Court File and Parties

COURT FILE NO.: 21-50060-BR DATE: 2022/02/15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Michael Kilbride Applicant

Counsel: Moiz Karimjee, for the Crown Shira Brass, for the Applicant

HEARD: February 14, 2022, oral reasons given February 15, 2022

Publication is banned pursuant to s. 517(1) and 520(9) of the Criminal Code with respect to the evidence of the offences alleged against the Applicant. Counsel may circulate these reasons, use them in court, and they may be published in Westlaw and similar legal publishing services.

Endorsement on Bail Review Application

Anne London-Weinstein J.

[1] Michael Kilbride is charged with entering into a private residence on Cooper Street. The woman sleeping in her home was surprised to find Mr. Kilbride naked in her apartment. He is alleged to have struck her with a pole of some type. Thankfully, neighbours came to her rescue. Ms. Brass, who argued very ably for Mr. Kilbride in this hearing, argues that there is no sexual intent imputed to Mr. Kilbride in relation to this offence. I am not sure if this would have been apparent to the complainant in this matter at the time. Further, given how terrifying this event must have been for the complainant, I think the extent of mitigation by the lack of intent to sexually assault is somewhat attenuated by the extreme gravity of the surrounding circumstances of this case.

[2] Mr. Kilbride is presumed innocent of these charges.

[3] He was detained on October 21, 2021 on the secondary and tertiary grounds. His trial in this matter is estimated to take one day. He was offered trial dates beginning in February. On some of these dates his counsel was available. He declined to have his trial conducted at that time but proceeded to a bail review.

[4] As a reviewing judge I do not have the power to interfere with a decision simply because I would have weighed the relevant factors differently. There was no legal error in the decision of the justice of the peace. Therefore, in order to warrant a hearing de novo, there must be new evidence showing a material change in the circumstance of the case: see R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R 328, at para. 121.

[5] The fresh evidence in the context of a bail review must be reasonably capable, having regard to all the circumstances, of impacting the balancing exercise engaged by the justice under s. 515(10)(c) of the Criminal Code: see St-Cloud, at para. 137.

[6] I found that the new plan of bail was not reasonably capable, having regard to all of the circumstances, of impacting the balancing exercise engaged in by the justice of the peace. Mr. Kilbride was detained on the secondary and tertiary grounds. Justice of the Peace Girault was quite rightly concerned about the plan proffered at that time, which would have Mr. Kilbride return to a program he had previously failed at in terms of drug recovery.

[7] The current plan is that he resides on house arrest with his mother in Arnprior. Mr. Kilbride has never been on house arrest. He pledges $4,000. His mother, Ms. Dubois, pledges $2,000. Ms. Dubois is retired, and the plan is that Mr. Kilbride would live with her. He is to engage in extensive counselling with Pathways. He is to accompany his stepfather to work when not in addiction counselling.

[8] However, in my view, the secondary and tertiary ground concerns which caused Justice of the Peace Girault to detain Mr. Kilbride remain unsatisfactorily addressed in this plan. In my view, the addition of house arrest, cash pledges, and Ms. Dubois as a surety would not have impacted the weighing of factors and the decision in the original bail decision for the following reasons:

[9] Mr. Kilbride has a long and unenviable record. He has a 20-year drug addiction. His drugs of addiction include cocaine, fentanyl and carfentanyl, which are highly addictive drugs. His criminal record reflects a long history of failure at following court orders.

[10] His record includes five convictions for possession of narcotics, two for “over 80”, one assault cause bodily harm, seven assaults, three uttering threats, and two break and enter. I shall not recite the entire record here, but in terms of the secondary grounds, he has eight convictions for failing to comply with recognizance, thirteen convictions for failing to comply with probation, six convictions for failing to comply with an undertaking and six convictions for failing to appear.

[11] Ms. Dubois has been his surety in the past and he has breached his conditions while under her supervision. On one occasion she reported him to the police.

[12] Within a month of her being his surety he was assaulting his girlfriend, who he was on conditions not to contact, at the Arnprior Mall. His girlfriend has since passed away.

[13] In another instance of Mr. Kilbride failing to follow her direction, Ms. Dubois conceded that she came out to the garage to find her son barely breathing. She called 9-1-1. She indicates that she did not know whether he was using drugs or not, but he never came back to her home. This aspect of her evidence lacked credibility. She claimed she did not know if he was using drugs, yet she told him to never bring drugs into the home again. Further, I did not accept that she would not follow up to find out what happened to him. The evidence she gave in court was that she called 9-1-1 as he had lapsed into unconsciousness. The police took him away and she never followed up to find out why police took him, or whether he overdosed.

[14] In my view, the substitution of Ms. Dubois as a surety would have had little to no impact on the original bail hearing because Ms. Dubois is unable to supervise her son. The best predictor of future behaviour is past behaviour and Mr. Kilbride breaches court orders and has more than once breached the terms of his bail when supervised by his mother as surety.

