COURT FILE NO.: CR-21-00000283-00BR

DATE: 20211029

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

L.M.

Defendant/Respondent

Jennifer Stanton, for the Crown/Applicant

Adam Newman, for the Defendant/Respondent

HEARD: October 22, 2021

A Publication Ban order has been made pursuant to s. 521(1) of the Criminal Code and continues to be in effect. Counsel are permitted to circulate this decision to other counsel for Court. Publication and quotation of general principles in these reasons is permitted, but publication of any identifying information about the applicant or his personal circumstances is prohibited. These reasons comply with this order and can be published.

SPIES J.

DECISION ON BAIL REVIEW APPLICATION

Overview

[1] The Crown brings this application for a bail review pursuant to s. 521(1) of the Criminal Code. The Crown seeks an order pursuant to s. 521(1) of the Criminal Code vacating the order of Justice of the Peace (“JP”) Fatsis, made on October 1, 2021 (“Decision”), granting L.M. judicial interim release with one surety, his father, pledging $20,000.00 and substituting an order detaining Mr. M.

[2] Mr. M is currently charged with making available child pornography for an unlawful purpose, possessing child pornography for an unlawful purpose and unlawfully accessing child pornography, as well as breach of probation and, in particular, the condition that he not possess or use any computer or cell phone or other device that has internet access.

[3] In reaching his Decision, JP Fatsis was not satisfied that the Crown had met its onus to detain Mr. M on the secondary and tertiary grounds. It is the position of Ms. Stanton, counsel for the Crown, that the learned JP made errors in law in his decision to release Mr. M. That is disputed by Mr. Newman, counsel for Mr. M. After hearing submissions on this issue, I ruled that the JP did make errors in law that are clear from his oral reasons. I therefore concluded that I had jurisdiction to hear this review application by the Crown and consider de novo whether Mr. M ought to be detained pending trial.

Summary of the Allegations

[4] On January 26, 2018, Mr. M was convicted of the offences of make available child pornography and possess child pornography by Justice Downes. He was sentenced to two years less a day and three years’ probation. One condition of probation was as follows:

"7. Not to possess or use any computer, cell phone or other device that has internet access except: - As required for employment purposes, including seeking and maintaining employment, -As required for purposes of attending or studying at a recognized educational program, -These exceptions must be with the prior written permission of your probation officer upon providing any necessary supporting documentation regarding the above purposes."

[5] This probation order was still in place at the time of the current charges before the court.

[6] The Crown alleges that on May 31, 2021, a social media company sent a report to the National Centre for Missing and Exploited Children regarding a user who had sent an image to another user on May 30, 2021 at 01:16:33 UTC. The IP address of 2607: fea8:a75d:7e00:c167:6cab:d950:ae2e was used by the user on May 24, 2021 at 20:40:41 UTC to log in to the social media platform.

[7] Through the investigation, the subscriber address of the internet account was identified as xxx, Toronto, Mr. M’s father’s residence, where Mr. M was living with his father. On September 21, 2021, members of the Toronto Police Service Child Exploitation Section executed a Criminal Code search warrant at Mr. M 's residence. Mr. M was located within the apartment and arrested.

[8] A phone corresponding to the phone number of ##### was seized and will be analyzed. The modem located in the apartment matched the serial number and Mac address provided by the internet service provider: a. Modem Serial Number: 2133068257702767; and, b. Modem Mac Address: 7c9a54547fea.

[9] It is the position of the Crown that Mr. M can be linked to ownership of the phone that was seized. Approximately 75 videos/images meeting the Criminal Code definition of child pornography have been located on the phone. All the children are females in the range of 3-12 years old. The sexual content ranges from female children partially clothed, with their genitalia exposed, to female children engaged in sex acts with adult males. These numbers are based on a review of only one seized exhibit. Also located were text messages between Mr. M and his father, SM (“Mr. M Sr.”). Some of the child pornography files located thus far were received via email. Thus, there is a possibility child pornography is being traded by Mr. M via email. The investigation of this matter is still ongoing.

[10] The phone number saved in the cellular phone seized from Mr. M’s residence contains a contact listed as “Dad” with a phone number of #####. The dates of contact between Mr. M and his father range from April 26, 2021 through July 9, 2021. On April 26, 2021 at 21:53:33 UTC “Dad” says “Is it working.” Mr. M replied “Yes” on the same date at 21: 54:14.

Decision of JP Fatsis

[11] The evidence at the bail hearing consisted of a Crown Brief of Documents and the evidence of Mr. M Sr. Mr. M did not testify. During the course of the bail hearing, Ms. Stanton was not permitted to ask certain questions of Mr. M Sr. about what he knew and did about his son’s access to the internet and his son’s consumption of alcohol at the times when his son was under statutory release and his father had no legal obligation as a surety to supervise his son. JP Fatsis was clearly of the view that these questions were not relevant to the father’s ability to supervise his son because he ruled at one point:

… please limit your questions again generally as to his ability to be an effective supervisor. I will allow that, but anything that he was not obliged to do, I’m not allowing you to question him on that.

[12] JP Fatsis also limited the Crown’s ability to cross-examine Mr. M Sr. with respect to a conversation he had with DC Robbins at the time his son’s cell phone was seized and a mostly one-sided conversation that Mr. M Sr. had with his son in the presence of officers who were present at the time of the search and whether Mr. M Sr. had given his son the cell phone that was seized on the basis that these questions related to triable issues at trial.

[13] JP Fatsis provided oral reasons on October 1, 2021 from the bench immediately following submissions by counsel. The relevant portions of those reasons are set out below, with the statements that are particularly relevant to the issue of whether the JP erred in law underlined:

The accused … comes before me with three very serious charges involving child pornography. … According to the Crown, the police were able to find some evidence by executing a search warrant for such allegations in the accused's personal cellular phone. This evidence, apparently, is still with the Police Service for forensic analysis, but some conclusions have been issued. In the allegations of the police, it became quite clear to them that the pornography items were coming from the accused's residence, who was living with his father-the proposed surety in this matter; the police had identified the Internet Protocol address connected to the accused’s residence.

