Court File and Parties

Court File No.: CR-20-057 Date: 2024-01-19 Corrigenda: 2024-02-09

Ontario Superior Court of Justice

Between: His Majesty The King – and – A.H., Defendant

Counsel: Miriam Villamil-Pallister, Katherine Spensieri, for the Crown Tyler Schnare, for the defendant

Heard: January 16, 2024

Revised Ruling on Bail Revocation Application

The text of the original Ruling has been corrected with the text of the corrigendum, released February 9, 2024.

CASULLO J.:

Overview

[1] On November 23, 2023, I found A.H. guilty of two counts of criminal harassment pursuant to s. 264(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46, and two counts of attempted abduction of a person under the age of 14 years pursuant to s. 281 of the Code. [2] By way of this application, the Crown seeks to revoke A.H.’s bail post-conviction and pending sentence. [3] The Crown intends to bring a dangerous offender /long term offender application. [4] No material was filed by either side, although I was provided with some caselaw. [5] For the following reasons, the Crown’s application to revoke bail is dismissed.

Background

[6] As a result of charges laid on March 21, 2019, A.H. was granted bail on March 26, 2019. The Crown applied for a review of the Release Order, which came before me. On June 13, 2019, I gave oral reasons vacating the Release Order under both the secondary and tertiary grounds, ordering that A.H. be detained on the charges. [7] On September 29, 2021, Boswell J. vacated my release order on a number of grounds, including a material change in circumstance (a much stricter release plan) and the passage of time. At that point, A.H. had been in remand custody for 911 days. Once all available credits were accounted for, including the 18 months of pre-trial custody spent subject to COVID-19 restrictions, Boswell J. estimated that A.H. had already served the equivalent of a four-year sentence before being convicted of an offence.

Positions of the Parties

Crown

[8] The Crown seeks bail revocation on the secondary grounds in order to ensure public safety. The Crown submits there is a change in circumstances, which is occasioned by way of an April 4, 2019 Threat Assessment (“TA”) completed by the OPP. The TA classified A.H. as high risk to commit future sexual violence and found that intervention was required to prevent further acts of violence from occurring. [9] The Crown also seeks bail revocation on the tertiary grounds to maintain public confidence in the administration of justice: (a) The strength of the Crown’s case favours revocation, given that A.H. has been found guilty; (b) The offences are grave, as criminal harassment and attempted abduction of young girls is concerning, particularly given the circumstances in which these offences took place; and (c) In light of the Crown’s pending applications, there is the likelihood of a lengthy term of imprisonment.

Defence

[10] The defence submits that the Crown has not met its substantial burden of establishing that bail should be revoked and asks that the Crown’s application be dismissed. [11] The TA upon which the Crown relies is almost five years old and is not probative of the risks A.H. poses in 2024. As the author of the TA wrote, the assessment was a “first step in an ongoing assessment of this matter, not the final step. As further investigation takes place, this assessment should be updated to include any new significant information.” There is no evidence that further assessments were undertaken. [12] Should A.H.’s bail be revoked, he will be compromised in his ability to prepare for not only sentencing, but also the pending dangerous offender designation application. It will be much easier to access doctors, other appointments, and legal counsel, if A.H. is out in the community.

The Law

[13] The Crown brings its application under s. 523(1)(b)(ii) of the Criminal Code of Canada:

523. (1) If an accused, in respect of an offence with which they are charged, has not been taken into custody or has been released from custody under any provision of this Part, the appearance notice, summons, undertaking or release order issued to, given or entered into by the accused continues in force, subject to its terms, and applies in respect of any new information charging the same offence or an included offence that was received after the appearance notice, summons, undertaking or release order was issued, given or entered into,

(a) where the accused was released from custody pursuant to an order of a judge made under subsection 522(3), until his trial is completed; or

(b) in any other case,

(i) until his trial is completed, and

(ii) where the accused is, at his trial, determined to be guilty of the offence, until a sentence within the meaning of section 673 is imposed on the accused unless, at the time the accused is determined to be guilty, the court, judge or justice orders that the accused be taken into custody pending such sentence.

