Court File and Parties

COURT FILE NO.: CR#22-00000306-00BR DATE: 2022-10-07

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NK, Applicant – AND – HIS MAJESTY THE KING, Respondent

BEFORE: Justice E.M. Morgan

COUNSEL: Stephen Whitzman, for the Applicant Arjun Rudra, for the Respondent

HEARD: October 6, 2022

REASONS FOR DECISION

Information contained in the judgment is subject to a publication restriction under section 517(1) of the Criminal Code. This judgment shall therefore not be published in any document or broadcast or transmitted in any way before such time as: (a) a preliminary inquiry is held, the accused in respect of whom the proceedings are held is discharged; or (b) the end of the trial in this matter.

[1] The Applicant is charged with second degree murder flowing from an incident on April 13, 2022 in which a man, identified as DH, was found deceased in his condominium apartment. The following day, on April 14, 2022, Niagara Regional Police responded to a 911 call about an altercation at a motel in Niagara Falls. In speaking with the police, one of the females at the motel mentioned the murder of DH. As a result, the officers contacted the Toronto police homicide investigators, who later arrested all three individuals – i.e. the Applicant and two co-accuseds – involved in the altercation.

[2] The Applicant and the two co-accuseds are alleged to have attacked DH. During the course of the attack, the Applicant is alleged to have stabbed DH to death. She has been detained at Vanier Centre for Women since her arrest on April 14th.

[3] The Applicant now applies for judicial interim release pursuant to section 522(1) of the Criminal Code.

[4] Pursuant to s. 522(2) of the Criminal Code, it is the Applicant that bears the onus of showing why her detention in custody is not justified within the meaning of s. 515(10). That section sets out three grounds for justifying continued detention before trial – primary (s. 515(10)(a)), secondary (s. 515(10)(b)), and tertiary (s. 515(100(c)) – and the Applicant must meet the onus under each of these grounds. The Crown argues that she has not met his onus under all three grounds in s. 515(10), with particular emphasis on the tertiary ground.

[5] All three of the section 515(10) grounds are reviewed below.

I. The Applicant, the sureties, and the plan of release

[6] The Applicant is 19 years old. The proposed sureties are her father, FK, and her mother, SM. They are all Canadian citizens who live together, along with the Applicant’s 14 year-old sister, in Ontario.

[7] The Applicant has no criminal record and no outstanding criminal charges other than those that are the subject of this Application. She was residing with her family at their Ontario home at the time of her arrest in April 2022.

[8] The father, FK, owns a business. He testified that he typically works from 8:00 am to 6:00 or 7:00 pm, Mondays to Fridays, depending on the season, and a half day on Saturdays. FK has no criminal record. He takes home $180,000 a year in salary from his business.

[9] The mother, SM, works in FK’s business as an accountant and finance manager. She testified that she works from home, and that her duties do not usually require her to leave the house during working hours except for short errands such as driving her younger daughter to school and back. SM has no criminal record. She receives a salary of $70,000 a year from the family business.

[10] Both of the proposed sureties testified that they are fully aware of the charges the Applicant is facing and are cognizant of the circumstances surrounding the charges. They both understand the role of a surety. It is fair to say that they are very devoted parents. In testifying at the bail hearing, they both told compelling stories of struggle and personal sacrifice in an ongoing effort to keep the Applicant safe during her very troubled teenage years. FK and SM are both equally committed to supervising the Applicant on the terms outlined in the proposed plan of release.

[11] In short, the plan of release calls for the Applicant to be released on a surety recognizance, and that she be required to reside with her sureties/parents at their family. It is the Applicant’s proposal that she be subject to house arrest, and that she be required to remain in her residence at all times except when she is accompanied by one or both of her parents/sureties. The Applicant also proposes that she be subject to GPS ankle monitoring through Recovery Science Corporation.

[12] FK and SM both agree with this plan, and have made arrangements so that one or both of them will be with the Applicant on a 24/7 basis. They will both continue to work in the family business, but will cover for each other when one or the other cannot be home, or, as SM testified, will take the Applicant with them in the car when one of them has to run an errand out of the home and the other is not available.

[13] The sureties/parents are also currently arranging for the Applicant to receive treatment from a psychotherapist or a mental health counsellor. To that end, they have booked a first appointment for her at CAMH in November. The Applicant has agreed to engage in whatever treatment the physicians recommend, and is agreeable to this also be made a condition of her release.

[14] The Applicant also proposes that it be a condition of release that she abstain from consuming any alcohol or non-medically prescribed drugs, and is agreeable to submitting to testing for compliance with that condition. FK and SM are of the view – to which the Applicant apparently now agrees – that mental health problems and substance abuse are at the heart of her misbehaviour over the years.