And he comes before me with a criminal record. It involves similar allegations as in his convictions. They date mainly back to 2013, and most of the evidence submitted … by the Crown, pertains to those charges, mostly for purposes of sentencing. …

… I have … an "agreed statement of facts" pertaining to the 2013 convictions.

I should point out in those convictions the facts indicate that the accused actually was engaged in sexual acts with a teenage girl through the Internet; she was actually an 11-year-old at the time, when he pretended to be a famous singer. Of course, at a later time an undercover policewoman-officer pretended to be a 14-year-old girl and the police were able to apprehend the accused and arrest him, when he planned to meet this pretend "14-year-old girl" at a subway station in Toronto.

… I have the psychological assessment report by the psychologist that was involved in the 2013 convictions for "luring, invitation to sexual touching - extortion"; this psychological assessment report was required for the sentencing court. In that report, I can perhaps mention the fact that in the 2000 report, the conclusion is that "on the broad based risk assessment ulterior measures”‚ etc., Mr. M's clinical presentation, "his past adjustment and the nature of his sexual misconduct suggests he should be considered at moderately low risk for future sexual offender".

I do not have a current assessment of any kind by any professional or medical professional.

In that same report, however, it is predicted that most of sexual offenders and convicted persons in this area, after two or four years begin to re-offend, and the allegations before me, if true, speak volumes for that.

There is no question, and I do not think this is in dispute, that child pornography in jurisprudence has been defined by the highest court of the country and other superior courts, that it is an act of violence; the physical, psychological or the child exploitation through child pornography is very abhorrent to society and to any reasonable person- there is no question about that, and I am not going to dwell on that.

I think the case law, as advanced in the submissions by the Assistant Crown Attorney, is quite clear, and I do not think it is disputed by any defence lawyer.

I am aware that these charges are extremely serious and, if true, of course, they will be properly adjudicated at the trial.

As I said earlier, in my rulings throughout this bail hearing addressing the Crown, most of the allegations and the cross-examination by the Crown … pertain to past charges and convictions. The past charges were much more serious than the present ones before me, in that the accused engaged, into sexual acts and threats and all kinds of things, an under-age girl.

In the present charges, as I said, the charges of "possession and dissemination of child pornography to others”, while being very serious, compared to the ones in the 2013 convictions, are of less… -not importance, every child pornography is extremely important- but they are not as aggravating as they were in the past. However, I want to repeat that they are extremely serious.

This is a Crown onus bail hearing, to see if the Crown has proven on a balance of probabilities that it is "necessary" to detain the accused, primarily on Secondary grounds.

But before I do that, I prefer to go and deal with the Tertiary grounds first.

According to the Crown's submissions and case law presented, the Crown's position is that it is important that I should detain this accused on Tertiary grounds. I am not going to repeat all of the submissions. I do not disagree with most of the statements made. The Assistant Crown Attorney referred me to case law, and not exactly only for child pornography cases, but in general bails. I do not disagree with the submissions.

However, I want to distinguish most of them from the circumstances of the case at bar. All these cases speak volumes about the seriousness and how society looks at a child pornography offender, or alleged offender in this bail.

According to Section 515(10)(c) of the Criminal Code of Canada, I must consider the four factors in that subsection, which are not exhaustive. The first thing I have to assess, according to the evidence before me, is the apparent strength of the Crown's case. I agree with the Crown that the allegations before me and the evidence appear to be at a very high level of strength. As I heard the evidence in the allegations thus far, although as submitted the final forensic analyses are still pending- and it is true that almost never the Crown's case is complete at the bail hearing- even at this level I find that the Crown's case is quite strong. The evidence obtained pursuant to the search warrants is strong.

The second factor is the "gravity". In terms of the gravity of these charges, I don't think this is the most serious to consider, despite the fact that these types of charges are inherently violent in nature. Possessing and communicating child pornography charges, considering all the circumstances in this case, in the court's opinion, are not at the high level of gravity that I have seen in my 18 years of doing bails. The circumstances here do not involve engagement of an under-age young person or child and they do not indicate violent attacks or injuries or anything of that sort.

The circumstances, especially as they relate to the past behaviour of the accused, are extremely disturbing. However, by themselves, if one zeroes-in into the specific circumstances of this case, I do not think that any reasonable well-informed person and who is knowledgeable of the Charter protections and presumption of innocence, can find that this is the most aggravating offence. Such person, of course-as society in general, the Crown and the courts do-can react very strongly and justifiably towards allegation of child pornography, but in this case, in the court's opinion, such person cannot lose faith in the administration of justice if the accused were to be released.

There is no need for me to consider the other factors, any circumstances of a firearm use or a potentially long imprisonment on conviction. There are no firearms used here. I have not heard anything about long-term imprisonment and I do not consider it my job to guess it. I have not heard any credible argument to assess these factors.

So looking, not in isolation, but taking the combined effect in assessing Tertiary grounds, other than the inherent violence that exists in child pornography charges, as I said, I do not think that the Crown has met its onus on Tertiary grounds. So, on Tertiary grounds, the accused is releasable.

Now I will zero-in, as I said, into the most important aspect I have to consider, and that is Secondary grounds pursuant to subsection 515(10) (b) of the Criminal Code of Canada which deals with the protection of the public in general, or any witnesses or alleged victims more specifically.

