COURT FILE NO.: CR-24-59-BR DATE: 20240918 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – RENZ MIGUINGAN Defendant/Applicant

Counsel: J. Spangenberg, for the Crown K. Neustaeter, for the Defendant/Applicant

HEARD: September 4, 2024

Section 525 Detention Review judgment

CARNEGIE J.

[1] The Applicant appears before this court seeking a s. 525 Criminal Code detention review. On January 24, 2024, a bail hearing was held and on January 31, 2024, he was detained in custody on both the secondary and tertiary grounds. He is presently before the Ontario Court of Justice facing 3 Informations and 10 counts, including:

i. the January 8, 2024, charges: trafficking and obtaining a material benefit from trafficking a person; procuring, advertising, and receiving a material benefit from prostitution; dangerous operation of a conveyance, assault causing bodily harm, and uttering a threat to cause death, contrary to ss. 279.01(1), 279.02(1), 286.3(1), 286.4, 286.2(1), 320.13(1), 267(b), and 264.1(1)(a);

ii. the January 17, 2024, charge: failing to comply with an in-custody non-communication order, contrary to s. 145(5); and

iii. the February 13, 2024, charge: failing to comply with an in-custody non-communication order, contrary to s. 145(5).

[2] The Applicant faces serious charges. He has been in custody since his arrest on January 9, 2024.

[3] The applicant has no criminal history. In January, he presented his mother and sister as sureties for a residential supervision based judicial interim release plan. They were determined to be unsuitable sureties by the bail court. Here, he presents his father and grandmother, both from the same household as the mother and sister, as sureties on a similar release plan.

[4] The Applicant seeks his release arguing that his detention is no longer justified within the meaning of s. 515(10) of the Code. He is suggesting that a material change in circumstance has manifested given production of intervening disclosure, principally from the complainant’s post charge police involvement. He presents a somewhat enhanced plan of release which includes new residential sureties who are more readily available to offer 24/7 supervision, alongside the previous house arrest with GPS monitoring regime.

[5] In totality, since his January 9, 2024, arrest and incarceration, the Applicant has spent 254 days in custody. I am advised that trial dates have been set in the Ontario Court of Justice with the trial slated to be completed in March 2025. Assuming the trial’s completion as anticipated (with a start date in November of this year, and a couple dates in early 2025), if not released he would be in custody approximately 14 months.

Factual Background

[6] The facts I will rely upon consist of a collection of materials, including the transcripts from the January 24, 2024, bail hearing, the filed exhibit materials from that hearing, additional new factual materials filed by the parties updating the evidentiary record and the filed facta and supporting affidavits in this Application Record. Eleven Exhibits were filed as part of this hearing, most of which supplement the original bail hearing evidentiary record.

Allegations before the Court

[7] By way of brief summary, the Applicant and complainant have known each other for approximately 5 years. For a period of time, they were involved in an intimate relationship in addition to the complainant’s allegations that the Applicant acted as her “pimp” facilitating the sale of sexual services.

[8] It is alleged that the complainant was an exotic dancer who, in addition, sold sexual services to multiple “sugar daddies” until the Applicant enhanced the scope of her prostitution related activities. In early 2022, the complainant became indebted to the Applicant and began, at his suggestion, this working relationship to settle her debt. The Applicant would post the complainant’s advertisements to online platforms, manage her communications, book hotel rooms, and drive her to “appointments” with clients. He would arrange for 3-4 clients per day, 7 days a week. He monitored her communications with a “work phone” he provided. She was required to “split” her earnings with the Applicant and, further, pay for food, car expenses, clothing, and other demands. In essence, she was coerced into this enhanced work as a “full on” escort and dominated by the Applicant who was motivated merely by profit.

[9] The Applicant eventually wanted to increase their income by recruiting other females, including the complainant’s friends. This created tension within their relationship, as the complainant did not want him flirting with the other women selling sexual services.

[10] The complainant eventually tired of splitting her earnings and attempted to end the working relationship she had with the Applicant. She had been a “full on” escort for the Applicant for almost 2 years. Despite this, the Applicant told her she owed him substantially more money than her original debt. He then threatened her family’s safety and threatened to disclosure her involvement with the sale of sexual services to them to regain her compliance. He intimidated her by following her family members. The complainant felt coerced with little other option but to continue working for and making payments to the Applicant.

[11] On January 3, 2024, the Applicant and the complainant were driving through a subdivision in Mississauga when an argument ensued. The Applicant pushed the complainant out of the moving vehicle. She sustained injuries on the right side of her body and ankle.

[12] On January 7, 2024, another argument over money owed resulted in the Applicant sending six threatening text messages suggesting that he would burn down her and her family’s homes in London, Ontario. He then teleconferenced with her suggesting that he was now enroute to London. As a result, the complainant contacted the London Police Service and made a complainant.

[13] The Applicant was arrested on January 9, 2024.

[14] The Applicant was remanded into custody at the Elgin Middlesex Detention Centre and was prohibited from communicating with the complainant. By January 15, 2024, police already suspected that the Applicant was breaching this noncommunication order. Police compiled institutional call logs and surveillance footage. Over 30 communications in 6 days were discovered. As a result, the Applicant was charged with breach of his noncommunication order.

