COURT FILE NO.: CR-22-0260-00BR
DATE: 2022 07 22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
Alexandra C. Berg for the Crown Respondent
- and –
A.A.
Applicant
Magda Wyszomierska for the Applicant
HEARD: June 24, 2022
Restriction on Publication
An order has been made pursuant to s. 517(1) of the Criminal Code. Publication is permitted, but publication of any IDENTIFYING facts about the applicant, his personal circumstances or the evidence is prohibited. This judgment complies with that order and may be published.
REASONS ON BAIL REVIEW APPLICATION
D.E. HARRIS J.
[1] The Applicant, A.A., applies under s. 520 of the Criminal Code, R.S.C. 1985, c. C-46, to review his bail detention ordered on secondary and tertiary grounds by Justice of the Peace Cassano on June 3, 2021.
[2] Shortly after the hearing in this matter, I decided that the Applicant should be released on a strict house arrest bail with two named sureties. These are my reasons for that decision.
Summary of Decision
[3] In deciding whether the Applicant should be released, there were conspicuous and very concerning risk factors. For a relatively young man, he has quite a lengthy criminal record including a conviction for aggravated assault in 2014 for which he was sentenced to four and a half years in jail. The present allegations against him are troubling; they involve possession of a loaded handgun and the finding of two loaded shotguns under a bed in a residence in which he is alleged to have resided.
[4] The onus is on the Applicant to show why he should be released: First, the offences are alleged to have been committed while on prior release (Section 515(6)(a)(i)); and second, the Applicant is under a firearms prohibition order and is alleged to have been in possession of firearms contrary to the prohibition: Section 515(6)(a)(viii)).
[5] Almost all accused charged with criminal offences are releasable on bail with the right plan and with the right sureties. "[R]elease of accused persons is the cardinal rule and detention, the exception": R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at paras. 70. Pre-trial detention conflicts with the presumption of innocence: R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, Justice Iacobucci in dissent at para. 48. The presumption of innocence is a "hallowed principle lying at the very heart of criminal law": R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, at pp. 119-120. An accused refused bail and detained in custody serves jail time before being found guilty of any crime.
[6] As a consequence of the preference for release, most bail release decisions turn on the strength of the bail plan and the sureties. This case is no exception. Mr. A. is not so dangerous or ungovernable that his pre-trial detention is preordained. He is releasable. The ultimate question is no different than in the vast majority of bail applications: Does the plan and the sureties alleviate the attendant risks of release, reducing them to a level acceptable to protect the public and discharging the three grounds for detention in Section 515(10) of the Code?
[7] In this case, house arrest and a prohibition on leaving the residence unless with one of the sureties is clearly necessary in light of the firearm allegations and the potential threat the Applicant poses to the public. The two sureties advanced to enforce the house arrest are trustworthy and reliable. They each have their own particular attributes and will serve different functions in the release plan. They compliment each other well.
[8] Of signal importance on this application is Section 493.2 of the Criminal Code which commands that particular attention be paid to an accused who falls within a vulnerable population likely to be overrepresented in the criminal justice system and subject to disadvantage in being released on bail. The provision applies to the Applicant, a Black man. His history as a refugee in foster care makes the provision especially pertinent.
This is a De Novo Bail Review
[9] For the Crown, Ms. Berg fairly conceded that this review should be de novo. The Justice of the Peace below found that the sureties put forward at the original hearing were inadequate and she did not have the required trust in them. The two new and different sureties proposed directly address this flaw identified by the Justice of the Peace and therefore constitute a material change of circumstances: St. Cloud, at paras. 138-139. The question of bail must be looked at afresh.
[10] The first issues that must be explored are the Applicant's criminal record and the allegations against him in this case. Together, these constitute the main foundation supporting the Crown's arguments that the Applicant should be detained in custody pending his trial.
The Applicant's Antecedents
[11] The Applicant is 28 years old, having arrived in Halifax as a refugee from Somalia along with his aunts and sister in 2000. The Applicant was six years old; his sister F. was eight. In circumstances which are somewhat obscure, he and his sister were taken from his aunts by Children's Aid Society Nova Scotia in December of 2001. The Applicant was then placed in numerous foster care placements over the ensuing seven years, the final placement being in an institution known as the Nova Scotia Home for Coloured Children ("NSHCC"). Both the Applicant and his sister filed a statement of claim against the Attorney General of Nova Scotia in September of 2020 alleging sexual, physical, and mental abuse throughout their foster care placements.
[12] The Applicant's criminal record began in 2007 just after his fourteenth birthday. Convictions as a youth include obstruct justice, numerous fail to comply convictions assault, mischief under $5000, assault and aggravated assault. He was sentenced to short jail sentences for these offences.
[13] The Applicant's first adult convictions beginning in February 2013 include a slew of fail to comply convictions. He was also convicted of uttering threats and was sentenced to 95 days. A 10-year weapons prohibition was imposed. Lastly, in July 2014, still only 21 years old, there were two aggravated assault convictions and a theft of a motor vehicle, for which the Applicant received a total of four-and-a-half years in jail.
The Present Allegations
[14] On May 17, 2021, at about 12:00 p.m., a police officer stopped a vehicle in Brampton because the driver was speaking on a cell phone. The driver, alleged to be the Applicant, advised that it was his girlfriend's vehicle. He could not provide a licence or any proof of his identity. In fact, the Applicant is a suspended driver due to unpaid fines and for having a novice driver's licence with excessive demerit points.
