COURT FILE NO.: CR-21-647-BR
DATE: 2021 02 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Keeley Holmes for the Crown
- and –
JAHVAR GREEN
Jeffrey Fisher for the Applicant Green
HEARD: February 5, 2021 by Zoom video conference
JUDGMENT ON SECTION 520 BAIL VARIATION APPLICATION
D.E HARRIS J.
[1] The Applicant, Jahvar Green, applies to delete the house arrest condition from his bail release order. He is charged with firearm offences for having a loaded handgun in his possession along with a quantity of marijuana. The gun was in a satchel with the marijuana. The Applicant was in his car. He took some measures to avoid the officer who ultimately questioned and arrested him.
[2] The Applicant was on a bail at the time which prohibited him from being in possession of weapons so he is charged with a fail to comply offence as well. He has no record although he has entered a peace bond after successful completion of the PAR domestic violence program.
[3] The current bail was crafted by the presiding Justice of the Peace after a contested bail hearing on April 2, 2019. His mother was named as surety on a pledge of $1000. The pertinent exceptions to the house arrest were that he was allowed out of the home with his surety or his stepfather. There was also an exception to allow him to work and to go directly to and from work and home. He has worked intermittently but is not currently working.
[4] The stated reason that the Applicant asks that the house arrest be deleted is to relieve the burden on his mother and stepfather to be with him while he is out of the house. This will permit him to do errands on his own. His mother, in her affidavit, says the reason for the request is to lower the burden on her and her husband.
[5] At the original hearing, the mother was extolled by the Crown and the Justice of the Peace as an exemplary surety. She says in her affidavit on this application that her son has fully complied with his bail. He has been out for almost two years now.
[6] An analysis of this application must begin with a recognition of the severity of house arrest. Justice Rosenberg in R. v. Downes, 2006 CanLII 3957 (ON CA), [2006] O.J. No. 555, 79 O.R. (3d) 321 (Ont.C.A.) said at para. 29,
Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence.
[7] Of course, sometimes house arrest is necessary as a response to the grounds for detention in Section 515(10) of the Criminal Code. The assessment by the presiding Justice of the Peace at the bail hearing that this was one such case was entirely reasonable at the time.
[8] There are two competing interests on this application: 1. The Applicant has accumulated a good track record on bail over an almost two year period; 2. The firearm offences he is charged with are very serious and raise secondary and tertiary ground concerns. To add to that, it could be said that the reasons for the alleviation of bail are not the most compelling. As I understand it based on the notice of application and Mr. Fisher’s oral submissions, besides the inability to carry out errands on his own, the Applicant simply wants more freedom to move around as he likes.
[9] A good track record on bail release is of great importance. It shows in practical terms the process to be working in terms of the primary and secondary grounds. The accused is complying with his bail obligations and there is no evidence that he is jeopardizing the safety of the public by committing further offences. Risk may be diminished based on past behaviour just as risk may be increased based on prior bad behaviour.
[10] In turn, with reference to the tertiary ground, the compliance of the accused with bail tends to affirm the public’s confidence in the bail system.
[11] The question is not of rewarding good performance on bail but rather of managing the risk posed by the accused going forward and, on the tertiary ground, maintaining the confidence of the public. If an accused has been successful for an extended period while on bail, it may well be appropriate that bail be revisited.
[12] Justice Doherty recently wrote in R. v. Jaser, 2020 ONCA 606, [2020] O.J. No. 4423, 152 O.R. (3d) 673 (C.A.),
52 … Circumstances relevant to bail are dynamic and can change significantly as a case progresses and time passes: see R. v. Zora, 2020 SCC 14 (S.C.C.) at para. 92. Bail orders are inherently more interim in nature than final.
[13] Also see R. v. Saracino, 1989 CanLII 7197 (ON SC), [1989] O.J. No. 28, 47 C.C.C. (3d) 185, 6 W.C.B. (2d) 236 (S,C,J.) at para. 17.
[14] The risk posed by the Applicant on the secondary ground has now been reduced from what it was at the time of the original bail hearing. His mother acting as surety, a person embraced and fully trusted by the Justice of the Peace, has vouched for him and attested that he has complied with his bail order. The legitimate concern that because he was in possession of a deadly firearm once, he might again acquire and possess a firearm, has been allayed to some extent at least.
[15] Furthermore, this case and the house arrest on the Applicant’s bail may go on for a considerable time yet. The preliminary hearing is in March and trial will be considerably further off. I reject categorically the suggestion that the Applicant could waive the preliminary hearing in order to speed up the process and reduce the incidence of the bail restrictions upon him. The Applicant has a right to a preliminary hearing and he has determined that it inures to his benefit. That is entirely reasonable and rational. He should not be penalized for refusing to sacrifice an important procedural entitlement to test and discover the Crown’s case.
[16] At the same time, the risk the Applicant represents has not vanished. The public’s confidence in the Applicant has not been fully restored by reason of him complying thus far with his bail. The fact is, he was in possession of loaded gun with ample ammunition under strange and suspicious circumstances. We do not know why he was carrying the gun. Ultimately, of course, there could be no justification for doing so. On the secondary ground, an absence of explanation for the possession makes it difficult to appreciate the risk factors which are at play. Both the track record and the seriousness and ramifications of the charge must be taken into account in adjudging the bail variation requested.
[17] In R. v. Zora, 2020 SCC 14 (S.C.C.) Justice Martin in praising the salutary purposes of bail reviews and variations, wrote at para. 92,
Bail is a dynamic, ongoing assessment, a joint enterprise among all parties involved to craft the most reasonable and least onerous set of conditions, even as circumstances evolve.
[18] The crafting of reasonable bail conditions between counsel has occurred in this case. During argument on the variation, Mr. Fisher came up with a compromise to deleting the house arrest provision. Ms. Holmes did not seem to strongly oppose the suggestion although she maintained her general opposition. Rather than allow the Applicant free rein to roam the GTA at will, his mother would give him permission in writing to go out for specific, stated reasons. While complaints with respect to the enforcement and precision of this written permission may be valid, it is in my view an imperfect but nonetheless viable solution. It is a careful balancing of the individual and the collective interests at play.
[19] Of course, this condition puts a great deal of responsibility on the Applicant’s mother as surety. Again, it must be remembered that the Justice of the Peace and the Crown expressed great faith in her ability to manage her son. I have not been given any reason to deviate from that expressed confidence.
[20] Ms. Holmes raised COVID concerns with respect to the Applicant’s time outside the residence in light of the current emergency lockdown. These need not be incorporated into the bail. It goes without saying that they take precedence and apply to the Applicant in the same way as they apply to everyone else.
[21] In the result, the Applicant will be released on the same terms and conditions as the original recognizance dated April 2, 2019. I would add to the house arrest exceptions in clause 2 this condition as the last point:
When you have written permission from your surety on your person in either physical or electronic form, including the time you have left the residence and the time you are required to return, and the place or places you are authorized to go.
[22] These further conditions are also to be added:
Obey a curfew of 10 p.m. to 7:00 a.m.
Do not knowingly be in the presence of anyone with a criminal record or possessing firearms or illegal drugs.
[23] I invite counsel to consult and advise by email whether they have suggestions for additions, deletions or alterations to these conditions. The previous bail will remain in force until the new one is entered into.
D.E HARRIS J.
Released: February 8, 2021
COURT FILE NO.: CR-21-647-BR
DATE: 2021 02 08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
JAHVAR GREEN
Applicant
BAIL RULING
D.E HARRIS J.
Released: February 8, 2021