Court File and Parties

Court File No.: CR-21-00000303-00BR Date: 2021-11-16 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Desta Haile, Applicant

Counsel: M. Walia, for the Respondent A. Cormie-Bowins, for the Applicant

Heard: November 8, 2021

Reasons for Decision

Schreck J.:

[1] Desta Haile is facing seven sets of charges. He was released on various forms of judicial interim release on the first six sets of charges but was ordered detained on the seventh set following a bail hearing before Justice of the Peace Madigan. Mr. Haile applies to this court for a review of that decision pursuant to s. 520 of the Criminal Code.

[2] Mr. Haile submits that there have been two material changes of circumstances since his bail hearing: the introduction of evidence that he suffers from a mental illness for which he is willing to seek treatment and the fact that his trial on the initial charges has been delayed. He also submits that the Justice of the Peace committed various legal errors. Based on this, Mr. Haile submits that this court should consider the matter de novo and conclude that he should be released.

[3] The Crown acknowledges that there has been a material change in circumstance warranting a de novo consideration of the issue of bail, but submits that Mr. Haile’s continues to be necessary detention on the secondary ground.

[4] After the hearing of this matter, I reserved my decision briefly and then advised the parties that Mr. Haile is to be released on strict conditions for reasons to be provided at a later date. These are those reasons.

I. EVIDENCE AND HISTORY OF THE PROCEEDINGS

A. The First Set of Charges: Sexual Assault

[5] On January 8, 2020, the applicant and the complainant, M.G., were watching television at the home of the applicant’s then girlfriend, K.R. The applicant and M.G. were not in a relationship and never had been. They were both lying on a mattress partially covered by a blanket. According to the complainant, the applicant moved his arm up her shorts and penetrated her vagina with his finger. She told him to stop and he did. A short while later, the applicant slid his hands down the waistband of the complainant’s shorts and again digitally penetrated her. She again told him to stop and he did.

[6] About a week later, the complainant went to the police and reported her allegations. The applicant was arrested and released on his own recognizance.

B. The Second Set of Charges: Assault and Failing to Comply With a Recognizance

[7] On September 2, 2020, the applicant was released on a recognizance which included a condition that he have no contact with K.R. It is not clear what charges this recognizance relates to. On September 26, 2020, the applicant and K.R. ran into each other and then went together to her apartment, apparently with her consent. While there, they began to argue and K.R. asked the applicant to leave. He initially refused, allegedly pushed her four times, and then left.

[8] K.R. contacted the police and the applicant was arrested on December 19, 2020. He was again released on his own recognizance.

C. The Third Set of Charges: Failing to Comply With Probation

[9] On July 10, 2020, the applicant was found guilty of assault, failing to appear in court and carrying a concealed weapon. He was granted a conditional discharged and placed on probation for 12 months. The probation order required him to report to a probation officer within 48 hours. It is alleged that he never did so, despite repeated attempts by the probation officer to contact him.

D. The Fourth Set of Charges: Failing to Comply With Probation

[10] Another condition of the probation order made on July 10, 2020 was that the applicant not attend any place where he knew an individual called M.C. to be. The applicant and M.C. were involved in an intimate relationship.

[11] On February 28, 2021, the applicant was in the company of M.C. The two of them called the police to report an incident. When the police attended, it was discovered that the applicant was breaching his probation by being in the company of M.C. and he was arrested and charged for that and for failing to report. He was later released on his own recognizance.

E. The Fifth Set of Charges: Assault, Mischief and Failing to Comply With Recognizances

[12] On December 20, 2020, the applicant was found guilty of assault, given a suspended sentence, and placed on probation. One of the conditions of his probation was that he have no contact with K.R.

[13] It is alleged that on May 2, 2021, the applicant and K.R. boarded a Toronto Transit Commission bus. They became involved in an altercation with the driver over their refusal to wear masks. It is alleged that K.R. punched the driver. The applicant then pushed K.R. away, after which he also punched the driver, causing her to lose consciousness momentarily. The applicant then grabbed K.R. by the neck and pushed her out of the bus. K.R. re-entered the bus a few seconds later and struck the plastic barrier behind which the driver was sitting. A passerby attempted to intervene but K.R. and the applicant forcibly removed him from the bus and punched him.

