COURT FILE NO.: CR-20-057

DATE: 2021-09-29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – A.H., Defendant

Jennifer Armenise for the Crown

Christian Steuart for the Defendant

HEARD: September 27, 2021 by videoconference

Ruling on bail review application

C. Boswell J.

OVERVIEW

[1] A.H. faces 13 criminal charges over two separate indictments. On March 21, 2019 he was charged with two counts of criminal harassment and two counts of attempted child abduction. He was released on a surety recognizance on March 26, 2019. He was re-arrested on April 3, 2019 and charged with three counts each of sexual assault, sexual interference and invitation to sexual touching. He has been in custody since that arrest.

[2] On June 10, 2019 the Crown applied for a review of the release order made by a justice of the peace on March 26, 2019. The Crown alleged that the release order was unreasonable and that it was the result of a number of legal errors made by the justice of the peace. The Crown’s application was successful. On June 14, 2019, Casullo J. vacated the release order and ordered that A.H. be detained on the March 21, 2019 charges.

[3] A.H. has not had a bail hearing on the April 3, 2019 charges. At some point, on or before July 25, 2019, he consented to his detention on those charges.

[4] Trial dates have been set with respect to both indictments. The March 21, 2019 charges are scheduled to proceed to trial on January 31, 2022. The April 3, 2019 charges are scheduled to proceed to trial on March 7, 2022.

[5] In the meantime, A.H. applies for a review of his detention. He asserts that there has been a material change in circumstances sufficient not only to trigger the court’s jurisdiction to review his detention, but also sufficient to attenuate any concerns the court may have about his release.

[6] The Crown opposes the application. The Crown contends that there has been no material change in the circumstances relevant to A.H.’s detention. Even if the court finds otherwise, A.H.’s detention remains justified given concerns about public safety and maintaining confidence in the administration of justice.

[7] The following reasons explain why I am prepared to release A.H. on very stringent terms.

THE GOVERNING PRINCIPLES

The Animating Charter Rights

[8] The Canadian bail system strongly favours the release of accused persons awaiting trial. The Supreme Court has repeatedly reinforced the presumption that an accused person should be released at the earliest possible opportunity and on the least onerous terms. See R. v. St-Cloud, 2015 SCC 27; R. v. Antic, 2017 SCC 27; R. v. Myers, 2019 SCC 18; and R. v. Zora, SCC 2020 14.

[9] The strong presumption in favour of release is informed by two Charter rights. First, the presumption of innocence, entrenched in s. 11(d) of the Charter. Second, the specific right not to be denied reasonable bail without just cause, found at s. 11(e).

The Grounds for Continued Detention

[10] Despite the presumption in favour of release, the Canadian bail system recognizes that there are a narrow set of circumstances in which detention pending trial may be justified. These circumstances arise only where necessary to ensure the proper functioning of the bail system. See R. v. Pearson, [1992] 2 S.C.R. 665 at para. 58; R. v. Antic, as above at para. 40.

[11] The bail system misfires when accused persons abscond while on bail. It similarly misfires when public safety is compromised as a result of further offences being committed by those released on bail. And it certainly misfires when decisions made to detain or release accused persons shake the public’s confidence in the administration of justice. In the result, bail may be denied on the ground that it is necessary to ensure the accused’s attendance at trial. It may be denied on the ground that it is necessary for the safety or protection of the pubic. And it may be denied on the ground that continued detention is necessary to preserve public confidence in the administration of justice.

[12] These three grounds for detention are conventionally known as the “primary”, “secondary” and “tertiary” grounds. Parliament has codified them in s. 515(10) of the Criminal Code. The Supreme Court has found them to be constitutionally compliant. See R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711 and R. v. Hall, 2002 SCC 64.

Jurisdiction

[13] A.H.’s application for a review of his detention is brought under s. 520 of the Criminal Code.

[14] It is well settled that s. 520 does not confer an open-ended discretion to vary prior detention orders. See R. v. St. Cloud, as above, where the Supreme Court instructed that the jurisdiction to hear an application under s. 520 is limited to the following three circumstances:

(1) where there is admissible new evidence that shows a material and relevant change in the circumstances of the case;

(2) where the reasons for the detention order contain an error in law; or

(3) where the detention order is clearly inappropriate.

[15] Defence counsel asserts that the court’s jurisdiction to hear and determine A.H.’s application is triggered by the first of these three circumstances. He contends that there is admissible new evidence that shows a material and relevant change in the circumstances that were present at the time that Justice Casullo made her detention order and, similarly, when he consented to his detention on the April 3, 2019 charges in the early summer of 2019.

