Court File and Parties
COURT FILE NO.: CR-21-6000025-00BR DATE: 20211005
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
E.V. Applicant
Counsel: Jason Balgopal, for the Respondent Chris Hynes, for the Applicant
HEARD: September 27, 2021
Restriction on Publication
An order has been made pursuant to s. 517(1) of the Criminal Code. Counsel are permitted to circulate this judgment to other counsel for use in court. Publication and quotation of general principles in these reasons is permitted, but publication of any facts about the applicant, his/her personal circumstances or the evidence is prohibited. This judgment complies with that order and may be published.
REASONS FOR DECISION
J. R. PRESSER J.
[1] This is a 90-day detention review under s. 525 of the Criminal Code.
[2] E.V. faces a number of charges on four separate informations. He has a lengthy criminal record, including convictions for assault and breaching court orders. He was detained on May 17, 2020 on the current charges on the basis of the secondary ground. He has since spent approximately four months and three weeks in pre-trial custody. If he is not released before then, he will have spent approximately 11½ months in custody by the time the trial of his final outstanding charges is reached.
[3] Before he was detained on these charges, E.V. was homeless. There is some suggestion that he may be schizophrenic. He collects disability support payments from the Ontario Disability Support Program (“ODSP”). He has no one able to act as surety for him.
[4] E.V. submits that the test for release under s. 525 has been met: that his continued detention is not justified within the meaning of s. 515(10) of the Criminal Code. This is because, he says, the time he has spent in custody already exceeds any global sentence he would receive if convicted. He asks to be released on his own recognizance in the amount of $500.
[5] The Crown fairly acknowledges that a court might well find the time E.V. has spent in custody to date to be an appropriate sentence if E.V. were to plead guilty. The Crown further reasonably acknowledges that the time E.V. will have spent in pre-trial custody by the end of the final trial could be considered a fit global sentence if all matters are contested and the Applicant is convicted of them all. However, in the absence of a surety to supervise conditions of release, the Crown opposes E.V.’s release on the primary and secondary grounds.
[6] For the following reasons, I find that E.V.’s continued detention in custody is not justified. I do have some concerns in relation to the primary and secondary grounds and in relation to the adequacy of the proposed plan of release. However, I am convinced that there is a significant risk of E.V. spending more time in custody if he is not released, than he would be sentenced to if ultimately convicted. In my view, “the hypothetical risk posed by the primary and secondary ground concerns are “simply outweighed by the certain cost” to the accused’s liberty” (R. v. Ismail, 2020 ONSC 5519 at para. 20) in this case.
[7] Moreover, E.V. should not be denied bail because he does not have a support network of family and friends able to act as surety for him or the financial means to pledge substantial sums to guarantee his release. I am satisfied that conditions of release can be crafted in lieu of surety supervision that will mitigate primary and secondary ground risks posed by E.V.’s release.
[8] The Crown did not take the position, either at this hearing or at the earlier hearing that led to detention, that E.V. should be detained on the tertiary ground. For the sake of a complete s. 525 review, I did consider whether E.V.’s continued detention would be justified on the tertiary ground. I am satisfied that E.V.’s detention would not be justified on that basis.
I. FACTS
A. The Allegations
(i) October 8, 2019 – Assault and Mischief Under
[9] It is alleged that on October 8, 2019 E.V. attended at a Community Services Office, became belligerent, knocked a radio out of the hand of security guard R.L., damaged an LCD screen, and caused approximately $1050 of damage. There were no injuries.
[10] E.V. was arrested on these charges on November 3, 2019. On November 7, 2019, he was released on his own recognizance with Bail Program supervision and Canadian Mental Health Association supports. The November 7, 2019 release was filed as Exhibit #2 on this application.
[11] The trial on this assault charge was originally scheduled to proceed in the Ontario Court of Justice on May 12, 2020. Unfortunately, however, the trial date was cancelled as a result of COVID-19 court closures. The matter has since been set down for new trial dates on April 11 and 12, 2022.
(ii) November 3, 2019 - Assault
[12] On November 3, 2019, E.V. is alleged to have gotten into a verbal altercation with shelter worker B.T., over an alleged rule violation at the shelter at 3576 St Clair Avenue East where the Applicant was residing. He is alleged to have punched and dragged B.T. around by the shirt.
[13] Crown Exhibits #1(a) and (b) on this application are security camera videotapes depicting this altercation. The first video (Exhibit #1(a)) shows a man alleged to be E.V. standing outside an office, the door to which is closed on the bottom but open on top (giving the appearance of a service window into the office). The man alleged to be E.V. is gesticulating in what appears to be an agitated fashion as he appears to be speaking to the people (there is no audio) who are on the other side of the door, inside the office. At some point, the man alleged to be E.V. reaches in, opens the dividing door, enters the office, grabs a worker (who I assume is B.T.) by the shirt and drags him out of the office. The second video (Exhibit #2(a)) depicts a large room with rows of beds with people sleeping in them. The man alleged to be E.V. appears, dragging, pushing and pulling another man (again I assume this is B.T.), who is resisting him. At some point the man alleged to be E.V. appears to swing at the other man. The video does not clearly depict whether the Applicant’s arm made contact.
