COURT FILE NO.: CR-22-15 DATE: 2023-03-08
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent – and – Timothy Clarke Anthony Applicant
Gabriele Settimi, for the Respondent Tonya Kent, for the Applicant
HEARD: December 19, 2022
the honourable justice d.j. gordon
REASONS FOR DECISION
1Timothy Clarke Anthony has made application for bail review and detention review. The hearing took place on December 19, 2022. On December 30, 2022, I released a brief decision to avoid delay, with more extensive reasons to follow.
Overview
2Mr. Anthony is facing three sets of charges as follows:
i. Brantford – drive while disqualified (6) and fail to appear in court (2); ii. Cayuga – criminal negligence causing death, fail to stop at scene of an accident and drive while disqualified (5); and iii. Brantford – drive while disqualified and breach of probation.
3He was arrested on April 7, 2022 pursuant to an outstanding warrant.
The Alleged Offences
4As a result of prior convictions, Mr. Anthony was subject to six separate orders prohibiting him from driving. On January 22, 2021, a police officer with Brantford Police Services conducted a traffic stop of a vehicle that was said to have disobeyed a stop sign. The driver identified himself as Mr. Anthony. He was placed under arrest for drive while disqualified and released on an undertaking. Mr. Anthony failed to attend court in March 2021 and was later arrested pursuant to a warrant on July 4, 2021. He was again released on an undertaking but failed to attend court in August 2021. The warrant for his arrest was executed on April 7, 2022.
5On November 14, 2021, Mr. Anthony was observed to be driving by an off-duty officer with Haldimand County Ontario Provincial Police. Mr. Anthony was also subject to a probation order granted in March 2021. He was arrested on both matters on April 7, 2022, being charged with drive while disqualified and breach of probation.
6In his affidavit, in this proceeding, Mr. Anthony indicated he intends to plead guilty to the above charges “at a later date”.
7On April 23, 2021, Alexander Dalton was operating his motorcycle in Hagersville, Haldimand County, essentially as a test drive for the upcoming season. Mr. Dalton was twenty-three years of age. He was not wearing a helmet. Weather and road conditions were said to be good. The test drive involved a ride around the block, occurring at approximately, 9:00 p.m.
8Mr. Dalton slowed to make a left turn. The motorcycle was struck from behind by a Chevrolet Tahoe vehicle, said to be travelling in excess of eighty kilometres an hour, throwing Mr. Dalton into the path of an oncoming vehicle. Mr. Dalton died at the scene. The Tahoe vehicle did not stop, driving from the event at a high rate of speed. This vehicle was abandoned in the Mississauga of the Credit First Nation Reserve due to damage caused in the collision. The two occupants fled on foot.
9Following an extensive investigation by officers with Haldimand County Ontario Provincial Police, including a review of cellphone transmission records obtained as a result of production orders, Mr. Anthony was arrested on April 7, 2022. He is alleged to have been driving the Tahoe vehicle when it struck Mr. Dalton. Mr. Anthony was charged with criminal negligence causing death, fail to stop at the scene of an accident and multiple counts of drive while disqualified.
10Mr. Anthony has plead not guilty to those charges. A preliminary inquiry is scheduled to commence on January 16, 2023, in Cayuga.
11Other individuals are separately charged regarding the event on April 23, 2021, including Dakota Davis, Acacia Emery and Felicia Kirk.
12Mr. Davis was a friend of Mr. Anthony. He is charged with being an accessory after the fact in rendering assistance to Mr. Anthony for the purpose of enabling him to escape. Mr. Davis provided a statement to police officers, under caution, reporting that he was a passenger in the Tahoe vehicle on April 23, 2021. Mr. Anthony had requested him to drive to an address to purchase fentanyl. Mr. Davis had been drinking and asked Mr. Anthony to drive. Mr. Anthony subsequently instructed Mr. Davis to fabricate a story with Ms. Emery and Ms. Kirk to file a false police report.
13Ms. Emery was the partner of Mr. Davis. Ms. Kirk was the partner of Mr. Anthony. On April 24, 2021, Ms. Emery, in the presence of Ms. Kirk, made a report to the police regarding the theft of her vehicle. She was the registered owner of the Tahoe. At a later date, statements were provided under caution, admitting that report to be false. Ms. Emery and Ms. Kirk are charged with public mischief.