[16] In St. Cloud, Justice Wagner, now Chief Justice Wagner, instructed that when assessing an assertion of a material change, bail courts should have regard to the well-known test for assessing the admissibility of fresh evidence on appeal established in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759. He cautioned, however, that the test needed to be modified in the bail review context.

[17] For our purposes here, it is unnecessary to drill too deeply into the requirements of the Palmer test. There is no dispute about the admissibility of the evidence tendered by A.H. in an effort to establish the threshold material change. What is at issue is whether the evidence meets that threshold.

[18] Chief Justice Wagner defined a material change as follows:

…[T]he new evidence must be such that it is reasonable to think, having regard to all the relevant circumstances, that it could have affected the balancing exercise engaged in by the justice under s. 515(10)(c) Cr. C. The new evidence must therefore be significant. (St. Cloud, para. 137).

[19] The St. Cloud definition of “material change” is consistent with earlier jurisprudence of the Supreme Court. See, for instance, Willick v. Willick, 1994 CanLII 28 (SCC), [1994] 3 S.C.R. 670 at para. 21 where the court described a material change as one that, if known at the time of the previous order, would likely have resulted in different terms.

Onus

[20] It is common ground that A.H. bears the onus to establish that there has been a material change in circumstances sufficient to trigger the court’s jurisdiction to hear his application.

[21] It is also common ground that, should he meet that threshold, the onus will shift to the Crown to establish that his continued detention is justified on the primary, secondary or tertiary grounds.

[22] I will turn now to an application of the governing principles to the facts and circumstances of this case. It is necessary that I provide some context to the proceedings by way of background, so I will begin with an overview of the circumstances of the alleged offences coupled with my brief observations about the strength of the Crown’s case. Following that, I will set out the terms of A.H.’s initial release plan, which was rejected by Justice Casullo, along with a brief explanation of the reasons for the rejection. I will then describe the release terms A.H. currently proposes for purposes of comparison. With all of that background in place, I will address the principal issues engaged by the application: (i) whether there has been a material change in circumstances; and (ii) whether continued detention remains justified in the face of a changed landscape.

THE CIRCUMSTANCES OF THE ALLEGED OFFENCES

[23] All 13 of the charged offences relate to allegations of inappropriate sexual contact – or attempted contact – between A.H. and young girls.

[24] On March 21, 2019, A.H. is alleged to have driven to a municipal park in a residential neighbourhood in Angus, Ontario. There he is alleged to have approached two twelve year old girls playing in the park, asking them if they wanted to play a taste test game, in return for which he would give them money. The girls ran across the street and one of them reported the interaction to her mother, who promptly called the police. The police attended the area but did not locate any vehicle matching the description of the one provided by the complainant.

[25] A short time later, the complainant called the police again saying the male had returned to the park and had approached three young girls. The complainant hurried over to the park to ensure the children would be safe. The male returned to his car. When the police arrived, they found A.H. in his car. He refused to identify himself. He was arrested for criminal harassment for watching and besetting the children in the park. He was searched incident to arrest. The police found a remote control in his pants pocket with a wire attached to it. The wire was connected to a vibrator located in A.H.’s underwear, pressed against his penis. It was set to “off”. They located a mask, sock and condoms on his person during a more thorough search at the police station.

[26] The police also searched A.H.’s car. They located a mesh, backpack-style bag on the front seat that contained ropes, a collar, a whip, condoms, memory sticks, a cell phone, a leash, candy and wrist and ankle restraints. A knife was located in the centre console of the vehicle. The police later learned that A.H. was wearing the mesh backpack when he approached and spoke to the two girls in the park.

[27] A media release relating to the charges laid against A.H. on March 21, 2019 led to the reporting of prior incidents involving three other young complainants.

[28] The first involved A.H.’s niece, D.D. A.H. was allegedly at D.D.’s family residence on an occasion in the spring of 2016. He allegedly asked D.D. if she wanted to play a game where she was blindfolded and had to guess what shapes were made out of modelling clay. In the course of the game, D.D. heard a zipper open. A.H. guided her hand to an object that she says did not feel like modelling clay. It was cylindrical in shape and a different temperature than clay.

