Court File and Parties
COURT FILE NO.: CR-23-00000015-00BR DATE: 20230920
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent – and – TIMOTHY CLARKE ANTHONY Applicant
COUNSEL: G. Settimi, for the Crown T. Kent, for the Applicant
HEARD: August 21, 2023, Virtually
JUSTICE L. SHEARD
Reasons for Decision
DELIVERED ORALLY - SEPTEMBER 20, 2023
1This is a detention review application brought by the accused, Timothy Clark Anthony. This is the third time that Mr. Anthony’s detention will have been judicially considered, and the second detention review conducted by this court.
2Mr. Anthony was arrested on April 7, 2022. On May 27, 2022, Justice of the Peace Munro conducted a bail hearing. The release plan put forward by Mr. Anthony contemplated his release to two sureties: a sister, and her friend, who lived in Vancouver, British Columbia. Mr Anthony was to be subject to a curfew and further driving prohibition. Mr. Anthony’s sister proposed to assist Mr Anthony in obtain counselling to address “underlying criminogenic factors” [1].
3J.P. Munro concluded that Mr. Anthony’s continued detention was required under the primary, secondary and tertiary grounds under s. 515(10) of the Criminal Code.
4Mr. Anthony brought a bail review application, for the review the decision of J.P. Munro. A combined bail and detention review application was conducted by Justice D.J. Gordon on December 19, 2022.
5At that hearing, Mr. Anthony proposed a new plan of release, which Gordon J. concluded was a “change in circumstances” but did not constitute a “material” change. The new release plan contemplated four sureties: Mr. Anthony’s father, Berle Anthony, his stepmother, Nancy Talbot, and his younger sister, Emily Anthony, all of whom live together, and a friend. All live in Haldimand County or on Six Nations Reserve. Mr. Anthony would be under “house arrest” and would wear an electronic monitoring device.
6Notwithstanding the new release plan, Gordon J. concluded that Mr. Anthony’s continued detention was required. He concluded that, while there were “some concerns on the primary and tertiary grounds, neither being an overwhelming factor”; the risk of Mr. Anthony re-offending was a compelling concern and that Mr. Anthony’s proposed release plan did not mitigate that risk.
7I note that the application before me is a detention review and not a bail review. As such, I am not reviewing the decision made by J.P. Munro, nor am I reviewing the decision made by Gordon J., which would be beyond my jurisdiction.
8I do, however, make reference to the decisions of J.P. Munro and Gordon J. in keeping with the direction given by the Court in R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, at para. 55, that “previous bail decisions will be relevant and will likely inform the proceedings”, mindful that “reviewing judges must be careful not to simply “rubber-stamp” such decisions.”
The Charges
9Mr. Anthony is facing the following charges:
i) Brantford: driving while disqualified (six counts) and failing to appear in court (two counts);
ii) Cayuga: criminal negligence causing death; failing to stop at the scene of an accident; and driving while disqualified (five counts); and
iii) Brantford: driving while disqualified and breach of probation.
10Mr. Anthony was arrested on April 7, 2022, pursuant to an outstanding warrant. At the time, Mr. Anthony was subject to six separate orders prohibiting him from driving. Except where stated otherwise, I adopt and repeat the following summary taken from paragraphs 4 to 13 of the Reasons for Decision of Gordon J.:
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” [2].
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 80 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, failed 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 Kick.
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. Kick to file a false police report.
13Ms. Emery was the partner of Mr. Davis. Ms. Kick was the partner of Mr. Anthony. On April 24, 2021, Ms. Emery, in the presence of Ms. Kick, 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. Kick 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. Failed to attend court; e. Failed to comply with recognizance (4); f. Breach of probation (4); g. Unlawfully at large; and h. Drive while disqualified (3)
Original Bail Hearing: May 27, 2022
11In his Ruling, J.P. Munro noted that the hearing was a reverse onus proceeding and that, on the balance of probabilities, Mr. Anthony had to establish that his detention was not justified under any of the grounds enumerated under section 515(10) of the Criminal Code:
(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds:
(a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law;
(b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice; and
(c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including
(i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence that involves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more.
A. Primary ground - s. 515(10)(a)
12J.P. Munro considered whether Mr. Anthony’s continued detention was required on the primary ground. He noted that Mr. Anthony’s criminal record “worked in his favour” in that it appeared that he did not “stray far from home”. J.P. Munro also noted that: Mr. Anthony had failed to appear twice since his arrest in January 2021; the allegations were serious – that he had left a gravely injured young man at the side of the road and fled from the accident and, it is alleged, calculated a “complex scheme to avoid prosecution”.
