NEWMARKET COURT FILE NO.: CR-21-988
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
JOSHUAH ANANG Applicant
Kellie Hutchinson, for the Respondent kellie.hutchinson@ontario.ca
Alonzo Abbey, for the Applicant alonzoabbey@gmail.com
HEARD: November 2, 2021
REASONS FOR DECISION
LEIBOVICH J.
1Mr. Anang is facing a 14-count indictment. He is charged with assault with a weapon (x2), uttering a death threat (x2), criminal harassment, procuring a person to offer sexual services, exercising control, possessing a prohibited weapon, theft under, mischief to property, unlawful confinement, fail to comply, obstruct justice and possessing child pornography.
2He has brought an application pursuant to s. 520 of the Criminal Code to have his detention reviewed. There have been a number of prior bail hearings.
3The matter started on November 23, 2019, when the complainant called 911. She provided a statement to the police alleging that Mr. Anang had committed acts of violence against herand a warrant was issued for Mr. Anang’s arrest. The complainant recanted her statement on February 11, 2020. On February 17, 2020, Mr. Anang was found in a hotel with the complainant. He was arrested and released on bail. One of the terms required him not to have any contact with the complainant. On March 8, 2020, the complainant and Mr. Anang were arrested together by the London Police. Mr. Anang was charged at that time with obstruct police and breaching his no contact term. On March 27, 2020, he pleaded guilty to the breach of recognizance. He was sentenced to time served and released as his original release order was still in place.
4On May 11, 2020, the complainant called 911 again. She provided a video statement to the police and recanted her recantation and made further allegations of abuse. New charges were laid. A bail hearing was held, and Mr. Anang was detained. In July 2020, the complainant recanted the allegations. A bail review was brought before Edwards J. and for reasons set out in R. v. Anang, 2020 ONSC 4750, he dismissed the application.
5A preliminary inquiry was held in May and June 2021 before Dwyer J. Following his committal, Mr. Anang brought a bail application before the preliminary inquiry justice. It was dismissed. Mr. Anang has now brought this bail review pursuant to s. 520 of the Criminal Code.
The Test for Review
6The Supreme Court of Canada in R. v. St. Cloud, 2015 SCC 27 set out the test that should be applied by a judge conducting a hearing pursuant to sections 520 and 521 of the Criminal Code. The reviewing judge has only a limited ability to intervene in the decision below. The sections do not confer an open-ended discretion on the reviewing judge to vary the initial decision concerning the detention or release of the accused. They establish not a de novo proceeding, but a hybrid remedy. The judge must determine whether it is appropriate to exercise his or her power of review. Exercising this power will be appropriate in only three situations:
where there is admissible new evidence if that evidence shows a material and relevant change in the circumstances of the case;
where the impugned decision contains an error of law; or
where the decision is clearly inappropriate.
7Counsel for Mr. Anang submits that I have jurisdiction to intervene on the following basis:
- There has been a material change of circumstances in the following respects:
a) The complainant has now provided an affidavit explaining that Mr. Anang may not have been the author of some of the texts relied upon by the prosecution;
b) The proposed plan while similar to that before Justice Dwyer is enhanced;
c) There is now a Charter challenge to the seizure of the phone that led to the data extraction relied upon by the prosecution; and
d) Mr. Anang has now testified on this application and explained his willingness to make changes and abide by any court order. In addition, Mr. Anang has suffered an injury while in jail.
The preliminary inquiry judge erred in law by not considering s.493.2 of the Criminal Code and by giving undue weight to Mr. Anang’s prior breach and the text messages; and
The decision to detain was clearly inappropriate.
Has there been a material change in circumstances?
8The reviewing judge may vary the initial decision if that evidence shows a material and relevant change in the circumstances of the case. The court cannot adopt too narrow a view on what is “new evidence” as to do so would undermine the interests of justice. In R. v. St. Cloud, the Supreme Court of Canada determined that a judge conducting a bail review should use the Palmer criteria for admitting fresh evidence in deciding whether the proposed new evidence is truly new and should be relied upon. Wagner J., as he then was, stated at para. 129:
In my opinion, the four criteria from Palmer are relevant, with any necessary modifications, to the determination of what constitutes new evidence for the purposes of the review provided for in ss. 520 and 521 Cr. C. Given the generally expeditious nature of the interim release process and the risks of violating the rights of the accused, and since the release hearing takes place at the very start of criminal proceedings and not at the end like the sentence appeal, a reviewing judge must be flexible in applying these four criteria. I reiterate at the outset that the rules of evidence are relaxed in the context of the release hearing: s. 518 Cr. C.
9In my view, there has been no material change in circumstances.
