COURT FILE NO.: CR-22-60000373-00BR

DATE: 20230131

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

CONREY CLAY ROBINSON

Corrie Langdon, for the Crown

Conrey Clay Robinson, On his own behalf

Jesse DiCecca, Amicus

HEARD: January 19, 2023

R.F. GOLDSTEIN J.

[1] Mr. Robinson finds himself in custody after being charged with multiple offences. It is alleged that on June 4, 2021, he sexually assaulted a woman on a Toronto Transit Commission subway platform; and that on June 6, 2021, he approached a woman in a laneway, asked her for sex, and when she refused he assaulted her. He was arrested that day. He was released on bail on October 6, 2021. He was re-arrested the next day. He remained in custody until February 2, 2022.

[2] On August 3, 2022, Mr. Robinson allegedly assaulted a man without provocation near the Toronto Metropolitan University student centre. He was arrested at the scene. He has been in custody ever since. He has not had a bail hearing on his new charges. The Crown will seek to revoke his bail pursuant to s. 524 of the Criminal Code when that happens. In the meantime, Mr. Robinson is entitled to a review pursuant to s. 525 of the Criminal Code: R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105.

[3] For the reasons that follow, I find that Mr. Robinson’s detention in custody remains necessary.

BACKGROUND

[4] During the afternoon of June 4, 2021, A.H. was on the platform at the Spadina subway station. She noticed a man following her. The man grabbed her waist and her buttocks. He allegedly told her “why do you dress like this? You need to put some clothes on!” The police obtained surveillance camera footage from the TTC. The police later identified the assailant as Mr. Robinson.

[5] Two days later, on June 6, 2021, M.M. was walking along Windemeyer Laneway. Windemeyer Lane is in the area of Sherbourne Street and Dundas Street in Toronto. A man – alleged to be Mr. Robinson – approached M.M. and asked her for oral sex in exchange for $10. M.M. refused. The man grabbed her, threw her to the ground, and began stomping on her. A short time later the police arrested Mr. Robinson in the vicinity. His clothing matched the clothing worn by the person who had sexually assaulted A.H. on the Spadina subway platform. His shoes were seized as there were what appeared to be bloodstains on them. A forensic biologist analyzed the shoes. M.M. could not be excluded as the source of the blood. Surveillance camera footage showed both Mr. Robinson and M.M. exiting Windemeyer Lane.

[6] Mr. Robinson was charged with one count of sexual assault as a result of the June 4 subway platform incident. He was charged with one count of sexual assault and one count of assault causing bodily harm as a result of the June 6 Windemeyer Lane incident.

[7] Mr. Robinson was held in custody for about two months but released on a surety bail on October 6, 2021. He was arrested the next day for possession of a schedule one substance and failing to comply with his release order. He remained in custody. He was also charged with other offences while in custody. Those charges were withdrawn on November 26, 2021. Mr. Robinson had also been charged with assault with a weapon from May 7, 2021. That charge was withdrawn as a result of a peace bond. All of these charges were eventually withdrawn, including the failure to comply with recognizance charge. His October 6, 2021, bail order remained in effect as the Crown had not brought an application to cancel that bail. He was eventually released on February 2, 2022.

[8] On August 3, 2022, Mr. Robinson allegedly attacked M.C. in the area of the University Student Centre at Toronto Metropolitan University. The victim, M.C., was sitting on the steps. It is alleged that Mr. Robinson attacked him without provocation. Surveillance camera footage captured the incident. Mr. Robinson was charged with assault causing bodily harm. He was also charged with breaching his recognizance. His bail order required that he abide by a curfew. The incident happened at 12:20 am.

[9] Mr. Robinson has remained in custody since August 3, 2022. Mr. Robinson had a trial date scheduled on the June 6, 2021, the assault causing bodily harm and sexual assault charge involving M.M. He fired his lawyer, however, and the trial date was vacated. Trial dates for that matter were scheduled for October 11 and 12, 2022, but Mr. Robinson fired his lawyer for that as well. He has had other trial dates on other charges that have come and gone because he has fired his lawyer.

[10] On December 14 and December 19, 2022, Mr. Robinson appeared before Justice Dan Moore of the Ontario Court of Justice. Justice Moore, who has been case managing Mr. Robinson’s matters, appointed amicus (Mr. DiCecca) as well as s. 486 counsel on all of the outstanding charges.

