Court File and Parties
COURT FILE NO.: CR-23-60000306-00BR DATE: 2023-10-17
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JORGE ROBERTO SANCHEZ CAMBAL
Counsel: Stuart Rothman, for the Crown Tonya Kent, for the Accused
HEARD: October 5 and 17, 2023
HIMEL J.
REASONS ON APPLICATION FOR NINETY DAY REVIEW
[1] Jorge Roberto Sanchez Cambal’s case comes before me as a 90-day review pursuant to s. 525 of the Criminal Code. In accordance with R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105, a judge must inquire and determine whether the detention of an accused person continues to be justified: see paras. 45-46. The review entails a determination of whether Mr. Cambal’s detention continues to be justified on one or more of the grounds set out in s. 515(10) of the Criminal Code. If it is not justified, then he may obtain an order of judicial interim release pending trial.
[2] Because of the COVID-19 pandemic and the Notice to the Profession of Chief Justice Morawetz, these types of matters have been proceeding by Zoom. Mr. Cambal participated in the hearing from the Toronto South Detention Centre. The following are my reasons for decision.
FACTUAL BACKGROUND:
[3] Mr. Cambal is charged with the following offences: possession of child pornography contrary to s. 163.1(4) of the Criminal Code; access child pornography contrary to s. 163.1(4.1) of the Code; make available child pornography contrary to s. 163.1(3) of the Code; breach of prohibition order contrary to s. 161(4) of the Code and breach of a conditional sentence contrary to s. 742.6(1) of the Code.
[4] The allegations are that Mr. Cambal had been bound by a s. 161 order issued by Justice L. Montague of the Ontario Court of Justice on November 3, 2022 in relation to a conviction for accessing child pornography. One of the conditions was that he was ordered, “You are not to use any telecommunication device to access the internet or other digital network in order to possess or access content that violates the law.” Between December 31, 2021 and May 5, 2023, a number of electronic and social media companies filed reports with the National Centre for Missing and Exploited Children (NCMEC). Each report was filed in relation to a user who had uploaded suspected child sexual abuse material. Each of the reports listed the email address of bjayy763@gmail.com as the email associated to the suspect account. A phone number of 437-999-7886 was associated to some of the reports as well. These reports were forwarded to the RCMP who forwarded them to the Toronto Police Service (TPS) to investigate.
[5] The TPS began an investigation which included confirming that the videos and images were consistent with the Criminal Code definition of child pornography. Investigators obtained subscriber records through a production order for two IP addresses used to upload images and videos of child pornography and subscriber records for phone number 437-999-7886.
[6] The address 616-2 Armel Court was identified as the location where the Internet was used to upload child pornography.
[7] The accused was identified as he was the subscriber for the phone number 437-999-7886 and his phone number was listed in the TPS databases. Further, one of the social media accounts in question displayed numerous images of the accused. The accused was on the Ontario Sex Offender Registry with the address of 616-2 Armel Court in Etobicoke.
[8] On Thursday, June 22, 2021, members of the TPS ICE executed a Criminal Code search warrant at the address of 616-2 Armel Court, Etobicoke. The accused was located within the residence. He was arrested, advised of his right to counsel and transported to 23 Division. A number of electronic devices were seized to be examined forensically.
[9] At this 90-day review, Mr. Cambal seeks release from custody. He has now been in custody on these charges since June 22, 2023, more than 100 days.
EVIDENCE BEFORE THE COURT:
[10] Jorge Cambal is 41 years old and was born on April 22, 1982. He is a Canadian citizen. Prior to his arrest, he was living with his family and a friend at 616-2 Armel Court in Etobicoke. In the past, he had worked off and on at restaurants. He has a criminal record dating back to February 27, 2002 when he was found guilty of theft under $5,000 (three counts) and given a suspended sentence and probation of 18 months. In 2013, he was found guilty of making, printing, publishing or possessing child pornography, possession of child pornography, voyeurism, and making, printing, publishing or possession for the purpose of publication of child pornography for which he received a sentence of one year, six months consecutive, two months consecutive and one year concurrent respectively and mischief under (four counts) for which he received 30 days concurrent. In 2022, he was convicted of accessing child pornography and received a 12-month conditional sentence and probation of 18 months with credit of 14 days of pre-sentence custody.