10The proposed plan is effectively the same as the one presented to Dwyer J. While one proposed surety has now been exchanged for another, three of the other proposed sureties are the same. The plan is essentially the same, calling for three residential sureties and electronic monitoring.
11Mr. Anang has decided to testify at this bail review. I do not see this as being material. He could have testified at earlier bail hearings. Much of the evidence he provided was already given by his mother at the bail hearing below. Mr. Anang testified that two weeks ago, while in jail, he hurt his finger playing sports. He complained about the state of the health care in jail. However, he has already been seen by a doctor and he has already had the required surgery, which is quite quick. I do not see this additional information as material.
12The complainant has provided a statement for this application. She stated that Mr. Anang’s girlfriend Chey may have used his phone to send some of the threatening texts:
During the relevant time period, I would see Chey in places where we had mutual friends. When I confronted Chey about the situation, she informed me that she would have the phone associated to the Applicant and did send messages from his cellphone. Some of these messages include saying to “tell the police I lied”, “just call and say you were lying and I will leave you alone”, “Just catch you slipping a smoke”, and something about a school yard. These, and other messages are messages I remember Chey admitted sending to me.
13In the normal course this would be considered a material change in circumstances. For example, at the first bail review, Edwards J. stated:
Ms. Hutchison, in her submissions, candidly accepted that the affidavit of Z.J. filed in this bail review meets the test of a material change in circumstances.
14But the complainant has made a number of statements and recantations and recanted her recantations. Dwyer J., who presided over the preliminary inquiry and conducted the last bail hearing, heard the complainant testify where she recanted under oath. He factored in her recantations in assessing the strength of the Crown’s case. I do not see this latest affidavit as being in the circumstances of this case a material change or a credible basis to challenge the texts set out in the extraction report.
15Counsel for Mr. Anang has submitted that there will be a s. 8 challenge for the seizure of Mr. Anang’s phone. I do not have a copy of that challenge. I sense that it is still in the embryonic stages. The phones were analyzed pursuant to a warrant but the phones were initially seized incidental to arrest. That is all that I know. It is too early for me to take anything from the proposed challenge.
Did the trial judge make an error in law?
Did the trial judge err in law by not considering s.493.2 of the Criminal Code?
16Section 493.2 of the Criminal Code states:
In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of
(a) Aboriginal accused; and
(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
17Mr. Anang is a black male. There is no reference in Justice Dwyer’s bail decision to this fact or to this section in his bail decision. Counsel for Mr. Anang submits:
The Applicant is a black male. Having conducted the preliminary inquiry over many days and hearing from the Applicant’s mother the preliminary inquiry would obviously know the Applicant is a black male. Nevertheless, there is no acknowledgement of the Applicant being a member of a vulnerable community that can be unfairly disadvantaged at the bail process.
The Applicant’s status as a black male has caused him to be disadvantaged at this interim release status. No relationship with his father, the one person who should have the primary responsibility to show and teach the Applicant want it is to be and act like a man and a father. Easily starting with do not commit crimes but also showing him what that means day in and day out. The Applicant’s criminal past indicates someone who is reckless and showed little care for consequences. However, determining if that is who the Applicant is today only based on his criminal record is a very troubling way to proceed. As G. Trotter noted in the Law of Bail in Canada, 3rd ed. “it is very difficult to predict future dangerousness accurately and the problem of prediction ought to be a troubling concern in the area of bail.”
18Section 493.2 requires the court to consider the circumstances of Indigenous accused and members of vulnerable groups, but it does not supersede s. 515(10). As stated by Schreck J. in R. v. E.B., 2020 ONSC 4383 at para. 41:
What this means is that regardless of the accused's circumstances, if his detention is necessary on the primary, secondary or tertiary ground, then he cannot be released. If there is a substantial likelihood that the accused will commit further offences if released and thereby compromise public safety, the fact that systemic or background factors contributed to that substantial likelihood does not change the result. A dangerous person is no less dangerous because he or she is a member of a vulnerable group: R. v. Sim (2005), 2005 37586 (ON CA), 78 O.R. (3d) 183 (C.A.), at para. 18.
19However, if a court does not properly consider an accused’s membership in a population that is overrepresented in the criminal justice system, they risk making wrong decisions at the bail stage by putting the wrong weight on the relevant factors. Without due consideration of the accused’s membership in that vulnerable community a court may unfairly: 1) over estimate the risk the accused poses as simply reflected in his criminal record; 2) disregard a release plan because the accused is unable to put forward the appropriate sureties; or 3) dismiss possible defences based on police misconduct. As eloquently stated by Schreck J. in R. v. E.B., 2020 ONSC 4383, at para. 43:
Where s. 493.2 comes into play, in my view, is in the court's examination of the type of factors that are relied upon to make the determination of whether detention is necessary. For the secondary ground, which is at issue in this case, this usually consists of the accused's criminal antecedents as well as the nature of the allegations. Making an accurate determination of whether those factors lead to the conclusion that detention is necessary requires that they be considered having regard to the unique circumstances of the accused, including any relevant systemic factors.