In this case I do not have a specific name for an alleged victim, but given the nature of the allegations, the safety of the public, especially unprotected young girls who are so easily lured into these types of activities through the new technologies that are available is important. It is quite important to assess the safety of these young innocent victims who are hunted by predators looking for innocent victims through social media or Internet connections or through all kinds of websites that young children unfortunately view.

An essential and cardinal factor in this subsection of the Code is not that there will not be any risk, if an accused is released on bail; there is always a risk. Is there "a substantial likelihood" of another criminal re-offence is the legal test I must access. And, of course, the bail courts never have a crystal ball to see what an accused person is going to do in the future when released on bail. But bail courts luckily have a yardstick, so to speak, to measure future risks based on past behaviours.

The accused's Criminal Record … shows related charges involving also alcohol abuse convictions, speaks volumes about past behaviour of this particular offender, or alleged offender. And that yardstick tells to Bail court that past behaviour sometimes, you know, gives you a path to see that there is a probability that he may do again the same things he has done in the past. However, is it a "substantial likelihood" as the law requires? This is the balance that a bail court must do. How do you balance past behaviour with probable future behaviour? You do that by assessing the strength of the proposed plan of release by the defence and, thus, you can also assess if there is a substantial likelihood of re-offence.

The defence has offered the accused's father to be the surety. The father will be risking, as I understand, his life savings of $20,000, which he is pledging today for this bail, for the release of his son. The Crown argued that the court should not trust the father as a surety because in the past he was fully aware of the terms of release during his son's statutory parole and he should have been aware of the details of the kinds of issues that his son is facing; the Crown submits the father was not diligent enough to make sure that this does not happen again, since even then the accused was residing with him.

I cautioned the Assistant Crown Attorney during her cross-examination of the father-with defence counsel often objecting-that she was spending a great deal of time on this issue especially because the father had no statutory obligation to supervise the parole terms of his son. As a father, of course, whose son resided with him and had been convicted and spent time in jail for similar charges, perhaps, he should have been more diligent. The father testified that at the time his son was paroled, he was not at home because he was working full time and not retired until recently and was not aware of any duty to supervise the parole terms.

That is why the Criminal Code specifically codified the role of a surety. It elevated the responsibility, otherwise when an accused showed that he would reside with someone that would be considered sufficient supervisory duty. The lawmaker made sure that the role of a surety, in terms of law, is elevated.

In the Antic case of the Supreme Court of Canada, although that case speaks also about the overreliance of bail courts on sureties, it mainly deals in its ratio on the "ladder" principle, which starts from the point that, according to the Criminal Code, everybody should be released unless the Crown-as in this case- proves that it is necessary to detain an accused, looking at the specific circumstances of each case.

I must also pay a lot of attention to defence counsel's submission that back in 2013, when his father was the named surety, also assisted by a second surety, the accused did not breach under his father's supervision. The breaches, as submitted by Crown counsel and which are in the statement by the parole officer, relate to probation terms, statutory probation terms, or other terms as indicated in the report. At that time the accused was facing serious issues for alcohol abuse and other issues, and I am not going to enumerate all of those serious issues and yet I cannot find that this accused breached the bail terms when then his father was his surety.

Now the father's responsibilities as his son's surety supervisor, which are legal responsibilities, are again elevated. I was impressed that Mr. SM in his testimony fully understood his responsibilities. I was asked not to trust him, however, I did not find him to evade any issue and he answered very forthrightly, was straightforward in his answers and he did not mince his words. He readily accepted the responsibility where he thought he should. I did not find him to be shaken. He was not shaken in a very lengthy cross-examination that pertained to past circumstances that he had no statutory obligation, and yet he did not evade the answers. It was the court that limited the Crown's … questioning but he did not waiver in his answers. I have no reason not to find his testimony to be credible and trustworthy, I do. In addition, I find this time he is risking his life savings which he did not before.

The Crown also submitted that since the father did not know that his son's TV set can also connect to the internet, he cannot be trusted. When the father in cross-examination indicated that he has Rogers Cable "Ignite TV connection", it was the court that took judicial notice of the fact that "Ignite TV" has the built-in technology to connect to the internet if a TV set is so called "smart TV". The fact that the proposed surety was not aware that Ignite TV can also provide internet connection, I do not consider it to be a fatal factor against his credibility and trustworthiness. And I do not find that odd. I can speak for myself, when the Rogers person that persuaded me to install "Ignite TV" in my own home, he never mentioned that it is through the Internet. It was my own research that I found out about it before I ordered it. For their own reasons, cable distributors do not elaborate on these issues. I am not going to hold it against him because he did not know it. In any event, the father, when he understood the issue, he readily testified that he will remove the TV set from his son's room who can watch TV along with him in the only other TV set in the living room. The only other electronic devices capable of accessing the internet are in the immediate possession of the father and locked under private passwords.

I cannot find a witness responsible for things that they knew, as alleged in the questioning of the Crown of this surety, and then find him again responsible for things he did not know. That is not the basis of my reasonable assessment of a trustworthy witness.

The issue of the text message included in the police officer's statement in Exhibit#1, regarding the Wi-Fi password and the other content indicated in that document, I find that it is a triable issue and I am not going to rely on this document for my decision. There may be issue as to its admissibility. Certainly, I have no problem to admit it here, because every piece of information is relevant in the bail hearing. However, I am not going to rely on this very issue because I consider it to be a triable issue that has to be tested through the proper testing methods in a proper trial, as submitted by defence counsel. So I want to make sure that my decision is not based on this document, at all.

I think that I indicated that I do agree with most of the comments made by the Assistant Crown Attorney about the case law presented. There is no dispute there. The Crown submitted that an SPIO [serious personal injury offence – dangerous offender] application is to be pursued in the future against the accused, but it is not something that I have to make a finding, whether he is determined to be a dangerous sexual offender or not in future application. It is not the purview or jurisdiction of this bail court, so I am not going to dwell on the case law argued by the Crown concerning this issue. Suffice it to say that I do agree with most of the arguments made in reference to most of the jurisprudence advanced by the Crown as they relate to the case at bar.