[29] Some time later, during the summer of 2016, while visiting A.H.’s parents’ residence, D.D. was asked by A.H., she says, to assist him with a knotted drawstring on his swimming trunks. She tried to help but had no success and gave up. The following summer, a similar request was made for her to help A.H. with a knotted drawstring on his swim trunks. On this occasion, however, he allegedly asked her to use her teeth to undo the knot, which she refused to do.

[30] A.H. is charged with one count each of sexual assault, sexual interference and invitation to sexual touching in relation to alleged events involving D.D.

[31] The second involved two of D.D.’s friends, T.B. and S.M. The two friends allege that A.H. was visiting at the house D.D. shared with her mother – A.H.’s sister. He invited them in to play a video game called “Minecraft”, on the understanding that D.D. was going to be present as well. D.D. was not present. Both T.B. and S.M. reported to the police that A.H. proposed that they play a game of “dirty truth or dare”. One of them allegedly kissed A.H. on the cheek during the game. Each says it was the other. When he subsequently went into the bathroom, they ran from the home.

[32] A.H. is charged with two counts each of sexual assault, sexual interference and invitation to sexual touching in relation to this incident.

The Strength of the Crown’s Case

[33] It is always difficult to assess the strength of the Crown’s case at a bail hearing. The vantage point at this stage is limited. The reality is, I have little more than the Crown’s synopses to go on.

[34] Having said that, my impression is that the Crown has a relatively strong case with respect to the charges laid on March 21, 2019. There will, of course, be credibility and reliability issues the trier of fact will have to grapple with, but the police seized a good deal of significantly concerning real evidence from A.H.’s person and his car. I tend to agree with the Crown’s characterization of the bag of items seized from the front seat of the car as an abduction and sex assault kit. These items go a long way, in my view, to informing A.H.’s intentions in visiting the park and approaching the young girls.

[35] I have a more mixed impression of the strength of the charges laid on April 3, 2019. They will stand or fall in large part on the credibility and reliability of the young complainants. But there are issues with some of the charges that transcend the strength of the complainants’ evidence.

[36] For instance, the trier of fact is going to be asked to infer, with respect to D.D., that what she touched when blindfolded was A.H.’s penis. Whether the evidence is strong enough to support that inference is a significant question mark in my view.

[37] With respect to the evidence of T.B. and S.M., they contradict one another in terms of identifying who kissed A.H. during the truth or dare game. The evidence appears consistent, however, that it was only one of them who kissed him. It seems to me that on the evidence that has been described to me, A.H. cannot be convicted of sexual assault and sexual interference in relation to both T.B. and S.M. when the allegation is that there was only physical contact between him and one of those two. Moreover, whether the kiss – assuming it is made out – establishes the essential elements of sexual assault and sexual interference seems somewhat dubious to me.

[38] The charges of invitation to sexual touching in relation to each of the three young complainants strike me as significantly more compelling, depending of course on how compelling their evidence at trial turns out to be.

THE FAILED RELEASE PLAN

[39] A.H. was released on March 26, 2019 on terms which included the following:

• His father stood as his surety, in the amount of $10,000;
• He was to reside with his father at his father’ residence in New Lowell, Ontario;
• He was subject to a house arrest provision, ordered to remain in his father’s residence at all times unless in the company of his father;
• He was not to communicate, directly or indirectly, with three named individuals, being the two girls he allegedly spoke to in the park on March 21, 2019 and the mother who contacted the police;
• He was not to possess any weapons, as defined in the Criminal Code, nor any ropes, collars or leashes.

[40] The plan remained the same when he appeared before Justice Casullo on the Crown’s detention review application.

[41] Justice Casullo found that she had the jurisdiction to hear the Crown’s application on the basis that the justice of the peace who released A.H. made legal errors in her application of the secondary and tertiary grounds for detention.

[42] She conducted her own assessment of whether the Crown had made out a case for detaining A.H. on the secondary or tertiary grounds and, if so, whether A.H.’s proposed release plan sufficiently attenuated any concerns on either of those grounds.

[43] She concluded that A.H. should be detained on both the secondary and tertiary grounds.

[44] With respect to the secondary ground, she found that the justice of the peace failed to look sufficiently closely at the proposed surety’s ability to manage the risks posed by A.H.’s release. At the time of his initial release, the plan was for A.H. to work with his father on a day-to-day basis. The justice of the peace did not consider, however, what might happen if A.H. lost his job. The justice of the peace did not fully come to terms with what she described as A.H.’s “penchant for prepubescent girls” and did not attach sufficient weight to A.H.’s criminal antecedents or to the fact that his “deviant behaviour” was escalating.

