COURT FILE NO.: BR(P) 563/22
DATE: 2022 12 02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Shazin Karim for the Respondent Crown
- and –
VARUN HASIJA
Robert Christie for the Defendant Applicant
HEARD: November 28, 2022
RULING ON SECTION 520(1) BAIL VARIATION APPLICATION
D.E HARRIS J.
[1] These reasons explain why I allowed the Applicant’s bail variation application and permitted him to have contact with his wife—the complainant--as long as another adult is present.
THE ALLEGATIONS
[2] The parties have been married for 12 years and have a 7 year daughter. The Applicant has been charged with intimate partner violence against his wife. There are two counts from October 10, 2022 and one from October 4, 2022 on the information.
[3] On October 10th, 2022, the complainant called 911 to report an assault. The police came to the family home in Brampton. The complainant said that there had been an argument about infidelity. During the argument, the Applicant slapped her on the left side of her head. That is count 1. She also told the police at the same time that during an argument on October 4, 2022, he twisted her ears and made them bleed. On this review hearing, the complainant elaborated that the bleeding was caused by one of her earring backings. This was count 2. Count 3 was based on the complainant’s allegation that on the day the police came, October 10, 2022, at about 12 noon, the Applicant had assaulted her with a large Toblerone chocolate bar, striking her arm with it. There was some redness. This act is charged as assault with a weapon, the supposed weapon being the large chocolate bar.
[4] After being arrested and held overnight, the Applicant was released on an undertaking entered in to before a justice in Form 11. There was no surety and no monetary pledge. As is invariably the case, the Applicant was not permitted any contact with his wife nor was he permitted to be near their home or her place of business. The Applicant was permitted to see his daughter and he has seen her regularly.
[5] The Applicant now requests that he be permitted to live back in the family home, or, in the alternative, be allowed contact with his wife with another adult present. The man he has been living with since he has been released from jail, Manpreet Singh, has agreed to act as surety in the amount of $10,000, no deposit. Mr. Singh has an IT job with Bell Canada and owns his home.
[6] The principal reason for the variation is that both the Applicant and his wife want to resume their life together with their daughter. A secondary reason is that they operate a restaurant together in Cambridge and although it can be adequately operated without contact, it would be preferable if they could see and talk to each other both at the restaurant and elsewhere.
[7] In my view, the Applicant met his onus under the secondary ground of bail to permit him the alternative relief of contact with another adult present. Based on my decision announced at the end of the hearing, counsel for the parties agreed upon bail terms to implement this plan.
HAS THERE BEEN A MATERIAL CHANGE OF CIRCUMSTANCE?
[8] The Applicant comes to this review with a surety which he did not have before. He has also, voluntarily, had nine sessions of counselling with two different therapists. Letters were filed documenting this and the Applicant testified about the counselling and what he has learned from it. Counsel for the Applicant argued that these two circumstances constituted a material change.
[9] The singular concern at the original bail hearing and now on review is the secondary ground. Specifically, if the bail is relaxed, will the safety and security of the complainant be jeopardized? On first blush, both the surety now offered and the counselling undertaken directly address and serve to mitigate concerns on the secondary ground. The surety proposed will monitor and supervise the Applicant to ensure that he adheres to his bail conditions. The quite intensive counselling has directly addressed anger issues which led to the alleged offences. Together, these new developments appear to constitute a material change of circumstance under the leading authority of R. v. St. Cloud 2015 SCC 27, [2015] 2 S.C.R. 328 (S.C.C.).
[10] Ms. Karim resists the finding of a material change. She argued that the proposal now advanced could and should have been suggested at the original bail hearing. The Applicant failed in his obligation to be duly diligent in putting forward this evidence and the current plan.
[11] That position cannot be accepted. Bail is a constantly evolving quantity and must remain flexible and attune to changing circumstances. A stringent approach is out of harmony with the reality of bail. The Supreme Court and the Ontario Court of Appeal have been emphatic on this topic.
[12] In St. Cloud, Wagner J. as he then was, incorporated the test for admission of fresh evidence on appeal into the change of circumstance bail context but with several important modifications: paras. 122-138. In particular, the due diligence criterion for new evidence on appeal was substantially diluted as it applies to bail: see paras. 129-134.
[13] I reviewed the approach taken in St. Cloud to due diligence in considerable detail in a case called R v. Henry, 2020 ONSC 4196 at paras. 18-24 and will not reiterate that here. Condensed, the law from St. Cloud is that, with respect to a material change, a lack of due diligence will only defeat a bail review if it is found that the defendant intended “to drag out the application for release or where the accused is alleged to have tried to use the review to engage in judge shopping.” See para. 134 of St. Cloud. In arriving at this restrictive meaning of due diligence, the Court rejected the Crown’s focus on finality, holding at para. 130: “[T]he pre-trial detention of accused persons - like their release - is, by its nature, very often "interim" and not final.”