[15] The officer asked the Applicant to provide a piece of ID to confirm his name. The Applicant refused, rolled up his window, and drove off at a high rate of speed, nearly running over the officer's foot. The vehicle ran a red light and almost hit another vehicle. The vehicle was abandoned a few minutes later. The Applicant is charged with obstruct police and dangerous driving with respect to these events.
[16] The vehicle was registered to the Applicant's girlfriend S.G. On May 24, 2021, officers attended at her home at 43 Edgebrook Crescent, Brampton, to arrest the Applicant for the May 17th offences and to search the residence with a warrant. When an attempt was made to arrest him, the Applicant fled with the officers in pursuit. He was apprehended but resisted. Tasers were used. A loaded Lorcin L9 handgun was found in his waistband. The serial numbers were painted over.
[17] When the officers searched the residence pursuant to the search warrant, they located under a bed in the master bedroom a loaded black Mossberg 500 12-gauge shotgun and a black and grey Remington Hogue 12-gauge shotgun. They also found additional shells and other ammunition under the bed. A rental agreement for the premise signed by S.G. was found, as were pieces of the Applicant's identification.
[18] The Applicant has been in custody since his arrest. S.G. is also charged with offences arising out of the discovery of the items at Edgebrook Crescent, including the firearms charges.
The Outstanding Charges
[19] The Applicant was charged with impaired driving and obstructing police out of Jasper, Alberta, in October 2019. He failed to appear. He was charged November 14, 2020, with possession of break and enter instruments out of York region, Ontario. On February 5, 2021, he was charged with obstructing a peace officer in Toronto.
The Secondary Ground Does Not Require Detention
[20] Section 515(10)(b) of the Code mandates detention when necessary for the safety of the public including the substantial likelihood that the accused will commit a criminal offence if released on bail. The touchstone is the protection of the public. The focus is the accused's propensity to commit further criminal offences based on the nature and circumstances of the offences for which he is before the court, the strength of the case, and his criminal record, as well as any other pertinent factors: R. c. Rondeau (1996), 1996 CanLII 6516 (QC CA), 108 C.C.C. (3d) 474 (C.A. Que.), at p. 478.
[21] The main secondary ground considerations favouring detention include the Applicant's violence in the past, particularly the aggravated assault from 2014, and his possession of firearms based on the current allegations.
[22] The case on the possession of the handgun appears overwhelming. The possession of the shotguns based on constructive possession is not nearly as strong (his girlfriend is charged as well), but is nonetheless substantial. While it could be said in mitigation that the firearms are not alleged to have been used to facilitate an offence, such as robbery for example, the possession of illegal firearms is rarely for an innocuous purpose. The purpose here could only have been nefarious. Gun crimes are a societal evil and it is urgent that they be deterred firmly and decisively. Whatever the purpose of the firearms, possession of such fearsome weapons is chilling.: see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, per Chief Justice McLachlin, at para. 82, see also Justice Moldaver in dissent, at para. 131; R. v. Brown, 2009 ONCA 563, 251 O.A.C. 264, at paras. 29-33, affirming [2007] O.J. No. 5659 (Ont. S.C.J.); R. v. Chizanga and Meredith, 2020 ONSC 4647, at paras. 5-20.
i. The Proposed Sureties Can be Trusted to Enforce the Applicant's House Arrest
Decodea Hiles
[23] It is proposed that the Applicant live with Ms. Decodea Hiles. She is 26 years old and lives in an apartment in Scarborough with her two young daughters. She is not currently employed. She drops off and picks up her children at the nearby school and would be out of her residence for these two periods of time during the day.
[24] Ms. Hiles has known the Applicant and his sister F. for 10 years, having first met them at a family resource centre in Halifax. Back at that time, she would see them about every other week, often at the centre, but they would also get together for celebrations and other events. Admittedly, she has not had too much to do with the Applicant since he was incarcerated for the aggravated assault in 2013-2014. However, she continued to see F. throughout.
[25] Ms. Hiles moved to Toronto in April of 2021. Her first contact with the Applicant in a long while was over the phone about six months ago. In her cross-examination, she stated that she was in the process of installing a video camera at her front door to monitor the Applicant. Ms. Hiles resisted the suggestion put by Ms. Berg in cross-examination that this was indicative of a lack of trust in the Applicant. I think that is reasonable; it is an extra comfort, consistent with her obligation as a surety and she ought not to be faulted for it.
[26] I was impressed with Ms. Hiles for several reasons. She was well-aware that she was taking on an onerous responsibility, but it was evident that she had thought it through and was comfortable with her decision. At no time did she waver.
[27] There were several aspects of her evidence that could arguably cast doubt on her ability to supervise as a surety. For example, she knows the Applicant from years ago but has had little contact with him for the last eight years or so. She has two young children living with her. There is limited space in her apartment which means that they will all be in tight quarters.
[28] Despite being confronted with these, Ms. Hiles never once attempted to dodge or to embellish. She was matter of fact and never became an advocate for the Applicant. My only concern with Ms. Hiles as surety is that she has taken on a responsibility that over time could become unduly burdensome. But I would defer to her on this. It was plain that she has considered the responsibility carefully and fully believes she can accomplish her obligations as surety.
[29] Ms. Berg argued that Ms. Hiles does not know the Applicant that well and has had little involvement with him for many years. She is not well-suited to being a surety for this reason. There is some truth to this, although it is somewhat overstated. Ultimately, however, I do not agree that Ms. Hiles will not be a good surety because she is not close enough to the Applicant.