[45] She found that A.H. posed a serious risk to public safety and that his detention was warranted on the secondary ground. Implicit in this finding was the conclusion that the proposed release plan was insufficient to attenuate her concerns on the secondary ground.

[46] With respect to the tertiary ground, Justice Casullo found that the four listed factors in s. 515(10)(c) all pointed to the continued detention of A.H. In particular, the Crown had a strong case (recall that only the March 21, 2019 offences were before Justice Casullo). She found that the circumstances of the alleged offences were very grave. While a firearm was not used during the commission of the offences, a knife was found in the center console of A.H.’s vehicle. And, finally, a significant jail sentence may be imposed in the event of a conviction.

[47] She concluded that detention was justified on the tertiary ground. Again, implicit in her conclusion was a dissatisfaction with the proposed plan of release.

THE NEW PLAN

[48] The plan of release now proposed by A.H. is not markedly dissimilar to the one presented previously. It consists of the following main features:

• It will be a surety release, with his father, H.H. as the sole surety, in the amount of $100,000;
• A.H. is to reside with his father at his father’ residence in New Lowell, Ontario;
• He will be subject to a house arrest provision. He will be required to remain in his father’s residence at all times unless in the company of his father; and,
• He will wear a GPS-enabled ankle bracelet and will be subject to electronic monitoring by Recovery Science Corporation. His father will pay for the installation and monthly monitoring.

ANALYSIS

[49] I begin with the question of jurisdiction.

The New Plan is a Material Change

[50] A.H. submits that there is relevant new evidence that constitutes a material change in circumstances. He says that the material change triggers the court’s jurisdiction to review his detention and, moreover, justifies his release.

[51] He points to the following four features as supportive of the material change assertion:

(a) His surety is now prepared to pledge $100,000, a ten-fold increase in assets pledged;

(b) He is now proposing that his location be monitored by RSC;

(c) He has been in custody now for 911 days (as of September 27, 2021), which is the equivalent to 1367 days when he is given enhanced credit at a ratio of 1.5:1 in accordance with the Supreme Court’s direction in R. v. Summers, 2014 SCC 26; and,

(d) The COVID-19 pandemic puts him at significant risk of contracting a potentially deadly virus while detained in a congregate living space with no reasonable means of socially distancing or otherwise protecting himself from exposure.

[52] The Crown argues that the factors identified by A.H. do not, when considered individually or cumulatively, amount to a material change.

[53] In the Crown’s submission, A.H. has presented a plan almost identical to the one presented to Justice Casullo. His proposed surety is the same person found to be insufficient by Justice Casullo. His increase in pledged assets does little, if anything to reduce the risk of re-offence and the GPS monitoring is little more than window-dressing. Courts have, the Crown points out, identified the shortcomings with GPS monitoring. Specifically, it is not immune to tampering and, in any event, does not prevent breaches. It only provides evidence of a geographic breach.

[54] The Crown recognized that twelve to eighteen months ago, emerging jurisprudence supported the conclusion that the onset of the pandemic represented a material change in circumstances, where it occurred following a detention order. Now, however, we are much further along on the pathway to overcoming the pandemic. Much more is known about its prevention and control and the wide availability of vaccines reduces the risk of contraction and serious illness substantially for those willing to be vaccinated. Crown counsel’s position, as I understand it, is that the pandemic should no longer be automatically considered to be a change in circumstances. It should be looked at as but one piece of the prevailing factual matrix.

[55] In my view, some of the elements of the new plan of release represent either no change, or a modest change not capable of rising to the level of “material”. For instance,

(a) The proposed surety is the same. I do not agree with the submission that Justice Casullo found H.H. to be an inadequate surety. She did not examine his qualifications as a surety in any detail. I accept that she did not find the proposed plan to be sufficiently rigorous to attenuate her concerns on the secondary and tertiary grounds. But she made no findings regarding H.H. personally. Having said that, the new plan proposes the same surety;

(b) The amount pledged has gone up, but certainly not ten-fold as described by A.H.’s counsel. H.H. does not have $100,000 in cash or investments. He is the beneficiary of his late mother’s estate, which includes the mortgage-free residence he resides in. But that house has not yet been transferred to him. What he has in terms of assets are a 2018 Dodge pick up truck and a 22’ Starcraft boat. He suggests they are valued at a combined $100,000, but I think that is grossly overstated. No formal appraisals of those assets were provided. If the Crown had to take steps to seize and sell those assets they would incur significant time, effort and cost. Any sales would be at wholesale prices. I suspect any recovery would be substantially less than the values attributed by H.H. While it is an increase over what was previously proposed, the recoverable increase is modest in my view; and,

(c) I accept that the addition of the ankle bracelet offers something of value. It does not, by any means, prevent a breach, but it is capable of having a deterrent impact and is certainly capable of detecting geographic breaches.