[11] On June 27, 2023, Mr. Cambal had a bail hearing where he proposed his brother as a surety to supervise him with a curfew bail. The Justice of the Peace detained him on both the secondary ground and the tertiary ground. The concerns were that the proposed plan of supervision by his brother acting as surety in light of Mr. Cambal’s criminal antecedents caused the justice to conclude that there was a substantial likelihood that he would commit further offences if released from custody. The justice also considered the tertiary ground and found that the four factors were met as well, and detention was necessary to maintain public confidence in the administration of justice.
[12] At this 90-day review, Mr. Cambal proposes a plan which is supported by affidavit and documentary evidence which I detail below.
POSITIONS OF THE PARTIES:
The Defence
[13] At this review, the applicant asks that the detention order be vacated and submits what he says is a much stronger release plan which would address the secondary ground concerns. The applicant now proposes two sureties with whom he would reside. They are his mother, Hilda Elisa Cambal, who is 61 years old, is a permanent resident in Canada and has resided here for 41 years. She has no criminal record and is not acting as a surety for anyone at this time. She works at the Hampton Inn as a housekeeper and has worked there for 20 years. Her working hours at the hotel are from 3:00 p.m. to 11:00 p.m. She would leave the house at 2:30 p.m.to go to work. She rents the apartment at 2 Armel Court and has $4,000 in savings which she is prepared to pledge. She earns $30,000. per year. She is prepared to ensure that her son is never left alone.
[14] Mr. Cambal also proposes his brother, Steven Cambal, who is 40 years of age and works as a construction worker at Salit Steel. His hours are from 5:00 a.m. to 1:00 p.m. He can supervise his brother as soon as he arrives from work and then his mother can leave the house. Steven Cambal is prepared to pledge $4,000 recognizance. Mr. Cambal proposes that he would be under strict house arrest and would not leave the house except for medical emergencies, or if he is in the presence of a surety. He would not possess devices capable of connecting to the internet except in the presence of one of his sureties for the purpose of personal banking, he would not access any Wi-Fi network unless he was in the presence and under the direction of one or both of his sureties and he proposes to attend counselling at the Toronto Relationship Clinic. He has filed a document with the court outlining the services offered by the Clinic. He says his family is raising the $8,500 fee for the services that are offered such as psychotherapy, psychoeducation and group counselling. He further proposes that he be subject to electronic monitoring through SOLGEN Recovery Science.
[15] Applying the factors outlined in s. 515(10), counsel submits that the secondary ground concerns in subsection (b) are met with a new strong plan proposed which offers 24-hour supervision seven days each week. She also argues that the tertiary ground is met under subsection (c). While the Crown’s case is strong, the offences are serious and there is a likelihood of a substantial sentence, she says that public confidence in the administration of justice would not be lost with two sureties and 24-hour supervision.
[16] Counsel cites the decision of R. v. Laird, 2020 ONSC 8053 where Dawe J. held that the accused should be released from custody following a bail review hearing where the plan proposed met both the secondary and tertiary ground concerns. The accused was facing trial on a number of Criminal Code and Controlled Drugs and Substances Act charges and had been released initially, was rearrested for breaching the terms of release and was detained by the Justice of the Peace. The court held that the secondary ground concerns could be met with two sureties and electronic monitoring. The court referenced the decision of R. v. Rajan, 2020 ONSC 2118 at para. 32 regarding how electronic monitoring can be a valuable tool on bail and a deterrent against breaching the terms of bail: see paras. 56 to 60. She also cites R. v. B.M.D., 2020 ONSC 2671 where Monahan J. discussed the role of electronic monitoring in the plan of release and held that the accused had met his onus on the secondary and tertiary grounds.