[14] B.T. had no visible injuries from this altercation but reported that he was dizzy and sore as a result of it.
[15] E.V. was arrested on this assault charge on November 3, 2019. On November 7, 2019, he had a bail hearing on this charge along with the above-noted assault and mischief under charges. He was released on his own recognizance on both sets of charges, with Bail Program and Canadian Mental Health Association supports. As noted above, the November 7, 2019 release was filed as Exhibit #2 on this application.
[16] The trial on this assault charge was scheduled to proceed in the Ontario Court of Justice on May 5, 2020. That trial date was cancelled as a result of COVID-19 court closures. The matter has since been rescheduled to proceed to trial on March 10 and 11, 2022.
(iii) February 14, 2020 – Fail to Comply with Recognizance
[17] On February 14, 2020, E.V. was charged with failure to comply with recognizance for allegedly failing to report to the Bail Program as required by the conditions of his November 7, 2019 release.
[18] He was arrested on the fail to comply charge on March 1, 2020. On March 3, 2020, he had a bail hearing on this charge (and the March 1, 2020 assault charge described below). A section 524 application was granted, the November 7, 2019 release was cancelled, and a new global bail was ordered with the consent of the Crown. The March 3, 2020 bail did not rely on Bail Program supervision or supports from the Canadian Mental Health Association. It was filed as Exhibit #3 on this application.
[19] It is expected that this charge will be scheduled for trial at a set date appearance on October 19, 2021.
(iv) March 1, 2020 – Assault
[20] On March 1, 2020 E.V. is alleged to have been standing outside a shelter for people with disabilities, located at 1082 Dundas Street West, when he got into a verbal altercation with a shelter worker, Mr. D.T.. E.V. is alleged to have punched D.T. twice: once on the cheek and once on the forehead.
[21] D.T. did not seek medical attention but photos provided to the Court (not filed as Exhibits) show that he had a swollen bump on his left cheek, approximately one inch in length.
[22] E.V. was arrested and charged with this assault on March 1, 2020. On March 3, 2020, he had a bail hearing in the Ontario Court of Justice on this charge and the above-noted fail to comply charge. As noted, on March 3, 2020, a section 524 application was allowed, the November 7, 2019 release was cancelled, and a new global bail issued on consent. The March 3, 2020 release was filed as Exhibit #3 on this application.
[23] The March 1, 2020 assault charge is currently scheduled for trial on October 12, 2021.
(iv) January 26 and March 23, 2021 – Bench Warrants for Non-Attendance at Court
[24] It appears from the materials before me that two bench warrants were issued as a result of non-attendance at court dates in the Ontario Court of Justice. I am not able to determine exactly when these issued but my best information is that they issued on January 26, 2021 in respect of the March 1, 2020 assault and on March 23, 2021 in respect of the other outstanding charges.
[25] One of these bench warrants may have been rescinded on February 3, 2021. It appears that the other was (or both were) executed when the Applicant was arrested on May 16, 2021. No failure to appear charges were laid in respect of these non-attendances at court.
[26] At the May 17, 2021 bail hearing described below, defence counsel sought to explain E.V.’s non-attendances at court. He explained that E.V. is homeless and does not have a cell phone. In the past, E.V. would always attend at court appearances in person, and counsel would communicate with him about upcoming court appearances there. With COVID-19 court closures, and absent a phone number or fixed address for E.V., counsel had no way to communicate with him. Counsel lost contact with his client, and could not inform him of upcoming court dates. Equally, during lockdown without access to a phone or computer, E.V. had no way of communicating with his counsel. In a purely digital justice system as ours was for extended periods during the pandemic, E.V. had no means of attending court.
(v) April 24, 2021 – Mischief Under
[27] On April 24, 2021 E.V. was alleged to have damaged a door at 2980 St Clair Avenue. He was charged with mischief under. On May 16, 2021, officers saw E.V. and recognized him as the person listed in a police bulletin for this outstanding mischief charge. Officers found the outstanding bench warrant/s and arrested E.V.
[28] On May 17, 2021, he had a bail hearing in the Ontario Court of Justice before Justice of the Peace Wong. The Crown opposed his release on the primary and secondary grounds. A section 524 application was allowed, the March 3, 2020 release was cancelled, and E.V. was detained on all counts on the secondary ground.
[29] The April 24, 2021 mischief under charge was screened for direct accountability by the Crown. On August 20, 2021, that charge was stayed.
B. The Applicant
[30] E.V. did not testify or file an affidavit at this s. 525 hearing. As a result, all of the information I have about him emerges from the background materials filed, including the transcript of the May 17, 2021 bail hearing, and from the submissions of his counsel.[^1]
[31] The record before me reveals that E.V. is a 44-year-old Canadian citizen. His counsel advises that he completed high school and went to college to study to be an electrician, but did not complete his electrician training or certification. Counsel advises that E.V. aspires to complete his training and certification to be able to work in electrical contracting.