13J.P. Munro also considered Mr. Anthony’s plan of release, including his relocation to Vancouver, and concluded that that distance caused concern that was not alleviated by the proposed day-to-day supervision to be provided by the sureties.
B. Secondary Ground - s. 515(10)(b)
14J.P. Munro considered whether Mr. Anthony’s continued detention was necessary for the protection and safety of the public and whether there was a substantial likelihood that Mr. Anthony would commit an offence or interfere with the administration of justice, putting the public safety at risk, if he were released.
15In concluding that Mr. Anthony ought to be detained under this ground, J.P. Munro noted that prior to his arrest on April 7, 2022, Mr. Anthony had been on interim releases and undertakings and, yet, while bound by those orders, continued to accrue serious criminal charges. He concluded that the commission of offences, while subject to other orders, was a strong indicator in favour of detention. J.P. Munro also considered the nature of the outstanding charges: criminal negligence causing death and 11 counts of driving while disqualified and Mr. Anthony’s convictions for dangerous driving and driving while disqualified and that Mr. Anthony had repeated breaches of court orders which “cut to the heart of the secondary ground concern of the protection and safety of the public”.
16J.P. Munro noted Mr. Anthony’s significant criminal record of 30 convictions over a 14-year period, 20 of which were for driving offences or breaches of court orders, and concluded that there was a “substantial likelihood” that Mr. Anthony would commit a criminal offence if released and that he posed a danger to public safety. He then went on to consider whether the proposed bail plan would address those concerns.
17J.P. Munro assessed the viability of the bail plan: the sureties, the accused, and the plan itself. He found the plan itself to be problematic given Mr. Anthony’s history, paying particular attention to the fact that the residential sureties resided out of province and left Mr. Anthony with a great deal of freedom. He observed that the proposed plan relied heavily upon Mr. Anthony’s compliance and that, even accepting the willingness of the sureties to revoke their surety if the terms of the order were to be breached, it would be difficult and require a lot of cooperation to render Mr. Anthony to the Ontario authorities.
18J.P. Munro considered the sureties themselves. I am not going to review J.P. Munro’s assessment of those sureties, given the entirely different slate of sureties put forth on the bail/detention review application heard by Gordon J.
19J.P. Munro also identified the third element to be assessed, namely, Mr. Anthony himself. J.P. Munro found that Mr. Anthony shows no regard for court orders that are meant to alleviate the risks he poses to society, which gave J.P. Munro no confidence that he could impose terms that would mitigate that risk.
20J.P. Munro concluded that Mr. Anthony had failed to meet his onus on the second of the three grounds.
C. Tertiary Ground - s. 515(10)(c)
21Under the tertiary ground, the court must consider whether the detention of the accused is necessary to maintain confidence in the administration of justice. Under this ground, J.P. Munro identified that he was required to consider “the detention of the accused based on the public's reaction to the decision to release free from any concern about the accused not showing up for court, reoffending, or interfering with the administration of justice. This involves consideration of all the circumstances, including four that are specifically enumerated in the Criminal Code: the strength of the Crown's case, the gravity of the offence, the circumstances of the offence,” and whether the accused potentially faces a lengthy term of imprisonment (Ruling, J.P. Munro, at pp. 165-166).
22With respect to the gravity of the offence, J.P. Munro noted that if found guilty, Mr. Anthony could potentially be sentenced to a term of life imprisonment. With respect to the circumstances of the case, J.P. Munro noted that with respect to the charge of criminal negligence causing death, the allegations were that a young man was killed by a vehicle allegedly operated by a driver subject to six driving prohibition orders who, it was alleged, took actions to avoid prosecution.
23J.P. Munro determined that the Crown’s case was “strong enough” to be accepted for the purposes of the bail hearing.
Indigenous heritage
24J.P. Munro noted that when considering the tertiary ground, the court was required to consider other relevant factors, including the personal circumstances of Mr. Anthony whom, he noted, was of First Nations heritage, specifically, Onondaga Nation, Beaver Clan and Delaware Nation.
25J.P. Munro noted that Gladue factors play a role in bail hearings, which had been articulated in a three-part test:
- What are the unique, systemic or background factors that may have played a part in bringing the accused before the courts?
- Can the sureties offered in the context of First Nations culture control the behaviour of the accused?
