WARNING

The Court hearing this matter directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT FILE NO.: CR 22-41 KINGSTON

DATE: 2022/08/05

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

D.P.

Courtney Cottle, Counsel for the Crown

Paul Blais, Counsel for the Accused

HEARD: August 5, 2022

REASONS FOR DECISION ON BAIL REVIEW

Bramwell, j.

1The Applicant D.P.brings an application pursuant to s. 520 of the Criminal Code for a review of the decision of Justice of the Peace Colterman from December 23, 2021.

2In that decision, Justice of the Peace Colterman found that the Crown had discharged its onus by establishing that the Applicant’s detention was necessary on the secondary and tertiary grounds.

3In this application for a review of the Justice of the Peace’s decision, the Applicant submits that the Justice’s decision was clearly inappropriate in that it gave excessive weight to one or some factors and/or insufficient weight to others.

4Further, the Applicant submits there has been a material change in circumstances because:

a. No child pornography or evidence of criminal activity was found on devices personal to the Applicant;

b. The evidence from the guilty plea of W.P., the Applicant’s husband, supports the submissions of the Applicant’s counsel at the original bail hearing that to the extent that she participated in criminal activity, she did so under duress as an abused spouse; and

c. A different surety is being proposed as part of a plan that better addresses the secondary and tertiary ground concerns.

5For reasons that follow, the application is granted. The Applicant will be released on conditions which will include a house arrest condition.

The Facts Relating to the Applicant

6The Applicant is 39 years old. She has been married to W.P. for over 15 years. They met when she was 16 and he was 27. They have three daughters who are now 18, 14 and 10 years old.

7She has no criminal record and therefore no history of failing to comply with court orders.

8The “monitor notes” filed as part of the Respondent’s Record are notes taken by an officer during the statement given to police by the Applicant on Nov. 24, 2021. Those notes indicate that the Applicant has a mental health worker and that she has been in trauma counselling.

9The affidavit of W.P., filed by the Applicant, indicates that the Applicant has learning disabilities, developmental delays and mental health issues and that she was sexually abused as a child, all of which W.P. swore to exploiting in order to manipulate the Applicant into assisting him in the sexual abuse of children.

10The monitor notes indicate that the Applicant told the police that W.P. was physically and sexually abusive towards her and that she was terrified of what he would do to her and/or their children and/or himself if she did not comply with his demands.

11The affidavit of W.P. confirms the Applicant’s assertion that he was physically and sexually violent towards her; that she did not voluntarily or willingly participate in the offences with him. He also swore that when the Applicant threatened him with reporting his conduct to the police, he told her that the police and CAS would take their children away and the Applicant believed him.

12The evidence of the Applicant and W.P.’s two older daughters, as set out in the Agreed Statement of Facts filed on W.P.’s guilty plea and filed in this hearing is that he was physically abusive to them as children, including hitting one daughter with a belt and one daughter indicated he had touched her buttocks in a sexual way. One daughter reported W.P. threatening to kill himself – at times grabbing knives, and on one occasion slamming a piece of wood into himself repeatedly in front of her. The evidence of the two daughters corroborates to a significant degree, the abuse reported by the Applicant at the hands of W.P.

13The Applicant has been in custody since her arrest on November 24, 2021. She has now been in custody for over 8 months.

14The Applicant is separated from W.P. both because he is now serving the remainder of his roughly 9-year penitentiary sentence as a result of his convictions in connection with these events and as a result of her having instituted family law proceedings in which she is seeking a divorce.

15The Applicant has not had any contact with her children since her arrest on November 24, 2021, as a result of the no contact order that is in place on these charges. The children will be called as witnesses in the trial of this matter to provide contextual information about the Applicant’s presence in the home during the events in question and also about the dynamics in the relationship between the Applicant and W.P.

16The Applicant’s children are presently together and in the care of a foster family and under the supervision of Family and Childrens’ Service.

The Facts Relating to the Charges the Applicant is Facing

17On Sept. 24, 2021, on her own volition, the Applicant reported to Kingston Police that back in 2013 and for two years afterwards, W.P. had regularly sexually abused an 8-year-old girl that was, at that time, a friend of their oldest daughter.

18The Applicant was aware of the sexual abuse at the time it was happening including the fact that W.P. had made a sexually explicit video recording of the child in question engaging in a sexual act. The Applicant took nude photos of the child together on a bed with W.P. and of the child alone.

19According to the Applicant, she did so under duress. Specifically, she feared that W.P. would hurt her and/or their daughters or that he would prey upon their daughters sexually if she did not acquiesce in what he was doing to the other child. She also told police that he would threaten to kill himself in front of the children.