The deterrent impact on A.H. is something of a question mark. It appears to me that A.H. has a problem with impulse control. His approach to children playing in a residential playground, if reported accurately, was a very brazen act. But it is overtaken in that regard by his return to the same park just thirty minutes after he was scared off the first time. That behaviour suggests to me someone who is unable to control his impulses and that is dangerous when those impulses appear to involve a sexual interest in young girls.

[56] There are two differences, however, between the new plan and the old plan that, when considered together and in the light of the other, more minor changes I have just mentioned, do amount, in my view, to a material change in circumstances. The first is the impact that the COVID-19 pandemic has had on those inmates awaiting trial in remand facilities. The second is the significant passage of time between the last bail review and this one.

[57] I tend to agree with Crown counsel that the pandemic should no longer be considered, on its own, as capable of supporting a finding of a material change in most circumstances.

[58] There are, undoubtedly, many cases that have held that the onset of the pandemic – and the increased risk it poses to those living in congregate living facilities like jails – can constitute a material change in circumstances sufficient to ground the court’s jurisdiction to entertain a detention review application. See, for instance, R. v. J.S., 2020 ONSC 1710 and R. v. Paramsothy, 2020 ONSC 2314.

[59] The pandemic continues to have a major impact on our health care system and on our economy. But it does not pose the same risk to people that it did through most of 2020. When cases like J. S. and Paramsothy were decided, there was no vaccine available or on the horizon. No one had immunity. We were all at serious risk – particularly those in congregate living facilities. Now the virus does not pose the same risk, or at least it does not have to. For those willing to be vaccinated, the risk of contracting the disease drops to a fraction of the risk faced by the unvaccinated. And the risk of serious illness requiring hospitalization drops to near zero.

[60] I have no evidence about A.H.’s vaccination status. I do know that he has remained in custody throughout the entire pandemic and apparently has not contracted the virus. I have no evidence that he is at particular risk of serious illness should he do so.

[61] At this point in time and on the evidentiary record before me, I do not consider the presence of the pandemic to constitute a material change in circumstances. I accept that it was not on the radar when the detention review application was heard by Justice Casullo. But I do not believe its presence – at least not under the current conditions – would have had any appreciable impact on Justice Casullo’s decision. At least not when considered in isolation.

[62] It is appropriate, of course, that I consider the presence of the pandemic and its impact on health and safety as part of the overall factual milieu. And of course we know that the impact of the pandemic on those detained in remand facilities is not restricted to an increased risk of contracting the disease. It has had a serious impact on the lived experience of those accused persons in pre-trial custody.

[63] The pandemic has resulted in increased lock-downs in remand facilities across the Province. Inmates have been required to spend substantially more time locked in their cells than they would normally do. Access to dayrooms, yards, showers, telephones and visits from friends and family have all be significantly restricted. At the same time, trials have been delayed or postponed due to the impact that the pandemic has had on the court’s ability to schedule proceedings – particularly jury trials. In the result, accused persons who are detained pending trial are spending more time waiting and in worse conditions than was the case prior to the pandemic.

[64] While the impact of the pandemic may not, in the circumstances of this case, be enough on its own to constitute a material change, it does contribute in a significant way to my conclusion that the circumstances overall do amount to a change that is both relevant and material.

[65] A far more substantial and impactful change in circumstances is, in my view, the simple passage of time. A.H. has been in remand custody a staggering 911 days. He has the equivalent to 1367 days credit towards any sentence ultimately imposed should he be convicted. That is, in turn, the equivalent of 3.75 years. He has served 18 months of his pre-trial custody subject to Covid-related restrictions. He may well be entitled to some additional mitigation of any sentence in accordance with the principles enunciated by the Court of Appeal in R. v. Duncan, 2016 ONCA 754 and, more recently, in R. v. Marshall, 2021 ONCA 344.

[66] In my view, A.H. likely has served the equivalent of a four-year sentence already, before he has been convicted of any offence.