- Did the First Nations law and customs provide the assurances of attendance in court and the protection of the public that are required for release?
26In answer to the first question, J.P. Munro found that there were unique systemic or background factors that played a role in bringing Mr. Anthony before the court: his mother was a residential school survivor; his family dealt with substance abuse and sexual abuse; and the legacy of the residential school system.
27J.P. Munro found that Mr. Anthony had adduced no material to consider in assessing the second and third parts of the three-part test articulated. He found that there was no evidence before him as to whether Mr. Anthony’s Indigenous culture would provide any assurance of his attendance in court or the protection and safety of the public.
Determination on Bail Hearing
28Based on the evidence and proposed release plan presented, J.P. Munro concluded that a reasonable member of the community, as defined by the Supreme Court of Canada in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309, would lose confidence in the administration of justice if Mr. Anthony were released who, by the evidence presented at the bail hearing “is a danger to the public in the absence of a plan that mitigates that risk to the extent that the risk of release is made tolerable.”
29For those reasons, J.P. Munro found that on the tertiary ground, the defence had not met its onus and that Mr. Anthony was not releasable under that ground.
Bail/Detention Review: December 19, 2022
30In his bail review/detention review application before Gordon J., Mr. Anthony presented a new release plan. The new plan contemplated four sureties: his father, Berle Anthony, his stepmother, Nancy Talbot, his younger sister, Emily Anthony (born June 13, 2003) and a friend, Cheyenne Davies.
31At the hearing before Gordon J., the sureties gave viva voce evidence and were cross-examined. At para. 28 of his Reasons for Decision, Gordon J. noted that the affidavits of the proposed sureties contained little information but “[C]ross-examination, in particular was revealing.”
32On the hearing before this court, Mr. Anthony put forth three of the same sureties proposed to Gordon J.: Berle Anthony, Nancy Talbot, and Emily Anthony. Although, the sureties attended at this hearing, none was called to testify. As I did not have the benefit of viva voce evidence from them, I accept and rely upon the assessments of those sureties found at paragraphs 29-34 of the Reasons for Decision of Gordon J., who was in a better position than this court to evaluate the strengths and weaknesses of the sureties.
33In those paragraphs, Gordon J. noted that, on cross-examination, Berle Anthony acknowledged Mr. Anthony’s history of drug abuse - which began at the age of 13 and developed into an addiction - for which Mr. Anthony was enrolled in a methadone program. Inexplicably, Berle Anthony makes no mention of his son’s drug use in the affidavit put before this court on August 19, 2023. However, in cross-examination at the hearing conducted by Gordon J., Berle Anthony testified that his son would not come to his house when he was on drugs because Mr. Anthony knew that was not allowed. He also stated that he was aware of the allegations that Mr. Anthony and Mr. Davis were travelling on April 23, 2021 to purchase drugs, and that there were similar rumours “in the community” from which, I infer, he is referring to the community in which the three sureties live.
34In his testimony, Berle Anthony stated that the prior criminal acts of Mr. Anthony were attributable to his son’s drug use.
35At para. 31 of his reasons, Gordon J. referred to the testimony of Berle Anthony that Mr. Anthony “cannot be controlled when under the influence of drugs. He keeps driving and getting into trouble according to father.” At para. 32, Justice Gordon states: “Mr. Anthony has resided with his father and stepmother as an adult some years ago. However, Mr. Anthony could not follow the rules and was asked to leave.” At para. 33, Gordon J. states that the father was aware of Mr. Anthony’s outstanding charges in Brantford and “advised his son to deal with them. Mr. Anthony did not follow his father’s advise [sic]. Father did not contact the police”.
36Gordon J. did not make specific reference to the evidence given by the other two proposed sureties but noted that they were all gainfully employed in the community, without criminal records, and were “credible individuals with good intentions of providing assistance to Mr. Anthony”.
37In her affidavit, Emily Anthony stated that she is 20 years old. She lives with her father and mother and works from home as a virtual assistant for her sister. Ms. Anthony acknowledges that she is aware of the charges faced by Mr. Anthony and of his lengthy criminal record, involving numerous driving offences, and that he has spent significant time in custody for other offences, of which he has been convicted. Ms. Anthony asserts, without offering any examples, that although she is approximately 16 years younger than Mr. Anthony, he respects her and understands the sacrifice she is prepared to make to act as his surety, together with that of her father and mother.