ISSUES:

[11] The main issue on this s. 525 review is whether Mr. Robinson’s continued detention is justified. Mr. DiCecca, amicus, argues that his detention is simply not justified as Mr. Robinson is in a time-served position. In other words, if he were to be convicted tomorrow, he would be released.

[12] Ms. Langdon, for the Crown, makes four points: first, she argues that Mr. Robinson is not, in fact, in a time served position. She argues that if Mr. Robinson received the lowest reasonable sentence upon conviction for all three offences, he would still remain in custody serving a sentence. Second, Ms. Langdon argues that the delay has been entirely caused by Mr. Robinson’s own actions. Third, Ms. Langdon argues that there is a substantial likelihood that Mr. Robinson will re-offend. Fourth, and finally, Ms. Langdon argues that Mr. Robinson has no plan other than to be released on his own bail and returned to the shelter system. To release him without any kind of plan to manage the risk he represents is a recipe for further offending.

[13] Respectfully, I must disagree with amicus. I agree with Crown counsel that detention remains justified on the secondary ground. I turn to the analysis.

ANALYSIS:

[14] If a trial has not commenced within 90 days, s. 525(1) of the Criminal Code requires that a person having custody of an accused shall apply to fix a date for a hearing to determine whether the accused shall be released from custody. The 90 days is counted from either the day the accused is taken before a justice pursuant to s. 503 of the Criminal Code (in other words, first appearance), or the day an accused is taken into custody pursuant to a bail review or some other provision of the Criminal Code. The accused can waive a hearing. Pursuant to s. 525(4), a judge at a hearing may consider whether the prosecutor or the accused has been responsible for any delay. The judge may also give directions to expedite the proceeding or require a further hearing if the judge is concerned that the matter is progressing slowly, and unreasonable delay may result. If the judge is not satisfied that “the continued detention of the accused in custody is justified within the meaning of s. 515(10)” the judge shall make a release order.

[15] In Myers, Wagner C.J.C. considered the proper approach to a s. 525 hearing. To begin, a judge must consider whether the continued detention of the accused is justified but may consider whether there has been an unreasonable delay. In other words, unreasonable delay is not a threshold for holding a s. 525 hearing. Wagner C.J.C. found that this discretion flowed from the wording of the section. Section 525 dictates that it is the jailer who applies for the hearing, and a judge who must fix a date for it. There is no requirement that there be a request. A detained person is entitled to a hearing, even if he or she has not had addressed bail before a justice.

[16] Wagner C.J.C. dealt with the key question of a s. 525 hearing at paras. 46 and 47 of Myers:

The question that the judge must answer at a s. 525 hearing is therefore as follows: Is the continued detention of the accused in custody justified within the meaning of s. 515(10)? Section 515(10) sets out three possible grounds on which the detention of an accused in custody may be justified: where it is necessary in order to ensure the attendance of the accused in court; where it is necessary for the protection or safety of the public; and where it is necessary in order to maintain public confidence in the administration of justice.

The question in the s. 525 review - whether the continued detention of the accused is justified - is somewhat different in nature than the question at the initial bail hearing or in a review under s. 520 or 521. While ss. 520 and 521 exist for the purpose of reviewing a prior order, a review under s. 525 is more properly characterized as a review of the detention itself. Yet there is no indication that Parliament intended the judge presiding a s. 525 detention review hearing to reconduct the original bail hearing in its entirety simply because 90 days have elapsed… This means that the judge at the s. 525 hearing should in his or her analysis show respect for any findings of fact made by the first-level decision maker if there is no cause to interfere with them. Similarly, any balancing exercise or weighing of factors conducted by the initial bail judge must be reviewed in light of the time that has already elapsed and any other relevant considerations…

[17] It is not clear to me whether Mr. Robinson would be in a reverse-onus position at this point if he were to have a bail hearing at first instance. Where a person is charged with an indictable offence while at large on another indictable offence the onus is reversed: Criminal Code, s. 515(6)(a)(i). But what is the case where the person is charged with a hybrid offence?