Criminal Record
14Mr. Anthony is 36 years of age. His criminal record commences in 2008. It includes:
a. Dangerous driving (3); b. Theft (2); c. Break and enter (4); d. Fail to attend court; e. Fail to comply with recognizance (4); f. Breach of probation (4); g. Unlawfully at large; and h. Drive while disqualified (3)
Bail Hearing
15A bail hearing took place on May 27, 2021, in Cayuga before Justice of the Peace Munro. As Mr. Anthony had been on interim release for outstanding charges, this was a reverse onus situation. Mr. Anthony sought release on terms. Crown counsel was opposed.
16The two proposed sureties testified at the hearing, Jessie Anthony, an older sister to Mr. Anthony, and her friend, Hayley Gray. Both individuals reside in Vancouver and are employed in the film industry, essentially working from home due to the pandemic. Ms. Gray had prior experience working at a detox centre and had an understanding of the difficulties of Mr. Anthony in terms of his drug addiction.
17The proposed release plan involved Mr. Anthony residing with his sister. Both sureties would provide supervision. Other terms included a curfew, counselling and using GPS on an Apple Watch.
18Ms. Anthony also identified their family’s Indigenous heritage. Their mother is Onondaga First Nation, one of the original Five Nations, while their father is Delaware. Mother was a residential school survivor, one of the last to leave the Mohawk Institute. Ms. Anthony also referred to being a day school survivor as was her brother.
19The Justice of the Peace concluded Mr. Anthony had failed to meet his onus on the primary and secondary grounds. While recognizing there were triable issues, the Crown’s case was considered strong enough and Mr. Anthony would be facing a lengthy period of imprisonment if convicted.
20In reaching those conclusions, the Justice of the Peace considered Mr. Anthony’s criminal record, particularly a pattern of criminal offences while on bail or subject to court orders. The present allegations of criminal conduct were also a factor, having regard to prior offences and the risk to the public.
21The proposed release plan was rejected for a number of reasons. While it appears the credibility and intentions of the sureties was not problematic, the Justice of the Peace determined Mr. Anthony would not likely comply with terms imposed, again given his history. Residing out of the province and freedom of movement were concerning. In large measure, the release plan failed due to Mr. Anthony’s lack of willingness to comply.
This Application
22Mr. Anthony has made application for bail review, under section 520, and detention review, pursuant to section 525. He seeks release from custody on the following grounds:
a. errors in law by Justice of the Peace Munro; b. material change in circumstances; and c. delay
Release Plan
23The present release plan involves four sureties, Berle Anthony, Nancy Talbot, Emily Anthony and Chyanne Davie. These individuals are father, step-mother, sister and friend of Mr. Anthony. They reside in Haldimand County or Six Nations Reserve.
24Mr. Anthony would reside with his father, step-mother and sister. Ms. Davie would be available to cover any gaps in supervision. The plan includes house arrest and electronic monitoring.
Evidence
25The hearing was scheduled for a full day. Unfortunately, there was a two-hour delay as the correctional facility had neglected to assign an officer to accompany Mr. Anthony to the videoconferencing room. In result, I directed counsel to present the evidence first and then to address both the threshold issues and the merits of the application in submissions.
26The proposed sureties are all gainfully employed in the community. None has a criminal record. I am satisfied they are credible individuals with good intentions of providing assistance to Mr. Anthony.
27The father and step-mother were not able to be sureties at the initial bail hearing. At the time, the children of Mr. Anthony were then in their care and the Children’s Aid Society would not allow him to reside in the same home. The children have since been returned to the care of their mother.
28The affidavits of the proposed sureties contained little information. Cross-examination, in particular, was revealing.
29The drug abuse history of Mr. Anthony was acknowledged to some extent at the initial bail hearing. Evidence now presented reveals such commenced at age thirteen, becoming an addiction at some point. Mr. Anthony has been involved in the methadone program although there were few details and no medical evidence was presented.
30Berle Anthony is of the understanding his son has not been using drugs as a result of the methadone program. However, he also said Mr. Anthony would not come to the house when he was on drugs as he knows such is not allowed. Father is aware of the allegations his son and Mr. Davis were travelling on April 23, 2021, to purchase fentanyl. He also reported hearing similar rumours in the community.
31The prior criminal acts of Mr. Anthony were attributed to using drugs. Father says his son cannot be controlled when under the influence of drugs. He keeps driving and getting into trouble according to father.
