Court File and Parties

Court File No.: CR-22-8192-BR Date: 2022/04/14 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent And: Byron Carr, Applicant

Counsel: Moiz Karimjee, for the Respondent David Vago, for the Applicant

Heard: March 16 and 31, 2022

BY ORDER PURSUANT TO SECTION 517 OF THE CRIMINAL CODE THE EVIDENCE TAKEN, INFORMATION GIVEN OR REPRESENTATIONS MADE AT THE HEARING AND THESE REASONS SHALL NOT BE PUBLISHED IN ANY DOCUMENT, OR BROADCASTED OR TRANSMITTED IN ANY WAY BEFORE THE COMPLETION OF THE TRIAL OF THIS MATTER, OR IF DISCHARGED AFTER A PRELIMINARY INQUIRY.

Reasons for Decision

Maranger J.

Overview

[1] On March 31, 2022, I delivered brief oral reasons for granting Byron Carr bail with the understanding that more detailed written reasons would be provided. What follows are those reasons.

[2] Byron Carr brought a s. 520 bail review from a decision of Justice of the Peace Logue dated February 22, 2022. At the commencement of the hearing, the Crown fairly conceded that there was a material change in circumstances since the denial of bail, primarily based upon a change in the circumstances in the City of Ottawa, together with a substantially different plan of release than what was before Her Worship at the original hearing.

[3] Byron Carr stands charged with mischief, obstructing police, and failure to obey a court order. The offences all relate to his participation in the infamous “freedom convoy” occupation that occurred over several weeks in February in the City of Ottawa.

[4] Justice of the Peace Seymour in R. v. King, [2022] O.J. No. 900, provided a detailed and comprehensive description of the nature and consequences of the occupation at paras. 27-38 of his decision. Some of the highlights include the following:

• Demonstrators blockaded streets with large trucks and tractor-trailers. They launched an offensive of horn honking that caused significant distress to residents living in the downtown neighbourhoods adjacent to the Parliamentary precinct where many of the demonstrators were gathered.
• The impact of what can only be described as an occupation was significant and widespread.
• The police reported that they received more than 600 complaints in the first week alone, including excessive noise complaints, assaults by demonstrators, harassment by demonstrators and threats by demonstrators towards those wearing masks, or those who asked them to wear a mask when entering businesses.
• The occupation continued unabated despite repeated requests by the city, provincial, and federal governments and the Ottawa police for it to end.
• The decision also described the various states of emergency declared by the various levels of government including Prime Minister Justin Trudeau invoking the Emergencies Act for the first time in Canadian history.

[5] I would add that there was a devastating financial impact to several businesses and individuals caused by closures necessitated by the occupation.

[6] Finally, Canada, a country with a reputation for peace and tranquility recognized throughout the world, received negative, embarrassing, and misinformed international attention on account of the occupation.

Governing Principles

[7] Section 520(7) of the Criminal Code, R.S.C. 1985, c. C-46, provides:

On the hearing of an application under this section, the judge may consider

(a) the transcript, if any, of the proceedings heard by the justice and by any judge who previously reviewed the order made by the justice,

(b) the exhibits, if any, filed in the proceedings before the justice, and

(c) such additional evidence or exhibits as may be tendered by the accused or the prosecutor,

and shall either

(d) dismiss the application, or

(e) if the accused shows cause, allow the application, vacate the order previously made by the justice and make any other order provided for in section 515 that he considers is warranted.

[8] The onus is on the applicant in a s. 520 review to show cause on a balance of probabilities why the current order should be vacated, and bail should be granted.

[9] In the seminal decision of R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the following principles were established with respect to the powers of a court to review an existing bail order:

(a) Review is only appropriate in three situations: (1) where there is admissible new evidence if that evidence shows a material and relevant change in the circumstances of the case; (2) where the impugned decision contains an error of law; or (3) where the decision is clearly inappropriate: at para. 6.

(b) The bail review does not “confer an open-ended discretion on the reviewing judge to vary the initial decision concerning the detention or release of the accused. Nonetheless, they establish a hybrid remedy and therefore provide greater scope than an appeal for varying the initial order”: at para. 92.

(c) While detention on the tertiary ground should be rare, it is nonetheless not limited to exceptional circumstances and remains a ground that must be considered in each case.