[14] The applicant was later located and charged with assaulting the bus driver and the passerby as well as mischief under $5000.

F. The Sixth Set of Charges: Assault, Failing to Comply With Recognizances

[15] Based on the allegation that he grabbed K.R. by the neck during the altercation with the bus driver, the applicant was also charged with assaulting her. He was also charged for failing to comply with his probation by failing to keep the peace and be of good behaviour and by having contact with K.R.

[16] Following the applicant’s arrest, the Crown brought an application pursuant to s. 524 of the Criminal Code. Following a bail hearing, the applicant was released on a global recognizance in relation to all the charges with Jessica Matthews as a surety.

G. The Seventh Set of Charges: Failing to Comply With Recognizances and Probation

[17] On August 4, 2021, K.R. called the police to report that the applicant was at her home. The police attended and found him hiding in a closet. He was charged with numerous counts of failing to comply with probation and recognizances.

E. The Bail Hearing

[18] On August 11, 2021, the applicant had a bail hearing before Justice of the Peace Madigan. The hearing proceeded by way of videoconference and the applicant was represented by duty counsel. Jessica Matthews, a woman with whom the applicant once had a conjugal relationship and with whom he has one child, was proffered as a surety. At the conclusion of the hearing, the applicant was ordered detained on the secondary ground.

F. The Proposed Surety

[19] Ms. Matthews swore an affidavit and testified on this bail hearing. She first met the applicant about two years ago and was for a time involved in a romantic relationship with him. They have a child together who is now seven months old. Ms. Matthews is willing to live with the applicant if he is released. She is not employed and would be in a position to supervise him at all times. Ms. Matthews proposes that the applicant be subject to house arrest with limited exceptions and a curfew. She is aware that the applicant has been diagnosed with bipolar disorder and wishes to ensure that he receives treatment for this and is willing to assist him in this regard.

[20] If the applicant is released, Ms. Matthews would monitor his use of his phone and any social media to ensure that he is not in touch with anyone he is prohibited from having contact with. She would insist on being provided with all of his relevant passwords to ensure this.

[21] Ms. Matthews testified that she has learned from her past experience as the applicant’s surety and would not repeat the same mistakes. At the time the applicant allegedly breached his last bail, Ms. Matthews was in the process of revoking his bail because she had been unable to get in touch with him. In future, she would commence this process sooner if she lost touch with the applicant for even a brief period of time.

II. ANALYSIS

A. Material Changes in Circumstances

(i) Change in Trial Date

[22] The applicant’s trial on the sexual assault charge was scheduled to take place in the Ontario Court of Justice on September 20 and 21, 2021, about a month after the bail hearing that is the subject of this review. Prior to the bail hearing, the applicant’s counsel retired from practice. The applicant retained new counsel who went on record immediately after the bail hearing. At around that time, the applicant’s new counsel was advised by the Crown of the existence of police occurrence reports which she determined should be the subject of an application pursuant to s. 278.1 of the Criminal Code. As a result, the applicant’s trial was adjourned and is now scheduled for February 24 and 25, 2022.

[23] The applicant submits that the delayed trial is a material change in circumstances. By the time the sexual assault trial takes place, the applicant will have spent approximately seven months in pre-trial custody. If the applicant resolves all of his charges, the Crown takes the position that the appropriate sentence would be imprisonment for 12 to 14 months, with seven to eight months attributed to the sexual assault. The applicant submits that his presentence custody will have exceeded the appropriate sentence for the sexual assault by the time of his trial on those charges. He further submits that once he is given the usual credit for presentence custody as well as enhanced credit because of the conditions of his incarceration, he will have served close to the equivalent of what he would receive for all of the charges.

[24] I accept that the adjournment of the trial constitutes a material change in circumstances. I will discuss the issue of pretrial custody later in these reasons.