20The Applicant also advised police that in May 2021, she purchased a hidden camera in compliance with a demand from W.P. and she was aware that he then installed the camera in the bathroom of their home in order to spy on people using the washroom – including their daughters and their daughters’ friends.

21In her statement to the police, the Applicant detailed suffering significant violence at the hands of W.P. including having been forced, years earlier, to have sex with him in front of their then two children. W.P. corroborated this in his affidavit and added that he forced her to wear a costume during that incident.

22According to the Agreed Statement of Facts filed on W.P.’s guilty plea, the police interviewed the Applicant’s oldest and middle daughter 5 days after they interviewed the Applicant. The older daughter provided corroborating evidence on a number of peripheral points relating to the sexual abuse of her friend back in 2013 and she also told police that W.P. showed her nude photos of the other child, back at that time.

23The child in question was interviewed by police. She is now 17 years old. She confirmed that when she was in Gr. 4, W.P. sexually abused her. The Agreed Statement of Facts indicates that W.P. “had” the Applicant take pictures of her with W.P. and of her in a costume. She also indicated that the Applicant would sleep elsewhere in the house so that W.P. could sleep with the child. The child advised police that W.P. secured her silence and acquiescence by telling her that if she told anyone, he would kill himself or that he would go to jail and be killed there and that he had the nude photos of her in a location on his computer that required him to sign in weekly. He told the 8- year-old child that if he didn’t sign in, in the event of his death, the computer would automatically send the photos to her parents and brothers.

24On November 24, 2021, two months after she reported the sexual abuse of her daughter’s friend in 2013 and the voyeurism from May 2021 to police, the Applicant was arrested and charged with two counts of making child pornography, and one count each of possessing child pornography, sexual assault, sexual interference, invitation to sexual touching and voyeurism.

25On December 23, 2021, the Applicant sought bail. It was a Crown onus. Bail was denied by Justice of the Peace Colterman.

Applicant’s Position

26Counsel for the Applicant argues that the Justice’s decision to detain was clearly inappropriate on both the secondary and tertiary grounds.

27Counsel for the Applicant further argues that there has been a material change in circumstances as a result of the fact that the results of the analysis of the devices seized by the police, which were disclosed after the bail hearing, indicate that there was no child pornography on the Applicant’s devices, as a result of the guilty plea of W.P. which took place after the original bail hearing and as a result of a new surety being proposed.

28Counsel proposes that the Applicant be released on conditions to be supervised by the new proposed surety, P.C., who is a long-time friend of the Applicant.

Respondent’s Position

29The Respondent submits that the Court should not exercise its power in this matter as the Justice’s decision was not clearly inappropriate nor is there a material change in circumstances.

30The Respondent submits in the alternative that in the event the Court engages in a review, the secondary and tertiary grounds continue to warrant detention.

31It is important to note that counsel for both the Applicant and the Respondent submitted a number of clear and articulate arguments in their written materials. Those arguments are set out in much greater detail in those written materials than I have set them out here. Given the expediency required in the bail review process, I am not setting out each argument made by counsel in these reasons. But I want to be clear that I have carefully reviewed and considered each of those arguments, ably made by both sides, in coming to this decision.

32I thank counsel for the time and effort that they clearly put into their materials as well as for the fact that they ensured those materials were filed sufficiently in advance of this hearing to allow me to review them.

Decision at the Bail Hearing of December 23, 2021

33Justice of the Peace Colterman found that the Crown had met its onus and detained the Applicant on the secondary and tertiary grounds.

34Justice of the Peace Colterman found that the proposed plan, which was that W.D. supervise the Applicant was not sufficient, to address the secondary and tertiary ground concerns. The Justice found W.D. unsuitable largely due to the fact that the nature of his relationship with the Applicant was unclear and he had significant health and mobility issues and was of somewhat advanced age. The Justice was not satisfied that he was in a position to exercise control or authority over the Applicant.

35Further, the Justice was of the view that the public’s confidence in the administration of justice would be eroded by the Applicant’s release due largely to the fact that, in the Justice’s view, the Applicant had many other options open to her other than to have participated in the abuse in question.

Evidence at Bail Review

36The proposed surety, P.C. testified. His affidavit was filed as an exhibit and was adopted by him under oath.

37The Applicant’s affidavit was also filed as an exhibit.

38Several exhibits were filed including all the exhibits from the original bail hearing, a transcript from the bail hearing, the affidavit of W.P., and the Agreed Statement of Facts from W.P.’s guilty plea.

39P.C. is 47 years old and appears to be in good health with no apparent cognitive or developmental deficits. He works full time at a store in Gananoque which is 1 km, or a 5-minute drive, from the home where he lives with his father. His father works at the same store. He works during the day and his father works in the mornings and sometimes into the early afternoon.

