COURT FILE NO.: CR-21-54-BR
DATE: 2021/10/08
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Crown
– and –
CRAIG MCEWEN Defendant
Holly Chiavetti for the Crown
J. Michael Woogh for the Defendant
HEARD: October 6, 2021
ruling on application for bail review
S. GOMERY j.
[1] Craig McEwen seeks release from custody pending trial pursuant to s. 520(1) of the Criminal Code. He is facing fourteen charges relating to a series of incidents in Kingston between May 2020 and March 2021. Mr. McEwen is scheduled to be tried on most of these charges beginning on November 15, 2021.
[2] Mr. McEwen is thirty-six years old. He has a criminal record. Prior to May 2020, he was convicted for criminal harassment, mischief under $5000 and repeatedly failing to comply with terms of release.
[3] Mr. McEwen was first detained in respect of the current charges on August 11, 2020, after he failed to report to his probation officer for several months. He was charged and released on an undertaking.
[4] He was pulled over on September 1^st^, 2020 for not having a front licence plate on his vehicle, at which time he provided the police with a false name. The police confirmed that the name he had provided was an alias and that he had two driving suspensions. Mr. McEwen came to the police station the next day and apologized for lying to the police. This incident led to a charge under the Highway Traffic Act for driving while suspended and a charge under the Criminal Code for obstruction of justice.
[5] On December 6, 2020, Mr. McEwen was cautioned by police when a former romantic partner, A.H. told police that he had called and texted her over forty times since the breakdown of their relationship two weeks earlier and had also shown up to her house uninvited. Despite the caution, Mr. McEwen allegedly continued to email A.H.
[6] Mr. McEwen was detained again by police on December 22, 2020, charged and released on his undertaking not to contact A.H again. She reported to police that he texted her on January 22, 2021, in breach of his undertaking, and he was detained yet again. He was charged but granted bail on January 23, 2021 with his mother, Kimberley McEwen, acting as his surety.
[7] Mr. McEwen was rearrested on February 19, 2021 on charges that he domestically assaulted another romantic partner, L.R, and smashed her phone and computer during a fight. After he was charged and ordered not to contact L.R further, he allegedly continued to phone her from jail.
[8] On March 16, 2021, Justice Chiang denied Mr. McEwen bail under the secondary grounds in s. 515(10)(b), that is, Mr. McEwen had not shown that the proposed release conditions would likely prevent him from reoffending while on bail, and his detention was therefore necessary for the protection or safety of the public, including his former female partners. Justice Chiang found that Mr. McEwen showed little or no respect for court orders or his own undertakings. He found that:
[H]is pattern of behaviour is disturbing. For example, he had been warned by police on December 6, 2020, to stop the harassing messages to [A.H]. He ignored the warnings and, within ten days, sent her various unwanted emails and packages. And then I make an order of no communication with [L.R] and [M.R.] He ignored my order on February 19, after his arrest. And then the latest breaches. Calling her daily. One time he spoke to her four times within an hour. So to Mr. McEwen, it seems that he thinks, or he thought, the courts have no teeth. He can do what he wants when he wants and then just can ignore any warning from the police or court order. Not once but three times.
[9] Justice Chiang also held that the proposed surety, Mr. McEwen’s mother Kimberley McEwen, would not exert meaningful control on her son. He concluded as follows:
The test on the secondary ground is not whether the surety will call the police in case of a breach. The test is on the balance of probabilities, would there be a substantial likelihood that the accused will commit further offences. So given the fact that he ignored the police warning, ignored two court orders of no communication with the alleged complainants, I think I have no faith or trust. I think there is a substantial likelihood that whatever condition I put in, he will just ignore my point. I already gave him an order on February 19, and he ignored me, so I don't think with or without a surety he would do any better than that. So for these reasons, he is detained on the secondary ground.
The basis for this bail review application
[10] Mr. McEwen acknowledges that he has the onus of showing that his continued detention is not justified. He does not say that Justice Chiang made any legal errors or that his decision was clearly inappropriate. He contends, however, that there has been a material change of circumstances, based on the passage of time since the last bail review, his proposal of a different release plan, and his completion of various programs since the last bail review. Mr. McEwen therefore asks me to find that he will not be at serious risk of reoffending if he is released.
[11] Following the principles in R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, I cannot simply substitute my decision for Justice Chiang’s decision, even if I would have made a different order on the same evidence. I must also, however, take into account the framework for review under s. 525 of the Criminal Code set out in R. v. Myers, [2019] SCC 18, given that more than 90 days has passed since the first bail review.
[12] I will review each of the grounds that Mr. McEwen has raised to support his argument about a material change of circumstances, to reach a decision as to whether he has established that his continued detention is no longer justified.
The passage of time
[13] Mr. McEwen has spent six and a half months in detention since his last bail hearing. In R. v. Myers, the Supreme Court of Canada held that, on an application like this, the judge should consider whether time spent in pre-trial custody will approximate or exceed the sentence that would be imposed following a trial. The passage of time may, by itself, constitute a material change in circumstances “because proportionality is an overarching consideration that bears on all facets of the bail equation”; R. v. Elliott, 2020 ONSC 2976, at para. 22. This consideration is particularly relevant where a defendant has been detained on tertiary grounds under ss. 515(10(c), because potentially disproportionate pre-trial detention may risk undermining public confidence in the justice system. I agree with Pomerance J., however, that the passage of time may also give rise to a material change of circumstances where pre-trial detention was ordered pursuant to secondary grounds at ss. 515(10)(b); R. v. Elliott, at para. 24.
