COURT FILE NO.: 20-61
DATE: 2021-01-20
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Steven Campbell
BEFORE: The Honourable Justice Laurie Lacelle
COUNSEL: P. Kenney, Counsel for the Crown J. Langevin, Counsel for the Respondent
HEARD: January 13, 2021
ENDORSEMENT
Introduction
[1] The Crown brings an application for a bail review in the matter of R. v. Steven Campbell. The Crown alleges that the Justice of the Peace erred in her decision releasing the accused because she based her decision on the “ladder principle”, which does not apply in a reverse-onus bail hearing. The Crown seeks to have the release order vacated and substituted with an order for the accused’s detention.
[2] The defence submits that Justices of the Peace are lay people without legal training and the decision by the justice in this case should be understood in this context. The defence agrees that “technically”, the ladder principle did not apply and the Justice of the Peace may not have understood that in a reverse onus hearing, detention was the presumption, as opposed to release. However, counsel submits that the Justice of the Peace nevertheless arrived at the correct decision on the hearing and the release order should not be vacated. Since the release order made on November 16, 2020, the accused has been living peacefully at his surety’s residence. The defence requests that the Crown’s application be dismissed.
Background facts
The outstanding charges
[3] The Respondent has a number of outstanding charges.
[4] He was released on a promise to appear and an undertaking to a peace officer on October 1, 2019 in relation to a charge of possession of stolen property laid the same date. This charge relates to stolen license plates. He was also charged with driving while under suspension under the Highway Traffic Act.
[5] On the 30th of October, 2019, the Respondent was released on a promise to appear and an undertaking in relation to charges of uttering threats to cause death and breaching his undertaking (x2). He is alleged to have threatened Shawn Price over the phone. Mr. Price is allegedly known to the Respondent because their children are friends. It is alleged that the Respondent threatened Mr. Price because of Mr. Price’s contact with the Respondent’s child’s mother. A few hours after the threatening phone call, the Respondent is alleged to have gone to Mr. Price’s door, along with other males, and knocked. Police observed video from a surveillance system and identified the accused. Mr. Price is reported to be quite concerned for his safety. During their investigation of this matter, police learned that the Respondent was not residing at the address indicated on his undertaking. It is alleged that the Respondent had not changed his address with police as required. Nevertheless, on arrest, he was released on another undertaking.
[6] On the 29th of November 2019, the accused is alleged to have breached his undertaking by not keeping the peace and by breaching the radius condition relating to any place Shawn Price might be. The events alleged involve an encounter in the Walmart parking lot with Mr. Price. This time, on December 4, 2019, he was released on a recognizance of bail. One of the conditions required him to reside at a certain address in Cornwall. Another condition required him to notify the local police in writing 24 hours before any change of address.
[7] On January 7, 2020, the Respondent is alleged to have committed a number of offences, including break and enter with intent, conspiracy to commit robbery, robbery using a weapon (including a firearm), possession of a weapon for a purpose dangerous to the public, having his face masked with the intent to commit an indictable offence, and several breaches of recognizance. The accused is alleged to have participated, along with other men, in an attempted robbery at a residence in North Glengarry. The residence was approached by masked men on both January 6th and 7th. It is alleged the accused participated in the planning of a robbery with several others. During the first incident, after an alarm sounded, the suspects fled. The next day, on January 7th, at 1 a.m., one of the home owners observed on his home security monitor that a vehicle had parked on the corner. Four masked individuals exited the vehicle and walked up to the front door. It is alleged that the Respondent was in possession of a rifle and a machete and that others were armed as well. It is alleged that the Respondent smashed a front door window. The victim, fearing for his life, fired several rounds of a rifle and the suspects fled to the vehicle.
[8] The vehicle was subsequently located by police and DNA testing was done on items in the vehicle. A DNA sample matching the Respondent’s was confirmed on one of the items. Subsequently, a warrant for the Respondent’s arrest was obtained.
[9] Police determined on the 30th of March 2020 that the Respondent was not residing at the address listed in his recognizance. The Respondent reportedly left a voice mail message for a friend “at sometime in the beginning of January” saying he was leaving town and she would never hear from him again.
[10] Subsequent investigation determined that the Respondent had indeed left Ontario and was living in New Brunswick. Local officers executed a Canada wide warrant for the arrest of the Respondent after flying to Saint John, New Brunswick to do so.
