Court File and Parties

COURT FILE NO.: CR22-32-00BR DATE: 2022-05-24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. S. E.

BEFORE: Justice R. Raikes

COUNSEL: Laura Grant - Counsel, for the Crown Phillip Cornish - Counsel, for the Defendant

HEARD: May 16, 2022

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

ENDORSEMENT

Procedural History

[1] Mr. E. was arrested June 26, 2021. The information was sworn July 2, 2021. He had a bail hearing on August 24, 2021 and was denied bail on the secondary and tertiary grounds.

[2] Because he was in custody, his preliminary hearing was fast-tracked. It proceeded in November and December for four days. Justice Brown issued a committal order on January 4, 2022. The Crown promptly filed an indictment on January 7, 2022.

[3] On January 12, 2022, Mr. E.’s matter appeared for the first time in Assignment Court. Again, because he was in custody, his counsel sought and the court agreed to put the trial into the February 28, 2022 trial sittings and set an early judicial pre-trial conference on February 2, 2022. The trial estimate was seven-ten days.

[4] The trial commenced before me on March 2, 2022. Mr. E. was arraigned, pleaded not guilty to the charges, and two witnesses were called. The trial resumed on March 3, 2022. That is when an issue arose with respect to an alleged conflict of interest by defence counsel. Crown counsel brought an application to remove defence counsel because of the alleged conflict.

[5] On March 3, 2022, Crown counsel was directed to serve and file any affidavit evidence relied upon for the conflict application later that day which she did. Defence counsel was asked to use his best efforts to file any responding materials by March 7, 2022 and, if that could not be done, the timing for same could be addressed on March 7.

[6] On March 7, 2022, Mr. Cornish filed an affidavit sworn by him in response to the conflict motion. It reiterated information provided orally to the court on March 3, 2022 when the issue first arose.

[7] Mr. Cornish indicated that he wished to cross-examine Constable MacRae on her affidavit filed by the Crown. He also indicated that he wished to argue the conflict application notwithstanding that he swore an affidavit.

[8] I directed that Mr. Cornish would have to engage counsel to do the cross-examination and argue the application. The trial was adjourned to allow Mr. Cornish to find a criminal defence lawyer to do so.

[9] The conflict application has been adjourned several times and is next to be spoken to on May 24, 2022. Suffice to say that Mr. Cornish has not yet engaged counsel to do the conflict application although he assures the court that he has made efforts to do so. He did provide the name of one counsel who had very limited availability that could not be accommodated. That counsel has not been retained.

[10] The trial has been on hold pending determination of the application. In the meantime, Mr. E. has remained in custody.

[11] Mr. E. is incarcerated at EMDC. On January 5, 2022, the Superintendent sent a written notice as required via fax that Mr. E. had been in custody for 90 days to initiate the 90-day mandatory review process. It appears that the notice was sent to the court office in Goderich, not the Trial Coordinator as previously requested. That notice did not come to the attention of the Trial Coordinator until sometime in late March 2022.

[12] Mr. Cornish first raised the issue of a detention review or bail review with me during one of the attendances to speak to setting a date for the conflict application in April 2022. A hearing was then scheduled.

[13] When the matter came before Carey J., the Crown asserted, and Justice Carey agreed, that the application had to be heard by me as the trial had commenced. See s. 523 of the Criminal Code.

[14] The above provides the procedural background for the application before me. The defendant applies to be released from custody pending completion of the trial whenever that may be.

The Charges

[15] At the commencement of trial, Crown counsel filed a new 13 count indictment which replaced the two indictments then in place. The new indictment amalgamated some of the prior sexual assault and assault charges and modified the wording of the breach of probation charges. The net effect was fewer charges relating to the same underlying occurrences.

[16] Mr. E. is charged with the following:

• Two counts of assault of T.H. contrary to s. 266 of the Code.
• One count each of
  • Sexual assault of T.H.
  • Sexual assault of T.H. with a weapon
  • Break and enter of T.H.’s residence
  • Mischief involving breaking the headlights of T.H.’s vehicle
  • Assault of T.H. with a weapon
• Six counts of breach of probation orders contrary to s. 733.1. Those charges relate to the defendant allegedly communicating and/or being in the presence of Ms. H. when ordered not to do so.

Bail Hearing

[17] As indicated, bail was denied at first instance by Justice of the Peace Aharan on August 24, 2021.