38It appears that Ms. Anthony is prepared to monitor Mr. Anthony’s whereabouts while he is living with her and her parents. She promises to call the police if Mr. Anthony breaches the proposed terms of his release, which would require him to stay inside the home, except when accompanied by his father and/or stepmother. Ms. Anthony states that she is also prepared to search Mr. Anthony, and his room, to ensure that he is not in possession of anything that is prohibited, including car keys. If she finds anything that she understands he is not to have, Ms. Anthony states that she is prepared to call the police. Ms. Anthony is also prepared to post $3,000 of her own money, as part of the proposed security.
39The affidavit filed by Nancy Talbot similarly acknowledges her awareness of the charges faced by Mr. Anthony, his criminal record, and time in custody, and that the proposed plan would require Mr. Anthony to be subject to “a very strict house arrest” with a GPS monitoring bracelet. She indicates that she, also, is prepared to search Mr. Anthony, and his room, to ensure that he does not have anything that he is prohibited from having and, if any such thing is found, to call the police. Ms. Talbot also echoes the statements made by Berle Anthony and Emily Anthony that Mr. Anthony has promised to listen to all three sureties failing which, they will remove themselves as sureties which will require Mr. Anthony to return to jail. Ms. Talbot works and indicates that she will call the home’s landline to confirm that Mr. Anthony is at home. Again, Ms. Talbot’s affidavit fails to make any reference to Mr. Anthony’s drug addiction which, according to the testimony given by Berle Anthony on cross-examination, is at the root of most of his criminal offences.
40Mr. Anthony also swore an affidavit in support of this detention review application. Among other things, his affidavit speaks to conditions in custody, including the efforts he has had to make to be permitted to smudge, and the lack of a Native Indigenous Liaison Officer at the Hamilton-Wentworth Detention Centre (HWDC). Without providing details of what cultural activities he enjoyed when not in custody, Mr. Anthony asserts that his time in custody has been especially hard on him for cultural reasons.
41Mr. Anthony’s affidavit also mentions his substance abuse, acknowledging that it contributed to his criminal record. However, he says that he has now weaned off methadone and is currently drug free.
42If released as per his proposed plan, Mr. Anthony says that he is prepared to comply with whatever his sureties ask of him. He asks the court to consider also that his father is retiring on September 29, 2023, after which, his father will be home at all times to supervise Mr. Anthony. The release plan also contemplates that Mr. Anthony will wear a GPS monitoring ankle bracelet, which, coupled with the money pledged by each surety, will add to the strength of the proposed plan of release.
43On the bail review, Gordon J. concluded that J.P. Munro had made no error. Mr. Anthony submits that Gordon J. erred in that finding and erred in his own analysis of the detention review. Mr. Anthony takes particular issue with the prior courts’ evaluation and assessment of the Gladue issues.
44Specifically, Mr. Anthony submits that J.P. Munro erred in his analysis respecting Mr. Anthony’s circumstances as an Indigenous person. He submits that J.P. Munro failed to properly articulate the second consideration of the three-part test which Mr. Anthony states is: will the detention of the aboriginal accused have a disproportionately negative impact on the accused and can that impact be alleviated by strict bail conditions? Or, as stated by the court in R. v. Chocolate, 2015 NWTSC 28, at para. 50: are there release conditions that could be imposed so that future compliance with those conditions “is realistic and concerns about securing attendance at trial, public safety and overall public confidence in the justice system [can be]… meaningfully addressed”.
Material Change
45In his factum, Mr. Anthony submits that the current plan of release is materially different and better than the plan forth to Gordon J. He also submits that in addition to the alleged errors made by prior courts, there are a number of material changes that now mitigate in favour of his release. Those include that:
- he is currently drug-free;
- two of his three sureties will be at home all the time and willing and able to provide round-the-clock supervision;
- the change in the strength of the Crown’s case – a significant factor identified by prior courts as weighing in favour of Mr. Anthony’s continued detention – has materially changed: the whereabouts of the Crown’s main witness, Dakota Davis, are unknown; and,
- the delay in bringing this matter to trial has now been identified: the two-week trial is scheduled to take place in April 2024. Although earlier trial dates were offered to Mr. Anthony, none were available to his counsel.
Position of the Crown
46The Crown disagrees with Mr. Anthony’s submission that errors were made by J.P. Munro and, later, by Gordon J. in his review of J.P. Munro’s decision and on the detention review.