[11] In respect of this set of charges, it is also relevant that part of the Crown’s case will include the evidence of a Canadian Border Services Agent who places the Respondent at the King George Restaurant in Cornwall on January 9th, 2020. He noticed an individual in the restaurant who he later found matched information from an officer safety bulletin.
[12] While in New Brunswick, the Respondent also came to the attention of the police. This was because on June 4th, 2020, George Hennick requested the Respondent’s removal from his house. The Respondent was his “previous step-son” and had moved into his house, along with his girlfriend, “four or five months ago” and had not paid rent since. Mr. Hennick thought the Respondent had been “causing trouble” and “may be on drugs”. Mr. Hennick reportedly did not want to give a statement – he only wanted Mr. Campbell and his girlfriend to leave.
[13] While the defence stated in comments to the Justice of the Peace during the bail hearing that the accused had disclosed an alibi to the Crown from witness Terry Cornelius, counsel now advise that in fact it is Mr. Hennick who is the alibi witness. It appears that the accused will present evidence that he was in New Brunswick at the time of the last set of charges. No further information about the substance of the alibi or its investigation has been presented to the court for this hearing. For the purposes of this review, the strength of the Crown’s case remains as it was at the time of the initial bail hearing.
[14] While Mr. Campbell was also charged with offences involving his girlfriend Ms. Cornelius while in New Brunswick, Mr. Campbell says he had a trial and was acquitted. In any case, counsel agree that those charges did not result in further convictions and that there are no outstanding charges in New Brunswick to be considered on this application.
The accused’s criminal record
[15] The Respondent has a lengthy criminal record with entries from 1993 onwards. His convictions as an adult commence in 1998. It is a varied criminal record with many entries involving breaches of court orders.
[16] In 2009, the Respondent was sentenced to 2 years for assault causing bodily harm. Between 2012 and 2017 there is a gap in respect of his violent offending, but not in respect of breaches of court orders.
[17] In 2017, the Respondent was convicted of two counts of assault causing bodily harm. He was also convicted of conspiracy to commit an indictable offence and possession of a weapon for a purpose dangerous to the public peace. On the same date he was convicted of failing to comply with a recognizance. He was sentenced to 731 days in addition to 27 days of presentence custody in relation to the 2017 offences, which is a total sentence of roughly 2 years.
The errors
[18] The Crown alleges that two of the three criteria from R. v. St-Cloud, 2015 SCC 27 which permit a reviewing court to intervene are met in this case. First, the Justice of the Peace erred in law by relying on the ladder principle in a reverse onus bail hearing. Second, the Justice of the Peace made a decision that was “clearly inappropriate”, because she incorrectly weighed the relevant factors to be considered (see St-Cloud at para. 121). She gave too much weight to the previous form of release for the accused, and not enough weight to the concerns about the accused’s release based on the primary and secondary grounds of s. 515 of the Code.
[19] The defence has effectively conceded that the Justice of the Peace erred. I agree.
[20] The reasons of the Justice of the Peace are very brief. To the extent that they disclose a reason for the decision to release, they are as follows:
Okay, so I have taken into consideration Mr. Kenney’s arguments, the Crown. He has some very serious concerns and I have them as well. The thing that I am taking into consideration is that the last time that he was released on a recognizance of bail, it was without a surety, there were some good serious conditions, there was a bond of $500. I am willing today to respect the ladder principle as defined by case law and I have determined on a balance of probabilities, so that’s always a balance that you were not – it’s not beyond a reasonable doubt, it’s really one where you are doing a lot of estimating and guessing to a certain extent, but I have determined on a balance of probabilities that the proposed plan and surety addresses the Crown’s primary and secondary grounds concern and that a release can be fashioned with strict conditions to protect the community and reduce the substantial likelihood that further offences will be committed until the matter is dealt with according to law.
[21] The reasons of the Justice of the Peace, considered in their totality, allow for no other conclusion than that the Justice of the Peace erred by applying the “ladder principle” from R. v. Antic, 2017 SCC 27 when the onus was on the Respondent to show cause as to why his detention was not justified. The reasons support the Crown’s position that the only articulation for release references the prior form of the Respondent’s release. There is no explanation, other than the ladder principle, to explain why the Justice of the Peace found that the Respondent had overcome the primary and secondary ground concerns raised by the Crown. This analysis is incompatible with the requirements of a reverse onus bail hearing.