[30] The "paradox of bail" can detract from a bail application in some circumstances. The paradox arises from the ideal that a surety should be someone close to the accused so that the accused will be reluctant to breach his or her bail and see the surety lose their pledge. Yet at the same time, this closeness raises the prospect that the surety, not wanting to force the accused back to jail, may look the other way if the accused violates his bail conditions: e.g., R. v. Henry, 2020 ONSC 4196, at para. 37.
[31] Ms. Wyszomierska put it succinctly when she said that it is a facet of the strength of the bail plan that Ms. Hiles does not have strong emotional ties to the Applicant. I agree. There is of course some emotional connection, and, not unimportantly, a particularly strong one to the Applicant's sister. But it is not a connection like with a family member, for example. Nonetheless, I am convinced that Ms. Hiles will carefully abide by her obligations and responsibilities as a surety. She will be dispassionate and strict. She will ensure that Mr. A. is not a threat to the public. She has been a surety before and, despite it being unpleasant, rendered the accused in that case.
[32] In my view, Ms. Hiles is in a good position to avoid being caught up in the paradox of bail. She is close enough to the Applicant without raising the concern that she might be too permissive and fail to conscientiously supervise him: R v. Korkis, 2020 ONSC 8017, at para. 16.
[33] Ms. Hiles' pledge amount--$5000--is not large in absolute terms, but it is significant and substantial measured against her present circumstances. It is all her savings. The issue with respect to the amount of a surety pledge is whether it is sufficient to exert the "pull of bail" on the bailee to ensure that he will be deterred from breaching his bail because of the financial pain it will cause his surety: Canada (Attorney General) v. Horvath and Mirza, 2009 ONCA 732, 248 C.C.C. (3d) 1, at paras. 40-54. As a single mother with two young children and currently unemployed, I have no doubt that Mr. A. understands that for Ms. Hiles to lose her pledge in an estreatment proceeding would have dire consequences for her. The pull of bail is of considerable force in this case.
[34] Ms. Hiles and her co-surety, Mr. Cole, met recently to discuss their work as sureties for the Applicant and spoke on the phone on one occasion as well. That is quite unusual and demonstrates their dedication to strictly supervise the Applicant.
Desmond Cole
[35] Mr. Cole, age 40, is well known as a journalist and social activist. He is a public figure. Although there was little detail of his various endeavours in this hearing, he testified that he writes about immigration issues and the Black community in Canada. He has been involved in immigration issues over the years. His history with the Applicant goes back five years to when he was assisting him with his immigration troubles in 2017.
[36] With respect to the immigration matter, the Applicant was scheduled to be deported on account of his criminal record but, eventually, the government backed down and decided not to pursue deportation. Mr. Cole assisted the Applicant while on parole in Toronto after serving the custodial portion of his aggravated assault sentence. He visited him at his halfway house and was approved to take him around the city. He showed him how to take the subway and where to go for various services. He also did an employment search with the Applicant. Mr. Cole helped the Applicant get a volunteer job at Ryerson University's youth justice initiative and steered him towards employment at Wildrose Gardening as a landscaper.
[37] Before the pandemic hit, Mr. Cole would see the Applicant quite regularly. That changed during the pandemic, understandably. Since the Applicant's incarceration about a year ago, he has only talked to him on the phone once. Mr. Cole is currently surety for someone else, but he firmly believes that he will have the time and motivation to assist ans supplement Ms. Hiles in her primary surety role. He is self-employed and has flexibility in his work and time commitments.
[38] Ms. Berg took the position in cross-examination and submissions that because Mr. Cole was mainly unaware of the Applicant's outstanding charges, and the friends he associates with, he was unsuitable to be a surety. This is an oft-argued Crown position and on occasion may have some merit. It was not persuasive in this instance, however. Mr. Cole's response was apt. He said that his relationship with the Applicant was built on his assistance to the Applicant when he was under threat of deportation and his mentoring of the Applicant. He helped to better his life. He is much older than the Applicant. In light of the nature of their relationship, Mr. Cole did not expect to be updated about the criminal charges or similar aspects of the Applicant's life.
[39] This makes sense. Mr. Cole knew about the most serious matter on his record, the aggravated assault leading to the four-and-a-half-year sentence. He may well have also known about other convictions. Mr. Cole is aware of the allegations before the court now. He is under no illusions. It could not be expected that the Applicant would open up to him about his outstanding charges. It was not part of the normal content of their relationship. An accused is not expected to obtain absolution from their surety. Furthermore, in context, the outstanding charges were not of the utmost seriousness. The criminal record and the firearms charges are the main thing.
[40] Mr. Cole will visit with the Applicant regularly and will stay in touch on the phone. He is confident that the Applicant will obey his direction. The $5000 he has pledged is important to him and, given their friendship, this pledge will exert the required pressure on the Applicant.
[41] In conclusion, the two proposed sureties are a one-two punch for the Applicant. They both have previous experience as sureties. Ms. Hiles is the enforcement arm of the team. Mr. Coles can mentor the Applicant and act as a moral bulwark against him re-offending. Together, they will be effective supervisors and provide the necessary protection to the public. Their oversight of the Applicant will, in view of the other factors and the addition of GPS monitoring, adequately address the key bail factors.
ii. The Interpretation of Section 493.2 of the Criminal Code
[42] The relatively new Section 493.2 of the Code enacted in 2019 in judicial interim release Part XVI of the Criminal Code has important implications for both the secondary and tertiary grounds of bail on this application. It clearly applies to the Applicant, a Black man. It reads,
493.2 In making a decision under this Part, a peace officer, justice or judge shall give particular attention to the circumstances of
(a) Aboriginal accused; and
(b) accused who belong to a vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release under this Part.