[14] Justice Doherty wrote to the same effect in R. v. Jaser, 2020 ONCA 606, [2020] O.J. No. 4423, 152 O.R. (3d) 673 (C.A.),
52 … Circumstances relevant to bail are dynamic and can change significantly as a case progresses and time passes: see R. v. Zora, 2020 SCC 14 (S.C.C.) at para. 92. Bail orders are inherently more interim in nature than final…
53 St. Cloud adopts a flexible, more receptive approach to fresh evidence on bail reviews under s. 520 and s. 521. That approach reflects the inherently interim nature of bail decisions and accommodates Charter principles underlying the presumption of innocence and access to reasonable bail.
[15] Also see R. v. Saracino, 1989 7197 (ON SC), [1989] O.J. No. 28, 47 C.C.C. (3d) 185, 6 W.C.B. (2d) 236 (S,C,J.) at para. 17
[16] Although it can be time consuming to revisit bail, bail decisions often have to be reconsidered because of new developments. The accused’s circumstances can change, new and improved sureties can become available, the strength of the Crown’s case may fluctuate, and delays in getting the accused to trial may substantially increase, to name just a few of the more frequent occurrences. In this frequently changing environment, the centrality of bail to an accused’s liberty and fair trial interests and indeed to the system of criminal justice as a whole militates against an unforgiving approach on review.
[17] This too makes practical sense in light of the expedited and summary nature of original bail hearings and the pressures such hearings place on an in custody accused. The Applicant, when he was cross-examined by the Crown about why he did not ask at the bail hearing for contact with his wife on bail release, put it aptly. He said that he was traumatized by being in jail for a night. He has no criminal record and had never been in jail before. The conditions were agreed upon for the consent release. He just wanted to get out.
[18] This was an honest and eminently reasonable response. Virtually anyone would have felt the same way. The fundamental objective of a person in jail is to regain their liberty as soon as possible. Everything else is incidental. There may well be a feeling that additional requests would upset the apple cart and could undermine the consent release. An accused and counsel often take a consent release and do not look back.
[19] Furthermore, the Crown’s suggestion in cross examination and in submissions was inconsistent with the reality of intimate partner assault bail hearings. Mr. Hasija and his lawyer could have loudly demanded an exception for no contact with the complainant but it is highly unlikely the Crown would have agreed. And it is unlikely that the Justice of the Peace would have ordered it without Crown agreement. Exile from the home and prohibition on contact with the complainant are the almost invariable norm in intimate partner bail hearings. Erring on the side of safety generally makes sense at the original hearing. Not much is yet known about the parties or the history between them. The Applicant cannot be criticized or penalized on the review for failing to make a futile request.
[20] In the final analysis, there has clearly been a material change in reference to the secondary ground, in this case particularized as the risk that the Applicant will harm the complainant. The addition of a surety and the counselling make it significantly less likely that there will be a subsequent offence committed against the complainant.
SHOULD CONTACT WITH THE COMPLAINANT BE PERMITTED?
[21] On the substantive issue, there are two major themes in intimate partner bail hearings: see R v. Khinda, 2020 ONSC 7275 at paras. 14-23. The paramount theme is the need to protect the complainant. That is unquestionable and well entrenched in the jurisprudence. Judicial and general experience demonstrates that intimate partner conflict has a unique tendency to erupt into violence, sometimes lethal violence. Jealousy is a powerful, often irrational emotion. It can be combustible. And because violence may be percolating under the surface in an intimate relationship between the complainant and the accused, it is notoriously difficult to predict. History shows that extreme caution is required in fashioning intimate partner bail releases.
[22] Protection of the complainant comes within the secondary ground head of detention. Paraphrasing, detention may be “necessary for the protection or safety of the public … having regard to all the circumstances including any substantial likelihood that the accused will … commit a criminal offence or interfere with the administration of justice.” Parliament has now specifically required the judiciary to consider intimate partner violence on bail issues: s. 515(3)(a) of the Code.
[23] The other theme, a secondary one, is the importance of cultivating and encouraging family unity. A bail order has the effect of separating the family, often with devastating economic and personal consequences particularly if the trial is delayed for a significant period of time: R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555, 205 C.C.C. (3d) 488 (Ont. C.A.) at para. 33. In this instance, the trial would likely not take place until the fall of 2023, almost a year away.
[24] In a conflict between the two themes in intimate partner bails, the secondary must always give way to the protection of the complainant. But when the protection of the complainant can be managed by a solid bail plan, measures to enable reconciliation and to ameliorate the potential hardship and damage to the family unit ought to be kept in mind. The secondary ground requires detention only when necessary for the protection and safety of the complainant.
[25] The accused, the complainant and the proposed surety all testified in this hearing. In a fair and responsible manner, Ms. Karim cross-examined each of them. In submissions, consistent with her cross-examination, she did not impugn their credibility or integrity. I too found all three to be good and reliable witnesses.
[26] The Applicant has a good job working for a major bank. He was an impressive witness. He did not attempt to anticipate where the cross-examination questions were going. Instead he answered directly and without pause or apparent calculation. He became quite emotional when the subject of his 7 year daughter came up. There were quite a few questions about his counselling in-chief and in cross-examination. From his answers, it was clear to me that he undertook the counselling not mainly for the benefit it might afford him in his case or this review, but because he was genuinely dismayed with his own aggressive behaviour. He intends to continue the counselling.