I also want to deal with the caselaw submitted by defence counsel, regarding the COVID environment we live in. …

Therefore, I am not going to make the Covid-19 defence argument as basis for my decision.

So all in all, looking at the evidence before me, I find that on Tertiary grounds the Crown has not met its onus. However, I think that I can fashion a very strict bail release on Tertiary grounds, incorporating most of the terms as advanced by defence. [Note the JP then corrected to say he meant secondary grounds]

I will name the father, Madam Clerk, to be good and sufficient surety in the amount of $20,000 no deposit. …

[14] I do not have a copy of the terms of release but as I understand the terms imposed were that Mr. M would reside with his father, he would be under house arrest in that residence, the only exception being medical emergencies and while at defence counsel’s office and that otherwise he could only be out of the residence in the immediate presence of his father. Another term was that he not possess or use any electronic communication device able to access the internet and that he was prohibited from accessing the internet, and he was not to possess or use any illicit drug other than medically prescribed to his name, and not to possess or consume alcohol. A few other terms were added at the request of Ms. Stanton.

Can this Court Interfere with the Original Bail Decision?

[15] In accordance with the decision of the Supreme Court of Canada, in R. v. St. Cloud, 2015 SCC 27, a reviewing court may only intervene with the original bail decision in three circumstances:

i. Where the justice erred in law;

ii. Where the impugned decision was “clearly inappropriate”;

iii. Where new evidence is submitted which amounts to a material and relevant change in circumstances. (at para. 121).

[16] A decision is “clearly inappropriate” in circumstances where the justice gave excessive or insufficient weight to a relevant factor. The reviewing judge may not intervene simply because he or she would have weighed the factors differently, St. Cloud at para. 6.

[17] According to s. 521(8)(e) of the Criminal Code, the Crown must “show cause” why the original order should be vacated.

[18] The Crown submitted that the learned JP applied the incorrect test on the tertiary grounds because he did not make findings on all four factors and clearly made the seriousness of the offence determinative on that issue. Ms. Stanton submitted that this was an incorrect application of the law, as St. Cloud says no one issue is determinative. She pointed out some further issues in support of that position. Mr. Newman, on behalf of Mr. M, submitted that the JP was not required to give reasons as he had decided not to detain Mr. M. He identified other parts of the transcript that he submitted qualified what Ms. Stanton submitted were errors of law made by the JP. He also submitted that many of the arguments made by Ms. Stanton amounted to areas where the JP was weighing factors rather than errors of law in which case the Crown had to establish that his Decision was clearly inappropriate.

[19] Without going into all the issues that Ms. Stanton raised in this regard, I was satisfied that the JP erred in law in at least two ways in his consideration of the tertiary grounds. In particular, despite saying that the offences Mr. M is charged with are serious several times, and that these types of charges are inherently violent in nature, the JP minimized the severity of these offences by stating that he did not know the name of any victim, that the gravity was not at the “highest level” of his 18 years of doing bails and that the circumstances of the charges before the court do not involve “engagement” of an under-age young child and they do not indicate “violent attacks or injuries or anything of that sort”.

[20] As Ms. Stanton submitted the fact that a more serious offence could exist does not make the offences before the court less serious. Furthermore, and most significantly, the JP appears to have failed to grasp the fact that the offences for which Mr. M has been charged, in fact, occurred against real children. The offences are inherently violent and extremely serious and harmful without Mr. M having committed any actual physical sexual assaults against children. Child pornography pictures and videos depict young children who have been subjected to extreme physical, mental and emotional violence.

[21] The harm perpetrated by Mr. M’s offences, if he is found guilty, has been given clarity most recently by the Supreme Court of Canada in its seminal decision in R. v. Friesen, 2020 SCC 9, where it provided sentencing guidance for sexual offences involving children, commented that courts have been on a "learning curve" in understanding "both the extent and the effects of sexual violence against children", and that sentencing has evolved in response to the prevalence of such crimes (para. 49). It noted, in this regard, that technology can make sexual offences "qualitatively different too", adding:

For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child's life at any time (para. 48).

[22] Furthermore, although the JP properly set out the test for the tertiary ground in his reasons, he then failed in his tertiary ground analysis to consider the potential for a lengthy period of imprisonment. He was obligated to consider the very lengthy sentence Mr. M is likely to face upon conviction. Ms. Stanton advised the JP of her position that if Mr. M is convicted, she will seek an order to have him assessed with a view to having him declared a dangerous offender pursuant to s. 753 of the Criminal Code. Ms. Stanton provided the JP with a Memorandum of Law in support of her position that these offences are serious personal injury offences.

[23] Mr. Newman submitted that the JP did refer to the Crown’s submissions that she intended to bring a Dangerous Offender application and that the JP stated that he agreed with most of the arguments advanced by the Crown in reference to the jurisprudence. This is true but that was stated later in his Decision. As I understand the Decision of the JP, that portion of the reasons was really a review of what had been submitted by the Crown and in fact he stated that he was not going to dwell on the case law argued by the Crown. What is clear is that when the JP was actually considering the factor related to the length of sentence, he very clearly stated that he had not heard “anything about long-term imprisonment” and that he did not consider it his job to “guess it”. He then said he had not heard any “credible argument to assess these factors”. Mr. Newman acknowledged that this portion of the reasons is concerning. They are not accurate as Ms. Stanton had made submissions. Furthermore, I do not agree with Mr. Newman that the balance of the reasons suggests that the JP in fact considered the length of sentence when balancing the factors on the tertiary ground. In my view, the learned JP clearly did not consider the lengthy sentence Mr. M would receive if convicted, particularly given his serious related criminal record and the fact that the Crown intends to pursue a Dangerous Offender application. In that regard he erred in law.

