Court File and Parties
COURT FILE NO.: 21-9979-BR
DATE: 2021/10/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
I.M. Applicant
Counsel: Stephen Donoghue, for the Crown Leo Russomanno and Forrest Poff-Smith, for the Applicant
HEARD: October 8, 2021, oral decision given October 12, 2021
Publication is banned pursuant to s. 517(1) and 520(9) of the Criminal Code with respect to the evidence of the offences alleged against the Applicant. Counsel may circulate these reasons, use them in court, and they may be published in Westlaw and similar legal publishing services.
Endorsement on Bail Review Application
AnnE london-weinstein j.
[1] Mr. I.M. seeks review of the detention order of Berg J. issued August 6, 2021 on charges of Robbery and Failing to Comply with the conditions of his release order, namely not being at his residence at all times except for medical emergencies involving him, or an immediate member of his family.
[2] The Robbery allegation is that I.M. attended the Vape King at 14 McArthur Road where the owner M.Y. was working. I.M., is alleged to have attended wearing a blue nitrile glove on his right hand and with his head covered in a grey hoodie. He is alleged to have worn a COVID-19 facial mask.
[3] He is alleged to have left briefly after being recognized by M.Y. He returned a few minutes later wearing a black hooded shirt at this time and no gloves. This change of clothing was captured on CCTV.
[4] The complainant and M.Y. had played basketball together. The complainant had not seen his former teammate for four or five years.
[5] I.M. is alleged to have motioned to his pocket and said that he was armed, to co-operate and not to make him use it. He kept his left hand in his pant pocket telling M.Y. to cooperate and nothing would happen. He is alleged to have taken M.Y.’s iPhone 11, his laptop and his black, Moose Knuckle parka jacket which is estimated to be worth $1,500. He left the store in a black Mercedes AMG Coupe driven by a second male.
[6] The complainant had $86k Cordoba coins in a crypto currency account on his phone. The value of the crypto coin is alleged to be $154,000.
[7] The next day the complainant indicated he observed a vehicle circling his parent’s home and he received an invite on Snapchat from an individual with whom he refused to converse. He alleges he was threatened. He reported the alleged theft to his broker, who convinced him to call police. The broker taped I.M., allegedly admitting to him that he took the coins and robbed the complainant. The broker has stated that he also observed I.M. wearing the complainant’s $1500 Moose Knuckle jacket sometime after April 23rd at a gas station. He took a photo.
[8] At the time of the robbery offence, I.M. was breaching conditions of a release order dated December 18th, 2020 by Justice Masse. He was under house arrest for drug charges and spousal assault at the time.
[9] I.M. was released on house arrest conditions on August 12, 2020 before Justice Kehoe. He was to reside with his surety, and not leave his home unless for medical emergency. On May 17th, police attended the home address for the accused. His mother D.M. told police he was not present, and he had left the address two hours earlier for a medical emergency. Officers checked with each hospital in the city for a patient registered under his name and there were none. Police contacted Mr. Russomanno and asked that proof of medical treatment be provided. As of May 20th, none had been provided.
[10] Upon learning there was a warrant for his arrest, I.M., did not surrender himself into custody for a month. His mother and his brother had been his sureties at that time.
[11] Despite the fact that his mother was his surety at the time of the alleged breach, and that she is alleged to have advised officers he sought medical treatment, although no evidence of that was provided to police, his mother was again proposed as his surety.
[12] The new plan also called for his father to be added as a surety, but his father had not lived with him for several years since his marriage to I.M.’s mother had ended. The father also was working as a taxi driver, and the plan of supervision involved him being away from his son for long periods of time, maintaining supervision only by telephone. A GPS tracking bracelet was also proposed.
[13] Since that time, I.M. has been charged with a number of counts of prescription fraud which predate the robbery charges. He has no criminal record. He is 21 years old and has been in custody at the OCDC for the last four months. He has not previously served time in jail.
[14] Justice Berg detained I.M. on the secondary grounds. His mother provided evidence regarding the circumstances of the breach charge, which may cause her to be a witness against her son if that matter proceeds to trial. She is not a suitable surety for that reason, and for the fact that her son is alleged to have breached the terms of his house arrest while she was acting as a surety.
[15] Mr. A.M. indicated at that original bail hearing that he thought he could manage his son’s supervision without the GPS ankle bracelet, despite the fact that it was being proposed by the defence as part of the plan of supervision.
[16] He has now changed his employment which will allow him to spend more time supervising his son. The GPS bracelet is being again proposed, and his sister-in-law has been added as a surety.
[17] I reviewed the transcript of the original bail hearing. It is clear that the GPS was available at that hearing, but Mr. A.M. expressed his view that he could supervise his son without the GPS monitoring bracelet. Mr. A.M. is a person of modest means who now works as an Uber driver.