[17] To summarize, counsel argues that a detention order should be vacated and that the applicant should be released on bail with a requirement that he reside with his two named sureties, that he be under strict conditions of house arrest and that he be subject to electronic monitoring pending his trial. Ms. Kent says that this new plan proposed meets the concerns outlined by the Justice of the Peace, namely, that there wasn’t ongoing supervision and no counselling had been proposed. Counsel argues that Mr. Cambal is entitled to reasonable bail and to the presumption of innocence.
The Crown
[18] Crown counsel takes the position that the application for this 90-day review of the detention order should be dismissed. He argues that that the secondary ground is not met given the criminal record of the accused and the outstanding charges. Mr. Rothman outlined Mr. Cambal’s previous history regarding similar offences. He noted that the synopsis from the 2013 charges which was filed by the Crown at the bail hearing described graphic threats to sexually assault children, filming of children in bathrooms and in 2022. Mr. Cambal pleaded guilty to having images of babies on his phone and accessing child pornography. This time, while he was on a conditional sentence order, he is charged with sharing images and having hundreds of images and videos with children engaged in sexual activity. Mr. Rothman submits that the risk of offending again is grave.
[19] Crown counsel also points out that one of the sureties proposed by Mr. Cambal is his brother who was his surety in the past and was not able to control him while they lived in the same house. Mr. Rothman emphasizes that Mr. Cambal is a threat, that the Crown will seek a penitentiary sentence and may seek an assessment and apply for a Long-Term Offender or a Dangerous Offender finding. He submits that his continued detention is warranted for public protection and the secondary ground is met. He further argues that the offences are serious, the punishment may be lengthy, that the circumstances are grave and that his release would offend the public’s confidence in the administration of justice. Accordingly, the tertiary ground is also met. Finally, counsel says that Mr. Cambal is not languishing in jail and his detention is not close to a time served scenario.
DECISION
[20] Section 525 provides that the court is to review the detention of the applicant and decide whether continued detention is justified under s. 515(10). Unreasonable delay is clearly an important factor in this consideration.
[21] I am of the view that neither party bears the onus of establishing that detention is justified in a s. 525 review: Rather, “the reviewing judge’s responsibility to review whether detention is justified does not depend on whether one or the other party discharges any onus.”: see R. v. G.F. 2020 ONSC 3389 at para. 18 citing R. v. Pescon. I note that the applicant has been incarcerated since June 22, 2023. I understand that a Judicial Pre-trial was held on October 4, 2023 so that now a trial date can be set for what he says will be a not guilty plea. The breach of conditional sentence order hearing is set for November 16, 2023.
[22] Any decision on judicial interim release must start with the principle of the presumption of innocence and s. 11(e) of the Charter which provides that “any person charged with an offence has the right…not to be denied reasonable bail without just cause”. In R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 and two decisions that have followed, the Supreme Court of Canada has outlined the approach to judicial interim release as provided in the Criminal Code. In St-Cloud, Justice Wagner clarified that the scope of s. 515(10)(c) has been unduly restricted by the courts in certain decisions where the provision and the Supreme Court’s decision in R. v. Hall, 2002 SCC 64, [2002] 3 S.C.R. 309 were interpreted narrowly and applied sparingly. He wrote that s. 515(10)(c) is worded clearly and does not require exceptional or rare circumstances. He went on to consider that, in deciding whether detention of an accused is necessary to maintain confidence in the administration of justice, the justice must first consider the four factors outlined in the section. Then he provided guidance in approaching each of these circumstances.
[23] In R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, Wagner J. on behalf of the court at para. 1, again emphasized the right not to be denied reasonable bail without just cause as an essential element of an enlightened criminal justice system.