[18] Mr. Robinson is charged with sexual assault and assault causing bodily harm. Both are Crown-election, or hybrid offences. A hybrid offence is deemed to be an indictable offence until the Crown elects whether it is proceeding by indictment or summarily: Interpretation Act, s. 34(1)(a). I have reviewed the informations provided to me, and none of them have an election recorded. It is not clear to me whether the Crown has elected summarily on these informations or has elected to proceed by indictment and Mr. Robinson has elected trial in the Ontario Court of Justice. I suspect that the Crown has elected summarily, and I simply don’t have a copy of the informations where the elections have been recorded. Assuming that the Crown has indeed elected summarily, Mr. Robinson would not be in a reverse onus position at a future bail hearing

[19] Thus, where a person is on bail and the Crown has elected to proceed summarily, if the person is charged with another indictable or hybrid offence, that person is not in a reverse onus situation. I agree with the conclusions in R. v. Hopkins, 2004 BCSC 1383; and R. v. Cooper, 20007 CarswellNS 698 (N.S.S.C.). I specifically disagree with the contrary conclusion reached in R. v. Taylor, 2001 CarswellOnt 6506 (Sup.Ct.).

[20] In R. v. Webley, 2015 ONSC 3857, Coates J., after a comprehensive analysis of the issue, concluded at paras. 94-96:

The very fact that section 524(8) specifies that the offence which the accused is alleged to have committed while on release must be an indictable one implies that Parliament intended to capture accused persons who committed offences of a relatively serious nature. A Crown election to proceed summarily implies that the offence that the accused allegedly committed is, relatively speaking, on the less serious end of the scale. The fact that the Crown election does not occur at the time of arrest does not alter the basis for the election to proceed summarily. It is simply a function of limited institutional and informational resources. The Crown requires time to receive and review all the relevant information before deciding on the matter.

It is therefore not only fair, but apparently more harmonious with Parliament's intent to adopt the more restrictive interpretation of "indictable offence" in this case.

For all these reasons, I conclude that, for the purpose of a section 524 hearing, a Crown election to proceed summarily means that a hybrid offence is no longer deemed to be indictable. As a result, in such circumstances, this precondition for the applicability of the section is no longer met.

[21] Although Coates J. was dealing with a different context (the question of how time in custody was to be characterized) I agree with her reasoning and find that it applies to the interpretation of s. 515(6)(a)(i).

[22] All that having been said, neither party has a formal onus on a s. 525 review. I agree with Coroza J. (as he then was) in R. v. Pescon, an unreported decision of this court (March 16, 2020) where he said that s. 525 “imposes an independent responsibility on the reviewing judge to consider whether the continued detention of the accused is justified, and establishes a discretionary mechanism designed to prevent unreasonable delay and to expedite the trials of individuals in remand.”

[23] For the purposes of my analysis, to be fair to Mr. Robinson I will assume that if he were to have a bail hearing in the Ontario Court of Justice at this point, he would not be in a reverse onus position. While this is not determinative on a s. 525 review, it is one factor that a judge should take into account.

[24] Is Mr. Robinson in a time served position? In my view, Mr. Robinson is not. As of the hearing on January 19, 2023, Mr. Robinson had served 353 real days in custody according to Crown counsel (354 days according to amicus). Credited at 1.5:1, that results in 529.5 days or 17 months. The Crown will seek 4-6 months on the June 4, 2021, sexual assault involving A.H.; on the assault bodily harm and sexual assault involving M.M. on June 6, 2021, the Crown would seek 18 months to two years less a day; and on the assault causing bodily harm from August 3, 2022, the Crown would seek a further 6-8 months. All sentences would be consecutive. The total amount of time, therefore, would be 28 months at the low end and 38 months at the high end. On any calculation, Mr. Robinson could receive as little as another 11 months, or as much as 21 months, although Ms. Langdon mentioned about 16 months, which is the mid-point.

[25] In my respectful view, if Mr. Robinson were to go to trial on all three matters, I think it is quite possible that he would receive the sentences suggested by Crown counsel, especially in light of his criminal record – which I will deal with below, when I consider whether Mr. Robinson is likely to re-offend. Although Mr. Robinson’s charges are only allegations at this point, it appears that the Crown has a strong case on all three. The Crown’s case does not really depend on the credibility of the witnesses – the assaults on A.H. and M.C. were captured on surveillance cameras, and there is strong DNA evidence pointing at Mr. Robinson in relation to the assault on M.M.