[67] It is difficult to say, from this vantage point, what sentences A.H. might be facing if he is convicted of one or more of the charges against him. Depending on the outcome of the various charges, a four-year credit could, conceivably, be sufficient to put him into a time served position. I understand that the Crown may look to launch a dangerous offender or long-term offender application. But that is somewhat speculative at present. Moreover, A.H. has only one prior conviction on his record. It is a 2014 conviction for criminal harassment involving the following of a young girl and her sisters as they walked home from a local variety store. He was sentenced to 18 months probation. All this is to say the jump principle will be in play in terms of any future sentencing.

[68] In summary, I make the following conclusions with respect to the threshold question of whether A.H. has established a material change:

(a) His proposed surety is no different;

(b) The increase in the amount pledged is likely modest;

(c) The addition of electronic monitoring is an improvement on the release plan, but of only modest value in preventing any potential breach;

(d) The impact of the Covid pandemic on A.H.’s experience in detention is significant. Though it does not, on its own, amount to a material change, it contributes in a significant way to such a finding, particularly given the length of time A.H. has spent in pre-trial detention; and,

(e) The passage of time is a very significant factor, in my view. It may be capable, on its own, of meeting the material change threshold. I do not need to decide that. It is certainly capable, when taken together with the other changes I have commented on, of meeting that threshold.

[69] Having determined that I have jurisdiction to hear the application, I will go on to conduct my own assessment of whether detention remains necessary on secondary or tertiary ground concerns.

The New Plan Sufficiently Attenuates Secondary and Tertiary Ground Concerns

[70] To be clear, Crown counsel advanced arguments on only the secondary and tertiary grounds. She advised that the Crown does not take the position that continued detention is justified on the primary ground.

The Secondary Ground

[71] The secondary ground for continued detention (s. 515(10)(b) of the Criminal Code) engages the court in an assessment of whether continued detention is justified for the safety or protection of the public. The court is directed to examine all of the surrounding circumstances, including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.

[72] In R. v. Morales, as above, former Chief Justice Lamer instructed that the focus of s. 515(10)(b) is a narrow one. Just cause to deny bail does not exist just because there is a chance that an accused person might commit further offences if released. Instead:

Bail is denied 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 safety of the public". Moreover, detention is justified only when it is "necessary" for public safety. It is not justified where detention would merely be convenient or advantageous. (Para. 39).

[73] The secondary ground requires the court to prognosticate about future dangerousness. Propensity reasoning, with its inherent weaknesses, is often resorted to. The exercise is inevitably an inexact one.

[74] That said, the “substantial likelihood” threshold does not require exactness. It has been described in various ways. Trotter J.A., writing extra-judicially, has referred to it as a “slightly enhanced balance of probabilities standard”. See Trotter, Mr. Justice Gary T., The Law of Bail in Canada, 3^rd ed. Toronto: Carswell, 2020 (loose-leaf updated 2019, release 1). Watt J.A. has referred to it as a “probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely.” See R. v. Manasseri, 2017 ONCA 226 at para. 87.

[75] A cluster of factors must be considered when assessing future dangerousness and whether the substantial likelihood threshold has been met. The nature of the charged offences, the criminal record of the accused, the strength of the Crown’s case and whether the accused was already on bail or probation at the time of the alleged offence(s) are all relevant considerations.

[76] If the court determines that there is a substantial likelihood of further criminality that will endanger the safety of the public, then the onus shifts to the accused to demonstrate that he has a plan in place that will manage the risk to the point that the likelihood of further offences occurring is no longer substantial.

[77] In this instance, I am satisfied that there is a substantial likelihood of further offences being committed should A.H. be released on bail.

[78] A.H. appears to have a serious problem. He is sexually attracted to young girls and he has difficultly controlling his sexual impulses towards them. And the danger he represents to this young and vulnerable group appears to be escalating.

[79] In 2007, when he was about 20 years old, A.H. was arrested and charged with criminal harassment after he was reported to have been following a small group of young girls, roughly 13 years of age, around the Town of Stayner. He admitted to the police that he had sexual thoughts about the girls. The charge was withdrawn after A.H. entered a peace bond.

[80] In 2014, when he was about 27 years old, A.H. was convicted of criminal harassment on a guilty plea. He followed an 11 year old girl and her younger sisters on their way home from a local convenience store. He followed them around a subdivision for about twenty minutes, at times stopping and gesturing for them to come over to his vehicle. He received a suspended sentence with 18 months probation.