[22] That this is an error is confirmed in a number of cases which quote the following passage from Justice Trotter’s text, the The Law of Bail in Canada:
The ladder principle is inapplicable to situations in which a reverse onus provision in s. 515(6) is triggered. When this subsection was enacted in 1976, Parliament made no attempt to reconcile the reverse onus provisions with s. 515(3). It follows that when the onus is on the accused, he or she ought to be required to justify why the most onerous form of release should not be imposed. This may well be the reality in practice.
See for instance R. v. Sakhiyar, 2018 ONSC 5767 at para. 7; R. v. Ishmael, 2019 ONSC 596; R. v. Tikivik, 2020 ONSC 7549 at para. 25; R. v. T.T., [2018] O.J. No. 6985 at paras. 29-30; and R. v. Forbes, 2020 ONSC 1798 at para. 22.
[23] The Crown argues that this first error by the Justice of the Peace is also related to the second error of making a “clearly inappropriate” decision. I agree with the Crown that while the Justice of the Peace was entitled in her analysis to consider the Respondent’s previous form of release, her application of the ladder principle led her to place excessive weight on this factor and insufficient weight on the primary and secondary ground concerns raised by the Crown, which she said she shared.
[24] In summary, I agree with the Crown that the Justice of the Peace erred in these two ways. This permits me to reconsider the issues on the bail hearing and in particular, whether the Respondent has met his onus having regard to the evidence relating to the primary and secondary grounds.
Reconsidering the bail issues
The positions of the parties
[25] The Crown submits that the accused has not met his onus on either the primary or secondary grounds. The Crown argues in its factum that “the accused’s extensive criminal record, the number of recent allegations before the Court, and the strength of the Crown’s case on the allegations of breach already before the Court should lead the Court to conclude that there is a substantial likelihood that, if released, the Respondent will commit further offences”. Given the evidence that the Respondent breached his prior release by “fleeing” to New Brunswick while under a condition to remain in Ontario and report any change of address, the Crown says that detention of the Respondent is necessary to ensure the Respondent’s attendance in court, particularly since he faces a lengthy penitentiary sentence if convicted of the last set of charges. With respect to the apparent compliance by the Respondent with the terms of his release for the past two months, the Crown argues that given the accused’s criminal record and the strength of the evidence he has breached other release orders, this should not displace the court’s concerns about his future risk of flight or criminal offending.
[26] The defence points to the Respondent’s compliance with his release order since the bail hearing and argues that the evidence at the bail hearing was sufficient for the Respondent to meet his onus. He has a surety who understands her obligations and is taking her responsibilities seriously. He has ties to the jurisdiction. The defence disputes the characterization of the Respondent’s move to New Brunswick as a “flight” from this jurisdiction. The defence also points to the frailties in the Crown’s case on the last and most serious set of charges, including the fact that the accused has disclosed an alibi, and the DNA evidence cannot assist in determining when the object it was on was placed in the suspect’s vehicle or under what circumstances. The Crown’s ability to prove identity beyond a reasonable doubt is therefore a very live issue for the trial.
The legal principles
[27] The issue 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, where the accused was on a recognizance at the time of the most recent set of alleged offences, 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 CanLII 53 (SCC), [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] Another relevant factor will be 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.
Analysis
[34] In this case, I find that even with the bail plan presented, the probability of future criminal conduct that would endanger the safety of the community by Mr. Campbell is substantial and “significantly likely”. He has not met his onus on the secondary grounds.
[35] In making that finding I consider his extensive history of criminal convictions, including convictions for violent offences. It appears he had just completed his sentence of 2 years for assault causing bodily harm when he started to amass the current list of charges. In considering his prior criminal convictions, I note he was found guilty of breaching a recognizance in his most recent set of convictions for assault causing bodily harm and conspiracy to commit an indictable offence, and that his record contains many breach convictions. This is substantial evidence showing that in the past, the accused has had little respect for court orders, and has gone on to commit offences of violence while bound by them.
[36] I also consider that the accused is alleged to have violated every release order made in respect of the outstanding charges prior to his bail hearing. I consider the strength of the allegations on those charges. The evidence in support of the finding that he did not reside at the address listed in his recognizance from December 2019, or report his whereabouts to police, is overwhelming. There is no doubt he left Ontario and went to New Brunswick, contrary to the terms of that recognizance. In so doing, he defeated a significant term of that recognizance. The result was that when additional charges were laid, police had to obtain a Canada wide warrant and fly to another province to return him to this jurisdiction. This is far from a minor breach.