[24] In the decision of R. v. Myers, 2019 SCC 18, [2019] S.C.J. No. 18, the Supreme Court of Canada considered the issue of the correct approach to a detention review under s. 525 of the Code which is designed to prevent accused persons from languishing in pre-trial custody and to ensure a prompt trial. In that context, Chief Justice Wagner again referenced Parliament’s intent and the Bail Reform Act which was to create a “liberal and enlightened system of pre-trial release” in which accused individuals would normally be granted bail: R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, at p. 725, quoting R. v. Bray 1983 CanLII 1981 (ON CA), [1983], 40 O.R. (2d) 766 (C.A.), at p. 769; Antic at para. 29.
[25] Chief Justice Wagner reiterated the right not to be denied reasonable bail without just cause which is enshrined in s. 11(e) of the Charter and “in Canadian law, the release of accused persons is the cardinal rule and detention, the exception” (para. 70 of St. Cloud) and in Antic, “the release is favoured at the earliest opportunity and …on the least onerous grounds”: para. 29 quoting R. v. Anoussis, 2009 QCCQ 8100, 242 C.C.C. (3d) 112 at para. 23. He noted that half of the individuals in provincial jails are accused persons in pre-trial custody and that pre-trial detention can have serious detrimental impacts on an accused person’s ability to raise a defence: see R. v. Hall, at para. 59.
[26] On a 90-day review, the onus is on the jailer to apply for review immediately upon the expiry of 90 days. At the detention review hearing, the court needs only to determine whether detention continues to be justified under one of the three grounds enumerated in s. 515(10). The Supreme Court also said that the reviewing judge should consider whether the amount of time that the accused would spend in detention awaiting trial as compared to the length of sentence that they could expect to receive if convicted should be considered.
[27] I now turn to the grounds for detention outlined in s. 515(10) and consider the evidence offered by the applicant to determine if his continued detention is justified. With respect to s. 515(10)(a), in that the applicant is a Canadian citizen, has roots in the community and has no history of failing to attend court or failing to report, the primary ground is not engaged.
[28] As for the secondary ground, section 515(10)(b) requires consideration of whether detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, 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. Matters such as the circumstances of the alleged offence, the strength of the Crown’s case and the likelihood of conviction, the accused’s background, lifestyle, and prior criminal record, and the nature of the plan of release and supervision proposed are relevant to this ground. The issue is whether the plan of supervision proposed meets the concerns that are raised by the secondary ground. The object of this analysis is to look to the past and the present in order to predict the future in considering whether the secondary ground is met. In the case of R. v. Morales, 1992 CanLII 53 (SCC), [1992] 3 S.C.R. 711, Chief Justice Lamer wrote, at p. 107:
Bail is not denied for all individuals who pose a risk of committing an offence or interfering with the administration of justice while on bail. Bail is denied only for those who pose a “substantial likelihood” of committing an offence or interfering with the administration of justice, and only where this “substantial likelihood” endangers “the protection or safety of the public.” Moreover, detention is justified only when it is “necessary” for public safety. It is not justified where detention would merely be convenient or advantageous.
[29] Where there is no history of criminal antecedents, the secondary ground will not likely be engaged. However, Mr. Cambal has a significant history of related offences in his criminal record which is detailed above. The allegations in the case before me involve further charges of possession of child pornography. At the time of these allegations, he was subject to a conditional sentence order for a similar offence. Although his plan is for 24-hour supervision, it is clear that his proposed sureties have not been able to control his behaviour in the past. His brother has served as his surety in the past while he was on the charges related to the conditional sentence order. His mother and brother are well-meaning but unable to monitor his activities.
[30] The issue is not whether he will flee and not attend trial in this case but whether there is a substantial likelihood that he will commit further offences, especially offences like the type with which he is charged, should he be released from custody under the proposed plan. Having electronic monitoring does not allay that concern of preventing him from committing offences of the kind with which he is charged and for which he has a criminal record. I am satisfied that there is evidence that there is a substantial likelihood that Mr. Cambal will commit further offences or that he will interfere with the administration of justice if released on bail subject to the recognizances and conditions he has proposed. The secondary ground for detention is met.