(ii) The Applicant’s Mental Illness

[25] The second material change in circumstance relied on by the applicant is the introduction of evidence of a mental illness. In his reasons for detaining the applicant, the Justice of the Peace stated:

Now, I’ve not been made aware of any mental health problem or any drug problem, but one wonders if there’s something in the defendant’s life that is happening that would somehow account directly or indirectly for him getting into this much trouble in such a period of time.

[26] After the Justice of the Peace finished giving his reasons, the applicant indicated that he wished to say something:

Thank you very much for letting me speak, Your Honour, I’ve actually been trying – I’ve been waiting patiently just letting you guys go through the proceedings and everything, but on the matter of when it was touched upon my mental health state and everything, I used to be in CAMH and I have recently been diagnosed bipolar disorder type two, and some other mental illnesses and everything, including fear of enclosed spaces and shut in and all that. I have been trying to go to CAMH to seek medical attention.

[27] The Justice of the Peace responded as follows:

Okay. Well, sir, unfortunately I’ve made my decision. I’ve [sic] now functus. Certainly, you know, if there is a material change in circumstances, then you might – that’s something you might want to consider, you know, time for another bail hearing, a bail review, or a bail [indiscernible], you now, or a de novo hearing, whatever the case may be. But at this point I’m sticking by my decision. I’m now functus. I finished my decision, I made it. I’ve lost jurisdiction over the matter now.

[28] The Crown does not take issue with the applicant’s assertion that he has been diagnosed with bipolar disorder and acknowledges that the discovery of this constitutes a material change in circumstances. I agree.[^1]

B. The Secondary Ground

(i) Overview

[29] While the Crown agrees that a de novo consideration of the issue of bail is appropriate, the Crown continues to oppose the applicant’s release on the secondary ground. That ground is set out in s. 515(10)(b) of the Code, which states that detention is justified on the secondary ground where it is necessary for the protection or safety of the public “having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice.” In this context, a “substantial likelihood” means “a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely”: R. v. Manasseri, 2017 ONCA 226, at para. 87.

[30] In this case, there are obvious secondary ground concerns. The applicant allegedly committed a series of criminal offences between January 2020 and November 2021, including offences of violence and offences involving the violation of multiple court orders. However, the issue is not whether secondary grounds concerns exist, but whether they can be sufficiently attenuated by the proposed release plan.

(ii) The Proposed Plan

[31] The applicant once again proposes Jessica Matthews as a surety. Ms. Matthews was his surety when he allegedly breached his bail by attending K.R.’s home in August 2021. The fact that he allegedly breached his bail while under her supervision is obviously a cause for significant concern. However, having heard the evidence of Ms. Matthews, I am satisfied that she would be a responsible and effective surety, notwithstanding the failure of the previous bail plan.

[32] Ms. Matthews has obviously put a lot of thought into what she must do to fulfil her obligations as a surety. She has considered the circumstances which are likely to lead Mr. Haile to get into trouble, such as associating with K.R. or being out at night, and has proposed steps to address them. She has turned her mind to Mr. Haile’s mental illness and the need for treatment. Most importantly, the fact that she began the process to revoke Mr. Haile’s bail on the last occasion demonstrates that she is prepared to do what is necessary to ensure Mr. Haile’s compliance. While the proposed plan obviously cannot guarantee that Mr. Haile will not breach his conditions, in my view it will lower the risk of further offences to an acceptable level.

(iii) Pre-Trial Custody

[33] There is an additional factor which favours granting bail in this case. By the time the applicant completes his trial on the sexual assault charge, he will have served approximately seven months in presentence custody if he is not released on bail. If he is given the ordinary credit in accordance with R. v. Summers, 2014 SCC 26, [2014] 1 SCR 575, this would be the equivalent of 10.5 months. As well, the applicant has been in custody at the Toronto South Detention Centre since his arrest and has adduced evidence showing that he has been subjected to lockdowns on most days. This would likely result in further credit: R. v. Bristol, 2021 ONCA 599, at paras. 10-12; R. v. Marshall, 2021 ONCA 344, at paras. 50-53; R. v. Bernard, 2021 ONSC 5815, at paras. 24-32.