[18] The transcript of that proceeding is before me, as are the exhibits filed. Those exhibits include three Crown synopses, Mr. E.’s criminal record, a one-page summary of previous convictions for breach of recognizances or breach of probation orders in 2018 and 2020, and a summary of past charges against Mr. E. involving Ms. H. as victim.

[19] At the bail hearing, defence counsel, Mr. Cornish, put forward a bail plan by which Mr. E. would be released into the care and supervision of his proposed surety, Mr. S.W.. It was proposed that Mr. E. would reside with Mr. W. on his farm and would be under his direct supervision except when at work at Huron Pool which was located approximately one-quarter mile away from Mr. W.’s farm. It was further proposed that if the court did not accept that Mr. E. be unsupervised while at work, he would stay on the farm with Mr. W..

[20] At the bail hearing, Mr. E. was in a reverse onus situation. As indicated earlier, bail was denied on the secondary and tertiary grounds. I will address Justice of the Peace Aharan’s reasons in more detail shortly.

Current Application

[21] There is no written application before me. At the outset of the hearing, I asked counsel to clarify under which provision of the Code the application was proceeding. Is this a bail review application under s. 520 or a 90-day mandatory review under s. 525? Is it something else under s. 523(2)?

[22] Mr. Cornish takes the following positions:

1. Both ss. 523 and 525 of the Code are engaged.
2. Under s. 523, as trial judge, I have a broader jurisdiction to vacate the previous order than under either ss. 525 or 520.
3. Section 523(2) provides that “on cause being shown”, I can make such order as I deem appropriate. The section does not specify who bears the onus of showing cause. He disputes that this is a reverse onus scenario. Absent specific wording, the Crown bears the onus.
4. The court administration “dropped the ball” by not acting sooner to schedule a s. 525 hearing. As a result, Mr. E. did not get that hearing before the trial started. Section 525 also applies to this hearing.
5. He disagrees with the Crown’s submission that s. 525 is ousted by the commencement of the preliminary hearing within 90 days and the subsequent commencement of the trial on March 2.
6. As a last resort, s. 520 is engaged.

[23] Crown counsel submits that:

1. Section 523(2) refers to a list of scenarios including where the trial has commenced and where the preliminary hearing has finished and a committal order is made.
2. Section 525 does not apply because the trial started within 90 days of detention by virtue of commencement of the preliminary hearing, and the trial proper started within 90 days of the committal order. For purposes of the intersection between ss. 523 and 525, the trial includes the preliminary hearing.
3. Thus, there was no delay triggering a 90-day review.
4. The application before me is a bail review under s. 520.
5. The onus is on the defendant. This is a reverse onus scenario.

[24] The following is clear on the record before me:

• No s. 520 bail review application was brought or requested before the trial started on March 2, 2022.
• The notice from the institution did not come to my attention as LAJ at any time before the trial started nor was I aware that the 90 days had passed.
• Whatever administrative glitch occurred, no one including defence counsel brought up the issue of the 90-day review until after the trial started and was adjourned for the conflict issue more than once.
• Once the notice from EMDC came to the court’s attention, efforts were made immediately to schedule a hearing.

[25] I turn first to the relevant statutory provisions.

[26] Section 523(2) states:

(2) Despite subsections (1) to (1.2),

(a) the court, judge or justice before whom an accused is being tried, at anytime,

(b) the justice, upon completion of the preliminary inquiry in relation to an offence for which an accused is ordered to stand trial, other than an offence listed in section 469, or

may, on cause being shown, vacate any order previously made under this Part for the interim release or detention of the accused and make any other order provided for in this Part for the detention or release of the accused until his trial is completed that the court, judge or justice considers to be warranted. [Italics added.]

[27] I clearly have jurisdiction to hear the application to vacate Justice of the Peace Aharan’s detention order pursuant to s. 523(2)(a). I will set out what that entails shortly.

[28] I turn next to whether s. 525 applies.

[29] Section 525 is the mandatory 90-day review provision. Subsection (1) states:

(1) Where an accused who has been charged with an offence other than an offence listed in section 469 and who is not required to be detained in custody in respect of any other matter is being detained in custody pending his trial for that offence and the trial has not commenced

(a) in the case of an indictable offence, within 90 days from

(i) the day on which the accused was taken before a justice under section 503, or

(ii) where in order that the accused be detained in custody has been made under section 521 or 524, or a decision has been made with respect to a review under section 520, the later of the day on which the accused was taken into custody under that order and the day of his decision …

the person having the custody of the accused shall, forthwith on the expiration of those 90 … days, …, apply to a judge having jurisdiction in the place in which the accused is in custody to fix a date for a hearing to determine whether or not the accused should be released from custody. [Italics added.]