[14] The mere fact of conviction does not automatically mean that an existing bail order will be revoked. Section 523(2) provides that for offences other than those listed in s. 469 of the Code, the presumption is that existing bail orders will remain in force until the imposition of sentence. Bail revocation is the exception and requires the Crown to demonstrate cause: R. v. Green, 210 C.C.C. (3d) 543. [15] As Ducharme J. held in Green at para. 12, post-conviction revocation of bail will most commonly occur where, during the course of the trial, new facts emerge about: (i) the circumstances surrounding the commission of the index offence; (ii) other criminal acts engaged in by the offender; or (iii) the offender’s failure to comply with the terms of his or her release. [16] The Crown submits that in Green, where the request to revoke bail was granted, is no longer good authority, and I should be guided instead by the decision of Matheson J. in R. v. Stojadinovich, [2010] O.J. No. 3664, in which the request to revoke bail was denied. I do not see Stojadinovich as overruling Green; rather, the court disagreed with some of Ducharme J.’s findings. [17] In any event, I find favour with the more recent decision of Gomery J. (as she then was) in R. v. Tsega, 2021 ONSC 1129, which provides much-appreciated clarity on s. 532 generally. As Her Honour held at para. 7, when the Crown applies, post conviction, for bail revocation for an offence that is not listed at s. 469, five principles apply:

1. It is up to the Crown to establish that bail should be revoked;
2. The accused’s immediate detention must be justified under s. 515(10) of the Code;
3. Generally speaking, the Crown must bring forward new facts that have emerged about the accused;
4. The judge must take into consideration the impact of pre-sentencing detention on the accused; and
5. Revocation of bail post-conviction is the exception rather than the rule.

[18] The Crown has not brought forward any new facts that might cause me to question the appropriateness of the bail previously granted to A.H. A.H. has been on release conditions for almost 2.5 years. He has not breached his conditions or failed to appear before the court whenever ordered to do so from September 29, 2021. He has no other charges outstanding. [19] The bail restrictions are extremely restrictive, including a $100,000 surety bail, house arrest in a remote, rural area, electronic monitoring, travel restrictions, weapons prohibition, driving prohibition, no cell phone, and no internet access unless in the direct and continuous supervision of his surety or legal counsel. [20] The Crown’s reliance on the TA is misplaced. The document very clearly states that the assessment is valid only for the time period in which it is prepared. Thus, the TA is wildly out of date and of no value to the Court. [21] In light of my ruling, A.H.’s presumption of innocence is spent, along with his concomitant right not to be unreasonably denied bail prior to trial. However, in its wisdom, Parliament has extended bail between conviction and sentencing to all but those charged under s. 469, including murder and treason. And even those so charged can appear before the court to seek bail. [22] The loss of the presumption of innocence does not mandate the accused’s remand to custody post-conviction: Tsega, at para. 8. [23] I concede that there are factors weighing in favour of detention under the secondary ground. Attempted abduction of young girls, while carrying a backpack full of sexual paraphernalia, would strike at the heart of any community. There is also the potential for a lengthy or indeterminate sentence. However, should the Crown’s applications fail, A.H. may be in a time-served position given the length of his pre-trial custody. [24] I must assess the public’s confidence in A.H. remaining free pending his sentencing hearing from the perspective of a reasonable member of society who is familiar with the fundamental values of our criminal justice system. This includes the right not to be unreasonably deprived of bail regardless of the stage in the trial process. As Ducharme J. stated in Green at para. 14:

It is difficult to understand how public confidence in the administration of justice will be undermined by the continued release of an offender who has demonstrated that he or she is not a threat to public safety and does not pose a risk of flight nor interference with the administration of justice.

[25] I do not believe that the public’s confidence in the criminal justice system will be eroded should A.H. remain out on bail on the very strict conditions currently in place. [26] I do believe that revoking A.H.’s bail would be detrimental to his ability to prepare for the sentencing hearing. This detrimental effect is amplified in the face of the Crown’s dangerous offender/long term offender applications. If his bail was revoked, A.H. would likely be remanded to Central North Correction Centre, two hours from his lawyer. While phone consultations are possible, the nature of A.H.’s offences may be difficult to discuss by phone with other inmates in close proximity. [27] I trust it is lost on no one that I did not think A.H. was an appropriate candidate for bail in 2019. However, A.H.’s proven track record since his release in September of 2021 has satisfied me that with the appropriate restrictions in place, he would not be a threat to the public should he remain on bail pending sentencing.

Conclusion

[28] The Crown has failed to satisfy me that A.H.’s right to bail ought to be revoked, and its application is dismissed.

The Honourable Madam Justice A.A. Casullo

Released: February 9, 2024

Corrigenda

1. The text of this Ruling has been revised to comply with s. 486.4 of the Criminal Code, such that any information that may identify the person described in this judgment as the complainant or a witness has been removed. The parties’ names have been initialized throughout.