[15] The parents both testified that if the Applicant leaves the residence without being accompanied by one of them, that breach of her terms of release will be immediately reported to police. While the Crown contends, and the parents concede, that in the past they have had difficulty in getting the Applicant to behave in accordance with their requests, there is no doubt that the parents are capable of calling the police if and when the Applicant acts badly.

[16] In their testimony, FK and SM described numerous occasions in which they called the police on their daughter. For these parents/sureties, the Applicant’s personal safety is their overriding concern, and they will go to great lengths – including calling the police to arrest the Applicant – to ensure that she is taken into custody rather than exposed to physical jeopardy and potential harm.

[17] In making his final submissions, counsel for the Crown commented that the Applicant’s behaviour in the past has been beyond her parents’ control, and that, in his words, “The best way to assess how an individual will act in the future is by assessing how they have reacted in the past.” That is an astute observation, but it applies equally to the Applicants’ parents and their predictable behaviour as sureties. FK an SM have related that in the event that the Applicant manages to evade their constant supervision and thereby breaches her terms of release, they will not hesitate to call the police to take her back into custody. They have not hesitated to do that in the past, and I doubt they will hesitate to do that once they are charged with her supervision by the Court.

II. The primary ground

[18] Although counsel for the Crown submitted that the Applicant’s release should be denied on all three grounds, the primary ground was not a particular focus of the Crown’s argument. The reasons for that are evident from the background facts in the record. The Applicant and her parents are Canadian citizens, and she and her family are committed to Canada and to the community in which they live. The family owns and operates a successful business in Toronto which FK has spent many years building. The family also includes a 14 year-old daughter who has grown up in Canada.

[19] There is little in the way of real evidence that if released the Applicant will fail to attend court as required. The Applicant does not have a criminal record and has never been charged with failing to attend court. The Applicant concedes that she has in the past run away from home, but FK and SM are convinced that that behaviour is now a thing of the past. They are equally convinced that in receiving the therapeutic treatment that they hope to have her engage in, the Applicant’s behaviour will continue to improve and the risk of her breaching her conditions of release will become increasingly low.

[20] In any case, any concerns that do arise in this regard are addressed by the strict plan of release being proposed. Since the Applicant will be supervised and monitored all day every day, the risk of non-attendance at any proceeding which she is required to attend is one which the parents/sureties are willing to take. Moreover, as discussed further below, the sureties will pledge sufficient funds to ensure that the Applicant is supervised and acts in a way that minimizes the risk as much as possible.

III. The secondary ground

[21] Turning to the secondary ground, to deny her release the Court must be satisfied that there is a substantial likelihood that the Applicant will reoffend or interfere with the administration of justice if released. Moreover, it must be established that this risk is not sufficiently mitigated by the conditions that are being proposed in the plan of release.

[22] In analyzing this argument, it must first be acknowledged that the allegations levelled against the Applicant and the charges she is facing are extremely serious. This alone raises some concerns under the secondary ground. However, counsel for the Applicant argues that any such concerns are addressed by the strict plan of supervision that is being proposed.

[23] As noted above, the proposed plan, as carried out by the parents as sureties, will result in the Applicant being under constant supervision. SM testified that since she works from home, she does not anticipate a time when the Applicant will be left alone in the family residence. And, of course, if this non-stop supervision should for some reason fail, there will be a GPS ankle bracelet monitoring the Applicant’s movements through Recovery Science Corp. Accordingly, the police will be alerted in the event that the Applicant breaches her conditions by leaving the residence without either of her parents.

[24] The Applicant is aware that if she breaches the conditions of her house arrest, it will be reported immediately and she will be returned to custody. Applicant’s counsel argues that this awareness, along with the intense level of supervision provided by her parents, will add an important psychological deterrent for the Applicant and will further lower the risk that she will abscond or reoffend.

[25] The parents/sureties add that the Applicant will not be permitted to communicate or be in the presence of her co-accuseds, who they perceive as having had a bad influence on her. Moreover, the plan of release calls for the Applicant to receive medical treatment aimed at addressing some of the root causes of her past difficult behaviour. These mitigating factors, along with the high level of supervision that is proposed, make it unlikely that the Applicant will reoffend or interfere with the administration of justice if she is released.

IV. The tertiary ground

[26] For release to be denied and continued detention to be ordered under the tertiary ground, it must be established that detention is necessary to maintain confidence in the administration of justice. Given the circumstances of the offence and the fact that the charge is second degree murder, the Applicant acknowledges, as she must, that there are tertiary ground concerns here. That said, it is the Applicant’s view that any such concerns are addressed by the proposed plan of release and that, as a result, detention is not justified in the circumstances.