[32] Counsel also advised that, if released, E.V. will live with his brother, but that the brother is not able to act as his surety.
[33] Counsel further advised that E.V. reported having been diagnosed with schizophrenia. He told his lawyer that he took medication for this condition in the past, but that he had stopped taking medication for schizophrenia approximately one year ago. E.V. told his lawyer that he did not have any substance abuse issues. Counsel acknowledged that he had no independent confirmation of E.V.’s psychiatric diagnosis, substance or treatment history. No independent evidence was called on point.
[34] I note, as highlighted by the Crown, that defence counsel at the Applicant’s May 17, 2021 bail hearing (not Mr. Hynes) advised the Court that E.V. denied having any mental health or substance abuse issues.
[35] E.V. has a substantial criminal record, including 23 convictions from 1998 to 2016. By my count, these include: six convictions for assault, one conviction for assault with a weapon, three convictions for failing to appear, and three convictions for failing to comply with probation. His longest sentence was a suspended sentence following 97 days of pre-sentence custody, plus 18 months’ probation imposed in August 2014 for two counts of assault and three counts of uttering threats. No other sentence imposed on the Applicant before or after these 2014 convictions exceeded 60 days’ incarceration.
C. The Proposed Release Plan
[36] The Applicant proposes that he be released on his own recognizance in the amount of $500, with a number of conditions. These include that he not have contact with any of the assault complainants or attend at any place where he knows them to live, work, go to school, or be, except for court appearances; that he not attend at any of the addresses where the alleged offences occurred; and that he not possess any weapons as defined by the Criminal Code.
[37] I understand that Bail Program is not prepared to supervise a release for E.V., given his alleged failure to report to them as required by his November 7, 2019 conditions of release.
[38] As noted above, I was advised that if E.V. is released, he will live with his brother. I was also told that the brother is not able to act as surety. No evidence was filed in relation to the brother, his willingness to have the Applicant reside with him, the proposed address, or why he is not being proposed as a surety. I was advised that there is no other surety available.
II. ANALYSIS
A. The Nature of the Review
[39] This is a detention review under s. 525 of the Criminal Code. Its purpose, as set out by the Supreme Court of Canada in R. v. Myers, 2018 SCC 18 at paras. 45-47, is to review the detention itself to determine whether its continuation is justified:
The overarching question at the s. 525 hearing is clear from the words of the provision. Section 525(1) explicitly states that the judge’s role is “to determine whether or not the accused should be released from custody”. Section 525(3) provides that the judge may, “in deciding whether or not the accused should be released from custody” take any unreasonable delay into consideration. Section 525(4) instructs the judge to order the accused person’s release if the judge “is not satisfied that the continued detention of the accused in custody is justified within the meaning of subsection 515(1)”.
The question that the judge must answer at a s. 525 hearing is therefore as follows: is the continued detention of the accused in custody justified within the meaning of s. 515(10)? Section 515(10) sets out three possible grounds on which the detention of an accused in custody may be justified: where it is necessary in order to ensure the attendance of the accused in court; where it is necessary for the protection or safety of the public; and where it is necessary in order to maintain public confidence in the administration of justice.
B. The Primary Ground
[40] The primary ground for detention is set out in s. 515(10)(a) of the Code. It establishes that an accused’s detention is justified where it “is necessary to ensure his or her attendance in court in order to be dealt with according to law.”
[41] There is reason for primary ground concern in this case. E.V.’s criminal record reveals three convictions for failing to appear in court. He faces a charge of failing to comply with recognizance for allegedly failing to report to Bail Program, which is also a form of failing to attend (that is, failing to attend to report as required). Bench warrants issued for E.V. in early 2021 for failing to attend at court appearances.
[42] This history that gives rise to primary ground concerns was before JP Wong at the May 17, 2021 bail hearing. The Crown at that hearing sought E.V.’s detention on both the primary and secondary grounds. The JP only detained E.V. on the secondary ground. The JP did not explicitly address why he declined to detain E.V. on the primary ground, but I find it is reasonable to infer that JP Wong accepted defence counsel’s explanation for E.V.’s failures to attend court in early 2021. E.V. did not have a phone or fixed address. Courthouses were closed as a result of COVID-19. E.V. was not able to attend at court, meet with counsel there, or be remanded to his next court date. Counsel was not able to phone or write to him to advise him of when he was required to attend at court, or even to maintain regular contact with him.
[43] The pandemic’s forced and rapid transition to a remote virtual justice system caused challenges and dislocation for all justice system participants. It can reasonably be assumed that these challenges and dislocation would be especially acute for those people who do not have access to the resources and technologies that make virtual participation in justice possible. E.V. is unfortunately among those so affected.