[30] I do not agree with the submission made by Crown counsel that s. 525 is not applicable because the preliminary hearing was commenced within 90 days of the order of Justice of the Peace Aharan and/or that the preliminary hearing is considered part of the trial. The circumstances reflected in subsections 523(2)(a) and (b) are distinct scenarios and alternative to one another. The preliminary hearing is the preliminary hearing, not the trial. They are distinct steps in this proceeding.

[31] In my view, s. 525 does not apply to the application before me because the trial has commenced. Subsection (1) states “and the trial has not commenced”. Given the purpose of s. 525, that predicate condition makes sense.

[32] The purpose of s. 525 is to prevent accused persons from languishing in pretrial custody and to ensure a prompt trial: R. v. Myers, 2019 SCC 18, at para. 24.

[33] To that end, the section imposes an independent responsibility on the reviewing judge to consider whether the continued detention of the accused is justified: Myers, at para. 4.

[34] Subsection 525 (9) and s. 526 empower the reviewing judge to give directions to expedite trials and related proceedings when it is appropriate to do so: Myers, at para. 63. This allows the reviewing judge to mitigate delay that might infringe the accused’s constitutional right to a prompt trial.

[35] In this case, Mr. E. did not get the opportunity to request or waive a s. 525 review hearing before the trial commenced through inadvertence. Nevertheless, he did get an expedited trial date at the first available trial sittings after his committal. But for the conflict issue that arose on the second day, his trial would likely be finished by now and the decision rendered.

[36] The presumptive Jordan date for the charges faced by Mr. E. is December 26, 2023. His trial started more than 21 months before the ceiling date. The system has gone to great lengths to advance this case to trial as soon as possible. His continued detention drove those efforts. The underlying concerns for which s. 525 is in place have been meaningfully addressed notwithstanding the administrative breakdown.

[37] Even though s. 525 does not apply, I am satisfied that I can consider the ongoing status of the trial and the delay in its completion as part of my consideration of the merits of the application under s. 523(2). I must consider whether the delay in the completion of this trial may result in disproportionate time in pretrial custody having regard to his potential jeopardy on the charges. In other words, a proportionality analysis akin to that contemplated by Myers should be engaged.

[38] I turn next to whether s. 520 applies.

[39] Section 520 is the bail review provision. Subsection (1) states:

(1) If a justice, …, makes an order under subsection 515(2), (5), (6), (7), (8) or (12) or makes or vacates any order under paragraph 523(2)(b), the accused may, at anytime before the trial of the charge, apply to a judge for a review of the order. [Italics added.]

[40] I have highlighted the wording of the subsection which indicates that the application can be made “at any time before the trial of the charge”. To state the obvious, the trial has commenced on the charges for which Mr. E. was ordered detained by Justice of the Peace Aharan. Section 520 applies to applications made before the trial starts. The application here was made after the trial commenced. Section 520 does not apply.

[41] Where does that leave me?

[42] I have jurisdiction to hear an application to vacate the previous order for Mr. E.’s detention by Justice of the Peace Aharan. The jurisdiction lies under s. 523(2)(a). The procedure is not prescribed for such a hearing. What does “on cause being shown” mean?

[43] I observe that Section 520(8)(e) allows a judge hearing a bail review application to vacate the order previously made and make any other order provided for in s. 515 that he or she considers warranted. That discretion applies if the prosecutor [or defendant in a reverse onus scenario] “shows cause”. Thus, s. 520 has a similar “show cause” requirement.

[44] In the bail review context, the leading case is R. v. St-Cloud, 2015 SCC 27. The Supreme Court of Canada clarified that on an application under s. 520, the process is a hybrid hearing. The judge must determine whether it is appropriate to exercise his or her power of review. Exercising that power will be 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. the impugned decision contains an error of law; or
3. the decision is clearly inappropriate. A decision may be clearly inappropriate if the justice gave excessive weight to one relevant factor or insufficient weight to another. The reviewing judge cannot interfere with the original decision merely because he or she would have weighed the factors differently.