[31] I also turn to the tertiary ground. Section 515(10)(c) is not a residual section or one that is applied only as a last resort. Justice Wagner stated in St-Cloud, at para. 54, that:
[T]he application of s. 515(10)(c) is not limited to exceptional circumstances, to “unexplainable” crimes or to certain types of crimes such as murder. The Crown can rely on s. 515(10)(c) for any type of crime but it must prove – except in the cases provided for in s. 515(6) – that the detention of the accused is justified to maintain confidence in the administration of justice.
[32] The Supreme Court in St-Cloud went on to discuss the circumstances in section 515(10)(c) which must be considered by a justice in determining whether the detention of an accused is necessary to maintain public confidence in the administration of justice. The justice is required to assess each of these factors and consider their combined effect. This is a balancing exercise to enable the court to decide whether detention is justified.
[33] I now consider the four factors with reference to the case at bar.
(i) Apparent Strength of the Crown’s case
[34] I am satisfied that the case against Mr. Cambal is a strong one with real evidence obtained from his phone and computer that would satisfy the elements of the offences. I agree with the justice regarding the strength of the case.
(ii) Gravity of the Offence
[35] The offences charged involve degrading and criminal acts against children. In light of the Supreme Court of Canada’s decision in R. v. Friesen, (2020) 2020 SCC 9, 391 C.C.C. (3d) 309, there is a strong likelihood that Mr. Cambal will be sentenced to the penitentiary and runs the risk of a long-term offender designation.
(iii) Circumstances Surrounding the Commission of the Offence, including whether a firearm was used.
[36] In St-Cloud, at para. 61, Wagner J. noted, the following circumstances may be relevant, without drawing up an exhaustive list of possible relevant circumstances under this section:
…the fact that the offence is a violent, heinous or hateful one, that it was committed in a context involving domestic violence, a criminal gang or a terrorist organization, or that the victim was a vulnerable person (for example, a child, an elderly person or a person with a disability). If the offence was committed by several people, the extent to which the accused participated in it may be relevant. The aggravating or mitigating factors that are considered by courts for sentencing purposes can also be taken into account.
[37] In my view, the circumstances surrounding the commission of the offences with which Mr. Cambal is charged involve taking advantage of vulnerable children. These circumstances are repugnant.
(iv) Fact that the Accused is Liable for a Potentially Lengthy Term of Imprisonment
[38] The Supreme Court has clarified that because no crime is exempt from the possible application of s. 515(10)(c), it is “self-evident that the words ‘lengthy term of imprisonment’ do not refer only to a life sentence:” St-Cloud, at para. 64. Wagner J. noted that the justice must consider all the circumstances of the case known at the time of the hearing as well as the principles for tailoring the applicable sentence. While the justice is not to engage in a calculation of the appropriate sentence, this factor is to be assessed subjectively and with reference to obvious aggravating or mitigating circumstances.
[39] In the case at bar, Mr. Cambal faces a significant penitentiary sentence because of his criminal record and the nature of the offences.
[40] The Supreme Court also clarified in St-Cloud that the listed circumstances set out in the Code are not exhaustive and that there may be others that justify release from detention: see paras. 66–69. While the four factors listed are the focus, the court “must consider all the relevant circumstances:” at para. 68. Justice Wagner wrote at para. 71:
Although I will not set out an exhaustive list of the circumstances relevant to the analysis required by s. 515(10)(c) of the Cr. C., I think it will be helpful to give a few examples. Section 515(10)(c)(iii) refers to the “circumstances surrounding the commission of the offence”. I would add that personal circumstances of the accused (age, criminal record, physical or mental condition, membership in a criminal organization, etc.) may also be relevant. The justice might also consider the status of the victim and the impact on society of a crime committed against that person. In some cases, he or she might also take account of the fact that the trial of the accused will be held at a much later date.
[41] The four factors, along with the other relevant factors, are to be balanced by the justice in deciding whether detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice. In reaching that decision of whether detention is necessary in order to achieve the purpose of maintaining confidence in the administration of justice, the judge is to balance all of the circumstances, while being guided by the perspective of the “public”.
