her whereabouts are unknown.
[50] The question is whether the supervision plan under the Toronto Bail Program, working in concert with Indigenous agencies and services, can prevent a substantial likelihood that the Applicant will re-offend endangering the public or interfering with the administration of justice. The plan must satisfy the court that any potential danger to public safety can be overcome to an acceptable level by the terms of bail.
[51] Jessica Neegan, the Indigenous Bail Supervisor, states in her letter that the Applicant has been supervised by the Program since August 16, 2017. She states that the Applicant has a good track record with reporting in and keeping in communication with the office. He was required to report once per week. As he was required to by his recognizance, he reported 22 times in person, and due to the pandemic, he made ten contacts by telephone. In spite of some confusion on the record about the Applicant seeking a court variation to move from Wiarton to Toronto, according to Ms. Neegan, he reported any changes of address and any concerns in his personal circumstances to the Toronto Bail Program.
[52] Under the Program’s supervision, the Applicant will be required to attend counselling and treatment as needed for his mental health and addiction problems. If accepted to the Program, he will be referred to Anishnawbe Health Toronto, Native Child and Family Services, CAMH and/or Miziwe Biik Employment and Training.
[53] In his letter, team lead Rickey Brunette indicates that the NaMeRes Native men’s shelter offers a multiplicity of services to Indigenous males whatever their circumstances. They offer shelter and support for other basic needs. A bed is available for the Applicant if he is released. The social supports and medical services are offered by elders and teachers, case managers, client care, support workers, registered nurses, spiritual helpers and life skills coordinators. The shelter also makes referrals to physicians, psychiatrists and other service providers. The shelter encourages residents to be contributing members of the shelter.
[54] The Crown made the submission that the Applicant had already been released under a bail program in Wiarton and he breached the terms by moving to Toronto. In addition to the reporting on changes of address and submitting to progress assessment, the Wiarton Program required him to actively participate in any culturally appropriate programs as directed by the Program. There are no details about his residence. There are no details about the Indigenous programs in Wiarton he was directed to attend, whether there were services that addressed his mental and drug addiction problems or whether the residence was connected to Indigenous services or monitored by the Program.
[55] As well, the proposed bail plan before his original bail hearing, to my understanding, did not contain conditions that addressed the Gladue factors. The plan did not appear to contemplate support in Halifax for the Applicant’s addiction and mental health issues and his life experiences as an Indigenous accused.
[56] The evidence before this court is that the Toronto Bail Program together with the NaMeRes shelter offer and refer Indigenous persons to services and avenues of support directed to addressing the mental health and addictions problems that underly criminal conduct.
[57] Also, part of the proposed plan requires the Applicant to accept an employment offer. The defence filed a letter dated March 21, 2021, from Walter Powell, CEO, Diligent Productions, Ltd. offering the Applicant an immediate part-time position as a sales consultant which involves making telephone calls promoting the company’s products to be paid on a commission basis. Training for the position will begin at the start of employment.
[58] The proposed plan has to be viewed through the lens of the Gladue principles and through the further lens of whether the plan, while satisfying the Gladue principles, also satisfies the grounds for release. In undertaking that analysis, the Gladue principles cannot be applied in a vacuum.
The exercise would involve consideration of the types of release plans, enforcement or control procedures and sanctions that would, because of his or her particular Aboriginal heritage or connections, be appropriate in the circumstances of the offender and would satisfy the primary, secondary and tertiary grounds for release.
[R. v. Robinson (2009), 2009 ONCA 205, 95 O.R. (3d) 309, at para. 13. (Ont. C.A.)]
[59] The Northwest Territories Supreme Court addressed an enduring conundrum presented by the fact that it is the Gladue factors - the marginalization, alienation from community and family, poverty, homelessness and medical and mental issues stemming from their life conditions - that provide the socio-economic context underlying the criminality of many Indigenous accused.