[37] While the last set of charges does have triable issues, the allegations have sufficient strength to be given some weight in this analysis. This is not a case that is so weak that it would be unjust to detain the accused while he is waiting for his trial.
[38] The remaining outstanding allegations also involve violence insofar as threatening conduct is alleged which has caused a member of the public to fear for his safety. With these charges too, while there may be triable issues, they are not so weak as to have no impact in the analysis.
[39] I have considered the evidence I have about the accused’s stability or other evidence that might give me confidence he will abide by a release order. There is very little. The surety, Ms. Rogers, provided a bit of information during the bail hearing. She said she had known the accused for about 14 years. She met him because he was a friend of her cousin’s. Her evidence was that the accused worked occasionally as a roofer and doing snow clearing. When asked if he had addictions issues, she said “Well sometimes, yes, but then – then again it also depends on the crowd he’s around”. She knew his issues to be with “alcohol and weed”. She described how her children felt about him.
[40] There is no other significant information about the accused or how she planned to supervise him in the record before me. On the other hand, there is some evidence to suggest that there were reasons to be concerned about the ability or willingness of the surety to properly supervise the accused.
[41] For instance, the Justice of the Peace remarked on the surety’s evidence during her reasons. She said:
Now, I want to speak about your surety. Your surety, Vera, is interesting. You have been released previously on that recognizance without a surety, and you had a bond of $500 at that time, and you had some pretty clear conditions, including not communicating with Shawn Price and staying away from him, and not to possess firearms, so it’s very clear in 2019 in December. The thing that I did appreciate your surety, she did present herself well, except I really – well, I am concerned about the fact that Vera Rogers said at one point that she didn’t question you because it was none of her business. I hope that if Vera Rogers becomes a surety for Steven Campbell that she realizes that she is not just Steven Campbell’s friend, or she is not just the guy, you know, has a relationship with Steven Campbell that the kids call uncle, that now she is a surety. That’s whole different type of thing, and if she doesn’t realize that, then she definitely is an unsuitable surety. [emphasis added]
[42] This is hardly a ringing endorsement of the strength of the proposed surety and bail plan. There is no evidence other than the surety was well-meaning, and she ultimately reassured the Justice of the Peace that she understood her responsibilities as a surety. However, given the issues presented in supervising Mr. Campbell, the surety’s understanding of her responsibilities is not, by itself, a particularly strong pillar in the bail plan.
[43] The bail plan involved a condition that the accused reside with his surety. In questioning, it appears that the defence was also proposing a curfew and prohibitions on the accused from contacting certain individuals. In the end, the Justice of the Peace released on those terms. While she imposed a term prohibiting the possession of weapons, there is no term prohibiting the use of alcohol or drugs.
[44] The evidentiary record on the initial bail hearing and now provides no evidence about how the accused is spending his days. It provides no restrictions or mechanism to ensure close supervision (such as house arrest).
[45] I have given strong consideration to the fact that the accused has remained in the community under the terms of the current release for the past two months without incurring further breach charges. However, on the totality of the evidence, including the criminal history and the chronology of the allegations for the outstanding charges, I have insufficient confidence that this behavior will continue. This period of controlled behavior for a brief period of time is not sufficient to overcome the issues I have identified with the secondary grounds. Even considering this evidence, I conclude that the probability of future criminal conduct that would endanger the safety of the community by Mr. Campbell is substantial and “significantly likely”.
[46] Given the accused’s extensive criminal record and history of violence, the history of breaches by the accused (including the overwhelming evidence he breached his recognizance from December of 2019), and the risks that the accused presents to the public, this bail plan is not sufficiently strong enough to overcome the concerns on the secondary grounds. I find that the accused has not met his onus.
[47] Given that conclusion, it is not necessary to further analyze the primary grounds. I will say simply that in my view, the weight of the secondary grounds and whether the accused has presented a bail plan strong enough to overcome them is the primary issue to be assessed at this time.
Conclusion
[48] Given my conclusion on the secondary grounds, the Crown’s application is granted. The release order is vacated. Mr. Campbell shall be detained in custody.
The Honourable Justice Laurie Lacelle
Date: January 20, 2021