[24] I also heard submissions from counsel as to whether or not the JP improperly limited cross-examination by Ms. Stanton of Mr. M Sr. Mr. Newman submitted that the JP only limited Ms. Stanton when she was attempting to question on prohibited areas, relying on R. v. K.K. [2019] O.J. No. 1231 at paras. 10, 35 and 36. This was a difficult issue for the JP since Mr. M Sr. will be a Crown witness and the Crown’s position is that because he facilitated his son’s breach by giving him a cell phone and letting him access the internet, he was not a suitable surety. The difficulty is that in my opinion those questions are relevant to Mr. M Sr.’s suitability as a surety and will also be relevant to the ultimate trial.

[25] Without ruling on the propriety of questions that might have crossed this line, I was satisfied that the JP erred in law in improperly limiting the cross-examination of Mr. M Sr. because he was not his son’s surety at the times his son breached special conditions of his statutory release in the past, prior to the breaches alleged in the current charges, at all times while living with his father. What Mr. M Sr. knew of the conditions and whether or not he was aware his son was breaching them at the time is relevant to his suitability as a surety now, particularly as his son was residing with him throughout the entire period even though he did not have the legal obligation to supervise his son that he would have had as a surety. I advised counsel that when Mr. M Sr. was recalled as a witness, to the extent questions were asked that Mr. Newman objected to on the basis that they were on prohibited areas, I would rule on his objections on specific questions when they arose.

[26] Ms. Stanton also argued in her Factum that the JP erred in his analysis on the secondary ground, but she did not make those submissions in her oral argument and I did not need to consider those arguments, given my conclusion that the JP erred in his analysis of the tertiary ground and in curtailing cross-examination. The JP therefore did not have sufficient evidence to properly consider the strength of the release plan and the ability of Mr. M Sr. to supervise his son.

[27] Having found that the JP erred in law in at least two respects, I concluded that I was authorized to repeat the analysis under s. 515(10) of the Criminal Code as if I were the initial decision-maker. Accordingly, the hearing proceeded to the second stage. The evidence before the JP was filed before me, including the transcript of the proceedings and Mr. M Sr. was recalled as a witness.

The Evidence at the Bail Review Hearing

[28] Before JP Fatsis, the Crown cited concerns on the secondary and tertiary grounds. The plan before the Justice of the Peace was for one surety: SM, Mr. M’s father. Mr. M proposed a strict bail that included a house arrest condition, unless he was with his father. All the evidence before the JP at the original bail hearing was before me including a transcript of the hearing, including the Decision. In addition, I heard further evidence from Mr. M Sr. The relevant evidence that was not referred to in the Decision of the JP is as follows.

[29] The JP referred to Mr. M’s conviction in 2013 when Mr. M pleaded guilty to luring, invitation to sexual touching, and extortion. The Agreed Statement of Facts in support of that conviction were before the JP and so he knew it was admitted that at that time Mr. M contacted 22 girls and lured an 11year old girl in particular. He extorted this child, engaged this child sexually, and psychologically traumatized her. He then met with an undercover officer posing as an underaged child for the purpose of engaging in sexual acts with that child.

[30] As part of the evidentiary record pertaining to the 2013 offences, defence counsel for Mr. M proffered a report written by a psychologist. This was also referred to by the JP, who did refer to some of the information in the report about the risk of re-offending, but he did not refer to the fact that the psychologist opined that Mr. M suffers from pedophilia and a substance abuse disorder.

[31] Mr. M’s full criminal record is as follows:

2009-03-20

DRIVING WITH MORE THAN 80 MGS OF ALCOHOL IN BLOOD - $1000 Fine & PROBATION 3 MOS SEC & PROHIBITION DRIVING 12 MOS

2013-10-15

(1) LURING A CHILD UNDER 16 YEARS OF AGE - 3 YRS (15 DAYS PRE-SENTENCE CUSTODY) & DISCRETIONARY WEAPONS PROHIBITION SEC 110 CC FOR 10 YRS

(2) INVITATION TO SEXUAL TOUCHING (2-3) 3 YRS ON EACH CHG CONC

(3) EXTORTION

(4) LURING A CHILD UNDER 16 YEARS OF AGE - 1 YR CONSEC

(5) INDECENT EXPOSURE TO A PERSON UNDER 16 YRS OF AGE - 1 YR CONC

2018-01-26

(1) IMPORTS, DISTRIBUTES, SELLS OR POSS FOR THE PURPOSE OF DISTRIBUTION OR SALE ANY CHILD PORNOGRAPHY - 19 MOS & PROBATION 36 MOS (CREDIT FOR THE EQUIVALENT OF 158 DAYS PRE-SENTENCE CUSTODY) & SEC 163.1 CC PROHIBITION REGARDING CHILDREN SEC 161(1) CC FOR 10 YRS

(2) POSS OF CHILD PORNOGRAPHY - 19 MOS CONC

[32] Mr. M Sr. was his son’s surety when he was charged with the offences that he was convicted of in 2013 and there is no dispute that while a surety his son did not breach any of his bail conditions.

[33] Mr. M spent time at Ontario Correctional Institute when he was serving his 2013 sentence and while there, he took part in sex offender treatment.

[34] The Crown filed a Will Say statement from KS, an employee of the Correctional Service of Canada (“CSC”) who is currently a Parole Officer in Toronto East.

[35] Ms. Stewart testified that after a short period of time in a Day Parole program from Bath Institution, Mr. M was released statutorily for his 2013 offences on June 15, 2016. He was subject to a number of special conditions including a term that he not own, use or possess a computer or any device that would allow him unsupervised access to the internet. He moved in with his father at this time.