[10] Justice of the Peace Logue denied bail on the primary and secondary grounds. She found that the tertiary ground was inapplicable. In my view, the denial was based on what was an unclear, disorganized, and very weak plan of release. The proposed surety was the girlfriend of the accused, who supported his actions during the convoy and gave the impression that she would do little to ensure compliance with a reasonable bail order.

[11] All agreed that the fresh proposed plan of release and what seems now to be the conclusion of the occupation/freedom convoy constituted material changes in circumstances warranting the review.

Findings of Fact

[12] The evidence presented at the bail review included the following: the playing of several videos of the accused and his interactions with the police during the occupation; the testimony of two proposed sureties: Diane Carr, the mother of the accused, and Shayne Courtorielle, a retired RCMP Sergeant; and the testimony of the accused, Byron Carr.

[13] From this evidence I arrived at the following findings relevant to my determination in this case:

• The video evidence shows Byron Carr’s participation in the blockade. He is the author of the videos, proudly posting them on YouTube and on his Facebook page as though his actions constituted a badge of courage. He is shown flagrantly disobeying or ignoring reasonable police commands and taunting the police. He comes across as a very enthusiastic and zealous participant in the blockade who is blissfully unaware of the incriminating evidence he has created. The Crown has a very strong case, at least on some of the counts. There is no evidence that he committed any act of specific violence against anyone, and he was not driving a transport truck.
• Diane Carr testified she is the mother of the accused and she is a 63-year-old cancer survivor. She is of Métis heritage and is very supportive of her son. I disagree with the Crown prosecutor’s characterization of her credibility. While I agree that she likely does not see or define her son’s actions in the same manner that the police or Crown’s office would, she nonetheless understands that he is facing criminal charges and that there are consequences to his actions. I also believe she understood the importance of acting as a surety and making certain that her son complies with any bail order. While not the best possible surety, she was nonetheless suitable. Furthermore, a $2000 bond, given her modest means, is a reasonably serious commitment.
• Shayne Courtorielle presented himself as a second surety proposing $1500 as a bond. He is a retired RCMP officer with 25 years of service. He attained the rank of Sergeant. He currently works for the Métis Nation of Alberta as a consultant and liaison person. While his ties to the accused are not in depth or long-term, his sincerity and capability to act as a surety is undeniable. He impressed me. He testified that he takes the position that he is staking his personal reputation on seeing to it that Byron Carr abides by the conditions of release.
• With respect to Byron Carr’s testimony, the Crown prosecutor submitted that he was completely devoid of credibility and that the court should reject his evidence categorically. I disagree. His testimony is subject to interpretation. I have no doubt he still believes he was in the City of Ottawa to protest first and foremost and not to commit crimes. His arrest and subsequent incarceration have no doubt served as a form of education. The 41 days he has spent in custody clearly had an impact on him. He is 42 years old and while he is facing other charges in Alberta, he has no criminal record. He is the father and primary caregiver to a 10-year-old daughter.
• The accused is of Métis heritage. He is proud of his Indigenous background. He testified that he would abide by conditions of bail.

Analysis

[14] The Crown took the position that the application for bail should be denied as the accused had failed to establish that his release was justified on each of the primary, secondary, and tertiary grounds.

[15] The court found that the applicant had met his onus. I came to that conclusion for the following reasons.

[16] I begin with the tertiary ground. The Crown took the position that the tertiary ground applied in this case and that the detention was warranted when considering the totality of the circumstances of this case and the application of s. 515(10)(c).

[17] The guiding principles in the application of this section are set out at paras. 87-88 of St-Cloud, they provide the following:

I would summarize the essential principles that must guide justices in applying s. 515(10)(c) Cr. C. as follows:

• Section 515(10)(c) Cr. C. does not create a residual ground for detention that applies only where the first two grounds for detention ((a) and (b)) are not satisfied. It is a distinct ground that itself provides a basis for ordering the pre-trial detention of an accused.
• Section 515(10)(c) Cr. C. must not be interpreted narrowly (or applied sparingly) and should not be applied only in rare cases or exceptional circumstances or only to certain types of crimes.
• The four circumstances listed in s. 515(10)(c) Cr. C. are not exhaustive.
• A court must not order detention automatically even where the four listed circumstances support such a result.
• The court must instead consider all the circumstances of each case, paying particular attention to the four listed circumstances.
• The question whether a crime is “unexplainable” or “unexplained” is not a criterion that should guide the analysis.
• No single circumstance is determinative. The justice must consider the combined effect of all the circumstances of each case to determine whether detention is justified.
• This involves balancing all the relevant circumstances. At the end of this balancing exercise, the ultimate question to be asked by the court is whether detention is necessary to maintain confidence in the administration of justice. This is the test to be met under s. 515(10)(c).
• To answer this question, the court must adopt the perspective of the “public”, that is, the perspective of a reasonable person who is properly informed about the philosophy of the legislative provisions, Charter values and the actual circumstances of the case. However, this person is not a legal expert and is not able to appreciate the subtleties of the various defences that are available to the accused.
• This reasonable person’s confidence in the administration of justice may be undermined not only if a court declines to order detention where detention is justified having regard to the circumstances of the case, but also if it orders detention where detention is not justified.

In conclusion, if the crime is serious or very violent, if there is overwhelming evidence against the accused and if the victim or victims were vulnerable, pre-trial detention will usually be ordered.

[18] In my view, the tertiary ground has no application to the facts of this case as they apply to this specific accused. While the case here against the accused is strong, categorizing it as a serious crime or very violent where the victims were vulnerable is not an interpretation I would accept. The crime committed here was perpetrated by a mass of people, likely several hundred. Levels of responsibility will have to be determined. There is a difference between a leader, an organizer, and a zealous participant. There is a difference between a participant who physically assaulted an innocent bystander and another who did not. When the dust settles on this matter, a conviction may not necessarily result in a lengthy term of incarceration. I cannot find on the facts of this specific case that detention is necessary to “maintain confidence in the administration of justice”.

[19] With respect to the primary ground, I am satisfied that the accused has demonstrated on a balance of probabilities that he will return to court as and when needed to answer to these charges. The two sureties, especially Mr. Courtorielle, will see to his attendance. He is 42 years old and does not have a criminal record.

[20] With respect to the secondary ground, in R. v. Abdel-Rahman, 2010 BCSC 189, at para. 23, D.A. Halfyard J. concisely set out the test as follows:

In my opinion, the decisions that a judge must necessarily make in order to reach the conclusion that detention is justified on the secondary ground, are the following:

a) First, that there is a risk that the accused will either commit an offence, or will interfere with the administration of justice, if he is released;

b) Second, that this risk is of such magnitude that it amounts to a “substantial likelihood;”

c) Third, that the said risk would constitute a danger to public safety (in general, or to a specific victim or witness) if the accused is released; and

d) Fourth, that the detention of the accused is “necessary,” because the identified danger to public safety cannot be prevented or reduced to an acceptable level by bail conditions (such as reporting to authorities, curfew, no-contact, mobility restrictions, sureties or cash bail).

[21] The proposed plan of release proffered by the applicant in this case, in my estimation, clearly reduces to an acceptable level any concerns that he is likely to reoffend and constitute a danger to public safety.

Conclusion

[22] The “freedom convoy” occupation of the City of Ottawa in February 2022 will no doubt be remembered as a very difficult time in this city’s history; particularly for those businesses and citizens who were directly impacted by the incessant noise and aggression of the participants. The organizers and leaders came across as people who believed they were above the law.

[23] That said, the accused before the court faces charges as a participant in a mass occupation. The crimes committed here were committed by many. There are potentially varying degrees of criminal responsibility. This accused’s level of culpability is yet to be determined.

[24] Byron Carr is presumed innocent of any crime. He is the primary parent to a 10-year-old daughter, he is a 42-year-old Indigenous man. He does not have a criminal record.

[25] The proposed plan of release included: two proposed sureties without deposit in the amount of $3500, one of the sureties is a retired police officer, a timeframe for him to leave the City of Ottawa, restrictions on his use of social media, restrictions on his communicating with any of the organizers/leaders of the occupation, restrictions on his ability to return to the City of Ottawa save and except for the purposes of answering the charges and reporting conditions. He has met his onus and his application for bail was granted.

[26] The specifications of the bail order were those contained in the order of release signed on March 31, 2022.

Release Date: April 14, 2022