[43] Justice Shreck in R. v E.B., 2020 ONSC 4383, wrote at para. 43,
Where s. 493.2 comes into play, in my view, is in the court's examination of the type of factors that are relied upon to make the determination of whether detention is necessary. For the secondary ground, which is at issue in this case, this usually consists of the accused's criminal antecedents as well as the nature of the allegations. Making an accurate determination of whether those factors lead to the conclusion that detention is necessary requires that they be considered having regard to the unique circumstances of the accused, including any relevant systemic factors.
[44] In the course of his examination of Section 493.2, Justice Shreck relied on dicta from R. v. Chocolate, 2015 NWTSC 28, at paras. 49-50, and several other cases predating Sections. 493.2 requiring a bail judge to incorporate socio-economic and Gladue factors into the assessment of an accused's future proclivities.
[45] I agree with these observations. Section 493.2 is broadly inclusive. The provision instructs that a bail judge should pay "particular attention" to vulnerable, overrepresented populations historically disadvantaged in obtaining bail release. The "particular attention" directive is identical to that in the Gladue sentencing provision of Section 718.2(e) directing that a judge consider "all other sanctions, other than imprisonment, that are reasonable … with particular attention to the circumstances of aboriginal offenders." Unlike Section 718.2(e) which seeks to encourage alternatives to imprisonment, Section 493.2 does not explicitly state the final objective of the provision. However, put in the most general terms, it is clearly to ameliorate the pre-trial overincarceration of the overrepresented, vulnerable groups referred to, in this case Black accused. The most obvious means is to release more of the accused described in the provision. That is its ultimate and highest purpose. Within this, there will necessarily be lesser means and ends that are encouraged by the direction contained in Section 493.2.
[46] Overrepresentation of Black and Aboriginal offenders is a serious systemic problem. The jurisprudence recognizing the existence of overrepresentation and anti-Black racism is overwhelming: R. v. Le, 2019 SCC 34, [2019] 2 SCR 692, at paras. 89-97; R. v. Morris, 2021 ONCA 680, 74 C.R. (7th) 390, at paras. 39-40; R. v. Theriault, 2021 ONCA 517, 157 O.R. (3d) 241, at para. 143; R. v. Golden, 2001 SCC 83, [2001] 3 S.C.R. 679, at para. 83; R. v. Reid, 2016 ONSC 8210, at paras. 23-26; R. v. Williams, 2018 ONSC 5409, at paras. 45-46; R. v. Elvira, 2018 ONSC 7008, at para. 22; R. v. Kandhai, 2020 ONSC 3580, at para. 40. The same must hold true for the overrepresentation of Black and Aboriginal individuals in pre-trial detention.
[47] Whether a person is released on bail or detained is one of the most critical steps for an accused in the criminal process. A person confined to jail awaiting trial is statistically much more likely to be convicted than an accused released on bail. It is much more difficult to mount a defence from jail. Bail often sets the tone for the course of a criminal prosecution: R. v. Myers, 2019 SCC 18, 53 C.R. (7th) 1, at paras. 22-27; R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509 (S.C.C.) at 66, R. v. Zora, 2020 SCC 14. (2020), 388 C.C.C. (3d) 1 at paras. 64, 104, Toronto Star Newspapers Ltd. v. R., 2010 SCC 21, [2010] 1 S.C.R. 721 at para. 11, Friedland, Detention before Trial, at p. 172.
[48] To tackle the stubborn and unacceptable problem of overrepresentation, it was logical and sensible for Parliament to begin at this fundamental first step of the criminal process.
[49] The provision alerts a judge contemplating a bail decision to the fact of overrepresentation and urges sensitivity to its various manifestations. A critical approach to overrepresentation can directly affect the evaluation of the three grounds of bail and guide the process of crafting conditions to meet head on the risks of bail release. The methods to affect the change required are completely open-ended, however, and are left to the ingenuity and discretion of the judiciary.
[50] The section was placed by Parliament at the beginning of the bail release sections in Part XVI of the Code. It must be given effect whenever a vulnerable, overrepresented accused is before the court for bail. Not to do so would constitute an error of law in circumstances where it could potentially make a difference to the decision: St. Cloud at paras. 121, 139.
[51] In this case, in my view, there are two aspects of Section 493.2 that tend to militate against the case for the Applicant's detention on the secondary ground: First, the Applicant's history as part of an overrepresented and vulnerable population opens up a more realistic perspective on the Applicant's many fail to comply with recognizance and disposition convictions. It has the direct effect of reducing the tendency of these convictions to cast doubt on the Applicant's trustworthiness on bail. Second, the focus demanded by the new provision supports the efficacy of the bail conditions proposed by the Applicant and demonstrates this bail plan's ability to reduce the risk of re-offence.
iii. Application of Section 493.2 in this Case
a. The Factual Foundation
[52] The Applicant is a Black man and, in the words of Section 493.2, is clearly a member of a "vulnerable population that is overrepresented in the criminal justice system and that is disadvantaged in obtaining release".