[27] In R. v. St. Cloud, 2015 SCC 27, [2015] 2 SCR 328, the Supreme Court of Canada provided guidance on how tertiary grounds are to be analyzed by a bail court. Wagner J., as he then was, reasoned, at para 50, that the tertiary ground is to be considered in all judicial release cases, but that detention arising from this ground is to be limited to only the rarest of cases.

[28] To this must be added Justice Trotter’s view that the question to be decided at this point is more than merely detention versus release; it includes an evaluation of the terms proposed in the plan of release. That is, a strict plan can provide a measure that is akin to partial custody. Furthermore, Justice Trotter has confirmed that there are no categories of offences for which bail is automatically ruled out, including murder: R. v. Dang, 2015 ONSC 4254, at para 58.

[29] Section 515(10)(c) of the Criminal Code outlines the factors to be considered in the tertiary ground analysis. These include the strength of the Crown’s case (as it appears at this stage), the gravity of the alleged offence, the entire circumstances surrounding the offence (specifically including whether a firearm was used), and (iv) whether the accused is liable on conviction for a potentially lengthy prison term.

[30] In the instant case, many but not all of these factors are present. For example, the Crown’s case appears quite strong, although counsel for the Applicant submits that there are significant triable issues, which could potentially result in an acquittal. In fact, Applicant’s counsel indicated at the hearing that the Applicant will very likely contest the admissibility of an inculpatory statement she provided to the police after her arrest; it is her contention that the statement was not voluntary, and that it was obtained through a breach of her rights under s.10(b) of the Charter. In addition, a significant portion of the Crown’s case will likely rely on the evidence of the Applicant’s co-accuseds, which will be subject to a warning as to its reliability as set out in Vetrovec v. The Queen, 1982 CanLII 20 (SCC), [1982] 1 SCR 811.

[31] It is self-evident that the offence charged is a serious one. If convicted the Applicant will face a lengthy term of imprisonment. It is the Applicant’s position, however, that these concerns are sufficiently addressed by the strict plan of release that has been proposed which, in fact, is the most restrictive form of release that can be ordered. If released, the Applicant will be subject to conditions akin to being jailed in her own home. She will be under electronic monitoring as well as constant supervision by her sureties who live with her.

[32] With all of these safeguards, I conclude that even acknowledging the serious nature of the charge, the proposed release plan would not cause a reasonable member of the public to lose confidence in the administration of justice.

V. The monetary pledge

[33] In their affidavits, FK and SM propose a monetary pledge of $15,000. At the hearing before me, they indicated that they were prepared to raise the proposed amount to $25,000. Under cross-examination by Crown counsel, SM indicated, albeit hesitatingly, that they would perhaps be willing to raise the amount further to $50,000.

[34] FK was careful in his testimony to outline the financial situation of his family in a straightforward way. They own a home in Ontario valued at just under $2,000,000, with a mortgage of $600,000 that leaves equity of somewhere between $1 million and $1.5 million. FK’s business corporation also owns the building that houses his business, which he values as being in the range of $500,000. They also own two luxury automobiles – a BMW and a Lexus – and SM has an RRSP and a bank account that she shares with a sister in the United States. These assets are, of course, in addition to their annual combined salaries of $250,000, as described above.

[35] Thus, while FK and SM are not what one would call extraordinarily wealthy, they are by any definition people of some means. In my view, their financial pledge should be judged accordingly.

[36] To be blunt, the $25,000 that they are confidently willing to pledge is not sufficient. The amount should be more commensurate with their ability to pay.

[37] By way of comparison, counsel have referred me to R. v. Zameer, 2021 ONSC 6129, a case still under a pre-trial publication ban but for which an unpublished copy was provided to me by counsel. There the accused was also charged with murder and the proposed sureties were family members who were relatively affluent professionals. The sureties pledged a recognizance in the amount of $330,000: Ibid., at para 113. As Justice Copeland related it, the Zameer sureties testified that they “had moved heaven and earth to transfer what assets we have…in order to support this application”: Ibid., at para 134.

[38] In the case at bar, FK and SM likewise testified as to being deeply committed to the Applicant’s release efforts. Their pledge of a relatively modest monetary recognizance, however, does not similarly reflect that level of commitment.

[39] In his final submissions before me, Crown counsel made the point that the sureties’ financial pledge needs to be substantial enough that it provides extra motivation for the sureties to perform their supervisory role with care. He added that, in addition, it should be large enough to trigger the conscience of the Applicant and increase the likelihood of her adhering to the terms of her release with care. Counsel for the Crown submits that if release is to be granted, the terms of the recognizance should reflect both sides of that coin.