[44] Section 493.2 of the Code is relevant here. It directs judges making bail determinations to give particular attention to the circumstances of aboriginal accused and “accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release. . . .” There can be no doubt that marginalized and socio-economically disadvantaged people are a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release. This was recognized by the Supreme Court of Canada, when it considered appropriate credit for pre-sentence custody, in R. v. Summers, 2014 SCC 26, at paras. 65-67:
Judicial interim release requires the judge to be confident that, amongst other things, the accused will neither flee nor reoffend while on bail. When an accused is able to deposit money, or be released to family and friends acting as sureties (who often pledge money themselves), this can help provide the court with such assurance. Unfortunately, those without either a support network of family and friends or financial means cannot provide these assurances. Consequently, as the intervener the John Howard Society submitted, this means that vulnerable and impoverished offenders are less able to access bail.
[45] However one defines the precise contours of this vulnerable population, E.V. unquestionably falls within it. As a result, I read s. 493.2 as requiring me to focus on the circumstances of E.V. as a low-income person[^2] who has no fixed address, no cell phone, and few if any supports in the community. This is especially important against the backdrop of the pandemic, which made the absence of these resources even more disadvantageous. I am required to consider how these circumstances impacted on E.V.’s ability to attend at court, and by extension on his primary ground risk.
[46] Giving particular attention to E.V.’s circumstances as a member of a vulnerable population, as required by s 493.2, I find (and I infer that this was the finding of JP Wong at the May 17th bail hearing) that E.V.’s failures to attend court in early 2021 may well have been meaningfully contributed to by pandemic court closures and his lack of access to resources to work around them. For these reasons, the early 2021 failures to attend court do not give rise to new or additional primary ground concerns beyond those that were already present in his history.
[47] And some primary ground concerns do present from E.V.’s history prior to the pandemic. He does have the noted three pre-pandemic convictions for failure to appear, and he is facing a pre-pandemic charge in relation to alleged failure to report to Bail Program. I note, however, that these convictions and charge of fail to report were already in place on March 3, 2020 when the Applicant was released on bail with the consent of the Crown. He was in the community on that bail for approximately a year before the bench warrants issued for failure to appear. Respecting JP Wong’s implied acceptance of pandemic-caused explanations for the Applicant’s non-attendance at Court in early 2021,[^3] I conclude that E.V.’s primary ground risk is no greater now than it was when he was released on consent on March 3, 2020.
[48] For these reasons, I find that E.V.’s continued detention is not justified on the basis of the primary ground. Conditions of release can be crafted that will mitigate the risk that counsel will again lose contact with him, thereby becoming unable to communicate upcoming court dates to him. The release order will require E.V. to notify the officer-in-charge or designate and E.V.’s counsel of his address within 24 hours of his release and within 24 hours of any change in his address. It will require him to notify his counsel of any telephone number at his place of residence, if there is one; at his place of work, should he secure employment and a telephone is available there; and/or of his cell phone, should he acquire or have regular access to one. The release order will also require E.V. to provide his counsel with the names and contact information for people, organizations or institutions, support workers, or others who may assist in facilitating contact between him and counsel.
[49] Although I will not include this as a condition of release,[^4] I encourage E.V. and his counsel to establish a certain next date, time, and location for a meeting or means of communicating each time they meet or are in contact. This best practice could be of assistance in ensuring continuity of contact between counsel and the Applicant, and avoid situations in which E.V. has no means of staying apprised of developments in his case.
C. The Secondary Ground and the Lack of Available Surety
[50] The secondary ground for detention is set out in s. 515(10)(b) of the Code. It establishes that detention is justified where it “is necessary for the protection or safety of the public . . . having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.” In this provision, “substantial likelihood” has been interpreted to mean “a probability of certain conduct, not mere possibility. And the probability must be substantial, in other words, significantly likely”: R. v. Manasseri, 2017 ONCA 226 at para. 87.
[51] There is reason for meaningful secondary ground concern in this case. The Applicant has a long criminal record, spanning some 18 years. It includes numerous convictions for assault, threatening, and breaching court orders. He presently faces five charges on four separate informations: three assault charges involving two shelter workers and a community service office worker, a fail to comply charge, and a mischief under charge. The most recent two sets of alleged offences (the February 14, 2020 fail to comply and the March 1, 2020 assault) occurred when E.V. was already on bail. He then racked up a further mischief under charge on April 24, 2021, albeit one that the Crown has since stayed, while on a global bail on all of the previous charges.
[52] E.V.’s proposed plan of release also gives rise to secondary ground concerns. He asks to be released on his own recognizance, because there is no surety available to assist in supervising him or helping to keep him out of trouble. JP Wong detained him on the secondary ground at the May 17, 2021 bail hearing, in part because E.V. was proposing release on his own recognizance:
The secondary ground concerns that I have that this gentleman on his own based on the strength of these allegations . . .there will be trouble . . . because of the inability based on these allegations of his inability to control his own behaviour, his moods, his anger. . . [emphasis added] (Transcript of Bail Hearing, May 17, 2021 at pp. 27-28).