[53] The provision operates whenever an accused falls into the population described in Section 493.2. That is a sufficient precondition to activate its operation. However, besides alerting the judge to the need to contemplate the problem of overrepresentation, something more is needed. It is open for a particular accused in any given instance to demonstrate the specific application to their circumstances based on his or her history. As a general proposition, the personal background factors of a person falling into Section 493.2, like in a Gladue situation, are a matter of context and direct legal causation need not be shown: Morris, paras. 13, 89-100.
[54] It will not always be easy to integrate the Parliamentary direction in Section 493.2 into a bail decision. In the case at hand, however, the Applicant's circumstances extend well beyond his simple membership in a vulnerable overrepresented group.
[55] The history of the Applicant from the age of six is detailed in his affidavit, the statement of claim against the Nova Scotia government, and in the reasons for judgment quashing the government order which would ultimately have led to the Applicant's deportation from Canada.
[56] As mentioned, the Applicant immigrated to Canada with his sister and his aunts when he was six years old. The two children were taken from their aunts for reasons which are unknown. They were not permitted to speak their language or engage in their culture. F.'s hijab was taken from her. After being taken into the permanent care and custody of Nova Scotia Children's Aid Society (CAS) in May of 2003, they were transferred to a foster care family in August of 2003. This family was of a tribe which was a rival to the one in which A. and F. were born into and were members. The foster family's culture deeply conflicted with their own culture and heritage. Brother and sister were allegedly subjected to mental, physical, and sexual abuse inflicted by the head of the household and her eldest son.
[57] After reporting the abuse to CAS, no steps were taken. F. ran away from the foster home on numerous occasions. Finally, one of F.'s teachers reported the abuse to CAS. F. was removed from the home as a result, but A. was left there for an additional three years. The abuse continued. He was removed in May of 2007. There were successive short term foster care placements before the Applicant was placed in the Nova Scotia Home for Coloured Children ("NSHCC") in May 2008. He was there until October 2008. It is alleged that he was sexually abused by a staff member while he resided there.
[58] The NSHCC was established in 1921. A report was published in 2019 detailing widespread abuse at the Home: "Restorative Inquiry: The Nova Scotia Home for Colored Children": https://restorativeinquiry.ca/. On October 10, 2014, Nova Scotia Premier Stephen McNeil officially apologized on behalf of the province to those who suffered abuse and neglect at the NSHCC: https://restorativeinquiry.ca/apology.html. Included was an apology about the NSHCC's systemic racism against Black children.
[59] It appears that the report's central allegations of misconduct against the NSHCC and the Premier's apology was with reference to events that took place well before the Applicant's placement there. These issues remain to be resolved in the ongoing litigation.
[60] The statement of claim alleges that the government failed to respect and preserve the "cultural, racial and linguistic heritage" of the Applicant and his sisters.
b. The Burden of Proof
[61] The admissibility standard on a bail hearing is whether the evidence is "credible or trustworthy" : Section 518(1)(e) of the Code. On its face, this applies to both Crown and defence evidence: Justice Trotter, "The Law of Bail in Canada", 3rd ed., on- line, Section 5:24. The "credible or trustworthy" phrase has been given a broad interpretation, it being stressed that admissibility is considerably more relaxed than at trial. Hearsay is admissible. This more open position to the reception of evidence is a function of the informal, summary nature of bail hearings and the importance of expedition: Toronto Star, para. 28 ; R. v. Wilson, 1997 CanLII 11345 (SK QB), [1998] 3 W.W.R. 56 (Sask. Q.B.) at p. 63; R. v. Powers (1972), 1972 CanLII 1411 (ON SC), 9 C.C.C. (2d) 533 (Ont. H.C.) at p. 539; R. v. Kevork, [1984] O.J. No. 926 (H.C.).
[62] Although the allegations of the Applicant and his sister are unproven at this point, bail decisions are generally premised on allegations rather than proven facts. The allegations of the Applicant's criminal acts relied upon by the Crown are credible and trustworthy; so too are the circumstances adduced with respect to the Applicant's history.
[63] The allegations in the statement of claim are written by the plaintiffs' lawyer an officer of the court. They are admissible and of sufficient reliability to factor into the decision.
[64] These allegations led the Federal Court to quash the intermediate decision of the Minister's Delegate with reference to A.'s deportation because the decision failed to take into account Charter of Rights and Freedoms implications arising from his maltreatment as a long-term ward of the state.
c. The Fail to Comply Convictions Should be Approached with a Critical Eye
[65] Like Justice Shreck in E.B., at paras. 45-50, I am of the view that the Applicant's numerous fail to comply convictions are partially a product of anti-Black racism and other systemic factors, most prominently the Applicant's youth and status as a refugee and foster child.
[66] Justice Martin sounded the alarm with respect to how fail to comply convictions may unfairly impact bail issues in R. v. Zora, 2020 SCC 14, 388 C.C.C. (3d) 1:
56 Convictions for failure to comply under s. 145(3) are treated by Parliament and the courts as often indicating that an accused has a history of intentionally disobeying court orders, and therefore is more likely to breach their court orders again. A failure to comply conviction can result in assumptions that an accused has a "lack of respect ... for court orders and for the law", which may affect future sentencing and release decisions [citations omitted].
