COURT FILE NO.: CR-21-00000023-00BR

DATE: 20210122

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – WILLIAM SKELLY

Mike Townsend, for the Crown

Cal Rosemond, for Adam Skelly

HEARD: January 19, 2021

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON BAIL REVIEW

[1] Mr. Skelly is the owner and operator of Adamson Barbeque. Adamson Barbeque has three locations in the Greater Toronto Area: at 7 Queen Elizabeth Blvd. and 176 Wicksteed Avenue in Toronto, and at 15195 Yonge Street in Aurora.

[2] In late fall of last year, the alarming rise in the number of Covid-19 cases in Ontario prompted the provincial government to take action. On November 24, 2020 the government issued a lockdown order. The order prohibited indoor and outdoor dining at restaurants. Restaurants were permitted to offer take-out or delivery options. The order took effect immediately. On November 25, Mr. Skelly announced on social media that as a protest against the lockdown measures he would be opening for business, including indoor dining. On November 26, 2020 a large crowd attended at the Adamson Barbeque location at Queen Elizabeth Blvd. Police and by-law enforcement officers were present. They observed a large crowd, including protestors outside and diners inside. According to the Crown’s allegations, the inside diners did not maintain social distancing but there seems little doubt that Adamson Barbeque was serving food in violation of the Reopening Ontario Act and failing to comply with an order under s. 7.0.2 of the regulations. After all, that was what Mr. Skelly had announced that he intended to do.

[3] Toronto Public Health officers laid charges against him. Toronto Public Health officers also took possession of the Queen Elizabeth Blvd. location. They padlocked the premises. They gave Mr. Skelly a notice under the Trespass to Property Act. The Crown alleges that Mr. Skelly entered an adjacent unit and then broke a hole through the drywall in order to enter the restaurant. Mr. Skelly was observed serving food in the restaurant, as well as kicking the padlock. Mr. Skelly exited the front door, but when he tried to get back in police officers advised him that he was prohibited from entering. He tried anyway. Mr. Skelly was arrested and brought to bail court. He was charged with obstructing a police officer and mischief under $5000 for the kicking of the padlock. He also faces a number of provincial violations that are on a separate information.

[4] The next day, November 27, 2020, Mr. Skelly was released on consent. His common law spouse signed as his surety. Justice of the Peace Scarfe released him on the following conditions:

1. Reside at his home address (which I will leave out of these reasons).

2. Not to operate any business except in accordance with:

a. The Reopening Ontario Act and any regulations or orders made thereunder;

b. The Health Protection And Promotion Act and any regulations or orders made thereunder; and,

c. Any lawful orders issued by the Chief Public Health Officer of Ontario and any Public Officer of the city or region in which your business operates.

3. Do not be within 200 meters of 7 Queen Elizabeth Blvd., Toronto.

4. Do not be within 200 meters of 15195 Yonge Street, Aurora.

5. Do not be within 200 meters of 176 Wicksteed Avenue, Toronto.

6. Not to post or communicate on any Internet social media platform, including but not limited to Twitter, Facebook, Instagram, and Tiktok.

[5] For simplicity I will refer to the conditions under paragraph 2 as the business operations conditions; paragraphs 3, 4, and 5 as the boundary conditions; and paragraph 6 as the social media condition.

[6] The Crown was prepared to release Mr. Skelly on consent with conditions. Mr. Rosemond, for the defence, argues that Mr. Skelly was strong-armed into consenting to these conditions. If Mr. Skelly was not prepared to accept these conditions the Crown would have been required to call evidence to support them. That would have taken more than two hours. In Etobicoke, and in many other courthouses throughout the Province, a bail hearing that takes more than two hours is called a “special”. A pre-hearing conference with a justice of the peace is required before scheduling one. The parties then contact the trial coordinator to arrange a date. Mr. Rosemond argues that it may have taken up to five days to arrange a special bail hearing. Those are days that Mr. Skelly would have needlessly spent in custody. Mr. Skelly therefore agreed under pressure, according to Mr. Rosemond, to the terms. Mr. Townsend, Crown counsel on this bail review, concedes that the bail hearing would have been re-scheduled, but does not accept that it would have taken as long as five days.

[7] I reject the argument that the Crown somehow strong-armed Mr. Skelly into accepting the conditions. That is an unfair characterization. Crown counsel has a duty, on behalf of the public, to assess each bail situation and take a principled position that balances the risk to community safety with an accused person’s right to bail. Where the Crown asks the court to impose more onerous conditions, it must show cause: R. v. Antic, 2017 SCC 27 at para. 4. The Crown is required to do so in the public interest. I have reviewed the transcript. I saw nothing that would indicate the Crown improperly held the threat of a stay in jail to strong-arm Mr. Skelly into conditions.