[53] It is noteworthy, however, that E.V. had been on bail with no surety since March 3, 2020. He abided by the conditions of release in that bail for over a year when he allegedly committed the further mischief under by damaging a door on April 24, 2021. That mischief charge was stayed by the Crown in August of 2021. This was obviously not an extremely serious or violent criminal offence. Of course, members of the public are entitled to be safe from damage to their property. But mischief to property that is so relatively minor that the Crown elects not to proceed with prosecuting it, on its own, is likely not the kind of public protection and safety issue that should mean the difference between detention and release on the secondary ground.
[54] In E.V.’s case, this April 24, 2021 mischief under does not stand on its own. It stands against the backdrop of his criminal record, his outstanding charges, and the bail he was already released on at that time. Is this one new relatively minor charge enough to justify his detention on the secondary ground? Is it enough to justify refusing to release E.V. on his own recognizance, on bail terms substantially the same as the March 3, 2020 release he had been on, as proposed?
[55] In this s. 525 detention review, my role is not to review JP Wong’s decision to detain E.V. on the secondary ground. Rather, I must determine whether continued detention is justified in all of the circumstances. Nonetheless, in fairness to JP Wong, it should be noted that the Crown did not stay the prosecution of the mischief under charge until several months after the May 17th bail hearing. The relative lack of seriousness of that new alleged offence may well not have been apparent on the materials that were before JP Wong at that time. But in order for me to determine whether E.V.’s continued detention is justified under the secondary ground, I must consider all of the relevant information that is available to me now.
[56] Armed with the knowledge that the Crown chose not to prosecute the mischief under charge, I must consider whether E.V.’s continued detention is justified on the secondary ground. This leads me to consider whether, on the whole record, the risk of E.V. committing future criminal offences and posing a threat to the safety of the public can be managed in the community on a bail without a surety.
[57] In R. v. Tunney, 2018 ONSC 961, Di Luca J. was critical of over-reliance on sureties:
29 Underlying Canada’s broken bail system is a culture of risk aversion within the criminal justice system: see Cheryl Marie Webster, Anthony N. Doob, and Nicole M. Myers, “The Parable of Ms. Baker: Understanding Pre-Trial Detention in Canada” (2009), 21 Current Issues in Criminal Justice 79, as cited in Gary T. Trotter, The Law of Bail in Canada, 3rd ed. (Toronto, Ontario: Thomson Reuters Canada, 2017) at pp. 1-44.1, 6-24.2.
30 In Ontario, one component of this culture of risk aversion is an overreliance on sureties. The overreliance on sureties has been recognized at the highest levels of court. In Canada (Minister of Justice) v. Mirza, 2009 ONCA 732, a five-member panel of the Court of Appeal noted:
There may now be an over reliance on sureties. Thus, see the comments of Professor Friedland in “Criminal Justice in Canada Revisited” (2004), 48 C.L.Q. 419 at 433-34:
The present system is, however, not working well in Ontario. The pendulum has swung too far in the direction of requiring sureties rather than using release on one’s own recognizance. In England, sureties are required in only a small fraction of the cases. About two thirds of those who appear for a bail hearing in Toronto today are required to find sureties and only about half of this number are actually released. The other half, it appears, could not find acceptable sureties. Less than 10% held for a bail hearing are released on their own undertaking or recognizance.
What appears to be happening is that the requirement to find sureties has taken the place of cash bail as a method of holding accused persons in custody. The majority of persons who are caught up in the criminal justice system, many of whom are not from the community where they are arrested, have difficulty finding sureties.
[58] In a holding affirmed by the Supreme Court of Canada in R. v. Zora, 2020 SCC 14 at para. 77, Justice Di Luca went on to find that “the culture of risk aversion must be tempered by the constitutional principles that animate the right to reasonable bail”: Tunney at para. 29.
[59] Surety supervision may offer the bail court some additional confidence that conditions of release will be respected. Sureties provide an extra pair of hands and an extra set of eyes up close on the defendant, from someone who has a financial stake in the defendant’s successful compliance. But surety supervision is not perfect: Ismail, at paras. 13-16. Sureties, at the end of the day, are human. The success of surety supervision necessarily depends on the human sureties who undertake it and the human defendants who are subject to it, with all of their human strengths, weaknesses, and frailties; and on all of the vagaries of the interpersonal relationships between sureties and the people they are supervising on bail: Ismail at paras. 13-16. This is not to say that there is never any value to surety bail. As Harris J. held in Ismail, at para. 16, “Surety supervision is almost certainly better than no supervision at all but it should not be seen as a cure-all. . . . the function of a surety . . . should be kept in its proper perspective.”
[60] Considering:
(i) that overreliance on sureties is now a recognized systemic problem that may impinge on the constitutional right to reasonable bail;
(ii) the benefits and limitations of surety supervision;
(iii) E.V.’s criminal record;
(iv) E.V.’s outstanding charges, including charges incurred while on bail;
(v) that E.V. was released on consent, on his own recognizance on March 3, 2020 and did not incur any new charges for over a year, at which time he allegedly committed a mischief under that the Crown has chosen not to prosecute; and
(vi) that what precipitated E.V.’s detention on the secondary ground was this mischief under charge combined with the unavailability of surety supervision;
I must ask myself whether E.V.’s continued detention is justified on the secondary ground in the absence of an available surety.