32Mr. Anthony has resided with his father and step-mother as an adult some years ago. However, Mr. Anthony could not follow the rules and was asked to leave.
33Father was aware of Mr. Anthony’s outstanding charges in Brantford. He advised his son to deal with them. Mr. Anthony did not follow his father’s advise. Father did not contact the police.
34The proposed sureties all are of the belief Mr. Anthony will follow the terms of release and rules imposed by them, despite his past history. They understand Mr. Anthony wants to get on the right path, as Ms. Davie said, is addressing his addiction and is aware they will report any breach.
Bail Review
35Bail review under section 520 is not a hearing de novo. The application judge does not have an open-ended discretion to vary the prior decision. Bail review may only occur if there is admissible new evidence showing a material and relevant change in circumstances of the case, or where the prior decision contains an error of law, or where the prior decision is clearly inappropriate. See R. v. St. Cloud, 2015 SCC 27.
Detention Review
36A detention review under section 525, is not a review of a prior order. Rather, it is a review of the detention itself. The application judge must determine whether the continued detention is justified under the primary, secondary or tertiary grounds. In doing so, new evidence, material change in the circumstances of the applicant, the passage of time and unreasonable delay may be considered. See: R. v. Myers, 2019 SCC 18.
Purported Errors
37Counsel for the applicant identifies the following as errors of law by Justice of the Peace Munro:
a. house arrest was not considered; b. reporting Mr. Anthony was “not releasable under any plan”; c. did not consider other release terms; d. referred to the Vancouver neighbourhood as “high risk”; e. identified Gladue factors but did not reflect on the principles as they applied to Mr. Anthony; and f. as to the strength of the Crown’s case.
38Before addressing the purported errors arising from the transcript of the reasons denying release, I pause to comment in the following matters:
i. Justices of the Peace function within an extremely busy schedule and do not have the luxury of time to prepare a comprehensive decision; ii. Presiding judicial officers are presumed to know relevant legal principles; iii. There is no requirement for citing authorities in a decision; iv. Nor is there a requirement to address every matter presented in evidence: only those relevant to the issues must be considered; and v. Reasons for decision need not be perfect but, rather, convey to the applicant and others the basis as to how it was determined.
39I have reviewed the decision of Justice of the Peace Munro. In the circumstances, I consider the reasons to be well prepared, concise and addressing the relevant evidence and legal principles. When read as a whole, the reasons clearly explain the basis for the decision. I see no error.
40In particular, the transcript of the bail hearing reveals the following:
a. the Justice of the Peace was well aware house arrest could be a term of release given the exchange with applicant’s counsel on that subject; b. applicants counsel alluded to electronic monitoring but did not present it as a term of release, relying on the proposal of GPS on an Apple phone; c. the reference to “high risk” neighbourhood in Vancouver was made by Jessie Anthony, describing her concern given her brother’s drug abuse history and how the release plan would address same; and, d. the Justice of the Peace understood Mr. Anthony’s indigenous history and the necessity of addressing Gladue factors under section 493.2, as can be seen by reference to authorities cited in the decision, but correctly noted the absence of evidence as to how First Nations culture would control Mr. Anthony, assure his attendance in court and protect the public.
41Justice of the Peace Munro did not say Mr. Anthony was not releasable under any plan. Rather, the actual words were:
Mr. Anthony shows absolutely no regard for court orders that are meant to alleviate the risks he poses to society and I have no confidence I can impose terms that would mitigate that risk.
42That commentary was made within a framework of Mr. Anthony’s drug abuse history, his criminal record regarding prior breach of court orders and his continuing to operate a motor vehicle. Mr. Anthony clearly presented as a significant risk and the Justice of the Peace examined the proposed release plan in detail. Despite the good intention of the proposed sureties, that risk remained a substantial concern. While other terms may have been considered, it is not the role of the Justice of the Peace to create the release plan when, as here, the proposal was based on Mr. Anthony re-locating to Vancouver. In my view the move to another province raised further issues and the Justice of the Peace had to be concerned with Mr. Anthony’s level of commitment and the ability of the proposed sureties to mitigate the risk in Vancouver.
43In support of her argument the Justice of the Peace failed to consider other release terms, counsel for the applicant referred to R. v. Laird, 2020 ONSC 8053, a decision she had provided in submissions at the bail hearing but not referred to in the reasons for decision. Laird addresses release of an individual with a lengthy criminal record, including breach of court orders, the specific reference being:
The key question here is whether a bail plan can be structured that is likely to make Mr. Laird actively want to comply with his conditions, notwithstanding his apparent lack of inherent respect for court orders, because he will know that non-compliance will trigger serious adverse consequences for him.