[45] It seems to me that the approach applicable under s. 523(2) may mirror that in s. 520 subject to modification as appropriate to meet the particular exigencies facing the trial judge. Depending when in the trial the application is brought, the trial judge may have a better grasp of the strength of the Crown’s case and the merit of the allegations facing the accused than would a justice of the peace or justice doing a bail review before trial. For example, if an application is made after a finding of guilt or guilt only on lesser charges, that would be a material change in circumstances that might justify vacating the previous order and substituting a new release or detention order.

[46] Who bears the onus to show cause? I do not agree with defence counsel’s submission that the onus is on the Crown under s. 523(2) to show cause for Mr. E.’s continued detention. First, the subsection contemplates the trial judge may make an order that varies the existing order or status quo. It makes sense that the party seeking to vary would bear the onus. Second, the subsection specifically references making any other order provided for “in this Part” which includes an order under s. 515. An application to the trial judge does not alter the reverse onus provisions in s. 515(6). Nothing in s. 523(2) says that directly or indirectly.

[47] It is not open to me as trial judge under s. 523(2) to simply ignore the previous order made and substitute my own decision. I do not have an open-ended discretion. I must still be guided by the constitutional and statutory provisions surrounding judicial interim release. That is clear from the wording of s. 523(2) which refers to “make any other order provided for in this Part”.

[48] All persons charged with an offence have the constitutional right “not to be denied reasonable bail without just cause”: section 11(e) of the Charter of Rights and Freedoms. This right “entrenches the effect of the presumption of innocence at the pre-trial stage … and safeguards the liberty of accused persons”: R. v. Antic, 2017 SCC 27, at para. 1. Pursuant to this Charter right, bail can only be denied in a narrow set of circumstances which are necessary to promote the proper functioning of the bail system: R. v. Pearson, 1992 CanLII 52 (SCC), [1992] 3 S.C.R. 665, at para. 60; R. v. Morales, [1992] 3 S.C.R. 771, at para. 38.

[49] Sections 515 through 526 of the Criminal Code establish a general entitlement to bail: Pearson, at para. 52. It is clear from the decisions of the Supreme Court of Canada that release is the rule and detention is the exception: Myers, at para. 1; Antic, at para. 29; R. v. St-Cloud, 2015 SCC 27, at para. 70.

[50] In R. v. K.T.S., 2020 ONSC 2672, Munroe J. summarized the principles applicable to the statutory grounds for detention at paras. 93- 98 as follows:

[93] The statutory grounds justifying detention are found in s. 515(10). There are three, commonly called the primary, secondary and tertiary grounds. As formulated today, they have withstood constitutional challenge. See Pearson; Morales; and R. v. Hall, 2002 SCC 64. The statutory grounds are as follows:

(10) For purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:

(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;

(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and

(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including

(i) the apparent strength of the prosecution's case;

(ii) the gravity of the offence;

(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used; and

(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.

Secondary Ground – s. 515(10)(b)

[94] Section 515(10)(b), the secondary ground, justifies detention when it is necessary for the protection or safety of the public.

[95] The public safety ground for detention is narrow and is necessary to promote the proper functioning of the bail system: Morales, at para. 46. The bail system does not function properly if accused persons commit crimes while on bail: Morales, at para. 41. The Supreme Court, in Morales, para. 39, summarized the secondary grounds as follows:

Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public”. Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous.

Tertiary Ground – s. 515(10)(c)

[96] Section 515(10)(c), the tertiary ground, justifies detention when it is necessary to maintain confidence in the administration of justice.

[97] The proper functioning of this pre-trial release system, and indeed the criminal justice system as a whole, requires public confidence: Hall, at para. 27. Thus, this statutory scheme championing the entitlement to bail, also includes specific grounds for pre-trial detention to maintain public confidence: s. 515(10)(c).

[98] The Supreme Court in St-Cloud, at para. 87, summarized the “essential principles that must guide justices in applying s. 515(10)(c)” as follows:

• Section 515(10)(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) … 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) … 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.
• The 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.

[51] Therefore, in summary, I am hearing this application under s. 523(2)(a). I am using the framework set out in St-Cloud. The onus to show cause to justify vacating the order of Justice of the Peace Aharan’s order is on the defendant. I am cognizant of the current status of the trial and the delay in its completion. I will consider whether the defendant’s detention is still justified in all of the circumstances which includes a consideration of proportionality.