[36] Mr. M’s statutory release was suspended on May 31, 2017 for violating his special condition to not use computers and he was incarcerated by the CSC. Mr. M reached the warrant expiry date on the 2013 convictions on October 14, 2017 while he was dealing with the new 2018 charges. Mr. M remained in custody on these charges and was sentenced while he was in custody. He remained in custody until his statutory release date when again he went to live with his father. Again, he was subject to special conditions that required he not consume drugs or alcohol or have a cellular phone. Mr. M was living with his father when he commenced the probation order imposed following the 2018 convictions that included a term prohibiting him from having a cellular phone. This probation is to continue until February 14, 2022.

[37] Mr. M’s statutory release was suspended, and he was incarcerated by the CSC when he allegedly committed the current offences in 2021 before the court. He was found to have violated in particular his special conditions to not use computers and to not possess or consume alcohol.

[38] Ms. Stanton alleged before the JP that Mr. M Sr. provided the cellular phone that was seized from his son contrary to his terms of probation, relying on what the officers heard Mr. M Sr. say to his son at the time of the search. She was not permitted by the JP to ask if this was true.

[39] Mr. M Sr. will be a Crown witness at the trial against his son as it is alleged that he witnessed his son breaching his probation conditions by possessing a cellular device for a purpose not within in the articulated exceptions. He gave evidence at the show cause hearing that his son spent most of his days watching YouTube, which the Crown alleges is also a breach of Mr. M’s probation conditions. Mr. M Sr. testified before the JP that he did not realize that using Ignite TV meant that his own television was connected by way of an internet connection and that this enabled his son to access the internet via Ignite TV and this evidence was accepted by the JP.

[40] Mr. M Sr. gave further evidence before me. When he was a surety for his son with respect to the 2013 convictions, Mr. M Sr. was assisted by his sister who was also a surety. She helped both financially and with respect to supervision.

[41] Mr. M Sr. testified that when his son was arrested for the offences before the court in 2018, and a search warrant was executed, that was the first time he knew that his son had a laptop in his bedroom. He did not have any other digital devices he was aware of. His son did not have a TV in his bedroom then. He testified that at the time he afforded his son privacy that he does not do anymore. Later he said that because of his son’s age he allowed him maybe too much privacy but that has all changed now.

[42] The first time his son was released – the statutory release following the 2013 convictions – Mr. M Sr. testified that he was not aware that his son was subject to a prohibition about drinking alcohol although he believed that was a term when he was his son’s surety. Mr. M Sr. testified that his son never drank in front of him although he is aware that his son has a problem with alcohol. He was aware of the condition that his son have no access to any digital device that could access the internet.

[43] Mr. M Sr. testified that he believes his son has a preference for prepubescent children. He testified that his son is being transferred to the Physical and Mental Health branch under Ontario Works at his son’s request. This was not explored so I do not know what type of treatment Mr. M might be able to access.

[44] With respect to the probation that his son was on as a result of the 2018 convictions, Mr. M Sr. testified that he was not aware of the exemptions to his son’s use of a device that could access the internet – only that he could not do so. He did not have a copy of the conditions of probation although he believed he had read them over and was familiar with them. He added that this time, with respect to the terms of release as ordered by the JP, he has a copy of them.

[45] Mr. M Sr. testified that he took his son to all his appointments with his probation officer and he believes that his son told his probation officer that he had a couple of beers from time to time. He said that is why he was confused by the suggestion his son was not allowed to consume alcohol.

[46] Mr. M Sr. testified that with respect to the current charges before the court, he did not give his son a cell phone even though the police allege he did. He repeated that he knew that his son could not access the internet and that he thought his son could not access the internet with the flip phone that his son had. Mr. M Sr. testified that his son brought the phone to an appointment with his probation officer and his son told him that the probation officer approved of him having it. Mr. M Sr. testified that he saw the phone and knew it did not have internet access because he “lived in those days” when phones did not have access to the internet.

[47] Mr. M Sr. admitted that in the past he was not technologically savvy. He admitted, for example, that he did not realize that his television was hooked up to the internet. He also admitted that in the past his son had more prowess with the internet than he did. He denied, however, that that was still the case given the research he has done since. He has also taken certain steps since the hearing before the JP such as disconnecting the Wi-Fi on his cell phone, which was why he called in to the Zoom call for this hearing rather than joining in by video[^1]. Mr. M Sr. also testified that he has changed the password on his phone, and he did not enter it into his phone.

[48] Mr. M Sr. testified that he still has Ignite TV, but his son no longer has a TV in his room. The only TV in the residence is the one in the living room. He has disconnected the Wi-Fi on that TV and his son is no longer allowed to go on YouTube. He has also checked to ensure that his son cannot access the internet on his PS4. He also testified that there is no open Wi-Fi available in the apartment building and that all other accounts are secured by passwords although he had not checked that since the first time he did so two and one half years ago. As for the desk top computer in his living room, Mr. M Sr. denied that it could access Wi-Fi without an internet cable as it is at least 10 years old. His computer is password protected.

General Principles of Law

[49] The applicable law is not in dispute. Mr. M is presumed innocent and he has a constitutional right to bail unless there is just cause to deny it, as guaranteed by s. 11(e) of the Canadian Charter of Rights and Freedoms. The Supreme Court of Canada has held that detention pending trial should not ever become the norm: see R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, and R. v. Myers, 2019 SCC 18, 438, D.L.R. (4th) 60. As Wagner J. (as he then was) stated in St. Cloud, supra at para. 70, with respect to a person charged with a crime, even very serious crimes, 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”. The exception being where detention is justified on one of the grounds set out in s. 515(10) of the Criminal Code: St. Cloud, at para. 113.