44This passage essentially identifies the principles set out in R. v. Morales, [1992] 3 S.C.R. 711, a decision that was cited and applied by the Justice of the Peace on the secondary grounds.
45As to the tertiary grounds, the Justice of the Peace did identify triable issues, particularly as to proof that Mr. Anthony was the driver of the Tahoe vehicle. The evidence then available was considered, including cell phone information connected to the vehicle and to the scene, false reports of a stolen vehicle and the statement of Mr. Davis. It will be for the trier of fact to accept or reject the evidence. The Crown’s case may not be the strongest, but it is by no means weak.
Material Change in Circumstances
46There is a change in circumstances in that new sureties and more stringent terms are proposed in the release plan. Nevertheless, I am not persuaded this is a “material” change.
47The original proposed sureties were credible and presented with good intentions. The plan involved Mr. Anthony re-locating to Vancouver but the terms did not adequately mitigate the risk to re-offend.
48The new proposed sureties are likewise credible and with the good intentions of assisting Mr. Anthony. They were not able to be sureties at the time of the bail hearing. I do not consider the change in sureties as “simply reshuffling the deck”, as suggested by Crown Counsel by reference to R. v. Ferguson. These individuals all reside in the local community and would be better suited to supervise Mr. Anthony, particularly his father and step-mother.
49The release plan, however, falls well short of mitigating the risk. The Justice of the Peace made reference to the original release plan being “very onerous”. The present is more robust but, in my view, house arrest and electronic monitoring, the new terms, do not represent a material change.
50House arrest is often proposed as a term of release. The terminology overstates the purpose. It is not arrest as we understand it but, rather, only voluntary confinement. There are no lock or other devices to prevent escape. There can be no supervision when sureties are sleeping. Similarly, electronic monitoring, while helpful, is not a preventative tool. At best, it provides reporting information.
51These are important considerations given Mr. Anthony’s history of disobeying court orders. In so doing, he has a propensity to find a vehicle to drive. That is the risk, also identified in three dangerous driving convictions. Indeed, Mr. Anthony presents at the highest risk to re-offend and I conclude, on a balance of probabilities, he would do so under both the original and the present release plan.
52Mr. Anthony has not complied with his father’s rules in the past. Nor has he accepted wise advice. There is no evidence to demonstrate a change in attitude. Only a promise. In result, the new release plan offers no further mitigation of the risk and, hence, cannot be considered a material change in circumstances.
Delay
53Delay is a relevant consideration in bail review and detention review. The purpose of section 525 is to prevent accused persons form languishing in pre-trial custody and to ensure a prompt trial. See: Myers, supra.
54The ninety-day period in section 525 is an invitation for judicial scrutiny as to whether continued detention is necessary. For reasons unknown, no notice was received from the detention facility. Mr. Anthony has been in custody since April 7, 2022.
55The delay is obvious. However, it must be recognized that it is rare for a case to be scheduled for trial on the first appearance in the Ontario Court of Justice and even more seldom for the trial to occur within ninety-days of arrest.
56Here the delay does not approach the framework in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. The preliminary inquiry is scheduled to commence January 16, 2023. I would anticipate the trial can occur by the summer of 2023. In result, the delay is not unreasonable. No evidence was presented regarding the issue of delay or as to who is responsible for same. In the eight months since arrest of Mr. Anthony, I cannot envisage any blameworthy conduct in this regard. It would appear that crown and defence counsel have been co-operating in terms of scheduling relevant events within time available in the court system.
57Detention remains warranted for the reasons above. Delay, such as it is, does not overcome that necessity. Mr. Anthony continues to represent a serious risk to re-offend.
58Section 525 also allows the court to exercise discretion to expedite the trial. Such, in my view, is not necessary at this stage. The case has proceeded more quickly than many others in comparable circumstances.
59In result, I conclude delay is not a relevant factor.
Summary
60There are some concerns on the primary and tertiary grounds, neither being an overwhelming factor. The risk of Mr. Anthony to re-offend is the compelling concern. The proposed release plan does not adequately mitigate that risk.
61In result, the application is dismissed.
D.J. Gordon, J.
Released: March 8, 2023