COURT FILE NO.: CR-22-123
DATE: 20221124
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
B.O.
Ms. J. De Vuono, for the Crown
Mr. G. Dorsz, for B.O.
HEARD: November 24, 2022
ENDORSEMENT ON BAIL REVIEW APPLICATION
Note that this Endorsement has been edited by the Court so that it can be published without compromising the publication ban in place.
Conlan J.
I. The Charges
[1] The accused is charged with numerous offences involving human trafficking, receiving a material benefit from human trafficking, and procuring. The offences allegedly occurred between 2014 and 2018.
II. The Release in the Court Below
[2] On November 2, 2021, after a contested bail hearing before a justice of the peace, the accused was released as it was determined that the Crown had failed to meet its onus to have the accused detained in custody.
[3] Despite having a fairly limited and unrelated criminal record from many years prior, although the criminal history does include two convictions for breach of recognizance, the accused was released on a very strict bail – two sureties, substantial pledges of money, house arrest with very limited exceptions, GPS monitoring, and other terms.
[4] Undoubtedly, the seriousness of the charges affected the decision in the court below. And this Court concurs that the charges are very serious.
III. Consent Variations to the Bail
[5] Now more than one year later, to their credit, experienced counsel have arrived at an agreement to change some of the terms. This Court will not disturb that agreement, and thus, at a minimum, if nothing else is changed, it would be ordered as follows.
[6] First, a third surety is added, M.B. of Oakville. I will hear from counsel whether an amount of money is to accompany her signature, as the Supplementary Notice of Application is silent on that point.
[7] Next, term number one would be replaced with this: “reside with one of your sureties each and every night and advise the Officer in Charge or his designate of any change in a surety’s address and follow the routine and discipline of their households”.
[8] Next, term number two would be replaced with this: “remain in your residence between the hours of 12:00 a.m. and 6:00 a.m. except for (i) medical emergencies involving you or a member of your immediate family (spouse, child, parent, or sibling), or (ii) when you are in the presence of one of your sureties (F.R., O.P., or M.B.)”.
[9] Next, term number six is amended to provide this exception: “unless you are in the continuous company of one of your sureties”.
IV. The Contested Matters
[10] As stated at paragraph 8 of the Supplementary Notice of Application, the issue is whether the curfew and travel restrictions need to remain at all and, if so, whether there should be an exception “for work purposes”.
V. The Evidence of the Accused
[11] The accused testified and provided affidavit evidence on the application. He is in the music business as a songwriter.
[12] The bottom line is that the accused could have a music gig anywhere in the world, at anytime, for any length of time, and even without much or any advance notice, and he would like to be able to meet all of those commitments. He has a contract with a music label in the United States of America, but that is one place he cannot go because he has been deemed inadmissible.
VI. The Law
[13] This application under section 520 of the Criminal Code is not a fresh bail hearing for the accused. This Court’s jurisdiction to vary the terms of the bail, absent consent, depends on the applicant accused demonstrating on a balance of probabilities one or more of three things: (i) admissible new evidence, (ii) an error in law in the court below, and (iii) a clearly inappropriate decision in the court below in that the justice gave excessive weight to one factor or insufficient weight to another. R. v. St-Cloud, 2015 SCC 27, at paragraph 6.
[14] The accused is presumed to be innocent of the charges that he is facing. He has the right not to be denied reasonable bail without just cause. The default form of bail is a simple undertaking without any conditions except to attend court. Further conditions may be imposed, but those must be “clearly articulated, minimal in number, necessary, reasonable, least onerous in the circumstances, and sufficiently linked to the accused’s risks regarding the statutory grounds for detention in s. 515(10)”. R. v. Zora, 2020 SCC 14, at paragraphs 1 and 6.
VII. The Legal Principles Applied
[15] In my view, this Court’s jurisdiction to vary the terms of the accused’s release stems from an error of law in the court below.
[16] With much respect for the learned justice of the peace, it was an error of law to impose upon this accused “the strictest form of release” (those are the words of the justice, at page 142 of the transcript, line 30), including full house arrest with sureties and an ankle bracelet (transcript, page 143, lines 3-4).
[17] Respectfully, the decision to impose such a strict form of release on this accused was not in keeping with the law as set down in Zora, supra, especially when one considers the justice’s own findings that the primary ground was not a concern and the Crown’s case was not overwhelming but rather could best be described as being “moderately strong” (transcript, page 126, line 23).
[18] In my opinion, the terms of the bail need to be loosened so that the accused can work. I accept his evidence that he still has a contract with the music label, and I accept his evidence that he will likely be required to work between the hours of 12:00 a.m. and 6:00 a.m.
[19] I agree with the Crown, however, that it would be unreasonable to simply scratch the travel and curfew conditions altogether. The Crown is correct that so doing would effectively render meaningless the element of surety supervision that even counsel for the accused acknowledges is necessary in this case.
[20] Thus, returning to those conditions that counsel agreed to amend to a certain extent, the Court’s decision is as follows. All changes are in bold type.
[21] First, the third surety is added.
[22] Next, term number one is replaced with this: “reside with one of your sureties and advise the Officer in Charge or his designate of any change in a surety’s address and follow the routine and discipline of their households”. The additional words, “each and every night”, shall not be included.
[23] Next, term number two is replaced with this: “remain in your residence between the hours of 12:00 a.m. and 6:00 a.m. except for (i) medical emergencies involving you or a member of your immediate family (spouse, child, parent, or sibling), or (ii) when you are in the presence of one of your sureties (F.R., O.P., or M.B.), or (iii) when you are working in the music business, including direct travel to and from the workplace, which work shall be confined to the Province of Ontario”.
[24] Next, term number six is amended to provide the exception noted above: “unless you are in the continuous company of one of your sureties”.
[25] Finally, with three sureties, and travel restrictions, and no passport, and the other terms that he must abide by, I see no requirement for electronic monitoring of this accused. Conditions 11 and 12 shall be deleted.
[26] I would like to thank Mr. Dorsz and Ms. De Vuono for their assistance.
Conlan J.
Released: November 24, 2022
COURT FILE NO.: CR-22-123
DATE: 20221124
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
B.O.
ENDORSEMENT ON BAIL REVIEW APPLICATION
Conlan J.
Released: November 24, 2022