Court File and Parties

COURT FILE NO.: BR-22-11 DATE: 2022/02/28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – Ryan Royer Accused

Counsel: Andrew McAllister, Counsel for the Federal Crown Alexandre Simard, Counsel for the Provincial Crown Alan Brass, Counsel for the Accused

HEARD: February 22, 2022 remotely

Reasons on 90-day bail detention review

leroy, J.

[1]

Reasons on 90-day bail detention review

This matter was before the Court on February 22, 2022 for a detention review pursuant to s. 525 of the Criminal Code. Mr. Royer has been detained at the Ottawa Carleton Detention Center continuously since August 20, 2021. He had not had a judicial interim release hearing. As such, I was tasked with doing just that having regard to the Antic-ladder principle taking into account the passage of time from arrest and detention to the date of trial.

2There are two sets of charges. The first arose during the evening of August 19, 2021, after authorities encountered an unconscious female alone in a locked motor vehicle with engine running. After the doors were opened and the officer turned to speak with an emergency medical service person, Mr. Royer is alleged to have reached into the cabin of the vehicle to surreptitiously remove a purse.

3The purse was seized and searched. It contained CDSA substances including quantities of fentanyl, hydromorphone and cocaine among others valued by police at approximately $3,170 together with four thousand dollars in cash. The search of Mr. Royer’s person revealed brass knuckles. Mr. Royer was on probation.

4Mr. Royer was arrested, charged and released on an OIC undertaking. The female was taken to hospital. She too was arrested and released.

5The second set of charges arose from an alleged incident approximately six hours later early in the morning of August 20, 2021. The allegation is that Mr. Royer, the same female and another male entered into the home of a woman with whom Mr. Royer dated in the past. The female and the other male held the victim against her will. The gist is that the female told her they would abscond with her dog unless she gave them money. Mr. Royer vacated with the dog and the other two followed. The victim called authorities to report this and the three were found with the dog, arrested and charged.

6The female and male third party are not detained for these incidents.

7Sentencing efforts over the years have not effected hopes for rehabilitation of this accused. Mr. Royer is 29 years of age and well known to Cornwall Police Services. His life experience is most unfortunate. He is a figurative police magnet. He was fourteen when convicted in youth court for assaulting a police officer. The only year in which he was not on probation since 2007 was 2015. He has twelve convictions for breach of probation, eight for failure to comply with release recognizances and three dated convictions for failing to attend court. There have been five sets of CDSA convictions beginning in April 2016. The three convictions for escape from lawful custody when he was ages thirteen and fourteen bespeak a troubled youth.

8Otherwise, I know very little about Mr. Royer. I can suspect but don’t know that he is addicted to controlled substances or that he has only marginal literacy and numeracy skills such that his interaction with mainstream society is problematic.

9His trial dates on these two matters are set for March 13 and April 18, 2023, respectively. If Mr. Royer is detained until end of trials, he will have spent twenty months in pre-trial detention.

10Mr. Royer applied for and has been accepted into the Harvest House Residential Treatment program in Ottawa. The program purports to address addiction and criminal behaviour simultaneously. The goal is to help participants learn to replace destructive thinking patterns with ones that lead to better relationships, freedom from substance use and a satisfying life. Skills development is a core component.

11Implicitly, defence counsel agrees that Mr. Royer’s antecedents place him at the higher rungs of the Antic-ladder principle. As such, the Harvest program offers structure and restrictions on resident freedom comparable to, if not equivalent to, the provincial detention system. No plan short of continued residence at the detention center is failsafe. The program is structured and failure to honour house rules and expectations will result in timely eviction and return to OCDC. Although the inhouse program duration is 12 months, the engagement can extend for years. The program does not abandon successful residents.

12The Crown observes that Mr. Royer exhibits incorrigible proclivity to offend on release from the detention center. Notwithstanding the compelling argument against continued detention for all but the most incorrigible accused in the context of the Pandemic, the Harvest House plan is susceptible to escape without notice for two-hour lead time. Mr. Royer has shown he is undeterred by concern for court process.

Legal principles

[13]

Legal principles

The legal principles involved on this review were articulated clearly by the Supreme Court in R. v. Myers, 2019 SCC 18. I have copy/pasted the pertinent policy paragraphs from those reasons and confirm that my ruling and reasons are guided thereby.

1The right to liberty and the presumption of innocence are fundamental tenets of our criminal justice system. In the pre-trial context, release — at the earliest opportunity and in the least onerous manner — is the default presumption in Canadian criminal law. Pre-trial detention is the exception, not the rule.

25The right not to be denied reasonable bail without just cause, which is enshrined in s. 11(e) of the Canadian Charter of Rights and Freedoms, operates as a key organizing principle of Part XVI of the Criminal Code. R. v. Pearson, [1992] 3 S.C.R. 665, at p. 691. This right has also been affirmed repeatedly by this Court, most recently in St-Cloud, in which the Court held that “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception” (para. 70 (emphasis added)), and in Antic, in which it stated that ‘“release is favoured at the earliest reasonable opportunity and . . . on the least onerous grounds”’: para. 29, quoting R. v. Anoussis, 2008 QCCQ 8100, 242 C.C.C. (3d) 113, at para. 23.