40P.C. has known the Applicant for about 17 years, having met her through W.P. who was a friend of his. P.C. and W.P. shared a common interest in comic books when they met. P. C. then also become friends with the Applicant with whom he shared an interest in knitting and sewing.

41P.C. seems to have noticed some of the same things about the dynamic between the Applicant and W.P. that others noted though he candidly admitted that the Applicant hid the extent of the abuse she now says she was suffering from him.

42P.C. is no longer friends with W.P. He terminated contact with him when he learned that W.P. had put a camera in the family’s bathroom.

43P.C. and his father are aware of the charges the Applicant is facing and are both willing to have her stay in the spare bedroom in their home for however long it takes to get the matter to trial. He indicates that there are some schools in the neighbourhood but that his immediate neighbours are all older couples.

44I find that P.C. seems to have a solid understanding of the seriousness of the charges the Applicant is facing and his role as a surety. I find that he is genuine in his assertion that he will take his role seriously and will call the police if he finds the Applicant breaching. I find that he gave his evidence in a forthright and candid manner.

Analysis

45The following legal principles apply:

a. The onus rests on the Applicant;

b. The onus must be met on a balance of probabilities;

c. As set out in R. v. St. Cloud, 2015 SCC 27:

Exercising the power of review will be appropriate in only three situations:

1. where there is admissible new evidence if that evidence shows a material and relevant change in the circumstances of the case;

2. where the impugned decision contains an error of law; or

3. where the decision is clearly inappropriate.

d. S. 493.1 of the Criminal Code essentially codifies the principle of restraint in the bail context. This means that denial of bail is the exception, not the rule and release must be considered at the earliest opportunity on the least onerous conditions that can address the primary, secondary or tertiary ground concerns that may be argued in any particular case.

Material Change in Circumstances

46In deciding whether there is a material change in circumstances, the Palmer test used to determine whether fresh evidence should be admitted on appeal is applicable as per the guidance of the Supreme Court of Canada in R. v. St. Cloud:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at the initial trial.

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

47The decision in R. v. St. Cloud, at para. 131, also makes it clear that reviewing courts are to be flexible in their assessment of what constitutes a material change in circumstances and, when considering whether the due diligence criteria has been met, should consider that “the weight to be given to this criterion depends on the strength of the other criteria or, in other words, on the totality of the circumstances.”

48Ultimately, the court in St-Cloud makes clear at para. 138 that the Palmer criteria “serve as guidelines for the reviewing judge, but they must not have the effect of creating a procedural straitjacket that would interfere with the administration of justice.”

49Applying those principles, I find that the new evidence presented during this bail review as contained in the Agreed Statement of Facts filed on W.P.’s guilty plea, and the affidavit of W.P. meets the Palmer test. I will refer to this body of evidence as “the W.P. evidence.”

50I also find that the evidence of P.C. as the new proposed surety and the evidence of the Applicant regarding her time spent in custody thus far meets the Palmer test. I will refer to this body of evidence as the “Surety and Applicant evidence”.

51Given my finding that the above described two bodies of evidence meet the Palmer test and my corollary finding that the Applicant has established that there has been a material change in circumstances, it is not necessary for me to consider whether the fact that the police did not find any child pornography on devices exclusively possessed by the Applicant represents a material change in circumstances and so I will not.

52Further, given my finding that the power of review should be exercised, given that there is a material change in circumstances, it is not necessary for me to determine whether Justice of the Peace Colterman’s decision was clearly inappropriate and so I will not.

53I find with respect to the second Palmer criteria that the W.P. evidence is clearly relevant to whether the Applicant has met her onus. It is relevant to the secondary grounds because it provides an important context within which to assess the danger that the Applicant poses to the protection and safety of the public and specifically children. The W.P. evidence corroborates that of the Applicant and of their children that he was a violent man who abused and manipulated the Applicant. This is important because it makes it far less likely that the Applicant would engage in further dangerous criminal behaviour because W.P. is now absent. It does not mean the risk she poses is now non-existent. Even assuming that she did what she did because she was abused and manipulated, at a minimum, the risk that she could end up in a similarly abusive and manipulative relationship and thereby again become complicit in the abuse of other children needs to be addressed.