For many Aboriginal people who come before the courts, however, the factors identified in Gladue will form a large part of their overall socio-economic context. It would be unreasonable and unfair to conclude detention is justified based solely on an accused’s criminal record and/or the circumstances of the alleged offence without considering the role Gladue factors may have played in leading to that person committing criminal acts in the past, being charged again and, consequently, seeking bail. There simply must be more than a superficial review of an accused's past criminal conduct and/or the circumstances leading to the current charge.
An examination of the intergenerational impact of the residential school system, cultural isolation, substance abuse, family dysfunction, poverty, inadequate housing, low education levels and un- or underemployment on an Aboriginal offender may inform questions about why an accused has an extensive criminal record and, if applicable, why that person has demonstrated an inability to comply with pre-trial release conditions in the past. They will also inform the decision about whether, given the accused's circumstances, there are release conditions which can be imposed so that future compliance is realistic and concerns about securing attendance at trial, public safety and overall public confidence in the justice system are meaningfully addressed.
[R. v. Chocolate, 2015 NWTSC 28, at paras. 49 and 50, (N.W.T.S.C.)]
[60] What comes into play here is a kind of Catch-22 where, when considering entitlement to bail, the circumstances of Indigenous life which are born of the systemic conditions, become the reason to deny release. Fairness requires that a mechanical approach to the denial of bail be avoided in favour of taking a careful look at of the particularities of an Indigenous accused’s life circumstances.
[61] This is of course is not to say that the requirements of the secondary and tertiary grounds should be abandoned with Indigenous persons. The factors under s. 515(10) of the Criminal Code are paramount in the analysis. They cannot be superseded. This is just to situate the complexities in the analysis and application of bail principles involving Indigenous persons within the broader analysis required by s. 515(10), keeping in mind that the suitability of the proposed plan must be viewed in the totality of the circumstances.
[62] It is not apparent from the Applicant’s history that he has been offered the assistance and support of Indigenous community agencies including supportive shelter accommodation when previously on release. This is a starting point for considering a suitable plan in these circumstances.
[63] The Applicant has had a very transient life. He was born in British Columbia. His criminal activities from his youth were committed, in order of occurrence, in Nova Scotia, New Brunswick, British Columbia, Brampton, Ontario and Toronto, Ontario. He also lived in Wiarton, Ontario.
[64] Most of his convictions were for non-compliance offences. Not at all to underestimate the seriousness of non-compliance, especially when considering bail, I point this out because it is not unreasonable to conclude that his homelessness and very unsettled life, stemming from his experiences as an Indigenous male, could explain, yet not excuse, his non-compliance offences.
[65] The two thefts under $5,000.00, one 13 years ago when he was a youth, and the other, five years ago, are not the most egregious of offences. He received 18 and 12 months’ probation respectively. Addiction motivated thefts are an inescapable reality with drug addicts, considered a mitigation factor on sentencing.
[66] The 2018 assault conviction is the most serious of the substantive offences. Assaults are always serious but there are degrees of seriousness. Although the facts of that offence are not before the court, the Applicant received a comparatively mild suspended sentence with 12 months’ probation. The sentence suggests the assault was not on the most serious end of the spectrum.
[67] The March 2020 human trafficking and sexual assault charges and the July 2020 domestic assault charge are by far the most serious offences he has faced to date. I note that the Applicant does not have any prior involvement in human trafficking. He did not play a lead role in the criminal enterprise. He did not lure RW from Newfoundland to Toronto, post any ads for sexual services and he received no monetary benefit from the sexual services RW provided clients.
[68] The fact of the seriousness of the crime alone does not warrant automatic detention. That factor is not determinative. Specifically, on the secondary ground, bail is only denied 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 safety of the public”. Detention is justified only when it is “necessary” for public safety.
[69] Bearing in mind the systemic concerns when considering the restrictiveness of a release plan, together with the s. 515(10)(b) components, I find the proposed plan is capable of preventing a substantial likelihood that the Applicant will commit further crime or interfere with the administration of justice if released.