[81] The offences with respect to D.D. allegedly occurred in the summer of 2016 and the offences with respect to T.B. and S.M. allegedly occurred the following summer.

[82] The offences that allegedly occurred at the park in Angus happened in the summer of 2019.

[83] A.H.’s problem has been known for years, yet he has not sought out any significant treatment for it. He remains in a battle with his deviant impulses and it is a battle he does not always win.

[84] I have no confidence that he will remain in control of those impulses if released on bail. There is, given his history and the nature of his issues, a substantial risk that he will commit further offences if released. And there is no doubt that those issues pose a significant safety risk to the public. There are few greater fears in our community than a sexual deviant who preys upon our young daughters, sisters and friends.

[85] I would have preferred to have a plan of release that called for 24/7 direct supervision of A.H. As it is, I am left to grapple with whether the ankle bracelet is a sufficient substitute for 24/7 supervision.

[86] With some reservation, I am satisfied that it is.

[87] A.H. will be compelled to reside at his father’s residence. It is a relatively remote location. His father has only one vehicle and he will be using it for work. In other words, A.H. will have no means of transportation readily available to him. In addition, H.H. does not have an internet account at his residence. A.H. will accordingly not be able to access the internet while living at his father’s.

[88] Any attempt to leave the residence in breach of a house arrest provision will be detected promptly by RSC and reported to the police. A.H. will not be able to get far from the residence on foot and his whereabouts should be readily determinable by the police in the event of a breach.

[89] I am satisfied that, in all of the proposed circumstances, while there remains a chance that A.H. will commit further offences, the risk is below a substantial likelihood. In the result, continued detention is no longer justified on the secondary grounds.

The Tertiary Ground

[90] The tertiary ground (s. 515(10)(c) of the Criminal Code) is directed at maintaining public confidence in the administration of justice. It provides that continued detention is justified:

if…necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution’s case,

(ii) the gravity of the offence,

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

[91] In R. v. St. Cloud, as above, the Supreme Court provided a summary of the principles that should guide the court’s consideration of the tertiary grounds. They include:

(a) The tertiary ground is not a residual ground for detention that applies only where the first two grounds for detention are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused;

(b) The tertiary ground is not restricted to rare cases or exceptional circumstances or only to certain types of crimes;

(c) The four listed factors listed in s. 515(10)(c) are not exhaustive. The court may consider other relevant factors based on the circumstances of any given case;

(d) The court must not order detention automatically even where the four listed circumstances support such a result. The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances;

(e) No single circumstance is determinative. The court must consider the combined effect of all the circumstances of each case to determine whether detention is justified;

(f) After balancing all relevant circumstances, the ultimate question to be asked is whether detention is necessary to maintain confidence in the administration of justice. To answer this question, the court must adopt the perspective of the "public", that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused; and,

(g) A reasonable person's confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

[92] A.H. appears to be, it must be said, exactly the sort of person that people fear having in their neighbourhoods. There is no crime worse than the abduction and sexual assault (or worse) of a child. A reasonable member of the public would not, in my view, be disappointed with the continued detention of A.H. But that, of course, is not the test.

[93] Looking at the four factors listed in s. 515(10)(c), I find as follows:

(i) The strength of the prosecution’s case is somewhat variable across the outstanding charges. Some of those charges – particularly the ones arising on March 21, 2019 – appear to be strongly supported by the evidence that has been referred to me. Others – most notably the charges laid April 3, 2019 – are less compelling;

(ii) The gravity of the offences is significant. Sexual assault, sexual interference and invitation to sexual touching are very serious offences. The impact of such offences on young children can be severe and long lasting;

(iii) The circumstances did not involve significant violence and no weapon was used – particularly no firearm; and,

(iv) A significant sentence may be imposed upon A.H. if he is convicted of some of the more serious of the charges he faces. That said, this is not a case where there is likely to be a sentence nearing or exceeding double digits. In other words, any sentence imposed is likely to be at the low end of what one might reasonably describe as a lengthy term of imprisonment.

[94] In my view, a consideration of the listed factors in s. 515(10)(c), tends to point towards continued detention, but not strongly so.

[95] In addition to the listed factors, I consider a number of other factors to be of significance to the analysis under the tertiary ground.

[96] First, it must be remembered that A.H. is presumed to be innocent of the charges he is facing.

[97] Second, it must be remembered that he is constitutionally entitled to reasonable bail unless just cause is established for his continued detention.