[50] Mr. M is entitled to be released on the least restrictive form of bail and conditions that address the concerns of s. 515 of the Criminal Code; see Antic, at para. 67(g). This was reinforced recently in R. v. Zora, 2020 SCC 14, [2020] S.C.J. No. 14 at para. 6:

All those involved in the bail system are to be guided by the principles of restraint and review when imposing or enforcing bail conditions. The principle of restraint requires any conditions of bail to be clearly articulated, minimal in number, necessary, reasonable, least onerous in the circumstances, and sufficiently linked to Mr. M's risks regarding the statutory grounds for detention in s. 515(10).

The Legal Principles on the Secondary Ground

[51] Chief Justice Lamer in R. v. Morales (1992), 1992 CanLII 53 (SCC), 77 C.C.C. (3d) 91 (S.C.C.) at para. 39 observed that detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous. Morales at para. 39 is instructive:

… Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose “a substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. [Emphasis added]

[52] The standard of proof on “substantial likelihood” is a slightly enhanced balance of probabilities standard: see Gary T. Trotter, The Law of Bail in Canada, 3rd ed., loose-leaf (Toronto, Ontario: Carswell, 2010) at p. 3-15.

Analysis of the Secondary Ground

[53] Following the completion of the evidence of Mr. M Sr., counsel did not have much time left to make oral submissions, but I was able to consider what they stated in their submissions before the JP.

[54] I accept given Mr. M’s criminal record, his diagnosis as a pedophile and his interest in prepubescent children, that there is a very high risk that he will re-offend and commit further offences of the nature of those in his criminal record and before the court now, absent very close and strong supervision.

[55] Ms. Stanton submitted that she still has concerns about Mr. M Sr. as a surety. She stated that she was not suggesting that there is any ill will or malice and she accepts that he is a concerned father but argued that he is not suitable as a surety based on what has happened in the past and his son’s ability to access the internet while residing with him. It is her position that the father is ill-equipped to supervise his son. It is still her position that Mr. M Sr. has significant limitations as it relates to understanding technology and the internet. She is also concerned that Mr. M is back in the place where he did commit prior offences, and also allegedly committed the criminal offences before the court and that in the apartment he has access to the tools he needs to commit future online offences against children, namely the TV and computer in the living room and his father’s cell phone. Ms. Stanton relies on the fact that Mr. M Sr. has not realized that his son was in fact accessing the internet in the past.

[56] I do not accept any suggestion that Mr. M Sr. facilitated his son’s breach of conditions of probation because he knew his son had a flip phone. It was not suggested that his evidence that this was approved of by the probation officer and his belief that because of the age of the phone that it could not access the internet is not credible. Although it appears to be the case that the probation officer was not legally able to vary the term of probation to permit Mr. M to have this phone, I could not conclude that this likely did not happen. I accept Mr. M Sr.’s evidence on this point.

[57] It must be the case however, since only one phone was seized, that the flip phone in fact could access the internet. Clearly Mr. M Sr. was duped by his son. If Mr. M did indeed show the phone to the probation officer, then the officer was duped as well.

[58] Mr. Newman submitted that the Crown’s case on the secondary ground now is weaker than it was before the JP. I agree. For the reasons already stated there is no basis to suggest that Mr. M Sr. has facilitated any breach by his son of the conditions of his probation, as was argued before the JP. It is also important to remember as the JP pointed out, that when Mr. M Sr. was his son’s surety, there were no breaches. As for the breaches by his son when he was on statutory release, I accept Mr. M Sr.’s explanations given in evidence before the JP to the extent he permitted questions and in his evidence before me, for why he gave his son privacy and was unaware of what his son was doing. It is also important to remember that in the past Mr. M Sr. worked full time. He is retired now.

[59] Mr. M Sr. made it clear in his evidence both before the JP and before me that there will now be an open-door policy and he will not give his son the privacy that he has in the past. Mr. M Sr. has also taken even further steps to remove the possibility of his son accessing the internet since the original bail hearing and significantly there have been no allegations of breach since the Decision of the JP was made on October 1st to release Mr. M with his father as surety.

[60] There are only three devices in the residence now whereby Mr. M could access the internet. Given his father is going to be with him 24/7 the risk of Mr. M being able to access the internet again is significantly diminished. Apart from restating that Mr. M Sr. could be duped by his son again, Ms. Stanton did not suggest a way that it would be possible for Mr. M to do so. Given the knowledge Mr. M Sr. now has of what his son has done in the past, the steps he has taken to limit access to Wi-Fi in the apartment, given the increase in his technological knowledge and given that he is assuming the responsibility of being a surety for his son, a role he has performed well in the past, and given he is putting his life savings on the line, I am satisfied that this is a strong release plan. There is no substantial likelihood that Mr. M could re-offend.

[61] For these reasons I find that the Crown has not met its onus on the secondary ground.

The Legal Principles on the Tertiary Ground

[62] Section 515(10) of the Criminal Code outlines the only statutory grounds for pre-trial detention of an accused person. With respect to the tertiary ground, subsection (c) states as follows:

For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

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

(1) The apparent strength of the prosecution's case;

(2) The gravity of the offence;

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

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

[63] In St. Cloud, Wagner J. set out the principles which must guide this Court in the application of the four circumstances listed in s. 515(10)(c) of the Criminal Code, which includes the principle that a court must not order detention automatically even where the four listed circumstances support such a result. At para. 69, he made it clear that the four listed factors are simply the main factors to be balanced together with any other relevant factors, in determining whether detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice in this country.

[64] In addition, the length of time it will take for this matter to get to trial is also a relevant factor to consider: St. Cloud at para. 71. This case is in its early stages in the Ontario Court of Justice and given the Crown intends to bring a Dangerous Offender application it can be expected to take some time to complete.