[14] The Crown calculates that Mr. McEwen faces jail time of 21 months if convicted on the current charges. The defence says that Mr. McEwen’s sentence could be substantially shorter, given the totality principle and the 1.5:1 or even 2:1 credit he will get for time served prior to trial. Taking this into account, the defence argues that Mr. McEwen “could be approaching time served”, that is, he will not have to spend any further time in jail if he is convicted.
[15] Without expressing a view on the accuracy of the Crown’s estimate, I observe that Mr. McEwen is facing a substantial number of charges and that the Crown’s case in respect of most of them appears quite solid. In my view, however, the more relevant consideration is that he will be tried on most of the charges within a few weeks. Because of this, the risk of disproportionate detention does not outweigh the substantial risks presented on the secondary ground.
[16] While not minimizing the prospect of another six weeks in jail for Mr. McEwen, or how it may make preparing for hearing more difficult, in these circumstances, I do not find that the passage of time by itself gives rise to a material change in circumstances.
The proposed terms of interim release
[17] At the March 2021 bail hearing, Mr. McEwen proposed that his mother would act as surety, and that he would live with her under certain conditions, such as a nightly curfew. His new plan proposes more stringent “house arrest” conditions and a second surety, his stepfather Christopher Eden. He also proposes that each surety post bail of $5000.
[18] Justice Chiang did not have any confidence that Mr. McEwen’s mother could meaningfully monitor or control his behaviour. He was skeptical of her evidence that she did not previously understand her role as surety when Mr. McEwen allegedly breached bail conditions earlier this year. Even if he had found her to be a suitable surety, however, Justice Chiang noted that Mr. McEwen allegedly violated a non-communication order while he was in jail. In his words, “[A] jail is the ultimate house arrest, and that could not control him, so I don’t believe that the surety could do any better than Central East”.
[19] Ms. McEwen and Mr. Eden testified at the bail review application. They each said that they would be prepared to enforce a 24/7 house arrest and that Mr. McEwen would not be permitted to leave the house without them except for medical or legal reasons. They also said that Mr. McEwen would not have access to their cellphones or personal computers, which are password protected, without their authorization.
[20] Although I accept that Ms. McEwen and Mr. Eden are well-intentioned, I am not persuaded that they will exert meaningful supervision and control over their son.
[21] In his testimony at the bail hearing, Mr. Eden did not explain exactly how he would assist in controlling Mr. McEwen’s behaviour if he is released. He has limited familiarity with computers. He works full-time. Although he says he would be at home most evenings, this leaves nine hours a day, four days a week, when Mr. McEwen would be under the sole supervision of his mother.
[22] I would add that, since Mr. Eden lived with Ms. McEwen and would have been available as a surety at the last bail hearing, it is hard to see how his willingness to act now gives rise to a material change in circumstances. He could not explain why he was not proposed as a surety at the first bail hearing.
[23] Ms. McEwen admitted that she does not even know if her son has a cellphone. Having reviewed the transcript of her testimony at the bail hearing, I share Justice Chiang’s concerns about her suitability as a surety. This is problematic since, as already mentioned, she will be the only person supervising him much of the time.
[24] Mr. McEwen also testified at the bail hearing. He acknowledged three prior convictions for breaching a release order, including a no-contact order, as well as a conviction for criminal harassment involving another former girlfriend. He undertook to abide by the terms of the proposed release order. Unfortunately, given his history of breaching release orders and undertakings, I cannot attach any weight on this promise.
[25] I appreciate that Mr. McEwen’s parents are willing to post bonds that represent a significant amount of money for them. Having considered all of the evidence, I do not find that the revised release plan has any material impact on the assessment of the risk, that Mr. McEwen would pose to the public if he were released. As aptly stated in R. v. Ferguson, 2002 CarswellOnt 1623, [2002] O.J. No. 1969, [2002] O.T.C. 348, at para. 17:
Simply re-shuffling the deck of prospective sureties to draw out new ones, or a great number, does not in itself amount to a material change in circumstances. Only, where it can be said that the commitment and nature of the newly proffered suretyship materially calls into question, the continued validity of the reasons for detention, can it reasonably be said, that the submitted material change in circumstances is relevant to the existing cause of detention.
[26] I agree with Justice Goodman’s statement in R. v. T.K., 2020 ONSC 1935, at para. 50, that this remains good law.
[27] I am not persuaded that the revised release plan gives rise to a material change of circumstances.
Courses and programs taken by Mr. McEwen
[28] Mr. McEwen has filed certificates showing his completion of various programs while in detention. Some of these certificates pre-date his bail hearing or relate to programs that Mr. McEwen completed the week after his bail hearing. The remaining certificates suggest that he has received vocational training.
[29] Defence counsel has not explained why evidence about programs that Mr. McEwen had already completed, or was on the verge of completing, was not adduced at the first bail hearing. Furthermore, in the context of the application hearing now before me, no information was provided regarding the length or nature of the programs, or Mr. McEwen’s participation in them. The defence has not explained how Mr. McEwen’s involvement in the programs would be relevant to the risk that he would reoffend on release.
[30] In these circumstances, I cannot find that the evidence of Mr. McEwen’s involvement in programs while in detention gives rise to a material change of circumstances.
Disposition
[31] Considering the grounds raised individually and collectively, Mr. McEwen has failed to establish a material change of circumstances such that his continued pre-trial detention is no longer justified. His application for bail review is therefore denied.
The Honourable Justice S. Gomery
Released: October 8, 2021
COURT FILE NO.: CR-21-54-BR
DATE: 2021/10/08
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
CRAIG MCEWEN Defendant
RULING ON APPLICATION FOR BAIL REVIEW
Gomery J.
Released: October 8, 2021