[61] In E.V.’s case, Crown counsel at the s. 525 hearing acknowledged that he would have consented to bail if there had been a suitable surety available. In my view, it cannot be correct that a defendant whose secondary ground risk could be managed on a surety bail will not be releasable simply because he is not lucky enough to have friends or family around him who are able to assume the role of surety. As Justice Harris wrote in Ismail at para. 26: “It would be unfair if Mr. Ismail were required to spend a lengthy time in pre-trial custody for the charged offences simply because he is “down and out” and does not have the wherewithal or the network to support him. There must be a measure of equality and fairness in our bail system.”
[62] Here again, s. 493.2 of the Code applies. E.V.’s status as a person of socio-economic disadvantage and marginalization signals that he belongs to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release on bail. I am therefore required to give particular attention to these circumstances as I consider whether the continued detention is justified.
[63] Releasing E.V. without a surety in all of the circumstances “is not an easy or comfortable decision”; Ismail, at para. 21. But I am satisfied that secondary ground concerns can be diminished by crafting appropriate conditions of release, even in the absence of surety supervision. See below for those conditions of release.
[64] Ultimately, some primary and secondary ground concerns linger here. Balanced against these, however, is the time E.V. has already spent in pre-trial custody, and the time he will spend in custody to the end of his final trial if not released.
D. The Passage of Time
[65] In Myers, at paras. 50-53, the Supreme Court gave the following guidance as to how the passage of time should be considered on s. 525 detention reviews:
In determining whether the detention remains justified under s. 515(10), the judge should also consider whether the time that has already elapsed has had – or the anticipated passage of time will have – an impact on the appropriateness or proportionality of the detention. In particular it is necessary to be sensitive to whether the continued detention of the accused person could erode public confidence in the administration of justice; see, e.g. McCormack, 2014 ONSC 7123, at para. 29.
This is ultimately a question of proportionality. In some cases, the passage of time will have no impact on the necessity of continued detention. In other cases, it may be a very strong indicator that the accused should be released, with or without conditions. Reviewing judges must be particularly alert to the possibility that the amount of time spent by an accused in detention has approximated or even exceeded the sentence he or she would realistically serve if convicted: see e.g., Sawrenko, 2008 YKSC 27, at para. 43. The assessment must be informed by the need to reduce the risk of induced guilty pleas, which are profoundly detrimental to the integrity of the criminal justice system. As was noted in R. v. White, 2010 ONSC 3164, “public confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if [they were] convicted”: para. 10.
Determining, for the purposes of this analysis, the sentence the accused would potentially receive is not an exact science, nor does it require an exhaustive inquiry. However, the judge’s analysis should account for the circumstances of the case that were known at the time of the hearing and reflect the relevant sentencing principles: St. Cloud, 2015 SCC 27, at para. 65.
In other circumstances, accounting for the elapsed time or anticipated passage of time may require a more nuanced analysis of its impact on the three grounds which justify detention under s. 515(10). . . . In an appropriate case, it may also be possible for the judge to conclude that a hypothetical risk in relation to the primary or secondary ground is simply outweighed by the certain cost of the accused person’s loss of liberty or of a loss of public confidence in the administration of justice [emphasis added].
[66] A literal reading of the secondary ground in s 515(10)(b) does not reveal a statutory basis for consideration of the delay in bringing charges to trial: R. v. Nahal, 2019 ONSC 6634 at para. 24. As Justice Schreck explained in R. v. G.P., 2020 ONSC 3240 at para. 22, “An accused who is likely to commit further criminal offences if released is not necessarily less likely to do so simply because he has spent time in custody. However, . . . the Supreme Court of Canada made it clear in Myers that this is a relevant consideration.” The reason for this, as noted in Myers, is the principle of proportionality. This foundational principle of sentencing requires that sentences be proportional to the gravity of the offence and the culpability of the offender, but no longer: G.P. at paras. 3, 22-27. The defendant who is detained for an amount of time that is roughly equal to, or longer than, the sentence they would receive if convicted is effectively punished disproportionately: “an individual should not serve a longer sentence because he was unable to obtain bail, even where there are secondary ground concerns. . . [an] accused from . . . [a] wealthy family who obtained bail may pose a risk to re-offence once he completes his sentence. However, this would not justify a sentence beyond what is proportionate. The same limit should apply to the accused who is unable to obtain bail”: G.P. at para. 27; R. v. Bond, 2015 ONCA 4710 at paras. 24-25.
[67] In this case, the Applicant has already spent just shy of five months in custody on these charges, from his arrest on May 16, 2021 to today’s date, including several days detained between earlier arrests and bail hearings. If he remains in custody until his final trial scheduled trial is reached on April 11 and 12, 2022, he will have spent well over 11 months in custody in total. That total does not include any further delay that may accrue if his fail to comply with recognizance trial is ultimately scheduled to proceed after April 12, 2022.