47With respect to the law, the Crown submits that on a s.525 detention review, the application judge must determine whether the continued detention is justified under the primary, secondary, or tertiary grounds and in doing so, may consider new evidence, material change in circumstances of the applicant, the passage of time and unreasonable delay (R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105).
48The position of the Crown is that on this detention review application, Mr. Anthony is essentially making the same submissions that he had made before J.P. Munro and Gordon J. and that the current proposed release plan is also virtually the same as that put forth before Gordon J.
49The Crown acknowledges that there are two areas of new evidence since Gordon J.’s decision:
- On January 16, 2023, a preliminary inquiry took place at which both Dakota Davis and Acacia Emery gave viva voce evidence; and
- On February 23, 2023, Dakota Davis pleaded guilty to being an accessory after the fact in relation to the death of Mr. Dalton. As part of that guilty plea, Mr. Davis agreed to an Agreed Statement of Facts (the “ASF”).
50In the ASF, Mr. Davis admits that prior to the collision on April 23, 2021 that killed Mr. Dalton, he and Mr. Anthony had been drinking with friends at the home they shared with their partners and children. This is the same address at which Mr. Anthony confirms he was living at the time.
51In the ASF, Mr. Davis admits that it was Mr. Anthony’s idea to drive with Mr. Davis to obtain drugs. They drove together to the drug dealer in a Chevrolet Tahoe. Mr. Davis was driving at the time. During the drug transaction, Mr. Davis began to feel the impact of his drinking and Mr. Anthony agreed to take over driving. When they left the drug dealer’s residence, Mr. Anthony was driving, and Mr. Davis was in the front passenger seat. They were otherwise alone in the vehicle. Mr. Davis recalls that the Tahoe was being driven by Mr. Anthony at approximately 80 km/h in a 50 km/h zone.
52According to the ASF, after hitting Mr. Dalton, Mr. Anthony continued to drive to a laneway near 88 Ojibway Rd. He and Mr. Davis then abandoned the Tahoe vehicle, following which, Mr. Anthony placed a telephone call, asking for someone to pick up the two men and return them to their home. Once home, Mr. Anthony “instructed” Mr. Davis to fabricate a story with Acacia Emery, the owner of the Tahoe, to falsely report that her vehicle had been stolen. Mr. Anthony’s partner, Felicia Kick, joined in the story, as did Mr. Anthony’s mother, Toni Anthony. Ms. Emery and Ms. Kick then drove to file a false police report with the Six Nations Police, leaving the two men at home, to establish a false alibi that they were caring for the children at the time of the fatal collision.
53The ASF further provides that after making her false police report, Ms. Emery recanted and, when confronted with her confession, Mr. Davis also admitted the “deception” and that the deception prolonged and endangered the investigation into the cause of the collision that killed Mr. Dalton.
54The Crown acknowledges that Mr. Davis failed to attend on his sentencing date of June 15, 2023 and on a later date, and is subject to a warrant; however, the Crown disputes that its case against Mr. Anthony has changed materially as a result.
55In response to the submissions made by Mr. Anthony that Mr. Dalton is a “Vetrovec” witness (a disreputable or unsavoury witness), the Crown says that that is not new evidence. The Crown also acknowledges that Mr. Davis is a key witness, which fact is also not new.
Analysis
56I adopt the following statement of the law set out in Mr. Anthony’s factum at paras. 11 and 12:
The purpose of a section 525 hearing is to prevent accused persons from languishing in pre-trial custody and to ensure a prompt trial. The judge’s role is to determine whether or not the accused should be released from custody. In making that determination, the judge may take any unreasonable delay into consideration, however unreasonable delay is not a pre-requisite to having a 90-day review hearing. (R. v. Myers, 2019 SCC 18, at paras. 24 and 45.)
On a review pursuant to section 525 of the Criminal Code, Chief Justice Wagner, writing for the Supreme Court of Canada in Myers held:
The overarching question is only whether the continued detention of the accused in custody is justified with the meaning of section 515(10). In answering this question, new evidence and changes in the accused’s circumstances, the impact of the passage of time, and unreasonable delay on the proportionality of detention, and the rationale for the original detention are relevant considerations. (Myers, at para. 63, and paras. 45-46)
57I accept the submissions made by Mr. Anthony that some or all of the Crown’s witnesses referenced in the ASF could be considered “disreputable”, given their joint scheme. However, I also recognize that the statements set out in the ASF, including the alleged confession made by Ms. Emery, may well form part of the Crown’s case against Mr. Anthony. Considered as a whole, in my view, the events that occurred after the hearing before Gordon J. do not create a material change in circumstances.