[40] I would agree with Crown counsel’s view. As Rosenberg JA observed in Canada (Minister of Justice) v. Mirza, 2009 ONCA 732, at para. 41, “if accused came to believe that they could fail to attend court without their sureties suffering any penalty, the surety system would be ineffective.” The sureties’ monetary pledge must be of an amount that will ensure that they do not let up on their supervisory functions and, at the same time, that will prompt the Applicant to understand that she cannot breach the terms of her release without causing her family some financial hardship. Given her family’s household income level and over $2 million in assets, a $25,000 or even a $50,000 recognizance amount would not accomplish those goals.

[41] I am, of course, equally cognizant that “the amount must be no higher than necessary to satisfy the concern that would otherwise warrant detention”: R. v. Antic, 2017 SCC 27, [2017] 1 SCR 509, at para 56. Canadian courts have reasoned that it is impermissible to “fix the amount of a surety or cash deposit so high as to effectively constitute a detention order”, and so the amount should not be beyond the means of the Applicant or her sureties: Ibid., quoting United States of America v. Robertson, 2013 BCCA 284, at para. 22.

[42] Parliament has also seen fit to limit cash bail, and for good reason. The Supreme Court of Canada has noted that studies have shown that a majority of those required to deposit security as a condition of release have historically been unable to raise the necessary funds: Antic, at para 59, citing M.L. Friedland, Detention before Trial: A Study of Criminal Cases Tried in the Toronto Magistrates’ Courts (Toronto: University of Toronto Press, 1965), at pp. 130, 176.

[43] In Zameer, the pledge of $330,000 was accompanied by a requirement that $50,000 of that amount be posted as a cash bond. The reason for that was that the sureties’ assets, while considerable, were mostly cash holdings which are “inherently more mobile”, as Justice Copeland put it at para 246, than the more typical sureties’ assets in the form of real estate or other tangible property.

[44] In contrast to the Zameer sureties, FK’S and SM’s assets are, as indicated above, mostly comprised of the value of their home and the building in which the family business operates. Those holdings are far less likely to be liquidated or to leave the jurisdiction than cash; they therefore provide a secure basis for a monetary pledge without the need for a cash deposit as a component of the recognizance.

[45] Under the circumstances, “[a] recognizance creates the same financial incentive for the accused to comply with the terms of release as does a cash deposit”: Antic, at para 49. The key, of course, is to set the recognizance at the right monetary level – i.e. high enough to provide the requisite effect of reinforcing the terms of release but not so high as to become a “de facto prison” for the Applicant: Ibid., at para 57.

[46] Given the financial circumstances which the proposed sureties explained in some detail in their testimony, their proposed level of financial pledge is too low and the Zameer level is too high. In Zameer, at para 135, the sureties described the financial consequences of any breach of bail conditions by the accused as being “dire” as the recognizant amount represented their entire life savings. In the case at bar, I do not believe there would be utility in pushing the Applicant and her parents that far, but rather prefer to identify a middle ground.

[47] I would set the recognizance amount at just under half of the Zameer amount – using round figures, at $150,000. This is not an inaccessible or unrealistic amount for sureties with the asset base described by FK and SM; at the same time, it is high enough to reflect the seriousness of the Applicant’s and her sureties’ commitment to adhering to the plan of release. Again, no cash deposit need be made; the recognizance is a pledge of payment only in the event that the Applicant perpetrates a serious breach of her release terms by failing to attend at court when required to do so.

VI. Disposition

[48] The Applicant will be released from custody on the following terms:

• a surety release in the amount $150,000, with named sureties FK and SM;

• reside with the sureties unless there is a change of address permitted by the court;

• remain in the residence at all times, except while continuously in the presence of one or both of the sureties;

• do not contact or communicate with the co-accuseds;

• attend at any medical appointments and participate in any rehabilitation programs advised by a physician;

• abstain from consuming any alcohol or non-medically prescribed drugs, and submit to testing for compliance with this condition when requested by police or a physician to do so.

• do not leave Ontario;

• do not attend at any international airport or at any Ontario border crossing;

• deposit any passport or travel documents with a designated police officer and not apply for any passport or travel documents;

• be placed on electronic supervision for the entire length of the release and arrange for Recovery Science Corporation to provide monitoring service within 72 hours of release;

• participate in and abide by the rules and regulations of the electronic supervision program as required by this court and as required by the Recovery Science Corporation and its employees and authorized agents, for the purpose of monitoring the house arrest, residence restriction, and other similar terms of release;

• permit the Recovery Science Corporation staff and/or persons who are authorized by the Recovery Science Corporation with the electronic supervision program to enter the residence for the purpose of setting up, installing, maintaining, repairing, or removing the electronic supervision program equipment;

• permit police services to enter the residence during the investigation of any alerts while on the electronic supervision program;

• do not possess any weapons as defined by the Criminal Code;

• keep the peace and be of good behaviour;

• attend at court on any date when required to do so.

Date: October 7, 2022 Morgan J.