[68] Applying the usual credit of 1.5:1, the time spent in custody to date is approximately seven months. The time the Applicant will have spent in custody by the end of his final scheduled trial is approximately 17 and a half months: Summers, at paras. 70-71. It is possible that he would receive additional credit because he was incarcerated during the COVID-19 pandemic: G.P. at para. 34. Counsel for E.V. takes the position that the appropriate global sentence for all of these offences would be 30 – 90 days in custody, given E.V.’s personal circumstances and the gravity of the offences. He submits that this range of sentence accounts for E.V.’s criminal record and the particular vulnerabilities of the shelter workers he allegedly assaulted and of the other people staying in those shelters. Crown counsel acknowledged, without prejudice to the Crown’s ability to seek a harsher sentence, that the time already spent in custody would be an appropriate sentence for E.V. if he were to plead guilty to all charges. He further reasonably acknowledged, again without binding the Crown to this position on sentencing, that the time that would be served by the time of the final trial would be in the appropriate range if Mr. were convicted of all offences.
[69] I cannot engage in an “exhaustive inquiry” into what would be a proportionate global sentence for E.V. if he is convicted at all of his trials (which, according to Myers, I am not required to do at this hearing). But in determining whether the time served or that will be served has approximated a proportionate sentence, I consider the following:
(i) That E.V. has never served a sentence longer than 97 days of pre-sentence custody (which, if credited at the usual 1.5:1 is equivalent to a sentence of approximately 146 days, or just under six months, in custody);
(ii) That E.V. had a period of over three years between his last conviction and the first of the current charges;
(iii) That the alleged victims of assault were two shelter workers and a community service officer worker, who by dint of being front line workers, are particularly vulnerable;
(iv) That there is a special public interest in ensuring that shelter and community service workers are safe in their places of employment;
(v) That none of the alleged victims of assault were seriously injured. None of them required medical attention;
(vi) That the video, Exhibit #1(a), depicts the person alleged to be E.V. pushing, pulling, and at least attempting to punch a shelter worker in a room full of many other people sleeping in the shelter. His aggressive and assaultive behaviour could have resulted in injury to some of these other defenceless, sleeping, shelter residents;
(vii) That, in the event, none of the other shelter residents were injured;
(viii) That none of the alleged offences appear to have been planned or organized. No weapons were involved. All of the assaults and mischief offences seem to have been impulsive, caused when E.V. became agitated or frustrated in the moment;
(ix) That E.V. was on bail when all but the first of these alleged offences occurred; and
(x) That the Crown acknowledges that the time that E.V. will have served by the time of the final sentence could be seen to be a fit global sentence for all of these offences if he is convicted after a contested trial.
[70] In all of the circumstances of these offences and this Applicant that are known to me at this juncture, I consider the 17 and a half months or more that E.V. will have served by the start of his final trial approximates or exceeds a proportionate sentence in this case. There is thus a real risk that E.V. will serve more time than necessary if he is not released.
[71] I conclude that the amount of time E.V. will serve in custody counterbalances any remaining primary and secondary ground concerns. In such a situation, Myers at para. 53 directed that the “hypothetical risk in relation to the secondary ground” must be weighed against “the certain cost of the accused person’s loss of liberty.” As Justice Pomerance explained in R. v. Elliott, 2020 ONSC 2876 at paras. 26-27:
The court [in Myers] referred . . . to a “hypothetical risk” in relation to the primary or secondary ground. The secondary ground only warrants detention when there is a “substantial likelihood” that “the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice”. If something is substantially likely, it is arguably more than hypothetical. On the other hand, the risks addressed by the primary and secondary ground are hypothetical in the sense that they are predictive rather than descriptive. The risk of misconduct may or may not be realized.
By way of contrast, there is nothing hypothetical about detention. If someone is in custody, the impact on their liberty is very real and can be tangibly measured against the sentence that would likely attach to the charges. Detention orders are not made in the abstract. They are linked to a material event: the trial. If an accused person pleads guilty in exchange for a sentence of time served, he or she is obviously released from custody. What of a case where the accused has pleaded not guilty, but has already served the equivalent of a post-trial sentence? That factor weighs in favour of release pending the trial. An accused person should not have to plead guilty to receive the benefit of time already served. To hold otherwise is to risk coercing false guilty pleas from those who are factually innocent.
[72] Balancing the hypothetical primary and secondary ground concerns with the certainty of loss of liberty in excess of a proportionate sentence, I conclude that E.V.’s continued detention is not justified.