[65] There is not one way to undermine public confidence in the administration of justice. It may be undermined if a justice declines to order the interim detention of a defendant in circumstances that justify detention, but also if a justice orders detention where such a result is not justified: St. Cloud, at para. 86. Justice Wagner emphasized at para. 4 that an effort should be made to strike an “appropriate balance between the rights of the accused and the need to maintain justice in the community.”

[66] At para. 87, Wagner J. summarized that the perspective of the public is the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values, and the actual circumstance of the case, although this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the defendant. At para. 80 Wagner J. stated:

In short, the person in question … is a thoughtful person, not one who is prone to emotional reactions, whose knowledge of the circumstances of a case is inaccurate or who disagrees with our society’s fundamental values.

[67] Justice Wagner made it very clear that s. 515(10)(c) is meant to encompass all crimes and is not limited to “certain types of crimes such as murder.” In fact, Mr. St. Cloud was charged with aggravated assault: St. Cloud at paras 54 & 87. At para. 88, Wagner J. stated that:

In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered. [Emphasis added]

[68] Although the tertiary ground provides a distinct basis for pre-trial detention from the secondary ground, and I must be careful not to conflate the two, the strength of the plan of release is a relevant factor on the tertiary ground. As Trotter J. (as he then was) noted in R. v. Dang, 2015 ONSC 4254, 122 W.C.B. (2d) 479, at para. 58, a defendant’s plan of release may be relevant to whether public confidence in the administration of justice is capable of being maintained. As Trotter J. observed, a “reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused”.

Analysis of the Tertiary Ground

[69] Turning to the tertiary ground and the first factor, the Crown’s case appears to be very strong. I agree with the conclusion of the JP in that regard. Absent a successful Charter challenge to the search warrant of the home, the evidence is overwhelming that Mr. M was in actual possession of a cell phone that could access the internet and that he downloaded child pornography.

[70] Turning to the second factor, there is no doubt that Mr. M is charged with very serious offences. I have already set out why, even though the offences currently before the court are different from the offences he committed in 2013, the Supreme Court of Canada in Friesen has made it clear that the online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child's life at any time. In addition, the allegation that Mr. M was in breach of the terms of his release at the time he is alleged to have committed the current offences is also serious.

[71] The third factor requires a consideration of the circumstances surrounding the commission of the offences. I have already considered the fact that these offences are inherently violent. Furthermore, the fact that Mr. M breached a term of his probation by having possession of a cell phone that could access the internet makes the offences he is charged with even more serious. If he in fact duped his probation officer as his father’s evidence suggests that too is serious. He certainly duped his father into believing that the phone he had in his possession was approved by his probation officer and that it could not access the internet.

[72] As for the fourth factor, given Mr. M’s criminal record, he very likely will be facing a very lengthy sentence if convicted and the Crown has already put him on notice that she will bring a Dangerous Offender application.

[73] I must also consider the fact that it will take some time for this case to proceed to trial and, if convicted, for the sentencing hearing to conclude, particularly given the Crown’s intention to bring a Dangerous Offender application.

[74] Although the four main factors strongly favour detention, that does not mean that Mr. M’s detention is automatic. This is a very difficult case and opinions on how to appropriately balance the rights of Mr. M and the need to maintain justice in the community would likely differ.

[75] As already stated, in balancing these factors and considering whether Mr. M’s detention is necessary to maintain confidence in the administration of justice, I can consider the plan of release proposed. I have found the plan of release to be strong. Mr. M will be in the constant supervision of his father who is aware of his criminal record and his preference for prepubescent children. If I was satisfied that there is no risk that Mr. M would re-offend while in the supervision of his father, I would be prepared to apply the guidance from Trotter J. (as he then was) in Dang, supra at para. 58 and consider the strength of the release plan as a factor favouring Mr. M’s release.

[76] However, there are still devices in the apartment whereby Mr. M could access the internet and I am troubled by the prospect of Mr. M accessing the internet using one of those devices while his father is sleeping. Although I must emphasis that I am impressed by Mr. M Sr. and confident that he would do his utmost to ensure that his son does not access the internet, Mr. M has clearly shown that he is prepared to not only hide his activities on the internet from his father but also take steps to access the internet by duping his father into believing he is not capable of doing accessing the internet. There is also the possibility at any time of unsecured internet becoming available in the apartment building. For these reasons I am concerned that Mr. M would have an opportunity to re-offend and as I have already stated, if he is able to gain access to the internet there is a very high risk he will re-offend and commit further offences of the nature of those in his criminal record and before the court now,.

[77] There is overwhelming evidence against Mr. M and the offences Mr. M has been charged with are for the reasons I have set out very serious and inherently violent. The victims of the child pornography found on his phone are very vulnerable. I come back to the statement by Justice Wagner at para. 88 of St. Cloud. In these circumstances pre-trial detention will usually be ordered.

[78] Balancing all of the factors on the tertiary ground and given my concerns about the release plan, and in particular the presence of devices in the apartment capable of access to the internet, in my view a reasonably informed public informed about the philosophy of the legislative provisions, Charter values, and the actual circumstance of the case, would have their confidence in the administration of justice undermined if Mr. M is released pending his trial. I conclude that the Crown has satisfied me on the tertiary ground that Mr. M should be detained pending his trial.

Disposition

[79] For these reasons the Crown’s application to vacate the Decision and order of JP Fatsis is granted.

[80] Pursuant to s. 521(6) of the Criminal Code I shall issue a warrant for the committal of Mr. M.

Spies J.

Released: October 29, 2021

Edited Decision Released: November 15, 2021

COURT FILE NO.: CR-21-00000283-00BR

DATE: 20211029

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

L.M.

DECISION ON BAIL REVIEW APPLICATION

Spies J.

Released: October 29, 2021

[^1]: Counsel agreed that we did not have enough time for Mr. M Sr. to change the setting on his phone and that having him join by audio only was satisfactory.