20In this case, it is correct that Dwyer J. did not refer to s. 493.2. It is also correct that counsel in their submissions to him did not reference s. 493.2. However, context is critical. Mr. Anang was originally released. He breached his no contact order, further criminal allegations were made against him, the data extraction from his phone contained strong evidence of witness tampering and intimidation. The issue at the bail hearing below was whether the proposed release plan was strong enough to allow Mr. Anang to meet his onus despite his breach of his no - contact order with the complainant and his past attempts at interfering with the administration of justice.
21As noted, counsel on this review has stated that Mr. Anang’s status as a black male has caused him to be disadvantaged at the interim release stage and in support has pointed to the fact that Mr. Anang has had relatively little contact with his farther. It is correct that Mr. Anang’s father did not play an active role in Mr. Anang’s upbringing. However, Mr. Anang has not been disadvantaged at this bail hearing by any relevant systemic factors. Mr. Anang was raised in a loving supportive household with a mother and two brothers. His family has been supportive of him throughout his involvement in the criminal law and at the bail hearing below and before me. His family proposed a very strict release plan, coupled with GPS and residential sureties. Dwyer J. was impressed (as was I) with Mr. Anang’s family, but not with Mr. Anang and did not believe that he would follow the rules set by the court. Dwyer J. detained Mr. Anang only on the secondary ground. He stated:
Mr. Anang's family is very impressive and the knows that. He knows that and I'm - you know - I hate saying this, he probably feels bad right now because his mom came on and testified I, I believe everything she says about how the effort she would make as well as his brother but I'm sorry, it has nothing really - my decisions doesn't have - doesn't reflect on them. It reflects on the fact that I don't have faith that Mr. Anang is going to follow the rules set by the court. I don't think -in my view and the concerns that the defence has to meet - it's the defence onus, I don't think it's been satisfied, even with this plan. Mr. Anang had a chance, he committed just an egregious breach and he's now asking to go on bail after that breach, in my submission the secondary ground concerns, the onus hasn't been reversed on those concerns.
22The experienced justice is presumed to know the law. I have no doubt that he was well aware of his duties pursuant to s. 493.2. He committed no error in law in this regard.
Did Dwyer J. err in law in placing undue weight on the breach and the text messages?
23Counsel submits that Dwyer J. erred in placing too much emphasis on the past breach and extraction report and not enough emphasis on the proposed release plan and the fact that the complainant was recanting. The defence submitted:
In addition, the test under the secondary ground was not fully applied. His Honour simply found that the extraction report was troubling when considering the secondary grounds along with the Applicant’s recent breach being in contact with the complainant.
24In my view, Dwyer J. considered all the relevant factors and did not place undue weight on the breach or the data extraction report. A review of Dwyer J.’s decision shows that he considered:
- The strength of the Crown’s case given that the complainant had recanted. He noted the different versions put forth by the complainant, but also noted that the data extraction report stands independent of the complainant and stated:
This is such a unique situation where Mr. Anang is charged with a serious offence and there have been two statements that support the allegation and there's been a statement and an affidavit, and now some testimony that recant the allegation
However, we have these extraction reports and the reports, in my view, put a whole different complexion on the strength of the Crown case and what a trier of fact in the end will determine to be the truth about what happened that day.
- The breach of the non-contact order and the text messages and other evidence demonstrating a concern that Mr. Anang would interfere with the administration of justice. He stated:
The second factor that weights heavily in this decision and why I agree with the Crown's position on interfering - on s.515(10)(b):
When the detention is necessary for the protection or safety of the public, including any victim of or witness to the offense or any person under the age of 18 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.
We know that Mr. Anang is facing this very serious charge involving this complainant on a bail not to have any contact with her and he's arrest with her. He's arrested with her, he's breaching and then there's a comment from, from - I think it's Merchandes (ph) notes “stay solid,” when she's being arrest.
It all points to that concern about interfering with the administration of justice.
- And he considered the proposed plan of release but still found that he had not met his onus:
There going to be a contest at trial, I have to consider s.515(10), the strength of the Crown's case. The recantations do factor in, but as I've explained when I consider all of the evidence that's been presented, I’m satisfied that the onus hasn't been met here. The concern particularly for potential interference with the administration of justice, they haven't been met by the plan, in spite of the best efforts of counsel and the family for Mr. Anang.