[52] I pause to observe that after initial submissions over the applicable provisions, the hearing proceeded in the same manner as a bail review hearing. Mr. W. was called as a witness. Submissions were then made as to whether Justice of the Peace Aharan made an error of law in his initial decision and whether the evidence adduced at this hearing constituted a material change in circumstances to justify changing the order. Defence counsel referred to and relied on the decision in St-Cloud.

Did the Justice of the Peace make an error of law?

[53] Mr. Cornish submits that Justice of the Peace Aharan erred in law in that:

1. He identified a gap in the release plan – that Mr. E. would be at work where he would be unsupervised and had potential access to cell phones and vehicles – and attached too much weight to that risk. He also speculated that cell phones and vehicles would be available. Moreover, he failed to address the alternate plan by which Mr. E. would not work at Huron Pool but would reside with and be under Mr. W.’s direct supervision at all times. He failed to give adequate or any weight to that aspect.
2. With respect to the tertiary ground, he failed to weigh the relevant factors and his analysis is altogether insufficient. He merely provided his conclusion without adequate analysis.

[54] Crown counsel submits that:

1. There was no error of law. Justice Aharan was alive to and considered the plan presented. He applied the correct legal principles and gave appropriate weight to the relevant factors.
2. The defendant’s track record for disregarding and breaching court orders was extensive and recent. He posed a significant risk to the victim and to the administration of justice.
3. As for the tertiary grounds, Justice Aharan stated the proper legal principles applicable. The passage cited by defence counsel ignores his earlier analysis and findings. When his decision is examined as a whole, he correctly undertook the required analysis.

[55] I have carefully reviewed the entirety of the decision of Justice of the Peace Aharan which starts at page 96 of the transcript from the bail hearing. I agree with Crown counsel that Justice Aharan stated the correct legal principles engaged. He carefully considered and applied those principles to the facts and plan before him. His conclusion that the defendant had failed to meet his onus to show that he should not be detained on the secondary ground was amply supported by the evidence before him including the defendant’s pattern of deliberately breaching court orders particularly in relation to the victim, Ms. H..

[56] Justice Aharan identified an obvious gap in the defendant’s proposed plan – that he would be working where cell phones and vehicles would likely be available while unsupervised by his surety. It was entirely reasonable for Justice Aharan to believe that cell phones and vehicles belonging to co-workers or Huron Pool would at the workplace. That does not amount to improper speculation.

[57] Justice Aharan did not specifically address whether the alternate plan was sufficient to mitigate the risk that Mr. E. would re-offend if released. It is implicit in his reasons that he was entirely convinced that there was a strong likelihood that he would based on the many previous charges and convictions for doing exactly that and the synopses of the current charges. In my view, it is manifest from Justice Aharan’s decision that he considered and found that there was a substantial likelihood that Mr. E. would re-offend if released whether working away from Mr. W.’s farm or not.

[58] As for the tertiary ground, I again agree with Crown counsel that Justice Aharan considered each of the four enumerated factors in s. 515(10)(c) and weighed those factors in the context of whether the defendant’s continued detention was necessary to maintain confidence in the administration of justice. He applied the correct legal test and concluded that the tertiary ground was made out. Put another way, he was not satisfied that the defendant had met his onus to show that the tertiary ground did not justify his detention.

[59] In summary, I find that there is no error of law in the reasons of Justice of the Peace Aharan. He did not place excessive weight on one fact or factor, nor did he give insufficient weight to other facts or factors. That I might have weighed the factors differently is irrelevant. He correctly stated the applicable law, and he applied the facts to the legal principles appropriately.

Has there been a material change in circumstances that would justify vacating the detention order?

[60] Mr. Cornish submits that there is new evidence that establishes a material change in the circumstances of the case; specifically, the following:

1. the amended indictment - there are fewer charges than previously;
2. the committal decision of Justice Brown suggests that although the charges crossed over the low threshold for committal to trial, there was reason to doubt the strength of the Crown’s case. Thus, the Crown’s case is weaker than it was assumed to be at the original bail hearing;
3. the significant passage of time;
4. the new release plan put forward; and
5. the delay in the trial which is not Mr. E.’s fault.

[61] Mr. Cornish again put forward Mr. S.W. as a proposed residential surety for Mr. E. if he is released. Mr. W. confirmed and adopted his testimony from the August 24 bail hearing. He also testified to new events and considerations since then.