58I accept the submissions of the Crown as to the “new facts”. While the Crown may face a challenge in locating Mr. Davis, I do not accept Mr. Anthony’s submission that the current unknown whereabouts of Mr. Davis constitutes a material change in circumstances. There was no evidence before this court as to what steps have been or will be taken to locate Mr. Davis. The trial is not scheduled to take place until April 2024, which is the relevant date to evaluate the Crown’s ability to prove its case.
59As for the release plan, the Crown submits, and I accept, that the release plan is essentially unchanged from the plan put forth to Gordon J. As already noted, in the absence of any cross-examination before me of the proposed sureties, I place significant weight upon Gordon J.’s evaluation of the sureties.
60On the hearing before me, no evidence was led upon which I might find that the sureties are now better able to keep Mr. Anthony from breaching his release conditions. I accept that, after he has retired, Berle Anthony will be available at all hours to supervise Mr. Anthony. However, the concern identified by Gordon J. was not that the sureties would not supervise Mr. Anthony (except, perhaps, while the sureties are asleep), but that, apart from reporting a breach – a surety’s basic and essential duty – they would not be able to keep Mr. Anthony from disobeying courts orders and re-offending. His conclusion was based, in part, on the evidence that Mr. Anthony had not complied with his father’s rules in the past.
61As for delay, it is now clear that the trial will not occur until April 2024. That trial date was not known to Gordon J. who anticipated that the trial might occur in the summer of 2023. Without suggesting that Mr. Anthony or his counsel have acted unreasonably in rejecting earlier trial dates offered, consideration must be given to the fact that the trial delay now faced by Mr. Anthony was not caused by the Crown or the court system.
62Given Mr. Anthony’s right to counsel of his choosing and the availability of earlier trial dates, which he chose not to accept, I cannot conclude that the delay in his trial is unreasonable. Rather, it is a choice that Mr. Anthony has made, and, in the circumstances, I conclude that the delay is appropriate (R. v. Myers, at para. 54).
63I also accept that Mr. Anthony’s circumstances as an Indigenous person have played a role in his drug use and other personal circumstances which, it appears, played a role in leading him to committing criminal acts. However, those circumstances must be considered along with his repeated breaches of court orders and, in particular, his repeated operation of a motor vehicle while he was disqualified from doing so. In the main, it is not his drug use that brings Mr. Anthony before the court, it is his failure to refrain from driving. It is that repeated behaviour – in the face of many, many, orders that he not do so – that is the risk that must be mitigated, and which poses the greatest risk to public safety.
64There is nothing new in his proposed release plan that satisfies Mr. Anthony’s onus to show that the risk to public safety can be satisfactorily mitigated.
65With respect to the conditions of Mr. Anthony’s incarceration, I do accept that he is cut off from enjoying cultural traditions, including regular smudging, and that his access to his family is also limited, from time to time, by reason of jail shutdowns. However, the evidence before me falls short of persuading me that Mr. Anthony’s detention as an aboriginal person would have a disproportionately negative impact on him that could be alleviated by strict bail conditions: see, R. v. Silversmith at para. 28.
66Similarly, the evidence before me does not persuade me that aboriginal law and customs provide assurance of the protection of the public, required for his release.
67While I have not been called upon to conduct a bail review, I agree with Gordon J. that J.P. Munro did not make errors in his conclusion that Mr. Anthony did not meet the onus on him. I also agree with the conclusion reached by Gordon J. that Mr. Anthony’s continued detention was necessary: that it is the risk that Mr. Anthony will re-offend that is at the heart of his decision that Mr. Anthony’s continued detention is required.
68I reach the same conclusion.
Disposition
69For the reasons set out, on this detention review I find that Mr. Anthony’s continued detention in custody is justified with the meaning of s. 515(10).
Dated: September 20, 2023
Justice L. Sheard
COURT FILE NO.: CR-23-00000015-00BR DATE: 20230920 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING Respondent – and – TIMOTHY CLARKE ANTHONY Applicant REASONS FOR DECISION Justice L. Sheard
Released: September 20, 2023
Footnotes:
[1] J.P. Munro ruling on Application, at pp. 160-161. [2] On this application, Mr. Anthony repeats that he intends to plead guilty to the Brantford charges and not guilty to the Cayuga charges relating to the accident in which Alexander Dalton was killed.