Detention order not clearly inappropriate
25Again, this is not a de novo hearing. I have found that there has not been a material change in circumstances and that the presiding justice did not commit an error in law. I may still intervene if the decision to detain was clearly inappropriate. It was not.
26Under s. 11(d) of the Charter, an accused is always presumed innocent until proven guilty. Per s. 11(e) of the Charter, an accused is entitled to reasonable bail and not to be denied bail without just cause. The concept of reasonable bail includes that the terms of release be reasonable and no more onerous than what is necessary in the circumstances. In R. v. St-Cloud, Wagner J. (as he then was) explained why detention is not the usual or preferred course. At para. 70, he wrote:
…it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention the exception. This entitlement rests on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter. These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case. [Citations omitted]
27Pre-trial detention is a measure of last resort. As summarized by Boswell J. in R. v. Smith, 2020 ONSC 2668 at para. 13:
In the last half a decade, the Supreme Court has reinforced, in several prominent cases, some fundamental principles that apply to all bail applications. One overarching principle has emerged from the cases: pretrial detention is the exception, while the earliest possible release, on the least onerous terms, is the default presumption. [citations omitted]
28However, pre-trial detention is sometimes necessary and appropriate. If just cause exists, reasonable bail may be denied. Because of the nature of his charges, the applicant must show that his detention is not justified.
29Section 515(10)(b) of the Criminal Code states that the detention of an accused in custody is justified where it is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the respondent will, if released from custody, commit a criminal offence or interfere with the administration of justice.
30In assessing the secondary ground, the following factors should be considered:
a. Whether the accused has a criminal record, and if so, for what;
b. Whether the accused is subject to any court orders;
c. Whether the accused has a history of compliance or non-compliance with court orders;
d. The nature of the charges and the strength of the Crown’s case. Where an accused faces gravely serious charges and overwhelming evidence, public safety concerns may foreclose bail. However, this consideration must be approached with caution. No matter the offence, the Criminal Code contemplates the potential for bail. Therefore, “the nature of the offence charged, by itself, cannot justify the denial of bail”: R. v. LaFramboise, 2005 63758 (ON CA), [2005] O.J. No. 5785 (C.A.), at para. 3, R. v. Williams, 2020 ONSC 2237 at para. 113;
e. The suitability of the plan for release and the suitability of the proposed sureties;
f. Irrespective of any criminal convictions are there any concerns about the stability of the accused; and
g. Any concerns for interference with the administration of justice.
See R. v. Budge, [2012] O.J. No. 2538 at para. 60.
31Again, at this stage I am not deciding whether I would have detained or not detained Mr. Anang. Rather, I am deciding whether it was clearly inappropriate for Dwyer J. to have done so. In my view it was not. There is a real concern that Mr. Anang would interfere with the administration of justice as he has before. On November 23, 2019, when Officer Shin was transporting the complainant, her phone rang. The complainant put the call on speaker phone. Officer Shin heard the caller say “you called the cops on me? You’re dead bitch.” The text messages show a concerted effort by Mr. Anang to get the complainant to go to the police and recant her allegations. He told her what to say. Her recantation to the police mimics the story that Mr. Anang fed to her, as seen in the text messages. He is found with the complainant in breach of his non -contact order [I note that he has a prior similar breach on his record as well]. He told the complainant upon arrest to “stay solid”.
32Electronic monitoring will tell us where the applicant is but not what he is doing: R. v. J.R., 2020 ONSC 1938 at para. 16, R. v. Osman, 2020 ONSC 965, at para. 31. In addition, as I stated in R. v. Reynolds, 2020 ONSC 2744, at para. 80:
It must be remembered that the bulk of the supervision is going to fall on Mr. Reynolds’ grandmother, given his mother’s work schedule, and even with the best of intentions, in this world where telecommunication opportunities abound, it is not practical to be able to monitor this type of activity 24 hours a day. Mr. Reynolds has to be willing to comply. As noted by Bird J. in R. v. Ibrahim, 2020 ONSC 2241at para. 38 and 39:
While the incidents show a lack of respect by Mr. Ibrahim for his mother and sister in 2017, they also demonstrate that his family is prepared to call the police if he behaves poorly. This supports their evidence that they are committed to enforcing bail conditions and are willing to call the police immediately in the face of non-compliance.
However, having suitable sureties is only part of the equation. The person being released on bail must be willing to comply with the conditions. [ emphasis added].
33Given the evidentiary record before him, Dwyer J.’s detention of Mr. Anang was not clearly inappropriate.
Conclusion
34The application is dismissed.
Justice H. Leibovich
Released: November 4, 2021
NEWMARKET COURT FILE NO.: CR-21-988
DATE: 20211104
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JOSHUAH ANANG
REASONS FOR DECISION
Justice H. Leibovich
Released: November 4, 2021