III. DISPOSITION
[73] For the foregoing reasons, I find that E.V.’s continued detention is not justified. I am satisfied that it would be appropriate to release him at this time on his own recognizance in the amount of $500, on the following conditions, to be discussed with counsel in court, and modified as I determine to be appropriate based on their input:
(i) Report to the Toronto Reporting Centre located at 2440 Lawrence Avenue East, Toronto, every first Wednesday of the month between the hours of 9:00 am and 9:00 pm and sign in as required commencing Wednesday, October 6, 2021;
(ii) Notify the Officer in Charge (or designate) Armstrong #10723 – 41 Division at (416) 808-4100 and your own lawyer of your address within 24 hours of your release and within 24 hours of any change in your address;
(iii) Notify your own lawyer of any telephone number at your place of residence, if there is one; at your place of work, should you secure employment and a telephone is available there; and/or of a cellphone number, should you acquire or have regular access to one;
(iv) Provide your own lawyer with the names and contact information for people, organizations or institutions, support workers, or others who may assist in facilitating contact between you and your lawyer;
(v) Do not contact or communicate directly or indirectly, by any physical, electronic, or other means with D.T., B.T., or R.L.;
(vi) Do not attend within 100 metres of any place you know D.T., B.T., or R.L. to live, work, go to school, frequent, or be, except as required for court proceedings;
(vii) Do not attend at 1082 Dundas Street West, Toronto; 3576 St Clair Avenue East, Toronto; 2980 St Clair Avenue East, Toronto; or 1880 Eglinton Avenue East, Toronto; and
(viii) Do not possess any weapons defined by the Criminal Code (including, but not restricted to: a pellet gun, firearm, imitation firearm, cross-bow, prohibited 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.
J. R. PRESSER J.
Released: October 5, 2021
COURT FILE NO.: CR-21-6000025-00BR DATE: 20211005
ONTARIO SUPERIOR COURT OF JUSTICE
PUBLICATION BAN INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 517 OF THE CRIMINAL CODE OF CANADA, BY MADAM JUSTICE PRESSER OF THE SUPERIOR COURT OF JUSTICE, DATED OCTOBER 5, 2021
HER MAJESTY THE QUEEN Respondent
– and –
E.V. Applicant
REASONS FOR DECISION
J. R. PRESSER J.
Released: October 5, 2021
[^1]: Section 525 of the Criminal Code does not set out what materials a judge may consider on a 90-day detention review. However, in R. v. Myers, 2019 SCC 18 at paras. 48 and 49, the Supreme Court of Canada addressed this issue, holding that a s. 525 judge may consider a wide range of “credible or trustworthy” materials, as follows:
. . . s. 525(8) serves to incorporate ss. 517 to 519, with any necessary modifications. Under s. 518(1), the prosecutor may show the circumstances of the alleged offence and the judge has a wide discretion to make inquiries, as well as to receive and consider any evidence “considered credible or trustworthy” in the circumstances of the case. The judge at the s. 525 hearing is therefore free to make inquiries about the case, as well as to rely upon the transcript, exhibits and reasons from any initial judicial interim release hearing and from any subsequent review.
Furthermore, both parties are entitled to make submissions on the basis of any additional “credible or trustworthy” information which is relevant or material to the judge’s analysis. . . .
[^2]: People with mental health issues may also be considered members of a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release. I was advised that E.V. told his lawyer that he has a diagnosis of schizophrenia. However, this report was at odds with his previous counsel’s indication on the record at the May 17, 2021 bail hearing that E.V. denied any mental health issues at that time. There was no further evidence or independent confirmation of the Applicant’s psychiatric diagnoses, or lack thereof, before me. As a result, I consider E.V.’s mental health to be a neutral factor at this hearing. I can come to no conclusions about it, make no inferences from it, nor can I use it as a basis for special consideration under s. 493.2 of the Code. I hasten to add that I draw no conclusions from the apparent inconsistency between counsel’s submissions about E.V.’s denial and endorsement of having mental health issues at the May 17, 2021 bail hearing and this detention review hearing. I simply do not have any evidence before me that would enable me to draw any conclusions from this apparent inconsistency in a way that would be relevant to this s. 525 review. In addition, I recognize that a person with a psychiatric diagnosis may deny having “mental health issues” for a variety of reasons, many or most of which are not relevant to the question of whether their continued detention is justified. These can include: a desire to avoid the stigma that still attaches in our society to those who do have mental health challenges; the person perceives that, even with a psychiatric diagnosis, they are not presently having “issues” relating to their mental health; and a desire to keep personal health information private; among others.
[^3]: Myers, para. 47, establishes that courts conducting s. 525 reviews must show respect for any findings of fact made at prior bail hearings if there is no cause to interfere with them.
[^4]: In R. v. Zora, 2020 SCC 14, the Supreme Court of Canada directed bail judges to impose conditions of release with restraint. Judges are to avoid imposing excessive and onerous conditions with which the defendant will have difficulty complying. Similarly, s. 493.1 of the Code requires judges considering bail to give “primary consideration to the release of the accused at the earliest reasonable opportunity and on the least onerous conditions that are appropriate in the circumstances, including conditions that are reasonably practicable for the accused to comply with . . .” [emphasis added]. I have decided not to require E.V. and his counsel to establish regular meetings and not to require E.V. to effectively report at regular intervals to his counsel. It is my view that primary ground risks can be mitigated by requiring E.V. to provide his current address and any telephone number he may have to his counsel. Any requirement of regular meetings or reporting to counsel may prove excessive and not reasonably practicable for him to comply with. In addition, I do not consider it appropriate for the Court to interpose itself into the lawyer-client relationship.