[62] Mr. W. resides on a farm in northern Huron County. It is roughly at the mid-point of a triangle that has Listowel, Wingham, and Harriston as its points. His farm has 25 acres of arable land and 25 acres of swamp. It has a four-bedroom house and buildings including a welding shop. He has resided there for roughly 22 years.

[63] Title to the farm has been transferred to his son, J., as part of his estate planning. Mr. W. is now 77 years old. He no longer farms but does some welding and occasionally helps J. who owns a farm roughly 10-15 minutes away by car. J. is married and has six children. He is a farmer and part of the Mennonite community. J. does not own a vehicle or a phone.

[64] In addition to welding, Mr. W. helps out what he referred to as “the horse and buggy” Mennonite community in the area. He goes to the Walmart in Wingham and picks up groceries and items which he delivers to two stores in the community. He also drives people in that community to the hospital when asked.

[65] Mr. W. has previously acted as a surety on three or four occasions. He does so out of a sense of duty to help others. He has fulfilled his obligations as surety including attending court to revoke his surety when one accused left and went to Kingston contrary to his release conditions.

[66] Mr. W. travelled two hours one way to visit Mr. E. at EMDC the week before this hearing. It was the first time they had met in person. He had spoken to Mr. E.’s mother five or six times by telephone. He wanted to satisfy himself that Mr. E. was handy with tools and mechanical things as his mother had indicated, and that he would be willing to help with the work in the welding shop. Based on his conversation with Mr. E., he expects that he will be congenial to doing so.

[67] At present there is another man residing with Mr. W.. He has been there since February and is expected to move out in the next 1-4 weeks. That individual does own a car and has a cell phone. When he leaves, Mr. W. will be the sole occupant of the house unless Mr. E. is released to his supervision.

[68] Mr. W. proposes that if Mr. E. is released, Mr. E. would be expected to follow Mr. W.’s rules including using Mr. W.’s telephone only with his permission to call his parents or lawyer etc.. Mr. E. would not otherwise be permitted to have a cell phone. Mr. W. came to court with a hand-written list of his expectations. That list included, inter alia:

• Mr. E. may leave the farm in Mr. W.’s presence.
• Mr. E. must come to church with Mr. W..
• Mr. W. would appreciate some help on the farm and in the shop.
• Mr. W. may take him to J.’s farm to help there. He clarified that he may leave Mr. E. at J.’s farm to work.

[69] The list used by Mr. W. also indicated: “As trust builds, some of these limits may change.”

[70] In his testimony, Mr. W. agreed that he would follow whatever rules are set by the court. He also indicated that he would trust and believe Mr. E. until he found out that he could not. He believes that everyone has failed, and everyone deserves help.

[71] Crown counsel took no issue with Mr. W.’s sincerity and willingness to do the job of surety with diligence. She submits, however, that there is insufficient connection and history between Mr. W. and Mr. E. for Mr. W. to have an inkling when he is being lied to or to anticipate when and if Mr. E. is about to breach. Because they have no relationship, there is also no moral weight tying Mr. E. to follow the rules for Mr. W.’s sake.

[72] Crown counsel further submits that:

• the plan before me today is not materially different from that before Justice of the Peace Aharan;
• the new indictment amalgamates some charges, but all underlying incidents are still before the court. There is no significance to the amended indictment;
• there is nothing in the committal decision of Justice Brown that suggests weakness in the Crown’s case; and
• she agrees that the delay in the trial is not Mr. E.’s fault. But for that issue, the trial would probably be complete by now. Mr. E. has benefitted from his in-custody status to the extent that the preliminary hearing and trial were all scheduled quickly to minimize his time in pre-trial custody. He has gone to the front of the line because of it.

[73] Is there new evidence that demonstrates a material change in circumstances since the original order of August 24, 2021?

[74] The new indictment tidies up the wording of some of the breach charges and amalgamates some of the sexual assault and assault charges found in the earlier indictments, but it does not materially alter the landscape for trial. The same events are in issue.

[75] I have reviewed the committal decision. I do not agree that Justice Brown signaled that the Crown’s case was weaker than it was assessed to be at the bail hearing. There is no doubt that some of the alleged incidents depend largely on the credibility and reliability of the complainant’s evidence. That was always the case.

[76] I am mindful of the presumption of innocence and that cases that appear strong at an early stage may not be when under the lens of a trial. There has not been enough evidence adduced at trial to draw any early impressions of the strength of the Crown’s case. The complainant has not testified, and her evidence is central to most of the charges.