[27] Based on what he has learned in counselling, he compared his behaviour with road rage. He said he now was able to step back from his anger and control it. I was convinced that he was sincere and candid. The insight he exhibited into his past behaviour was genuine.
[28] For her part, the complainant did not recant and she did not minimize. Ms. Kazim took her through her statement and she had some qualifications for what she had said but these were not significant. She agreed that her statement to the police accusing the Applicant of the offences was truthful. She largely stuck to the allegations. On the witness stand, the complainant said that he was not generally jealous although the argument on October 10 was sparked by her receiving a text from a customer at the restaurant. The Applicant saw it and this led him to suspect her of infidelity.
[29] In Khinda at para. 24, I went through some of the risk factors in intimate partner bail situations. In that case a relaxation of the bail to allow co-habitation was also sought. The risk factors are relatively obvious: a. A history of intimate partner violence; b. Use of a weapon; c. Alcohol or drug use; d. The Applicant’s jealousy; e. Bail breaches; and f. An implausible recantation from the complainant. The ruling also considered the issue of financial dependence upon the accused which can lead a complainant to minimize the threats against her for the purpose of enabling her partner to get back into the house. There are other risk factors too; the list is not closed.
[30] In Khinda, all these concerns were in play. There was considerable pressure on the complainant to assist the accused. The complainant’s recantation was incredible. To accede to the request would have been at odds with the care and caution that must be exercised in intimate partner bail releases. It was necessary for the court to protect the complainant even if she could not protect herself. The application was dismissed.
[31] This case contrasts with Khinda. Here, there was a relatively minor allegation from 2011 but no other history. There was a technical allegation of the use of weapon but it was a large chocolate bar, not the knife that was alleged as part of the history in Khinda. There was no alcohol involved. The complainant at no time derogated from her original allegations.
[32] The complainant’s desire to have contact with the Applicant and have him move back into the house was clear eyed and independent. She was not acting under pressure exerted by him and had clearly not been swayed by his influence. We can put trust in her to report any inappropriate behaviour from the Applicant and not be co-opted by him.
[33] The Crown at the original bail hearing, guided by the police bail package, agreed to one of the least onerous forms of bail, an undertaking given to a justice. This too is relevant in assessing this bail review application.
[34] It also bears mentioning that the Applicant according to his account, his wife’s account and his proposed surety Manpreet Singh’s account, has been faithful to the no-contact bail condition. He has not been in contact with his wife. It has not been a long time, only a month and a half, but even a relatively short track record is a necessary ingredient for a successful bail review.
[35] In light of these considerations, given the nature of the allegations and having heard and observed Mr. Hasija, in my view the secondary ground is sufficiently negated to permit contact between the spouses with another adult present.
[36] I am not prepared to allow the Applicant and the complainant to begin cohabitating again at this early stage of the bail. It came out in evidence that there has been talk of separation and divorce during some of the arguments between the spouses. If the marriage is disintegrating, living together could raise the level of risk and lead to an escalation in tensions. Despite all the positive signs at this review, vigilance must always be the watchword. If there is continued progress over the next several months, the matter can be brought back in front of me for a further review.
[37] Ms. Kazim remained opposed to relaxing the no contact clause, softening her position somewhat after the witnesses testified. When asked whether there would ever be a case in which the Crown would consent to the kind of relaxation requested in this case, she equivocated. It seems that the answer is no. That is unfortunate. The cases in which intimate partner bail should be loosened from the original bail are not everyday occurrences. Practically speaking, the Applicant has a high burden to meet. But it is essential that the Crown not fetter their discretion. While the ambit for discretion may be quite limited, the discretion exists and ought to be exercised in appropriate cases.
[38] In R. v. Rashid, 2009 9745 (ON SC), [2009] O.J. No. 957, 243 C.C.C. (3d) 318, aff’d 2010 ONCA 591, the Durham Police was criticized for a blanket, invariable practice of holding men accused of domestic violence for bail hearings. The trial judge, the summary conviction appeal judge and the Court of Appeal all strongly denounced this systemic practice, holding that it was contrary to the Criminal Code release provisions.
[39] A police policy is clearly different from a Crown policy. However, as a general proposition, the binding of discretion either at the investigatory stage or at the prosecutorial stage is inappropriate.
[40] Because of the notorious perils, intimate partner bail issues are especially daunting for police, Crowns and, indeed, for judges. Although it is always easier to just say no, the exercise of discretion is essential to the fairness of the system. High vigilance is not tantamount to zero flexibility. The interests of the accused must be considered despite the overarching purpose of protecting the complainant. To conclude otherwise is to give in to the risk adverse culture so pervasive in the context of bail release, a tendency the Supreme Court of Canada has specifically admonished against: R. v. Zora 2020 SCC 14 at para. 77.
[41] The application was allowed in accord with these reasons.
D.E HARRIS J.
Released: December 2, 2022
COURT FILE NO.: BR(P) 563/22
DATE: 2022 12 02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Respondent
- and –
VARUN HASIJA
Applicant
RULING ON SECTION 520(1) BAIL VARIATION APPLICATION
D.E HARRIS J.
Released: December 2, 2022