54The W.P. evidence is relevant to the tertiary ground consideration because, overall, it could well impact how a reasonable member of the public, properly informed about the principles of bail in Canada, including how they have evolved quite dramatically in recent years, would view the administration of justice if the Applicant were to remain in custody awaiting her trial. Further, when the specific criteria of the strength of the Crown’s case is considered, the W.P. evidence could affect it significantly. I presume that a duress defence will be litigated fully before a trial judge on a full evidentiary record, and it will be up to that judge to determine whether the defence is available and made out on each count charged. It is certainly not my role to do so now. But the W.P. evidence takes the Applicant’s position that she was abused from being simply the assertion of her counsel at the bail hearing, which is not evidence, into the realm of evidence which is corroborated by her children to a certain degree and to a very significant degree by the W.P. evidence.

55I find with respect to the second Palmer criteria that the Surety and Applicant evidence is clearly relevant to whether the Applicant has met her onus. It is relevant to the secondary grounds because it is evidence of a new plan with a new surety capable of addressing the flaws identified by the Justice in the surety proposed at the bail hearing. It also demonstrates that the hardship that the Applicant has experienced while in custody will be a motivating factor in her complying with her bail conditions.

56I find with respect to the third Palmer criteria that the W.P. evidence and the Surety and Applicant evidence reasonably capable of belief.

57With respect to the fourth Palmer criteria, I find that the W.P. evidence, had it been adduced at the original bail hearing, could reasonably be expected to have affected the result. As stated earlier, at the bail hearing, there was no evidence before the Justice of supporting the Applicant’s assertions that she was abused by W.P. or the extent of the abuse. The Justice found that there were many other options open to the Applicant. Had the Justice had the W.P. evidence which sets out not only his corroboration of the Applicant’s claims but also the corroboration provided by two of their daughters, it is reasonable to expect that the Justice’s views might have been different.

58With respect to the fourth Palmer criteria, I find that the Surety and Applicant evidence, had it been adduced at the original bail hearing, could reasonably be expected to have affected the result. The Justice clearly had concerns about the suitability of W.D., given his age, his lack of clarity on certain fundamental points including how and when he came to know the Applicant or whether he was even related to her. The Justice was clearly concerned about whether W.D. was “tuned in” to the degree necessary to supervise the Applicant on such serious charges. Had P.C. been proposed as a surety, I find that the Justice would not have had the concerns that she had about W.D.

59With respect to the first criteria, relating to due diligence, it is true that P.C.’s evidence may have been available at the original bail hearing. There was no evidence lead by either party on this review on that point. However, the fact that he was not called on the original bail hearing is not fatal. As stated in St. Cloud, bail is an interim, not a final process, and it is conceivable that an accused person may not see the need to offer more than one surety until receiving comments such as those offered by Justice of the Peace Colterman at the original bail hearing in this case. Alternatively, a second or a different surety may become available by the time of a review who was not available initially. It is for such reasons that flexibility in the application of the due diligence requirement is required in the bail context.

60With respect to the first criteria as it relates to the Surety and Applicant evidence, it was simply not available at the time of the original bail hearing.

Has the Applicant Met Her Onus?

61It is important to note that what the secondary ground in s. 515(10)(b) refers to is:

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… [emphasis added]

62When considering the constitutionality of this provision and specifically whether it complied with s. 11(e) of the Charter, in R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, Chief Justice Lamer of the Supreme Court of Canada wrote:

I am satisfied that the scope of the public safety component of s. 515(10)(b) is sufficiently narrow to satisfy the first requirement under s. 11(e). 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. Such grounds are sufficiently narrow to fulfil the first requirement of just cause under s. 11(e).

63So, it is the nature of the risk posed by the release of the Applicant that must be considered.

64It is important to note that the Applicant has no criminal record.

65I find that the risk that the Applicant poses is apparent in her own admission that she participated in the sexual abuse of a child by photographing it and was, at a minimum, morally culpable in the abuse of that child because she facilitated it and did nothing to stop it. But the evidence does not point to a risk that the Applicant will commit a hands-on sexual offence against a child. The risk she presents is as someone who, even accepting her version at its highest, fell prey to manipulation and coercion and possible duress to the point that her children and others were victimized in horrifying ways.

66The question is whether the risk she poses of engaging in of becoming involved in further, similar offences while on bail can be managed. In my view, it can. The risk that she poses to become a party to the sexual abuse of children can be appropriately managed with conditions that restrict her access to the community, thereby restricting her access to children and that have her under the strict supervision of her surety.

67I will now review the conditions of release which will include a house arrest condition and a condition that will prohibit her from being in the presence of children under 16 except in the presence of her surety and with an exception for her to see her children under strict supervision by Family and Childrens’ Services.

68I will require the surety to pledge $5000 and the Applicant $1000.

Justice Lia Bramwell

Released: August 5, 2022

COURT FILE NO.: CR 22-41 KINGSTON

DATE: 2022/08/05

ONTARIO

SUPERIOR COURT OF JUSTICE