[18] In the bail review before me, I found him to be an extremely honest witness. He answered questions honestly and spontaneously, even when it was clear the answers were against his interest in seeing his son released. This type of honesty is one of the qualities which one hopes to find in a potential surety. In the original bail hearing before Justice Berg, there were some problems with the quality of the sound, at least as reflected in the transcript. I also was of the view, having reviewed the entire transcript, that if it had been explained to Mr. A.M. that the bail judge would not release his son without the GPS, Mr. A.M. would never have expressed reluctance in the imposition of the GPS.
[19] The bail judge detained his son but indicated that he may have released him if a GPS monitoring bracelet was available. While the father said he did not think the GPS bracelet was required, and he did not think he needed it, given the audio issues, and the fact that English is not his first language, I am not satisfied that his comments to the bail judge constituted a refusal to use the GPS device.
[20] Given how credible I found Mr. A.M. to be, I have no doubt that he will ensure that if a condition requiring a GPS bracelet is made, that he will assiduously ensure that the bracelet is installed and maintained.
[21] As I indicated, I.M. has been in custody for four months during a pandemic. There was evidence before me that he feared surrendering himself into jail due to COVID-19. He has received only one vaccine. His aunt, Ms. M., who is being proposed as a surety, provided some evidence that being in jail for four months during the pandemic has improved his receptivity to following the terms of a release.
[22] His father also referred to the fact that being in jail has, in his view, impacted his son’s appreciation for the fact that the consequences of not following the conditions of his house arrest will result in his return to conditions which he has found to be terrible. There is evidence before me that Mr. I.M. contracted COVID-19 in the jail.
[23] In terms of the impact of COVID-19 as a material change in circumstances, on the particular facts of this case, it cannot be said that the pandemic is a material change in circumstances, given the timing of I.M.’s arrest.
[24] However, I take judicial notice of the fact that the COVID-19 virus is contagious and that the OCDC is unable to permit social distancing and hand washing to the extent these precautions are available out of custody. See R. v. Cain, 2020 ONSC 2018. There are also restrictions on visitors, phone use and prisoners are often locked down due to COVID concerns, making time in custody much more difficult than it normally is. I accept that I.M. is aware of these facts, as I accept his mother’s evidence at the bail hearing that he feared contracting the virus in jail. I also take judicial notice of the fact that new variants of concern and mutations continue to make the virus an issue of public health impacting not only the OCDC, but the community at large. There has also been a rise in vaccination rates.
[25] As a result, I find corroboration for the evidence that I.M.’s experience in custody during this pandemic has had a salutary impact on his appreciation for the importance of following conditions of release. He is just 21 years old and he has no criminal record. He has been in custody for four months during a pandemic.
[26] The Crown’s position is that there has been perhaps a slight, but not a material change in circumstances to warrant a review of I.M.’s detention. In addition, prescription fraud charges were laid very recently. They predate the charges for which I.M. sought to have his detention reviewed. I heard the bail hearing and the bail review, with both parties consenting to my doing so, and after constituting myself as a justice of the peace pursuant to section 5 of the Justice of the Peace Act which reads that: Every judge of the Supreme Court of Canada, the Federal Court of Canada, the Court of Appeal, the Superior Court of Justice and every provincial judge is by virtue of his or her office a justice of the peace and also has power to do alone whatever two or more justices of the peace are authorized to do together. Both the Crown and the defence consented to my hearing both the bail review and the bail hearing.
[27] I turn to the Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759 criteria to determine whether the new evidence is properly admissible at this hearing and whether it constitutes a material change in circumstances.
- The Evidence should not be admitted if by due diligence it could have been adduced at trial, or at the previous hearing provided that this general principle will not be applied as strictly in a criminal case as in civil cases; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the hearing (3) the evidence must be credible in the sense that it is reasonably capable of belief and (4) it must be such that if believed, it could reasonably, when taken with the other evidence adduced, be expected to have affected the result. The approach follows McMartin v. The Queen, 1964 43 (SCC), [1964] S.C.R. 484.
[28] I recognize that the case law mandates that a change of sureties in a bail plan must not be merely a superficial rearrangement of the original plan, with sureties being shuffled around without constituting a true material change in circumstances.
[29] When I look at whether there has been a material change in circumstances, I am looking through the lens which the Supreme Court reminded me to adopt in R. v. St. Cloud, 2015 SCC 27. The Palmer criteria must be applied with some flexibility in the context of bail given the expeditious nature of bail hearings.
[30] In this case, the original bail hearing was also conducted by Zoom, there were audio problems and I have a residual concern that Mr. A.M. was unaware that his expression of opinion that the GPS was not required would result in the bail judge concluding that he was refusing to utilize the GPS.