[8] Ordinarily, bail hearings before a justice of the peace in the Ontario Court of Justice are simply dealt with as they arise. Lengthy bail hearings can clog up bail courts and make it impossible for many people with shorter matters to have timely bail hearings. Virtually all courthouses have protocols for the smooth management of court resources. In Etobicoke Local Administrative Judge Erlick and Local Administrative Justice of the Peace Moniz issued a protocol in September 2020 dealing with special bail hearings. What seems apparent to me from the transcript is that Crown counsel was attempting to comply with the protocol. That was appropriate. Mr. Skelly’s case may have attracted publicity, but it was no more or less important than any other case in the system. No case can be treated as if it were the only case that mattered, with a consequent demand on court resources: R. v. K.G.K., 2020 SCC 7 at para. 61, quoting R. v. Allen (1996), 1996 4011 (ON CA), 92 O.A.C. 345 at para. 27.

[9] I turn now to the main questions on this bail review. I am not entitled to intervene unless there has been a material change of circumstances, an error of law by the justice of the peace, or the bail decision was simply inappropriate: R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.R.C. 328 at para. 121.

Has there been a material change of circumstances or was there an error of law by the justice of the peace?

[10] In this case, Crown and defence counsel agreed to Mr. Skelly’s bail conditions. As the Supreme Court of Canada pointed out in R. v. Zora, 2020 SCC 14 at para. 101:

… it is not uncommon for counsel to agree to a condition that may seem somewhat onerous but does not warrant turning the matter into a contested hearing, which could result in the accused having to stay in custody for a few more days. In such cases, counsel can also seek a review of the condition after a reasonable length of time and ask that it be altered.

[11] That is what happened here. I find that it is appropriate for defence counsel to bring a bail review to alter the conditions.

[12] I would also review the bail on the grounds that the justice of the peace erred in law in accepting the social media condition. Counsel may agree on conditions, but the judicial officer is not bound by that agreement. Ultimately, it is the obligation of the justice of the peace to ensure that the conditions are appropriate: R. v. Zora at para. 102; R. v. Antic at para. 56. As Hill J. noted, a justice of the peace at a bail hearing is not a rubber stamp: R. v. Singh, 2018 ONSC 5336, [2018] O.J. No. 4757 (Sup.Ct.) at paras. 24-25.

[13] I find that the complete ban on Mr. Skelly’s ability to use social media was simply too broad.

[14] Mr. Townsend, for the Crown, very fairly agreed but he did argue that a social media condition of some kind was warranted. I agree with him. Mr. Skelly had used social media to publicize and attract customers to the opening of his restaurant. He did so as a form of protest. He indicated that he intended to violate the lockdown regulations. A form of social media condition was indeed warranted.

[15] A ban on all forms of expression, however, was incompatible with the principle of restraint. It was also incompatible with perfectly legitimate forms of expression on social media, such as expressing a political view about the lockdown measures, or advertising a lawful takeout business, or even streaming a demonstration of barbequing techniques as a form of business promotion – not to mention merely sharing family photos on Instagram. Freedom of expression is enshrined in the Canadian Charter of Rights and Freedoms. As Justice Cory stated in Edmonton Journal v. Attorney General of Alberta, 1989 20 (SCC), [1989] 2 S.C.R. 1326 at para. 78:

It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed, a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized.

[16] It was, therefore, an error of law for the justice of the peace to have agreed to such a broad condition. I am sympathetic to the justice of the peace in this case. An unusually large number of bail matters have lately been before the courts in our community. I am aware that judicial officers and court staff have been working long hours under trying conditions to cope. It is understandable that the justice of the peace would have signed off on a consent bail in order to deal with as many matters as possible. It was, however, still his responsibility to ensure that the bail conditions complied with the principle of restraint and were rationally connected to the offences.

[17] I turn now to the various conditions.

Should the business operations conditions be varied or deleted?

[18] Mr. Rosemond argues that the business operations conditions are duplicative. Too many bail conditions generate too many fail to comply charges. Those fail to comply charges contribute to clogging up the courts: R. v. Zora, at para. 62. Mr. Rosemond further argues that the business operations conditions are unnecessary because Mr. Skelly knows that if he breaches the lockdown orders and other regulations, he will be in even more trouble.

[19] I must disagree. I find that the business operations conditions are rationally connected to the alleged offences. The business operations conditions provide an extra measure of deterrence.

[20] Bail conditions must have a rational connection to the risk to public safety or the commission of further offences: R. v. Zora at paras. 22, 101.

