Court File and Parties

Court File No.: CR-23-11401704-BR Date: 2023/07/25 Ontario Superior Court of Justice

Between: His Majesty The King – and – Vinod Vasavan, Applicant

Counsel: Christian Moreno, for the Crown Omar Abou El Hassan, for Mr. Vasavan

Heard: July 10, 2023 Oral Decision: July 12, 2023

Reasons for Decision on Bail Review

Rees J. (Orally)

[1] Mr. Vasavan is charged with uttering threats, assault by choking, unlawful confinement, and mischief arising from an alleged domestic violence incident against his wife, Aparna Ravidas.

[2] Following his arrest, Mr. Vasavan was released on his own undertaking under s. 498(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46. Conditions D and E of Mr. Vasavan’s undertaking prohibited him from communicating with Ms. Ravidas and being within 200 meters of her or their residence.

[3] A month later, on April 3, 2023, Ms. Ravidas swore an affidavit recanting her allegations to police.

[4] Later in April or early May, Ms. Ravidas got into a car accident. As a result of her injuries and fear of driving again, she is no longer able to drive her children to and from school. The couple’s children are 10, 7, and 5 years old. As a result, both Mr. Vasavan and Ms. Ravidas wished that they could coordinate with each other for the accused to attend the home and pick up and drop off their children.

[5] On May 11, 2023, the Crown consented to a bail variation adding an exception to conditions D and E to allow Mr. Vasavan to communicate with Ms. Ravidas through a third party or in writing to facilitate access to his children.

[6] Mr. Vasavan now brings this application under s. 520 of the Criminal Code seeking a further bail variation to permit him to have contact with Ms. Ravidas and to be within 200 meters of her with her written revocable consent, filed in advance with police. In effect, with the support of Ms. Ravidas, Mr. Vasavan now wishes to resume living together. The Crown opposes the bail variation on the secondary ground because conditions D and E are necessary to protect Ms. Ravidas from further domestic violence and to prevent Mr. Vasavan from interfering with the administration of justice by either pressuring Ms. Ravidas regarding her eventual evidence or the spouses improperly communicating regarding their evidence.

[7] A preliminary question arises: do I have jurisdiction to hear a bail review arising from an undertaking provided under s. 498(1)(c) of the Criminal Code?

[8] Mr. Vasavan and the Crown say I do. Neither pointed me to any authority, statutory or otherwise, for this position. The Crown contends that the Superior Court has inherent jurisdiction to hear this application.

[9] In this instance, I disagree. This is not a freestanding review. It is an application under s. 520 of the Criminal Code. Section 520 sets out the types of orders that may be reviewed:

520. (1) If a justice, or a judge of the Nunavut Court of Justice, makes an order under subsection 515(2), (5), (6), (7), or (12) or makes or vacates any order under paragraph 523(2)(b), the accused may, at any time before the trial of the charge, apply to a judge for a review of the order.

[10] Here, there is no order from a justice under subsection 515(2), (5), (6), (7), or (12) or under paragraph 523(2)(b). Rather, the accused was released on an undertaking under s. 498(1)(c) of the Criminal Code. This undertaking was varied on consent by the Crown, further to s. 502(1) of the Criminal Code.

[11] I lack jurisdiction under s. 520 to review the initial or amended conditions of the undertaking.

[12] In reaching this conclusion, I rely on Dambrot J.’s decision in R. v. Petrovic (2006), 205 C.C.C. (3d) 575 (Ont. S.C.), which held that the Superior Court has no jurisdiction under s. 520 to review an undertaking given to a peace officer or an officer in charge under the Criminal Code, and that under s. 520 the Superior Court’s jurisdiction to review a release order is confined, according to the terms of s. 520(1), to an order made by a justice under s. 515.

[13] I also rely on Trotter J.A.’s analysis of what may be reviewed under ss. 520 and 521 in The Law of Bail in Canada, loose-leaf, 3rd ed. (Toronto: Thomson Reuters, 2023), at s. 8:9: “Sections 520 and 521 are rooted in decisions made under s. 515 of the Criminal Code — they do not apply to other means of compelling appearance, such as a promise to appear/police recognizance with conditions.”

[14] Dambrot J. held in Petrovic, however, that there was jurisdiction for an undertaking given to a peace officer to be reviewed under the former s. 503(2.2), which permitted a person who has entered into an undertaking of this sort, at any time before or at his or her appearance pursuant to a promise to appear or recognizance, to apply to a justice for an order under 515(1) to replace his or her undertaking.

[15] I agree. As a result of Parliament’s 2019 amendments, the former s. 503(2.2) was replaced by s. 502(2), which permits the accused or prosecutor, in the absence of consent between them, to apply to a justice for a release order under subsection 515(1) or 515(2) to replace an undertaking given by the accused under paragraph 498(1)(c), 499(b) or 503(1.1)(b) with the order.

[16] As Trotter J.A. observes at section 2:15 of The Law of Bail, “Section 502(2) applies where the parties are not in agreement. Either the accused or the prosecutor may invoke the process. … As s. 502(2) provides, this application does not vary the terms of the undertaking; it replaces the undertaking with an order, made by a judicial official, under s. 515 of the Criminal Code.”

[17] Parliament has therefore provided recourse to the accused in this situation. But, at first instance, it does not lie to this Court. This Court’s jurisdiction would only arise after an order is made under s. 515 of the Criminal Code and would be governed by the review process under ss. 520 or 521.

[18] Thus, this application is dismissed without prejudice to the accused bringing an application under s. 502(2) before a justice.

Justice Owen Rees

Date: July 25, 2023