COURT FILE NO.: 22-7845BR DATE: 2022/04/19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – David Blackwood Applicant

Counsel: Mike Boyce, for the Crown Jason Gilbert, for the Applicant

HEARD: April 12, 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] Mr. Blackwood brings an application pursuant to s. 520 of the Criminal Code, R.S.C., 1985, c. C-46, for a review of the detention order issued at his original bail hearing. He is charged with the robbery and choking of a sex trade worker. He is alleged to have robbed the worker of just over $7,000 and choked her to unconsciousness. In terms of the strength of the crown’s case, the complainant has dealt with Mr. Blackwood on more than one prior occasion. She identified him from a hotel video, and later identified him in a photo lineup as the person who robbed and choked her. She has provided statements to police and Mr. Blackwood’s DNA has been confirmed present in the hotel room on a beverage can and on cigarette butts.

[2] The Crown laid two breach charges at the outset of this bail review.

[3] A bail review is triggered where there is a material change of circumstances such that it could reasonably be expected to have impacted the weighing engaged in by the original bail judge, or where there was a legal error which impacted the original decision: see R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 121. The accused bears the onus of demonstrating that their continued detention is not necessary: see Criminal Code, ss. 520(7)(e) and 515(10).

[4] I found that the withdrawal of domestic assault charges subsequent to the original bail hearing along with the fact that Mr. Blackwood was only subject to one conditional sentence order, not two as believed at the original bail hearing, could have reasonably impacted the weighing engaged in by the justice of the peace: see St-Cloud, at paras. 137-38.

[5] I conducted a bail de novo as a result; however, I concluded that despite having a good surety, I was not satisfied that Mr. Blackwood would follow the conditions of his release order for the following reasons.

[6] Ms. Lawlor testified that she would report Mr. Blackwood to the police if he were to breach any of the conditions which the court might impose. I am satisfied that Ms. Lawlor would report any breaches she observed Mr. Blackwood committing. Ms. Lawlor has diligently researched alcohol treatment programs for Mr. Blackwood. She has four children, and Mr. Blackwood’s son has been welcomed into her home, even when Mr. Blackwood was in custody. She is self-employed and owns her own home. She strikes me as a conscientious and diligent potential surety.

[7] Mr. Gilbert argues that because Ms. Lawlor is a good surety and is now equipped with the tools of a surety to ensure compliance with bail terms, that the fact that Mr. Blackwood has a history of disregard for court orders should not undermine the success of the bail plan.

[8] I was unable to agree with this submission. I am satisfied that Ms. Lawlor would report any breaches of the bail terms which she observes. This does not end the analysis. The function of a bail plan is not to merely ensure that breaches of the terms of release are reported to police after they have occurred. The plan of bail must satisfy the bail judge that it can reduce the likelihood of committing criminal offences to a less than substantial likelihood: see Criminal Code, s. 515(10)(b).

[9] Mr. Blackwood unfortunately has a long history of not complying with court orders. I appreciate that he has recognized that he has a problem with alcohol abuse and has sought out treatment. However, not all of the examples of non-compliance with court orders can be blamed on alcohol abuse.

[10] The Crown provided me with a helpful timeline of how matters unfolded prior to Mr. Blackwood’s arrest on the current robbery and choking charge. The timeline helps put into context the secondary ground concerns which exist in this case, and I have briefly referred to it here:

Timeline:

• On July 4, 2020, Mr. Blackwood was charged with sexual assault. The allegation was that he repeatedly grabbed a woman’s breast at a barbeque. He was released on an undertaking which was in effect at the time of the robbery/choking charge which is the subject of this bail review. [1]
• On July 24, 2020, Mr. Blackwood was released on a surety/house arrest judicial interim release in respect of three charges related to driving while impaired and an allegation of domestic violence. This release order was also in effect at the time of the robbery/choking charge which is the subject of this bail review. The domestic violence charge was withdrawn, and the impaired driving matter was resolved for a period of jail and a conditional sentence.
• On July 15, 2021, Mr. Blackwood was sentenced in relation to impaired driving offences, driving disqualified (x2) and failing to comply with a release order. He received a five-month conditional sentence with a house arrest term for the first 90 days. He was still on house arrest at the time of the robbery/choking charge which is the subject of this bail review.
• The date of the robbery/choking charge was September 22, 2021. On October 6, 2021, Mr. Blackwood was sentenced to an eighth-month conditional sentence with a house arrest term for the first 120 days. This conditional sentence was in effect when Mr. Blackwood was arrested on January 14, 2022, outside of the residence where he was supposed to be on house arrest. This conditional sentence was not in effect at the time of the robbery/choking offence in September.