[70] That finding is influenced by the fact that the Toronto Bail Program requires regular reporting, monitors the Applicant’s progress and connects with where he is residing. The plan importantly mandates that the Applicant get treatment for his mental health and addiction problems. It refers Indigenous clients to Indigenous social service agencies and medical and psychiatric facilities for treatment. The NaMeRes Native Men’s shelter provides complementary support, combining support and counsel by Indigenous leaders, consultants and advisers with more mainstream social services and medical and psychiatric treatment.
[71] The plan also proposes an employment opportunity for the Applicant for which he will be trained and work at by telephoning clients.
[72] Of some significance is that the shelter offers the Applicant a more stable place to sleep. Home instability has led to problems in his life. When he left Wiarton for Toronto instability led him to move into a hotel shelter into a unit occupied by Ms. Moricz, I assume also a drug addict, where an argument over drugs ensued resulting in him assaulting her. At the heart of that incident, drugs and homelessness, two problems the proposed plan seeks to address.
[73] Posing a danger to the complainant is not a concern since it appears her whereabouts are unknown. It is suspected that RW moved to the United States.
[74] RW is the Crown’s main witness. There are potential credibility and reliability issues with her evidence with respect to, for instance, her recall of certain aspects of her experience and with the changes in her evidence under cross-examination. It is arguable, as the Crown asserts, that the problems with her testimony are indicia of the behaviour of a victim of sexual exploitation. This possibility is certainly not unheard of. Whatever the reason, the Crown will have to rely on the strength of RW’s evidence to establish the Applicant’s dangerousness and risk to public safety. In any event, I find, for the reasons I have stated, that the proposed plan offers sufficient safeguards against the substantial likelihood of the Applicant in engaging dangerous activity.
[75] A more stable place to live and mandatory treatment for his mental health and addiction issues and accountability for his behaviour to the Bail Program and the shelter leaders, I find can reasonably have a deterrent effect on him engaging in criminal or dangerous conduct. I take some comfort in the fact that the Applicant has a track record of maintaining the required level of contact with the Bail Program.
[76] On the totality of the evidence, I find the Applicant has met his burden on the secondary ground.
THE TERTIARY GROUND
Legal Principles
[77] On the tertiary ground the court considers the factors under s. 515(10)(c) of the Criminal Code where the strength of the Crown’s case, the gravity of the offence, the circumstances surrounding the offence and the possibility of a lengthy sentence are considered: R. v. St-Cloud, at paras. [72-87].
[78] Bail can be denied on the tertiary ground in order to maintain confidence in the administration of justice having regard to all the circumstances. Bail can only be denied if the court is satisfied that, in view of the factors enumerated under s. 515(1)(c) and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice: [R v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 (S.C.C.)].
[79] On a determination of whether detention of the accused “is necessary to maintain confidence in the administration of justice” the following factors set out under s. 515(10)(c) are to be considered:
(a) the apparent strength of the prosecution’s case;
(b) the objective gravity of the offence in comparison with other offences in the Criminal Code;
(c) the circumstances surrounding the commission of the offence, whether a firearm was used; and
(d) whether the accused is potentially liable for a lengthy term of imprisonment.
[R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.)]
[80] The court’s determination on the four enumerated factors must be considered in all the circumstances of each case keeping in mind that no single circumstance is dispositive. The court must consider the combined effect of all the circumstances of each case to determine whether detention is justified. There must be a balancing of all the relevant circumstances. The ultimate question after the balancing exercise is whether detention is necessary to maintain confidence in the administration of justice: R. v. St-Cloud, at para. [55].
[81] As observed in St-Cloud, the four factors are not exhaustive:
The four listed circumstances are simply the main factors to be balanced by the justice, together with any other relevant factors, in determining whether, in the case before him or her, detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in the country. This is the provision’s purpose. Although the justice must consider all the circumstances of the case and engage in a balancing exercise, this is the ultimate question the justice must answer, and it must therefore guide him or her in making a determination.
The Apparent Strength of the Crown’s Case
[82] As discussed earlier, the strength of the Crown’s case on the human trafficking and sexual assault charges rests heavily, maybe solely, on the evidence of RW. It is clearly not the task of a judge on a bail review to do an in-depth examination of any witness’s evidence. Nonetheless, it would be impossible, even artificial, to consider the strength of the Crown’s case without addressing the potential credibility and reliability issues of their main witness.