[15] His mother is well meaning, and she has called some rehabilitation places to try and find help her son. She is to be commended for that fact. However, I do not have confidence that Mr. Kilbride will follow conditions of house arrest. In the past, when his mother has asked him to stay home, she testified that he got angry or upset and left the home. She is not able to control him.

[16] Mr. Kilbride testified that conditions in custody have been completely untenable during the pandemic. He has been unable to use the telephone, unable to see family, and has been locked down 23 hours a day. He has been forced to wear dirty clothing while in custody. These conditions are deplorable and completely unacceptable. I agree with defence counsel, that these conditions may very well increase any credit Mr. Kilbride may be eligible to claim for his time served.

[17] Fortunately, Mr. Kilbride was offered early trial dates in this matter. I would urge defence counsel to contact Mr. Bocking and put this matter on for trial at the earliest date available. Given that the matter is only scheduled for one day in length, an early date should still be available, as dates were available in February.

[18] In short, while this is a new plan, this is not a plan which could have resulted in a different result at the original bail hearing. Mr. Kilbride has a serious drug addiction, which he has repeatedly failed to conquer, which poses secondary ground concerns. This concern is supported by his record and his past history of failing to follow court orders. The surety offered has failed in the past to supervise him. There is a substantial likelihood he will commit criminal offences if this release plan were granted.

[19] The addition of Ms. Dubois as surety and the other changes would also have no impact on the tertiary grounds. The secondary ground concerns in this case are extremely strong. However, the tertiary ground concerns are also strong, and even on their own could serve to detain Mr. Kilbride. The crown’s case is apparently strong. There may be a defence, but while some medical reports were hinted at, on the face of it, Mr. Kilbride was found naked at a woman’s home and arrested. There were witnesses present who offered aid to the woman. The offence is extremely serious. The circumstances surrounding the commission of the offence are disturbing. Mr. Kilbride broke into a woman’s home in the middle of the night and assaulted her with a pole, while he was naked. If convicted, he stands to serve a lengthy period of imprisonment. Even while I accept that the conditions of his time in custody may reduce the sentence he eventually receives, the sentence will still be a considerable one, especially given his criminal record.

[20] I have considered that Mr. Kilbride has asthma and have considered that COVID is a relevant factor to the tertiary ground analysis. There is a health risk to Mr. Kilbride but there is also the public interest in preventing an outbreak at the jail and protecting the community from rising COVID infections. Unfortunately, Mr. Kilbride was not able to meet his onus on the tertiary grounds.

[21] Detention is not automatic where the four factors favour detention, however, in my view, the threat to public safety posed should Mr. Kilbride relapse is considerable. In my view, his release would undermine public confidence in the administration of justice.

[22] Ms. Brass argues that this plan is strong. With respect I disagree as the plan is no stronger than Mr. Kilbride’s ability to follow it. He has failed to follow the direction of this surety on at least two prior occasions. His criminal record has eight entries for fail to comply with recognizance, 13 entries for fail to comply with probation and four entries for fail to comply with undertaking. He has never been sober this long previously, and in my view, this is because he is in jail and unable to access carfentanyl, fentanyl and methamphetamine to which he is addicted. Mr. Kilbride was quite candid about his past, his criminal record and his addiction. I appreciated his candour. However, in my view, the public cannot be safely protected if he were to be released as he has demonstrated that he is unwilling to follow court orders and unwilling to follow the dictates of this very well-meaning surety. The fact that he will be on house arrest would not prevent him from leaving the house at night to seek drugs when his parents were sleeping. His mother testified she could not watch him all night, nor would that be reasonable. Given the length and strength of his addiction, I am not satisfied that even house arrest would satisfy the secondary ground concerns.

[23] I found it unnecessary in this case to make a determination regarding the application of the ladder principle to this case, as there is no allegation that the justice of the peace erred in wrongly applying that principle. It was not necessary for me to decide that issue. I note that others have found that the ladder principle is inapplicable to reverse onus situations: see R. v. Sakhiyar, 2018 ONSC 5767, at para. 7, citing Justice Gary T. Trotter, The Law of Bail in Canada, at pp. 6-9; R. v. Johnson, 2020 ONSC 1797. It makes sense that the ladder principle would not apply, as the onus is on the accused to demonstrate on a balance of probabilities why detention is not required within the s. 515(10)(c) grounds. However, an accused facing a reverse onus is still entitled to reasonable bail under s. 11(e) of the Canadian Charter of Rights and Freedoms. The conditions of bail must still be related to the bail risks they seek to address for bail to be reasonable. If the conditions suggested address the grounds of bail, it should not be necessary to impose conditions which are more onerous than necessary.

[24] On the facts of this case, given that I found that the new plan would not have impacted the balancing analysis on the secondary or tertiary ground, Mr. Kilbride shall remain detained.

Anne London-Weinstein J.

Released: February 15, 2022