4Parliament intended s. 525 to operate as a safeguard. This section imposes an independent responsibility on the reviewing judge to consider whether the continued detention of the accused is justified, and establishes a discretionary mechanism designed to prevent unreasonable delay and to expedite the trials of individuals in remand.

Application of Section 525 Where There Has Been No Initial Hearing

42There may be some instances in which an accused person has not had a full provincial court bail hearing that resulted in a detention order, but remains in custody after 90 days. This would primarily be the case for individuals in a reverse onus position who have consented to remand, but it could also arise in other narrow circumstances…

43… There is no principled basis for holding that individuals in this situation are not entitled to a hearing under s. 525. In theory, every accused person in custody will have been “taken before a justice under section 503” within the meaning of s. 525(1) and is therefore entitled to a hearing under s. 525. More to the point, the fundamental purpose of s. 525 is to afford an opportunity to have a judge scrutinize the detention itself, and individuals who find themselves in these exceptional circumstances should not be denied that safeguard. I would echo the view that those who, for whatever reason, do not contest their initial detention “should not be punished for doing so, by depriving them of the potential benefits of s. 525 hearings, especially where their liberty and constitutional right to a trial within ‘a reasonable time’ is implicated”: Saulnier, at para. 10.

56Since s. 525 calls upon the judge to review the detention itself, the existence of an initial decision is not required in order to achieve the core objective of a s. 525 review. As I mentioned above, there may be certain anomalous situations in which an accused person who appears before a judge under s. 525 did not undergo a full initial bail hearing at the time of his or her arrest. To give proper effect to s. 525 in such situations, the judge is required to conduct the full bail hearing “from the ground up” in accordance with the ladder principle articulated in Antic, taking into account the time the accused has already spent in pre-trial custody. I wish to mention here that it has been suggested that allowing a full bail hearing to proceed before a superior court judge at the s. 525 stage would encourage “judge shopping” or would afford the accused some kind of procedural advantage that would for him or her justify spending three months in custody. In my view, this argument strains credulity. To quote O’Neill J. in McCormack, “I am not at all sure that many jailed accused would ever resort to paying the 90 day price for that strategy”: para. 26.

45The overarching question at the s. 525 hearing is clear from the words of the provision. Section 525(1) explicitly states that the judge’s role is “to determine whether or not the accused should be released from custody”. Section 525(3) provides that the judge may, “in deciding whether or not the accused should be released from custody”, take any unreasonable delay into consideration. Section 525(4) instructs the judge to order the accused person’s release if the judge “is not satisfied that the continued detention of the accused in custody is justified within the meaning of subsection 515(10)”.

46The question that the judge must answer at a s. 525 hearing is therefore as follows: Is the continued detention of the accused in custody justified within the meaning of s. 515(10)? Section 515(10) sets out three possible grounds on which the detention of an accused in custody may be justified: where it is necessary in order to ensure the attendance of the accused in court; where it is necessary for the protection or safety of the public; and where it is necessary in order to maintain public confidence in the administration of justice.

50In determining whether the detention remains justified under s. 515(10), the judge should also consider whether the time that has already elapsed has had — or the anticipated passage of time will have — an impact on the appropriateness or proportionality of the detention. In particular, it is necessary to be sensitive to whether the continued detention of the accused person could erode public confidence in the administration of justice: see, e.g., McCormack, at para. 29.

51This is ultimately a question of proportionality. In some cases, the passage of time will have no impact on the necessity of continued detention. In other cases, it may be a very strong indicator that the accused should be released, with or without conditions. 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, 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.

52Determining, for the purposes of this analysis, the sentence the accused would potentially receive is not an exact science, nor does it require an exhaustive inquiry. However, the judge’s analysis should account for the circumstances of the case that were known at the time of the hearing and reflect the relevant sentencing principles: St-Cloud, at para. 65.

63Ultimately, s. 525 requires a reviewing judge to provide accused persons with reasons why their continued detention is — or is not —justified.

67…Mr. Myers was detained exclusively on the basis of the second ground under s. 515(10), despite the fact that he had a release plan involving a closely supervised treatment facility to address his substance abuse problems and multiple proposals to address the concern that he posed a risk to the public. It was within the bail judge’s discretion to determine whether the release strategies presented by counsel addressed the risk that if released from custody, Mr. Myers would commit a criminal offence or interfere with the administration of justice within the meaning of s. 515(10)(b). That being said, judges and justices presiding over bail hearings should always give very careful consideration to release plans that involve supervised treatment for individuals with substance abuse and mental health issues. Release into treatment with appropriate conditions will often adequately address any risk raised under s. 515(10), and such a strategy is a less onerous alternative than provincial remand. It may also substantially address the root causes of the accused person’s alleged criminal behaviour and reduce the likelihood of future criminal conduct. In accordance with the principles articulated in Antic, we must not lose sight of the fact that pre-trial detention is a measure of last resort.