57 [B]reach charges often accumulate quickly… People with addictions, disabilities, or insecure housing may have criminal records with breach convictions in the double digits. Convictions for failure to comply offences can therefore lead to a vicious cycle where increasingly numerous and onerous conditions of bail are imposed upon conviction, which will be harder to comply with, leading to the accused accumulating more breach charges, and ever more restrictive conditions of bail or, eventually, pre-trial detention (citations omitted).
70 [The] legislative framework indicates that Parliament intended for the Crown to primarily use bail review and revocation, rather than criminal charges, to manage accused persons who cannot or will not comply with their bail conditions, especially when those bail conditions address conduct that would not otherwise be criminal. Of course, different considerations apply for a breach of condition that involves conduct that is otherwise criminal or which harms or threatens people, for example, where an accused breaches a no-communication condition by threatening or intimidating a victim. [The new referral process under Section 523.1 of the Code] … further emphasizes that prosecutions and conviction under s. 145(3) should be a last resort measure to primarily address harmful intentional breaches of bail conditions where the remedies available through bail review and revocation would not be sufficient.
[Emphasis added.]
[67] Going through the details of the fail to comply offences, between the ages of 13 and 17, the Applicant accumulated three fail to comply convictions and three fail to comply with disposition convictions. From the fact that there was jail time imposed on only one occasion, and that being concurrent to a substantive offence, I conclude that these offences were relatively minor. In light of his youth and that he was in foster care — a form of the "insecure housing" referred to in Zora — I would discount these towards the proposition that the Applicant lacks respect for court orders.
[68] On February 15, 2013, as an adult offender of 19, the Applicant was convicted of four fail to comply offences and sentenced to a total of 45 days in jail. On July 22 of the same year, there was an additional two fail to comply convictions for 26 days incarceration. On September 20, 2017, there was one more, this time resulting in a 95-day jail sentence. In all three groups of these fail to comply convictions, the Applicant was not convicted of a substantive offence. The fail to comply offences were free standing.
[69] The sheer number of these convictions — in particular the six convictions in a matter of six months — and the fact that no substantive offences accompany them make this a textbook example of the phenomenon identified by Justice Martin in Zora.
[70] There must be critical examination of what Ms. Wyszomierska called the "bloom" of the Applicant's fail to comply offences on his record. The profusion of these convictions, plain evidence of overzealous prosecution, is likely to some degree the result of anti-Black, anti-immigrant sentiment. It is not possible to be definitive. Allegations of racism must be approached cautiously and not bandied about carelessly. When it comes to abuse within an institutional setting, a pattern of maltreatment may be sufficient to undergird a finding of anti-Black racism. In these circumstances, in view of the lower bail standard of proof, it can be concluded that there is a reasonable possibility that it was at least a factor.
[71] There was a tactical burden on the Crown to disprove that there was an active detriment to the Applicant. The underlying facts, given that he was a ward of the state, are particularly within the knowledge of the Crown: see Peart v. Peel (Regional Municipality) Police Services Board (2006), 2006 CanLII 37566 (ON CA), 43 C.R. (6th) 175 (Ont. C.A.), at paras. 146-152. The Crown never objected to the admissibility of the statement of claim nor questioned the reliability of the allegations of anti-Black racism or cultural discrimination contained in it.
[72] I conclude that the fail to comply convictions cannot be taken at face value and are of lower weight than might first be apparent: see my prior reasons in R v. Singh, 2020 ONSC 7391, at paras. 21-29. To be clear, in the final analysis, the fail to comply convictions must raise at least some concern about the governability of the Applicant on bail. But a proper measure must be taken of them.
[73] This perspective of the numerous fail to comply offences on the Applicant's record contributes to my conclusion that the sureties and the plan put forward alleviate the risks of non-compliance and re-offending to a substantial degree with respect to the secondary ground.
d. The Impact of Section 493.2 on the Risk of Re-Offending
[74] A bail decision exhibits significant similarities with a sentencing decision: St. Cloud, at paras. 61, 105-112. Justice Trotter writes in his leading book on bail, "Bail and sentencing are intimately related in certain respects." (Section 9:1) One important similarity is that both seek to reduce re-offending. That is the essence of a bail plan to defuse the secondary ground and, similarly, is evident in the sentencing goal of specific deterrence. As was held in the conditional sentencing case of R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61,
72 The risk of re-offence should also be assessed in light of the conditions attached to the sentence. Where an offender might pose some risk of endangering the safety of the community, it is possible that this risk be reduced to a minimal one by the imposition of appropriate conditions to the sentence: see W. (J.), supra, at p. 32; Brady, supra, at para. 62; Maheu, supra, at p.374 (Emphasis added).
[75] Another similarity is the focus on personal responsibility for criminal conduct and the importance of not permitting an overly rosy perspective to lead to decisions which fail to properly protect the public. In a sentencing, it is of little solace to the victim of an offence that the accused came from difficult circumstances. The same is true with respect to bail release. The court is obligated to protect the public. That is a constant theme and one that lies quite apart from the historical circumstances of the accused.
[76] However, the ultimate question under the secondary ground is not the seriousness of offences alleged to have been committed in the past but current management of the risk of re-offence: Justice Trotter, Section 3:16. Can the threat to the public, derived from the accused's antecedents and present allegations, be reduced to an acceptable level using bail conditions and surety supervision? In weighing and assessing the risk posed by an accused person, the accused's antecedents and background are critical. These do not alter the seriousness of the offence, but they do impact on amenability to supervision and the risk of re-offending if an accused is released.