[83] RW provided a KGB statement to the police and testified at the preliminary inquiry. She was cross-examined at the preliminary inquiry about inconsistencies and the changes in her evidence between her police statement and her evidence at the inquiry.
[84] At the original bail hearing the defence cross-examined RW on those problems as well as at length on her evidence in-chief at the bail hearing. As a general observation, RW admitted to having a bad memory, and to blocking unpleasant memories. Pertinent to the Crown’s case against the Applicant, RW did not recall the details of the alleged sexual assaults and contradicted her earlier testimony.
[85] Courts have recognized that victims of sexual trauma frequently encounter memory problems that affect their memories of details of the experience: [R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 29, (S.C.C.)]. The Applicant argues it was not trauma that is at play but rather RW being evasive and altering her evidence when confronted with contradictions. It is the Crown’s position that the memory issues alluded to by the defence stem from the trauma of the sexual assault and the experience of being lured to Toronto and trapped into providing sexual services to clients against her will, not from intentional dishonesty or evasiveness.
[86] Whatever may be the cause of RW’s poor recall, for the purposes of this review, I accept that the Crown’s case at this stage appears diminished by the weak memory of their main witness in critical areas of the evidence which affects the strength of the case against the Applicant. That being said, when deciding credibility and reliability it will ultimately be in the hands of the triers of fact at trial to decide on the totality of the evidence, what factors are operative in RW’s memory issues.
[87] I do not find the Crown to have a very strong case against the Applicant. But rather, I find it to be moderately strong. The reduced strength of the Crown’s case affects the risk of danger on the Applicant’s part. This harkens to the consideration under the secondary ground on the strength of the plan of supervision and its ability to ensure public safety. The public safety concern addressed by the secondary ground is also a relevant consideration in assessing public confidence in the administration of justice on the tertiary ground: [R. v. Mordue (2006), 2006 CanLII 31720 (ON CA), 223 C.C.C. (3d) 407, at para. 23, (Ont. C.A.)].
[88] The evidence on the domestic assault allegation is that a fight ensued between the Applicant and Ms. Moricz. They had an intimate relationship. Her evidence is that the Applicant smashed her head against a wall. The police observed some minor injuries. Ms. Moricz struck the Applicant in the forehead with her cellphone.
[89] There is little evidence about Ms. Moricz and the incident. But we know she did not provide a formal statement to the police which raises a question about her cooperation as a Crown witness. There were no photos of the injuries provided at this proceeding. The Crown’s case on this charge is not particularly strong at this stage.
The Gravity of the Offence and Potential for a Lengthy Sentence
[90] There is no dispute that the charges related to human trafficking and sexual assault and the domestic assault are serious and repugnant offences. These are crimes that involve violence, exploitation, and confinement of vulnerable individuals.
[91] The Applicant is facing a potentially lengthy period of custody if convicted. There is a mandatory minimum of four years for the human trafficking offences and in addition to that there would likely be consecutive sentences for the sexual assaults and the domestic assaults, not accounting for pre-trial time served.
Circumstances Surrounding Commission of the Offence (whether firearm involved)
[92] The factors under s. 515(10)(c) of the Criminal Code must be examined from the perspective of a reasonable and well-informed member of the public with basic familiarity with the rule of law and the fundamental values of our criminal law which includes the presumption of innocence, the right to liberty and the rights guaranteed by the Charter: R. v. St-Cloud, at paras. [72-87].
[93] There is no finite list of circumstances to be considered under s. 515(10)(c). R. v. St-Cloud provides some possible examples, relating to the victim and the nature of the crime, of what might be considered in the analysis of circumstances surrounding the commission of the offence:
… the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account.
[94] Human trafficking and domestic assault are heinous crimes, human trafficking being the more odious. It is important to note that no firearm was involved, this being a consideration because firearms clearly exacerbate the danger of any crime.