Principles Applied

[14]

Principles Applied

Pandemic considerations need to be factored into the metric but are not determinative. As noted in many rulings over the last two years, it is in the public interest to do what we can to safely mitigate risk of Covid-19 exposure. Here exposure to an outbreak in the Harvest House remains elevated relative to the general public who are able to distance and maintain individually sanitized in a controlled bubble but is mitigated by a more controlled environment than the detention center.

15Mr. Royer’s circumstances are such that for purposes of hearing under sections 515(10) and 520, he bears the burden of showing why he ought to be released. As noted, his criminal record on many levels indicates a person undeterred by what is offered by the criminal justice system.

16In terms of a section 525 review, whether detention is justified is not dependent on whether one or the other party discharges an onus. I believe this argument was articulated and rejected in paragraph 56 of the Myers reasons.

17The bail system is frustrated by accused persons who offend during interim release. Mr. Royer has been detained for a little more than 6 months. While his behaviour was such that in August/September 2021, Mr. Royer’s propensity to disregard orders and undertakings was such that he was of such a risk to offend if released any plan in which his propensity was not hermetically sealed would not have carried the day.

18As counsel noted, Mr. Royer is not acquainted with sureties capable of reliably serving as his jailor. He was not amenable to constraint short of the provincial detention system.

19Six months in pre-trial detention is a long time. There was time to get past withdrawal and perhaps reflect. It takes time to develop a plan with the Harvest House starting with the intake assessment. Mr. Royer convinced the intake person that he is now capable of investing in and honouring the process. An important first step. A quid pro quo. The institution does not accept everyone. It is reasonable to conclude Mr. Royer wasn’t capable of fulfilling the rigour of the program in the first ninety days of detention. The credibility of the program is tested with every postulant. This does not mean that Mr. Royer is assured the success sought for in the program; just that he is likely much better prepared now than he was when he entered detention.

20I appreciate the Crown’s concerns for a two-hour head start should Mr. Royer determine to escape the program. That said, he is a police magnet. He will be apprehended in short order in that eventuality. He must appreciate that this is his one opportunity to reside elsewhere than a detention center until the outstanding charges are resolved.

21In my view, the plan offered in the context of the passage of time adequately addresses the concerns for release in Subsection 515(10) and carefully honours the Antic ladder as it applies to Mr. Royer’s life experience. I am alert to the frailties in the Crown cases against Mr. Royer and the serious triable issues alluded to by Mr. Brass. It is reasonable to think in terms of time served if there are convictions registered for his part in the two incidents.

22Otherwise, this unpacks into a scenario suggesting Mr. Royer can never be released. That is in stark contrast with the discretion exercised by the Officer in Charge who saw fit to release Mr. Royer on an undertaking in relation to the first set of charges having regard to all the circumstances known at the time. The program offers considerable upside. I expect that the letter of conditional acceptance into the program from Mr. James is the first positive response from an institutional agency offering but not assuring redemption to Mr. Royer he has received in his life – at least a very long time. No plan; that is continued detention until trial in about one year, signifies languishing in detention no different from the course of disposition Mr. Royer has experienced repeatedly without appreciable mitigative effect on his behaviours through his life.

[23]

Disposition

Accordingly, Ryan Royer (dob March 20, 1993) is to be released from detention effective March 1, 2022, directly to a Harvest House staff or designate on conditions as follows:

1. Mr. Royer to reside at Harvest House, 3435 Ramsayville Road and be amenable to the routine and discipline of the program, which includes attendance and participation in all activities recommended by Harvest House.
2. Mr. Royer is not permitted to be away from the Harvest House property at any time of day or night unless with written permission and a designated escort approved by the Executive Director of Harvest House, which includes no visits for the first 30 days, subject to Covid-19 restrictions as well as no appointments for the first 90 days in treatment subject to an emergency.
3. Mr. Royer shall not consume or possess cannabis, non-medically prescribed drugs, or alcohol while in treatment at the Harvest House program.
4. Mr. Royer shall comply with all Harvest House protocols including without limiting the generality of the foregoing Covid-19 protocols, a mandatory ten-day quarantine and Covid-19 rapid testing.
5. Mr. Royer shall not communicate directly or indirectly with Emily Baker, Mohsen Damghani or Maria Zwicker.

24The Superior Court of Justice court registrar is asked to prepare the release document for my review and signature today. Mr. Royer is scheduled for an appearance in Cornwall remand court on March 1, 2022. I ask that the court registrar review these release conditions with Mr. Royer on record, satisfy herself of his understanding and have him execute the document virtually in the normal course. The Harvest House designate is expected to liaise with the Detention center to arrange release into the program.

The Honourable Mr. Justice Rick Leroy

Released: February 28, 2022