[77] The Court of Appeal's decision in Morris holds that in sentencing, anti-Black racism does not alter the seriousness of the offence, nor does it go to denunciation or general deterrence. However, an accused's background and situation may well reduce the offender's moral responsibility: Morris, at paras. 75-86. The Court concluded,
91 There can be no doubt that evidence on sentencing, describing the existence and effect of anti-Black racism in the offender's community and the impact of that racism on the offender's circumstances and life choices is part of the offender's background and circumstances. The evidence is not only admissible, it is, in many cases, essential to the obtaining of an accurate picture of the offender as a person and a part of society.
[78] Also see R. v. Anderson, 2021 NSCA 62, 405 C.C.C. (3d) 1, at para. 146.
[79] It is emphasized throughout the Morris decision that social context evidence and evidence of anti-Black racism will enable sentencing judges to address historical disadvantages and focus on the rehabilitation of the offender. Specific deterrence may be correspondingly de-emphasized: Morris, at paras. 79, 81, 102, 105. These objectives, including rehabilitation, are pertinent to quelling the risk of re-offence while on bail, the focus of the secondary ground.
[80] In being placed with a foster family of an opposing culture, the Applicant and his sister's culture and heritage were expunged. No one ought to be surprised that the Applicant, abandoned by society into an abusive and inhumane foster care system, is now an anti-social antagonist of the very society that rejected him. In light of this history, supports on bail may have a particular power to assist him and even have a beneficial effect into the future while correspondingly having the effect of protecting the public.
[81] Furthermore, from his reduced moral responsibility, the conclusion is available that the Applicant is not so hardened or entrenched in a criminal lifestyle as to be beyond reformation. It will not be every bail plan that can have this effect. But this one, in my view, has the real potential to do so.
[82] Central to this is Mr. Cole's participation as a surety on this release. The Applicant is exceedingly fortunate to have such a friend and supporter. The ideal of surety supervision encompasses at least some paternalistic qualities. To have a mentor guiding the Applicant and providing him with wise counsel stands as a major comfort to the public and as a guard against re-offending on this bail release. The direction in Section 493.2 suggests that with a person historically disadvantaged in being released on bail, guidance and mentorship may have a particular ability to address secondary grounds concerns.
[83] In the end, in light of these considerations, the secondary ground of bail has been satisfied.
The Applicant has Discharged the Tertiary Ground
[84] The essence of the tertiary ground in Section 515(10)(c) is the necessity of ordering detention to "maintain the confidence of the public in the administration of justice, having regard to all the circumstances."
[85] Maintaining confidence in the judicial system is an ever-present obligation of the judiciary. It is inherent in the judicial function. It is also a key legal principle in some specific areas of law. For example, it is a pivotal factor under the leading case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 on the question of whether the admission of evidence obtained in violation of a Charter right would bring the administration of justice into disrepute under Section 24(2) of the Charter (see paras. 72-73, 93).
[86] The tertiary ground focuses on one specific incidence of the need to maintain confidence of the public. The concept is that a reasonable and informed member of the public will lose confidence if the accused, accused of a very serious, even heinous crime, and very likely to be found guilty and jailed for a long time, is released on bail. The public would perceive the presumption of innocence of significantly reduced importance in these circumstances.
[87] Chief Justice McLachlin said in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, at para. 25,
[I]t seems to me that the facts of this case, as well as the facts in such cases as R. v. MacDougal (1999), 1999 BCCA 509, 138 C.C.C. (3d) 38 (B.C. C.A.), and the pre-Morales case of R. v. Dakin, [1989] O.J. No. 1348 (Ont. C.A.), offer convincing proof that in some circumstances it may be necessary to the proper functioning of the bail system and, more broadly of the justice system, to deny bail even where there is no risk the accused will not attend trial or may re-offend or interfere with the administration of justice. Bolan J., on strong and cogent evidence, concluded that bail could not be denied on either of these grounds. But he also found that detention was necessary to maintain confidence in the administration of justice. The crime was heinous and unexplained.
[88] An example of a valid tertiary ground detention was subject of comment in St. Cloud,
88 [I]f 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 [on the tertiary ground].
a. Statutory Factors
[89] A bail judge must take into account the four non-exhaustive statutory factors in Section 515(10)(c)(i-iv) and, in addition, any other pertinent circumstance: St. Cloud, at para. 71.
[90] The statutory factors are:
(i) the apparent strength of the prosecution's case,
(i) 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.
[91] In this case, these factors point to detention but not irresistibly. Even if the tendency of the four factors is to favour detention, detention ought not necessarily be ordered. This was made clear in St. Cloud:
69 [T]he [legislative] purpose [is to maintain] … confidence in the administration of justice in the country. This is the provision's purpose. … The argument that detention must automatically be ordered if the review of the four circumstances favours that result is incompatible with the balancing exercise required by s. 515(10)(c) and with the purpose of that exercise.
70 Finally, it is important not to overlook the fact that, in Canadian law, the release of accused persons is the cardinal rule and detention, the exception: Morales, at p. 728. To automatically order detention would be contrary to the "basic entitlement to be granted reasonable bail unless there is just cause to do otherwise" that is guaranteed in s. 11(e) of the Charter: Pearson, at p. 691. This entitlement rests in turn on the cornerstone of Canadian criminal law, namely the presumption of innocence that is guaranteed by s. 11(d) of the Charter: Hall, at para. 13. These fundamental rights require the justice to ensure that interim detention is truly justified having regard to all the relevant circumstances of the case.