[98] Third, A.H. is not being released to roam the streets freely. He will be subject to stringent conditions that seriously restrict his liberty. He will furthermore be subject to electronic monitoring 24 hours a day.

[99] Fourth, A.H. has already spent the equivalent of almost four years in custody. He is arguably nearing the point where he has served as long a sentence as he is likely to receive if convicted of some of the more serious offences he is charged with.

[100] Fifth, the pandemic continues to rage on. A.H. is at an increased risk of contracting the disease given the congregate living conditions he is compelled to live in, together with his inability to practice social distancing.

[101] Finally, the pandemic has had a significant and negative impact on counsel’s ability to reasonably prepare their in-custody clients for trial. While A.H. did not file any evidence detailing counsel’s frustrations in arranging to meet with him, I accept defence counsel’s submission that the pandemic has made it extremely difficult to arrange in-person visits with counsel. A.H. has a constitutional right to make full answer and defence to the serious charges he faces. His right is impaired due to Covid-related restrictions. This is a factor that must, in my view, be taken into account in any assessment of the tertiary ground for continued detention.

[102] All things considered, in my view a reasonable person who is properly informed about the philosophy of the statutory bail provisions, Charter values and the actual circumstances of this case would not lose confidence in the administration of justice if A.H. is released on stringent bail conditions.

[103] Detention on the tertiary ground is no longer justified.

TERMS OF RELEASE

[104] In the result, A.H.’s detention orders are vacated. He is to be released on the following terms and conditions:

Surety

(a) This will be a surety bail in the amount of $100,000. H.H. will be the sole surety.

Residence

(b) A.H. will be subject to house arrest. Specifically, he is to reside full-time with his surety, H.H., at 4238 Concession 2, New Lowell, Ontario. He is to remain inside that residence at all times save for:

(i) Medical emergencies relating to himself or a member of his immediate family; or,

(ii) When he is in the direct and continuous company of his surety.

(c) He is to observe a curfew to be inside of the residence at all times between the hours of 11:00 p.m. and 6:00 a.m., except in the case of a medical emergency.

(d) He must present himself at the door of the residence within five minutes when asked to do so by a police officer to ensure compliance with this Order.

(e) He is to be amenable to the rules and discipline of H.H.’s household.

(f) He is to surrender any passport or other travel documents in his name to the Huronia West O.P.P.

(g) He is to remain in the Province of Ontario.

Electronic Monitoring

(h) A.H. shall, at his own expense, be subject to GPS Monitoring by Recovery Science Corporation (“RSC”) by way of the installation of an ankle bracelet within 24 hours upon his release from custody and he shall:

(i) Enter into RSC’s participant agreement and comply with its terms;

(ii) Wear the GPS ankle bracelet at all times;

(iii) Permit RSC to install supplementary equipment and to inspect, replace and maintain equipment as it deems necessary;

(iv) Comply with RSC’s leave notification and battering charging requirements;

(v) Consent to all RSC leave notifications being emailed directly to the Huronia West O.P.P.;

(vi) Co-operate fully with RSC staff;

(vii) Consent to login credentials being provided to the O.P.P by RSC for the purposes of obtaining current, historical and GPS location information at any time; and,

(viii) Consent to RSC providing information to the surety upon his request for the purposes of current location and location history.

No contact

(i) A.H. must not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with S.B., R.B., M.B., D.D., T.B. and S.M. or be within 200 metres of any place he knows any of the foregoing to live, work or attend school, or any other place he knows them, or any of them, to be except for required court appearances.

(j) He must not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with any person under the age of 16.

(k) He must not attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre.

Weapons and permits

(l) A.H. must not possess any weapon(s) as defined by the Criminal Code (for example, but not restricted to, a pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).

(m) He must not apply for any authorization, license or registration certificate for any weapon as defined by the Criminal Code.

Drugs/substances

(n) A.H. must not possess or consume any alcohol or any unlawful drugs or substances (as defined in the Controlled Drugs and Substances Act) except with a valid prescription in his name.

Cell phones and Internet

(o) A.H. must not possess or use any cell phone.

(p) He must not possess or use any computer or any other device that has access to the Internet or other digital network EXCEPT for Recovery Science Corporation equipment installed as a part of Electronic Monitoring through that company, or when in the direct and continuous supervision of a surety or his legal counsel.

Transportation

(q) A.H. must not operate a motor vehicle.

C. Boswell J.

Released: September 29, 2021