[95] Human trafficking preys on the most vulnerable, exploiting them by forcing them to offer sexual services for the financial gain of the perpetrator. The aggravating factors are that RW was only 20 years of age at the time. Particularly reprehensible is that she has a learning disability and mental health issues and it appears she was isolated from friends and family. It is also aggravating that multiple parties were involved in the crime.
[96] While human trafficking is very serious, it is relevant to consider the particular role a participant may have played as part of a group crime. On the human trafficking offence, the Applicant was a secondary participant. He was not involved in the trickery of luring RW from Newfoundland on false pretences of a job offer. He was not involved in taking photographs of RW to advertise her services. He did not post any ads on the internet. Nor did he receive any financial benefit.
[97] For the purposes of the s. 515(10)(c) inquiry, I believe the lesser role the Applicant played has a mitigating effect on a view of his overall role in the commission of the crime. The same principle operates at the sentencing phase. Of course, at trial where the issue of guilt is before the court, if there are multiple people engaged in an act together towards the shared execution of an offence, each person commits the offence as a joint offender.
[98] On the sexual assault and domestic assault charges, the Applicant acted alone and faces sole liability for those offences if convicted. I found the Crown’s case on both offences to be of moderate strength. The credibility concerns related to RW could reasonably impact the outcome of the trial. As noted earlier, that Ms. Moricz did not provide a formal statement to the police raises questions about her cooperativeness as a Crown witness.
[99] The circumstances of the accused may also be considered:
Section 515(10)(c)(iii) refers to the “circumstances surrounding the commission of the offence”. I would add that the personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant.
R. v. St–Cloud, at paras. [61 and 71]
[100] The Applicant is a relatively young man about to turn 30 years of age. The most salient feature of the Applicant’s circumstances is his Indigenous heritage and the effect on him of his life experiences as an Indigenous man. He is a man with addiction and mental health issues. The Applicant has lived a rather nomadic and unstable life moving back and forth across the country and to various towns and cities in different provinces. He has faced homelessness. He has a criminal record for crimes less serious than the ones he faces in this case. Most of his past convictions were for non-compliance.
[101] I must take all of this into account in the context of considering the secondary and tertiary grounds and applying the s. 515(10) factors. I find instructive to my conclusions two excerpts from observations cited above from the R. v. Chocolate case decided by the Northwest Territory Supreme Court.
It would be unreasonable and unfair to conclude detention is justified based solely on an accused’s criminal record and/or the circumstances of the alleged offence without considering the role Gladue factors may have played in leading to that person committing criminal acts in the past, being charged again and, consequently, seeking bail. There simply must be more than a superficial review of an accused's past criminal conduct and/or the circumstances leading to the current charge.
[102] And speaking of the impact of the intergenerational issues expressed in the Gladue factors, the court continued:
They will also inform the decision about whether, given the accused's circumstances, there are release conditions which can be imposed so that future compliance is realistic and concerns about securing attendance at trial, public safety and overall public confidence in the justice system are meaningfully addressed.
[103] I must also consider the issue of the duration of the Applicant’s pre-trial custody as a factor in the Applicant’s circumstances.
[104] Currently, the trial on the human trafficking offences is scheduled to proceed on March 28, 2022 as a jury trial. This means that by that time the Applicant will have served about 36 months in pre-trial custody. The Applicant had sought to proceed by judge alone but because his co-accused elected a jury trial, the trial was set to be decided by jury. The defence gave some consideration to seeking a severance so the trial could be heard earlier by judge alone. To date, however, the cases have not been severed so we are dealing with the March 28, 2022 date.
[105] Three years is an extraordinary length of time in pre-trial custody. Courts have recognized the dire consequences to the mental health of inmates in pre-trial custody: R. v. Myers, at para. [27]. The Applicant entered into remand with pre-existing mental health issues. The even more harsh conditions of increased lockdowns, isolation, overcrowding and the spectre of contracting COVID-19 further compromise an already vulnerable person’s physical and mental health.
[106] Ultimately, it is my obligation to balance the four factors and all the relevant contextual circumstances and decide at the end of the balancing exercise whether detention is necessary to maintain confidence in the administration of justice. It is not an easy exercise. There is no science or calculus that can assist with this determination. Each case must be decided on its particular facts.