[34] The relevance of pre-trial custody to the issue of bail was explained in R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at paras. 52-53:

Reviewing judges must be particularly alert to the possibility that the amount of time spent by an accused in detention has approximated or even exceeded the sentence he or she would realistically serve if convicted: see, e.g., Sawrenko, [2008 YKSC 27], at para. 43. The assessment must be informed by the need to reduce the risk of induced guilty pleas, which are profoundly detrimental to the integrity of the criminal justice system. As was noted in R. v. White, 2010 ONSC 3164, “public confidence in the administration of justice, and in particular in the judicial interim release regime, would be substantially eroded by pre-trial incarceration of presumptively innocent individuals to the equivalency or beyond the term of what would be a fit sentence if [they were] convicted”: para. 10.

In an appropriate case, it may also be possible for the judge to conclude that a hypothetical risk in relation to the primary or secondary ground is simply outweighed by the certain cost of the accused person’s loss of liberty or of a loss of public confidence in the administration of justice.

[35] It is the Crown’s position that the appropriate sentence for the sexual assault if the applicant were to plead guilty would be seven or eight months. He will clearly have served more than that by the time the trial takes place. No trial dates have yet been set for the other charges. It is clear that by the time he does have trials on those matters, if he is not granted bail he will have served far more than the 12 to 14 months the Crown says is appropriate. In my view, this favours release in this case for the reasons explained by Pomerance J. in in R. v. Elliott, 2020 ONSC 2976, at paras. 26-27:

The court [in Myers] referred above to a “hypothetical risk” in relation to the primary or secondary ground. The secondary ground only warrants detention when there is a “substantial likelihood” that “the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice”. If something is substantially likely, it is arguably more than hypothetical. On the other hand, the risks addressed by the primary and secondary ground are hypothetical in the sense that they are predictive rather than descriptive. The risk of misconduct may or may not be realized.

By way of contrast, there is nothing hypothetical about detention. If someone is in custody, the impact on their liberty is very real and can be tangibly measured against the sentence that would likely attach to the charges. Detention orders are not made in the abstract. They are linked to a material event: the trial. If an accused person pleads guilty in exchange for a sentence of time served, he or she is obviously released from custody. What of a case where the accused has pleaded not guilty, but has already served the equivalent of a post-trial sentence? That factor weighs in favour of release pending the trial. An accused person should not have to plead guilty to receive the benefit of time already served. To hold otherwise is to risk coercing false guilty pleas from those who are factually innocent.

See also at R. v. G.P., 2020 ONSC 3240, at paras. 21-33.

III. DISPOSITION

[36] For the foregoing reasons, Mr. Haile was released on a recognizance with Jessica Matthews as a surety. He was required to abide by the following conditions in addition to the statutory conditions:

• reside with his surety at the address specified in the order;
• attend such psychiatric or psychological counselling or treatment as directed by his surety;
• not to possess any weapons as defined by the Criminal Code;
• remain in his residence at all times except while going to or from a court appearance, a medical, dental or legal appointment, an appointment for counselling or treatment in accordance with this order, or to travel home upon release from the Toronto South Detention Centre;
• observe a curfew from 8:00 p.m. to 6:00 a.m. except for medical emergencies involving himself or members of his immediate family;
• not to have direct or indirect contact with the following people or be within 500 metres of any place he knows them to live, work, attend school or otherwise be: M.G., M.C., K.M., B.T. and K.R. With respect to K.R., he may have contact with her through a mutually agreed upon third party to facilitate access to or communication about their child, or in accordance with a family court order.

Justice P.A. Schreck

Released: November 16, 2021

[^1]: As the parties agree that there has been a material change in circumstances, I need not determine whether the Justice of the Peace erred in concluding that he was functus officio. However, the exchange between the Justice of the Peace and the applicant occurred almost immediately after the Justice of the Peace delivered his reasons and likely before any formal detention order had been drafted and signed. In these circumstances, it is doubtful that the doctrine of functus officio applied: R. v. Smithen-Davis, 2020 ONCA 759, 68 C.R. (7th) 75, at paras. 32-37.