[Emphasis added.]
[92] In applying the tertiary ground, I will not dwell on the statutory factors. I accept that there is a very strong case against the Applicant with respect to the handgun. The shotgun allegations are considerably weaker. The gravity of firearm allegations given the carnage caused has already been touched on and is beyond question. Lastly, if convicted of all of the allegations, the Applicant could receive a very substantial penitentiary sentence, certainly upwards of five years.
[93] There are some facts that qualify and reduce the force of the statutory factors otherwise favouring detention. First of all, the Applicant has already served a substantial amount of custody pre-trial: 13 months plus, which, with credit, is the equivalent of about 20 months. If the Applicant does not get bail, he would no doubt be in custody for another significant period of time before his trial.
[94] The poor conditions at the Maplehurst Correctional Institute in the midst of the global pandemic are attested to in the Applicant's affidavit. Further, judicial notice can be taken of them. Being in jail over the pandemic has led to much harder time than would have been the case otherwise. If eventually sentenced on some or all of these allegations, he will likely receive extra credit for the time he has served: R. v. Duncan, 2016 ONCA 754. The continuing pandemic in the jails is also a non-statutory factor which has some tendency to point towards release.
b. The Impact of Section 493.2 of the Criminal Code
[95] While the statutory factors are the primary focus of the tertiary ground, the non-statutory factors must also be taken into account: St. Cloud, at paras. 66-71. Justice Doherty wrote in R v Jaser, 2020 ONCA 606 (Ont. C.A.),
91 Not only is it clear the relevant factors extend beyond those enumerated in s. 515(10)(c), the balancing of the relevant circumstances envisioned by the provision is not value neutral. Instead, that balancing must reflect the law's commitment to the fundamental principles of the presumption of innocence and the entitlement to reasonable bail: R. v. St-Cloud, at paras. 56, 70.
[96] Detaining accused pre-trial based primarily on the statutory factors is only one strand in the general maintenance of the confidence of the public in the bail system. In my view, Parliament has now made the values embodied in Section 493.2 another element in maintaining the confidence in the administration of justice and one to be balanced against the statutory factors: R. v. N.Y., 2021 ONSC 1398 at paras. 42-44.
[97] The open-ended and normative nature of the obligation to maintain the confidence of the public incorporates the strong directive in Section 493.2. In some cases, and this is one, it assumes substantial weight.
[98] Moral responsibility is, together with the seriousness of the offence, one of the two fundamental principles in sentencing: Section 718.1 of the Code. Systemic and background factors such as the anti-Black racism that Applicant has faced in the past and the abuse he suffered as a child and teenager, reflect on his moral blameworthiness and are mitigating: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at para. 73; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 42; R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paras. 79-81.
[99] In Morris, the Court of Appeal was emphatic that issues of systemic racism must be factored into the sentencing process. It was held,
86 Although we reject the claim that societal complicity in anti-Black racism diminishes the need to denounce and deter serious criminal conduct, we accept wholeheartedly that sentencing judges must acknowledge societal complicity in systemic racism and be alert to the possibility that the sentencing process itself may foster that complicity. A frank acknowledgement of the existence of, and harm caused by, systemic anti-Black racism, combined with a careful consideration of the kind of evidence adduced in this case, will go some distance toward disassociating the sentencing process from society's complicity in anti-Black racism.
[100] The same is true in the bail context. If the allegations of the Applicant and his sister prove even substantially true, there is more than mere complicity in childhood events that were profoundly damaging to the Applicant. It was likely an amalgam of destructive influences including systemic anti-Black racism. But a reasonable informed member of the public, apprised of Parliament's direction in Section 493.2 to reduce the overrepresentation of Black men in pre-trial detention, would believe that society's participation in the maltreatment of the Applicant is of sufficient magnitude to impact the tertiary ground.
[101] For these reasons, the values embodied in Section 493.2 in the context of the Applicant act as a powerful counterweight to the statutory factors in Section 515(10)(c). To order detention on the tertiary ground in the context of the record with respect to the Applicant's treatment as a child and teenager in Nova Scotia would run directly against the direction in Section 493.2. It would "foster complicity in anti-Black racism" to quote Morris and fail to distance the court from it.
[102] If the allegations were of the very highest seriousness or if they were heinous, the weight of Section 493.2 could potentially be overborne by the statutory factors. But the allegations in this case are not of that order. They are very serious, no mistake should be made of that, but they do not rise to this level. I conclude that Section 493.2 constitutes a substantial weight against detention on the tertiary ground.
[103] Finally, the tight conditions of this bail and the strong surety supervision, together with GPS oversight, are non-statutory factors that would also tend to garner the confidence of the public in support of the Applicant's release: See R. v. Dang (2015), 2015 ONSC 4254, 21 C.R. (7th) 85, at paras. 56–58; R. v. Ahmad, 2017 ONSC 3364, at para. 66.
[104] For these reasons, I conclude that the Applicant has discharged the tertiary ground onus.
Conclusion
In the result, the Applicant having discharged the secondary and tertiary grounds and there being no issue on the primary ground, his release was ordered on conditions.
D.E. HARRIS J.
Released: July 22, 2022
COURT FILE NO.: CR-22-0260-00BR
DATE: 2022 07 22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
A.A.
Applicant
REASONS ON BAIL REVIEW APPLICATION
D.E. HARRIS J.
Released: July 22, 2022