[26] Has the delay been caused by Mr. Robinson? I have already related some of the history of this matter. Mr. Robinson has had several trial dates, and has fired his lawyer and not been able to proceed at least twice. Amicus did not dispute that Mr. Robinson has been responsible for the delay.

[27] Is there a substantial likelihood that Mr. Robinson will commit further offences? In R. v. Manasseri, 2017 ONCA 226 Watt J.A. considered the proper interpretation of s. 515(10)(b) of the Criminal Code. This is the secondary ground provision. Watt J.A. stated at paras. 86-88:

First, to determine whether the secondary ground controls the release/detention decision, requires a consideration of all the circumstances. A relevant circumstance, neither exclusive, nor dispositive, is the substantial likelihood of recidivistic conduct ("commit a criminal offence") or an interference with the administration of justice.

Second, in connection with the specified circumstances encompassed by the clause "including any substantial likelihood that the accused will, if released from custody, commit . . . ", the italicized words refer to a probability of certain conduct, not a mere possibility. And the probability must be substantial, in other words, significantly likely.

Third, where, as here, the onus of showing cause for release falls on an accused, that accused must demonstrate not only that his or her detention is not necessary for the protection of the public, but also that it is not necessary for the safety of the public.

[28] Regrettably, it seems obvious that there is a very substantial likelihood that Mr. Robinson will commit further offences. Mr. Robinson’s criminal record is quite unfortunate. It commences in 2006 and does not stop. He has numerous convictions for failure to comply with bail orders and probation orders. He has several convictions for offences involving violence or weapons, including assault with a weapon, carrying a concealed weapon, assault causing bodily harm, and uttering threats. Given his criminal history and given the allegations of sudden and unprovoked violence in this case, I am concerned that he represents a potential danger to the public. Watt J.A.’s comments in Manasseri apply here.

[29] Does Mr. Robinson have an adequate plan of release? It is obvious that Mr. Robinson does not have a plan of release. He needs one. He has at least 9 convictions for failure to comply with a recognizance or a probation order. Returning to the shelter system will virtually guarantee that he will re-offend, or fail to comply with even the most minimal conditions.

CONCLUSION:

[30] I observed Mr. Robinson carefully during the hearing. Based on those observations, and the record in this case, I concluded that he is erratic in all respects, to put it politely. He has fired and rehired and then fired counsel, causing trial dates to be postponed. He has scheduled bail hearings and then decided not to proceed. Before me he at first did not want to proceed on his 90-day review because he did not have a lawyer – although Mr. DiCecca was present as amicus. He then changed his mind and decided to go ahead with his 90-day review.

[31] After Mr. DiCecca made submissions, Mr. Robinson made submissions. His submissions consisted of an incoherent rant. He called the disclosure unclear and unrepresentative. He said that “they” – presumably the complainants but also potentially the police – were making stuff up. He attacked Crown counsel personally, accusing her of a vendetta. I did not permit him to continue – for the record, Ms. Langdon has acted with her usual professionalism throughout these proceedings. He also stated “why would I breach?”, and called himself a model citizen – a rather unusual submission for someone with the sort of criminal record he has managed to accumulate since 2006.

[32] I suspect that Mr. Robinson has a mental health or substance abuse issue – or both. His criminal record would seem to suggest it. It is replete with the kind of petty offences characteristic of people who find themselves in this unfortunate circumstance: R. v. Zora, 2020 SCC 14. It would be vastly preferrable if Mr. Robinson could be released to a situation with a strong surety who could properly supervise him and ensure that he obtained some kind of counselling. In the absence of such a plan, and given the substantial likelihood that he will re-offend, this court has a duty to protect the public. That is especially so when the allegations in all three sets of charges involve unprovoked and sudden violence – including sexual violence – towards complete strangers. That engages the secondary ground under s. 515(10) of the Criminal Code, which means that Mr. Robinson’s detention in custody remains justified.

R.F. Goldstein J.

Released: January 31, 2023

COURT FILE NO.: CR-22-60000373-00BR

DATE: 20230131

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

CONREY CLAY ROBINSON

REASONS FOR JUDGMENT

R.F. Goldstein J.