[42] In St-Cloud, Justice Wagner described the meaning of the “public.” That is the term that was used by Chief Justice McLachlin in Hall, where she referred to detention under this provision based on the need to maintain public confidence in the administration of justice. There, the Supreme Court explained that the “public” means reasonable members of the community who are properly informed about the “the philosophy of the legislative provisions, Charter values and the actual circumstances of the case:” at para. 41, quoting R v. Nguyen (1997), 1997 CanLII 10835 (BC CA), 119 C. C. C. (3d) 269 (B.C.C.A.), at para. 18.
[43] Justice Wagner described a reasonable member of the public as someone who “is familiar with the basics of the rule of law in our country and with the fundamental values of our criminal law, including those that are protected by the Charter:” at para. 79. While the courts must not base their decisions on media reports that are in no way representative of a well-informed public (see R. v. Turcotte, 2014 QCCA 2190), this does not mean that the courts should disregard evidence from news media as the media have a vitally important role to play in a democratic society: St- Cloud, at paras. 83–84.
[44] Another relevant circumstance for consideration under the tertiary ground concerns the proposed plan of release of the applicant. In R. v. Dang, 2015 ONSC 4254, Justice Trotter, noted that an accused’s plan of release may be relevant under the tertiary ground. He stated at para. 58:
An accused person's plan of release may be relevant to whether public confidence in the administration of justice can be maintained when an accused person is released: see R. v. B. (A.) (2006), 2006 CanLII 2765 (ON SC), 204 C.C.C. (3d) 490 (Ont. S.C.J.), at p. 501. This is explicitly recognized in the newly enacted amendment (S.C. 2012, c. 1) to s. 29(2)(c) of the YCJA. A reasonable and knowledgeable member of the community may take a different view of a case in which an accused person charged with a violent offence is released into the community with virtually no supervision, compared to a situation where a strict plan has been put in place to monitor the accused. The plan goes to the core of s. 515(10)(b), but it may also impact on the application of s. 515(10)(c). The bail decision does not involve a stark choice between absolute freedom on one hand, and detention on the other. Realistically, it is a choice between release on conditions and detention. I see nothing wrong with this reality being reflected in s. 515(10)(c).
[45] In the case before me, Mr. Cambal proposes a plan that involves being released with a recognizance and two sureties with whom he would reside and who would supervise him for 24 hours each day. He has proposed to attend counselling at the Toronto Relationship Clinic, but it is not evident that that program offers any kind of specialized treatment to deal with someone who has a criminal background involving child pornography. Further, he would be subject to electronic monitoring and under house arrest and would only leave the house in the presence of at least one of the sureties. The strength of this plan is a further circumstance that I consider under the tertiary ground, in addition to the four factors listed under s. 515(10)(c).
[46] In my analysis of the tertiary ground, I find that the detention of Mr. Cambal is necessary to maintain public confidence in the administration of justice.
RESULT
[47] In conclusion, I find that on this 90-day review that the applicant has not demonstrated that he should be released in accordance with s. 515(10) of the Code and, in particular, the secondary ground for detention is met. The tertiary ground concerns are also met. His detention continues to be justified pursuant to s. 515 of the Criminal Code. I am mindful of the presumption of innocence and the right to reasonable bail as protected by the Canadian Charter of Rights and Freedoms. However, on this s. 525 review, with the plan proposed including counselling and electronic monitoring and the new evidence offered to support Mr. Cambal’s plan of release, as well as a consideration of the application of the law as determined by the Supreme Court of Canada, I conclude that the continued detention of Mr. Cambal is justified. He shall be detained, and the ninety-day review is dismissed.
Himel J.
Released: October 17, 2023
COURT FILE NO.: CR-23-60000306-00BR DATE: 2023-10-17
ONTARIO SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
JORGE ROBERTO SANCHEZ CAMBAL
REASONS ON APPLICATION FOR NINETY DAY REVIEW
Himel J.
Released: October 17, 2023