[77] The delay in the trial is not caused by the defendant personally. Mr. E. places his trust in Mr. Cornish and wants Mr. Cornish as his defence counsel. Mr. Cornish assures the court that he has made efforts to find another counsel to do the application although I do not get the sense that he has been diligent in those efforts or made that a priority. Regardless, the trial remains in limbo while the conflict issue remains outstanding. I cannot say when it is likely to resume.

[78] The plan advanced by Mr. Cornish for Mr. E.’s release is substantially the same as that advanced on June 24 save that Mr. E. will not be working for Huron Pool but will be assisting Mr. W. with welding and mechanical repair work and helping J. on his farm.

[79] Mr. W. contemplates that Mr. E. may be left with J. to help on his farm. Mr. W. allows that he may be present if need be. Unlike Huron Pool, J. does not own a vehicle or have a phone. There is no evidence that J. is prepared to be responsible to supervise Mr. E. when at his farm just as there was no evidence that the employees or managers at Huron Pool were prepared to do so.

[80] Similarly, there is no evidence that if Mr. E. is left to work at J.’s farm and he simply walks away, J. will promptly advise his father or has the means to do so.

[81] I am also concerned that there is another person residing with Mr. W. who has a vehicle and phone that could potentially be accessed by Mr. E.. I am mindful that that man may leave soon or perhaps already has. There is no evidence that he would assist in the supervision and/or would undertake not to allow Mr. E. to access his cell phone or vehicle.

[82] It is clear to me that Mr. W. is an earnest and sincere proposed surety. He has a track record for fulfilling his duties as a surety. He strikes me as an honest man. I am nevertheless concerned that he will relax the rules for Mr. E. as time passes. That is evident from his notes marked as exhibit one. I am less concerned by the lack of a prior relationship with Mr. E..

[83] A review of Mr. E.’s criminal record reveals that he has 20 convictions for breach of probation orders, two convictions for breach of recognizance, and one old conviction for failure to appear. The lion’s share of those convictions are since September 2017 with 13 of them since 2019. Mr. E.’s criminal record, including convictions in 2020 and 2021, do not provide any reason to suppose that he is likely to abide by the terms of a new release order. He has a track record of not complying with court orders.

[84] In September 2020, he was convicted of breach of probation when released to a residential surety, Mr. Wm., and bound by a condition not to have contact with the complainant, T.H.. He was arrested in a hotel room in Stratford in the company of Ms. H..

[85] His convictions in 2020 include assault of Ms. H. and damaging her television in January of that year. In April 2020, he assaulted her again. In September 2020, he uttered threats to cause bodily harm to a man who merely spoke to Ms. H.. The synopses of the current charges before me show an escalation in intimate partner violence and intimidation.

[86] Thus, on the information filed as to past convictions and the circumstances surrounding the present charges, there is good reason to be concerned that Mr. E. will not obey the terms of any release order made and that he poses a significant risk of harm to the complainant, Ms. H.. In light of that history and the allegations before me, the release plan must be one that significantly mitigates the risks posed by his release. The plan before me does not adequately do so.

[87] Thus, I find that there is no new evidence that demonstrates a material change in circumstances and, in any event, the plan put forward does not sufficiently mitigate the substantial likelihood that the defendant will re-offend if released. He poses a significant risk to Ms. H.’s safety. He poses a risk that he may intimidate her in the giving of her evidence which would undermine the administration of justice.

[88] The current charges against Mr. E. are serious and carry the potential for a significant penitentiary sentence if convicted. This is not a case where the pre-trial custody at this point is disproportionate to his potential jeopardy.

[89] I am satisfied that his continued detention is necessary although I remain concerned that the date for resumption of the trial remains unknown and that there is no date fixed for the hearing of the conflict application. Those issues are reviewed regularly with a view to scheduling the conflict application as soon as practicable. Defence counsel has been encouraged to find a lawyer to do the conflict application and nothing in this decision should be seen to detract from that direction. The trial will resume as soon as it can.

Conclusion

[90] For the reasons provided, I decline to vacate the detention order of Justice of the Peace Aharan dated August 24, 2021. The application to release Mr. E. is dismissed without prejudice to this court reconsidering the issue in future if it is appropriate to do so.

Justice R. Raikes

Date: May 24, 2022