[11] As indicated in the timeline, Mr. Blackwood was on an undertaking and conditions of house arrest at the time of the robbery/choking incident. In addition, Mr. Blackwood was on house arrest terms during the time he was frequently at Ms. Lawlor’s home, according to her evidence. When he was arrested in January of 2022, he was a passenger in her car. At that time, he was subject to conditions of house arrest of which he was in violation.

[12] Mr. Gilbert submits that we expect too much of an accused person with the multiple terms and conditions imposed where multiple orders of release, and/or house arrest for sentence are imposed. I am sympathetic to Mr. Blackwood’s difficulty in this regard. I had to rely on a timeline created by the Crown to follow the sequence of the court orders in this case.

[13] However, the response to the problem of how to keep track of a number of court orders with potentially competing conditions cannot be to regard breaches of court orders as an incidental consequence of serving a sentence in the community and being on bail.

[14] While there may be a complex web of orders and conflicting release terms to be worked through, they must not be simply ignored. A variation of terms must be sought where needed. I appreciate that Mr. Blackwood owns his own landscaping company and I accept that he is busy with his work. However, it is his responsibility to sort out the conditions of his various release/conditional sentence terms to ensure he is in compliance with all court orders.

[15] Mr. Blackwood also has a criminal record.

• In 2009 he was convicted of possession of a weapon and obstruction of a police officer;
• In 2013 he was convicted in a robbery with a firearm which was drug related;
• In 2015 he was convicted of fail to comply with probation;
• In 2016 he was convicted of fail to comply with probation;
• In 2018 he was convicted of two counts of driving while disqualified;
• In 2020 he was convicted of operating a conveyance while impaired and while disqualified;
• In 2021 he was convicted of operating a conveyance while impaired and while prohibited; and
• In 2021 he was convicted of impaired operation and fail to comply.

[16] I was also troubled by Ms. Lawlor’s evidence that she did not permit Mr. Blackwood to take her vehicle without her permission. Ms. Lawlor has four children and is reliant on her vehicle. Ms. Lawlor was unaware that Mr. Blackwood was a disqualified driver. Despite all of this, Mr. Blackwood took the vehicle and was arrested for impaired driving. The car was impounded, and Ms. Lawlor had to retrieve the car from the impound lot.

Consideration of all relevant circumstances:

[17] I agree that conditions in the OCDC remain extremely difficult at the moment due to the pandemic. Visits with family are often cancelled or non-existent. Access to the telephone is limited. Consultations with counsel are limited. Lockdowns are frequent. Although we are now in the sixth wave of the pandemic, and vaccines have made life somewhat more manageable, for those who are in custody, there remains a significant hardship.

[18] In applying the principles of bail, I have taken consideration of the difficult conditions at the jail as part of the overall circumstances of this case. Mr. Blackwood’s trial date has not been set. The pandemic will cause delays in conducting trials. I considered these factors. I also considered the fact that a GPS monitor augments the bail plan in a manner that is not restricted to the primary grounds. The certainty of detection can enhance compliance and is a relevant consideration to the secondary ground concerns. Mr. Blackwood is also the owner operator of what sounds like a busy and profitable landscaping business. This is to his credit. He also, as I indicated, has a good surety. However, given the overwhelming evidence of a history of disregard for court orders, I am satisfied that there is a substantial likelihood that Mr. Blackwood will commit additional criminal offences if he were to be released. He is to remain detained as a result.

Anne London-Weinstein J.

Released: April 19, 2022

[1] The sexual assault charge was withdrawn and Mr. Blackwood resolved the matter for a plea of guilt to assault only.