[31] I am of the view that the audio issues and the fact that English is not Mr. A.M.’s first language played into this misapprehension of what he was trying to communicate, which was that he did not think that the GPS was necessary, and not that he refused to have it implemented.
[32] Both Palmer, supra, and St. Cloud, supra, indicate that where the issue at stake is an individual’s liberty, and not merely the introduction of evidence in a civil context, that a flexible approach reflective of the liberty issues at stake is to be adopted.
[33] In the first part of the test, the reviewing judge is required to look at whether the evidence was available at the time and whether it was not tendered for some reason which was legitimate and reasonable. I have identified the material change in this plan to be Mr. A.M.’s reduction in his work hours. 2. The change in I.M.’s understanding of the importance of following the conditions of house arrest as a result of spending four months in jail. He has never been in jail before and he was incarcerated during the pandemic.
[34] Dealing with the first point. Mr. A.M. is a person of very modest means. While his son is alleged to have committed a robbery while being escorted around in a Mercedes, his father drives for Uber. At the time of the original bail hearing he was working as a taxi driver. He proposed keeping in touch with his son by phone while he was at work. Given Mr. I.M.’s history of breaching the terms of his house arrest, this was not a workable plan. However, Mr. A.M. has now changed his employment which will free up more hours to supervise his son. He currently will be working far few hours a week, which I expect will be a financial hardship. He will have more time to supervise his son. It is not reasonable to expect that Mr. A.M. could have anticipated at the original hearing that he would have to work less hours in order to have the time required to act as a surety. This evidence would not have been available at the original hearing.
[35] The evidence is relevant to a material issue, which is the level of supervision available to I.M. on house arrest. The evidence is credible, as I found Mr. A.M. to be a highly credible witness, and if believed it could have changed the outcome.
[36] I find that Mr. A.M.’s reduction in his hours of work could not have been adduced at trial as it was not reasonable to expect that he would have understood he would need to change his employment in order to act as surety. I find that this was a reasonable excuse for not changing his employment prior to the original bail hearing. The evidence is relevant to the secondary grounds and the ability of Mr. A.M. to supervise his son, the evidence is credible and capable of belief and could have impacted the original hearing.
[37] I also found I.M.’s experience spending four months in the jail during the pandemic has given him an appreciation of the importance of following the conditions of house arrest. I found this to constitute fresh evidence which could have impacted the result of the original bail hearing. This evidence was not available at the time of the original bail hearing and it is relevant to the material issue of whether there is a substantial likelihood that Mr. I.M. will commit additional criminal offences, or interfere with the administration of justice while on bail.
[38] The evidence could not have been admitted by due diligence, obviously, as I.M., had to spend that time in custody first. I find the evidence is relevant in the sense that it bears on whether I.M. will follow court imposed conditions, and whether there is a substantial likelihood that he will commit additional crimes or interfere with the administration of justice. I find the evidence credible, in that I accept on a balance of probabilities that I.M. has had a negative experience in jail during the pandemic which has given him a new appreciation for the seriousness of adherence to court orders. This evidence could have impacted the result of the original bail hearing, but of course, I.M. had not spent four months in jail at that point.
[39] Ms. M. is also proposing herself as a surety. While I find that she will strengthen the plan, I was not satisfied that she could not have, with some effort, been put forward as a surety at the first bail hearing. I did not find it necessary to consider her addition to the plan to find that there has been a material change in circumstances.
[40] Having found that there was a material change in circumstances, I conducted the hearing de novo.
[41] I also conducted the bail hearing on a number of charges of prescription fraud which predate the robbery charges but were laid just before the bail review. The charges date back to December 3rd, 2020, November 23rd, 2020, November 2nd, 2020, and December 7th, 2020.
[42] I.M. does not have a criminal record, I must concur with the bail judge, that this is likely the result of good lawyering, given the number of charges which Mr. I.M. was once facing. I make this comment fully cognizant that I.M. is presumed innocent of the charges he faces. He received a conditional discharge in 2016 for a charge of forcible confinement and a conditional discharge for mischief and fail to comply with a release order in 2021. He is 21 years old. He has employment waiting for him to work at home if he is released.
Evidence:
[43] I found Mr. A.M. to be a highly credible witness. He has altered his hours to accommodate this new plan of bail which will permit him to have much more supervision time with his son.
[44] The Crown, Mr. Donoghue, very fairly conceded that the sureties in this case were very good. However, given I.M.’s past behaviour, which is the best predictor of future behaviour, the Crown maintains that I.M. is completely out of control and no one can stop him.