[107] R. v. Myers provides guidance that I find is useful in deciding this case:
Release into treatment with appropriate conditions will often adequately address any risk raised under s. 515(10), and such a strategy is a less onerous alternative than provincial remand. It may also substantially address the root causes of the accused person’s alleged criminal behaviour and reduce the likelihood of future criminal conduct. In accordance with the principles articulated in Antic, we must not lose sight of the fact that pre-trial detention is a measure of last resort.
[108] In balancing the secondary and tertiary grounds in the context of the s. 515(10)(c) factors, on the totality of the circumstances, I find that release serves the ends of fairness and justice in this case. A reasonable and well-informed member of the public with basic familiarity with the rule of law and the fundamental values of our criminal law, including the presumption of innocence and the right of liberty, would not find detention necessary to maintain confidence in the administration of justice.
DISPOSITION
[109] Tyler Vickers shall be released from the custody of the Toronto East Detention Centre.
CONDITIONS OF RELEASE
[110] Tyler Vickers shall comply with the following conditions on release:
a) Mr. Vickers shall attend the NaMeRes Native men’s shelter located at 14 Vaughan Road, Toronto, M6G 2N1. While at the shelter he shall apply for Sagatay Transitional Housing which is part of the same organization and located at 26 Vaughan Road, M6G 2N1.
b) Mr. Vickers shall advise a designated officer at the NaMeRes Native men’s shelter of any change of address within 24 hours of the change.
c) Mr. Vickers shall comply with the 12:00 p.m. curfew required at the NaMeRes Native men’s shelter.
d) Mr. Vickers shall comply with the no drugs or alcohol policy at the NaMeRes Native men’s shelter.
e) Mr. Vickers shall comply with rules at the NaMeRes Native men’s shelter to undertake chores while staying there.
f) Mr. Vickers shall comply with all rules and requirements of the Toronto Bail Program which will require him to check in with the Program as directed, and to be under their direction and supervision, and be amenable to their rules and regulations.
g) Mr. Vickers shall comply with the Toronto Bail Program requirements that he undertake counselling and treatment as needed from the services suggested by the Toronto Bail Program which will include: Anishnawbe Health Toronto, Native Child and Family Services of Toronto, CAMH and/or Miziwe Biik Employment and Training.
h) Mr. Vickers shall sign all forms and releases necessary for treatment recommended by the Toronto Bail Program and for the Toronto Bail Program to monitor his progress.
i) On release, Mr. Vickers shall seek employment. He shall accept the offer of employment with Diligent Productions Ltd as a sales consultant.
j) Mr. Vickers shall report to a designated police officer of the Toronto Police Service on a monthly basis the dates to be set by the Toronto Bail Program.
k) Mr. Vickers shall not leave Ontario without receiving prior permission from the appropriate judicial authority before departure.
l) Mr. Vickers shall not attend any hotel, motel or Air B&B unless directed by the NaMeRes Native Men’s shelter.
m) Mr. Vickers shall not have any contact, directly or indirectly, with Rebecca Horton, Daylo Robinson, Joshua Scanlon, Miranda Detering, EXCEPT in the presence of legal counsel for the purpose of preparing a defence.
n) Mr. Vickers shall not be within 200 metres of any place he knows Rebecca Horton, Daylo Robinson, Joshua Scanlon and Miranda Detering to live, work, attend school, or are known to be, EXCEPT in the presence of legal counsel for the purpose of preparing a defence, or for the purpose of attending court.
o) Mr. Vickers shall not have any contact, directly or indirectly, with RW and Melissa Moricz.
p) Mr. Vickers shall not be within 200 metres of any place he knows RW and Melissa Moricz to live, work, attend school.
q) Mr. Vickers shall not possess any weapons as defined by the Criminal Code which include a firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.
r) Mr. Vickers shall abide by any other conditions that the Honourable Court deems appropriate.
B.A. Allen J.
Released: May 28, 2021