[21] The business operations conditions clearly contemplate that Mr. Skelly should be permitted to be in business. That, of course, is right and proper. If Mr. Skelly wishes to re-open his business in some form, as long as he does it within the boundaries of the law and regulations there is no reason why he should be prevented from doing so. It seems to me to be entirely reasonable, however, that there should be some extra measure of deterrence, given his history. To paraphrase Samuel Johnson, the prospect of criminal penalties for operating a business in violation of the lockdown rules – as opposed to regulatory penalties – may concentrate Mr. Skelly’s mind wonderfully.

[22] This condition is not comparable to imposing a condition that a drug addict facing drug charges must not possess illegal drugs. Such conditions should be avoided because they often set people up to fail – and as the Supreme Court pointed out in R. v. Zora, those people are frequently poor and marginalized. In contrast, Mr. Skelly is a prominent businessman with no criminal record. This is not the sort of condition that will set him up to fail – unless he deliberately chooses to breach it.

[23] Accordingly, I will not alter the business operations conditions.

Should the boundary conditions be varied or deleted?

[24] That leads me to the boundary conditions. My understanding is that Toronto Public Health has closed the Toronto locations of Adamson Barbeque. I assume the public health authorities in York Region have done the same with the Aurora location. Even if Mr. Skelly were to attend at those locations, he could not access them.

[25] I agree with Mr. Townsend, Crown counsel, that the boundary conditions are rationally connected to the alleged offences. Certainly, the boundary condition relating to 7 Queen Elizabeth Blvd. is rationally connected. As Mr. Townsend very fairly conceded, however, the boundary conditions are also an additional obstacle in the way of Mr. Skelly operating his business. In my view, there is no basis for the Court to prevent Mr. Skelly from attending these three premises. I assume that they are either leased or owned by Mr. Skelly, and that they contain restaurant equipment that belongs to him. Although there is a rational connection between the offences and the boundary conditions, I exercise my discretion and decline to impose them. That is because the bail order would not otherwise be in accordance with the principle of restraint. All of the boundary conditions will be removed.

[26] This, however, does not mean that Mr. Skelly can simply show up at one of these locations and start operating, or even start removing equipment. It is up to him to deal with the public health authorities over re-opening or attending those three locations. I am simply removing it as a condition of his bail that he cannot do so. This will give him the opportunity to lawfully re-open his business and operate it within the boundaries of the law and regulations. This decision should be seen simply as removing an obstacle to Mr. Skelly doing something he would ordinarily be lawfully entitled to do.

Should the social media conditions be varied or deleted?

[27] As I have already mentioned, the ban on Mr. Skelly’s ability to use social media was too broad. A citizen who faces charges enjoys the presumption of innocence; he or she also continues to enjoy all of the rights and privileges that every other citizen enjoys, subject to appropriate bail conditions. Social media as a medium of expression has become increasingly important. An individual citizen’s right to express him or herself on social media is arguably as important as freedom of the press itself. If Mr. Skelly wishes to use social media criticize governmental lockdown measures, that is his right. If he wishes to keep on criticizing governmental measures that he sees as unfairly penalizing small businesses, that is also his right. If he wishes to criticize the charges against him or the court process, that too is his right. As we have unfortunately seen in many countries, however, social media can also be abused or used for a nefarious or illegal purpose.

[28] In this case, Mr. Skelly knowingly opened Adamson Barbeque in violation of the lockdown regulations. He announced it on social media. These were his words, under the headline “Why I Opened Up Against Provincial Orders”:

Despite not being a smart business move, I opened up so that I could receive charges under the Reopening Ontario Act and challenge them in the courts. Our lawyers agree that the government actions have impacted small businesses disproportionately, and violate our charter rights.

[29] In the circumstances of this case, there must be some curtailment of Mr. Skelly’s ability to use social media. While freedom of expression is a critical value, it is not the only value and it is not absolute. The rule of law is another critical value. My duty is to balance Mr. Skelly’s right to freedom of expression with a prohibition on his ability to use social media to break the law.

[30] Thus, Mr. Skelly is free to use social media for ordinary purposes, including for the purpose of expressing his political views or advertising his business. He will be prohibited from using social media to publicize, organize, or incite breaches of the law, including but not limited to the Reopening Ontario Act, the Health Protection And Promotion Act, and any regulations made under those acts or the orders of any public health authorities.

CONCLUSION

[31] I ask counsel to draft appropriate conditions of release in accordance with these reasons.

Released: January 22, 2021

COURT FILE NO.: CR-21-00000023-00BR DATE: 20210122

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – WILLIAM SKELLY

REASONS FOR JUDGMENT ON BAIL REVIEW

R.F. Goldstein J.