[45] The Crown points out that I.M. was likely breaching his bail when he met with his father, and he never disclosed he was in trouble to his father at the time.
[46] I.M. took a month to surrender himself to police. While it does not excuse his delay in surrendering to police, I also accepted his mother’s evidence at the original bail hearing, that he feared contracting COVID-19, which delayed his surrender. I accepted her evidence that she was with him when he turned himself in to police.
[47] Mr. A.M. has not lived with his son for six years. His son has not confided in him regarding his problems with the criminal law. However, I am satisfied that he will be able to fulfill his responsibilities as a surety toward his son. I appreciate he has not been aware of the details of his son’s life. As I indicated in R. v. Lee-Jones, 2019 ONSC 7603, sometimes adult children unfortunately conceal their activities from their parents. In this case, as in R. v. M.K., 2020 ONSC 2266, the Crown suggested that because the accused did not share his lifestyle and his legal problems with his potential surety, that the surety would not be able to exercise the appropriate level of control over the accused. I note that this submission is a no-win scenario for any proposed surety. If Mr. A.M. had been aware that his son was alleged to have been involved in criminal activities and tried to intervene and failed, the Crown would argue he is an ineffective surety. If he was aware of alleged criminal activity and did not intervene, the Crown would argue that he condoned criminality. If he was unaware of criminal activity, the Crown would argue that his lack of awareness precludes him from being able to control the accused.
[48] In my view a surety should not be disqualified because an accused person may have hidden a criminal lifestyle. The people who are most familiar with Mr. I.M.’s lifestyle, like the accused in R. v. M.K, supra. are likely not suitable to act as sureties. It is not a surprise that he has hidden his lifestyle from his hardworking, pro-social father. I prefer to ask whether the proposed sureties will be successful in supervising the accused while he lives on their terms, in their presence, with the leverage of being able to revoke bail if required.
[49] I.M. will not be able to conceal what he is doing while on house arrest as he will be living with his father. I am aware of the limitations of the GPS monitoring bracelet and the case law regarding that issue. However, the GPS bracelet will serve to remind I.M. that if he leaves the home in the absence of his surety, his breach will be discovered and reported. He will be returned to jail. A GPS bracelet is most effective when used in conjunction with a strong surety. See R. v. M.K., supra.
[50] When Mr. A.M. is equipped with the tools of a surety, including the ability to rescind bail, I am satisfied that there will be no substantial likelihood that I.M. will commit additional crimes while on bail.
[51] I find that with two excellent sureties and the addition of the GPS bracelet, that I.M. has met his onus and satisfied me that there is not a substantial likelihood that he will commit additional crimes or interfere with the administration of justice while on bail.
[52] I.M. will be released on house arrest to the residence of his father. His aunt Ms. M. is to be named as surety. Bonds without deposit in the amount of $1,000 from each surety will be made. I.M. will be equipped with a GPS monitoring bracelet. He is not to leave his home in the absence of either of his named sureties. He is to remain employed at home. He is not to contact the named complainant, or the complainant’s family in this matter, directly or indirectly. He is not to possess a weapon, or to be in any form of contact with anyone who he knows to have a criminal record except if necessary, to meet with counsel in preparing his case. He is to follow the routine and discipline imposed by his father in every respect.
[53] If counsel have additional submissions to make regarding conditions, I am open to hearing them. I.M., you are presumed innocent of these charges. You are just 21 years old. Your father is the primary reason I released you today. He is a hardworking and pro-social person. That means he has good values. He is driving an Uber vehicle in a pandemic while you are alleged to be being driving around in a Mercedes with a $1,500 stolen jacket. Your father is deeply concerned about your future. I know he will call the police on you if you breach the conditions of your bail. I think you know that too which is why you never told your father what was going on when you spoke to him during the time you were at large. You and I both saw your father, a proud man in his early 50’s weep in this court room. I do not know if that had an impact on you, but it did on me. I am satisfied he is so worried about you that he will turn you in if it means saving you. You have been given previous grace by the court, including by Justice Kehoe who released you on the robbery charge. You have not respected the grace you have been given. You are a young man, from an excellent family, but it is clear to me that you are being influenced by the people with whom you associate. I am granting you bail on the prescription fraud charges and on your robbery charges. You will never get bail on these matters again if you breach this order. Your father has faith in his ability to supervise you and I was deeply impressed by him. Your time in jail has shown you that it is not an exaggeration to say that it is an incredibly serious matter to be returned to the jail. You cannot afford to do that.
Anne London-Weinstein J.
Released: October 18, 2021
COURT FILE NO.: 19-18028
DATE: 2021/10/18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
– and –
I.M. Applicant
Endorsement on Bail Review Application
Anne London-Weinstein J.
Released: October 18, 2021