Proposed new evidence

[15] The Applicant submits that new, credible information was provided by the Crown by way of additional disclosure on July 16, 2024. Therein, an Occurrence Report dated March 16, 2024, from the Toronto Police Service identifies the complainant as being involved in the alleged sale of her sexual services and an assault with a weapon.

[16] Further, the Applicant has been charged with an additional breach of his noncommunication order respecting the complainant. After his detention order, the Applicant was again prohibited from communicating with the complainant. Yet, by mid-February 2024, the complainant had reported numerous third party communications with her on the Applicant’s behalf. These communications were described as harassing and threatening to her and the safety of her siblings in retribution for the charges against him. Police investigated these allegations and confirmed the involvement of a third party who acknowledged facilitating third party calls to the complainant with the Applicant. Further, police retrieved institutional phone records and video surveillance evidence corroborating the Applicant’s use of phone services at related times. In addition, police secured judicial authorizations for banking records from the Applicant and the complainant corroborating the transfer of funds said to relate to the provision of sexual services. In addition, cell phone extraction evidence from the complainant’s phone furnished email communications, text messages, imagery, advertisement evidence, web browser history, and location based data which further corroborates the allegations.

The Applicant’s history and progress while incarcerated

[17] The Applicant is 26 years of age. He was born in the Philippines and emigrated to Canada with his family at 9 years of age. Before his detention, he lived in York, a suburb of Toronto, with his mother, father, maternal grandmother and 3 sisters. He finished his secondary schooling and has sporadically worked in general labour since. At the time of his arrest, there was no obvious means of lawful employment.

[18] I have no information respecting his progress while in custody, a form of new evidence that is often considered at a s. 525 hearing.

Status of the court proceedings

[19] As noted, the Applicant has been in custody for over 8 months. His trial has been set in the Ontario Court of Justice for 3 days, commencing November 4th, 2024, and continuing on February 14th and March 4th, 2025. He has a s. 486.2 pre-trial Crown application scheduled for October 7, 2024.

Bail detention ruling

[20] Fortuitously, the Applicant’s bail hearing was heard relatively promptly after his arrest, particularly in light of the January 17, 2024, breach charge. The presiding Justice of the Peace detained him on both the secondary and tertiary grounds, denying a primary ground detention request based upon the release plan presented.

[21] The presiding Justice of the Peace concluded that the proposed release plan, inclusive of his mother and sister as surety, with a house arrest and GPS monitored supervisory regime did not adequately address the secondary and tertiary ground concerns. Indeed, the court concluded that the proffered sureties were unsuitable, including a finding that his mother had also made efforts to communicate with the complainant to discourage the progress of these charges.

Positions of the parties

[22] The Applicant has amended his original release plan by advancing two new sureties who have a greater capacity for active supervision in the place of those found wanting by the bail court. Now, his father and grandmother will take the place of his formerly proposed mother and sister as sureties, who continue to reside in the family home. Otherwise, the plan remains largely consistent with the original plan, including a residential surety component, a 24/7 residential curfew save for emergencies, travelling to and from court or meetings with counsel or while in his sureties’ presence, GPS monitoring, no firearms possession, no unsupervised internet access, and victim safeguard provisions.

[23] The Applicant asserts that the new, credible, and trustworthy information from Crown disclosure outlining the complainant’s continued involvement, post his arrest, in the sale of her sexual services substantially impacts the strength of the Crown’s case, specifically as it relates to her credibility and reliability. As the argument has been advanced, the offence narrative painting the Applicant as the one forcing the complainant into this activity, dominating her involvement and their relationship is now contestable given her post-offence conduct. Further, the Applicant complains that this disclosure was unduly delayed by the Crown restricting his capacity to set dates for trial in a timely fashion.

[24] The Crown objects to the admission of the Applicant’s new evidence as it is more properly the subject of a s. 276 application, not brought. It references newly acquired evidence which serves to corroborate elements of the complainant’s account. In sum, the Crown submits that the detention order remains justifiable.

Legal Framework

[25] In R. v. Myers, the Supreme Court breathed new life into the use of s. 525 detention reviews. Wagner C.J.C. summarized:

For the reasons that follow, I find that Parliament intended s. 525 to operate as a safeguard. This section 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. [1]

[26] The Myers court made plain that the purpose of the s. 525 hearing is to prevent accused persons from languishing in pre-trial custody and to ensure a prompt trial. This hearing, a part of a broader review regime, is intended to provide an opportunity to have a judge consider whether the continued detention of an accused person is justified, and by conferring on the reviewing judge a discretion to expedite the trial of an individual in pre-trial detention. [2] Ultimately, s. 525(5) instructs a reviewing judge to order the accused person’s release if the judge “is not satisfied that the continued detention of the accused in custody is justified within the meaning of subsection 515(10).”

[27] It is also important to distinguish where a s. 525 hearing fits in the bail regime, what is it is for, and what it is not for. Wagner C.J.C. made it clear how a s. 525 hearing differs from, say, a s. 520 bail review hearing:

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 over 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. [3]

[28] Since it is incumbent on the review court to respect the bail court's findings of fact if there is no cause to interfere, focusing my detention review on whether the presiding bail hearing Justice of the Peace made an error or whether there is evidence of a material change in circumstance is misguided. These are valid considerations, but during a detention review they are merely factors for my broader consideration. With this in mind, as noted by our Court of Appeal in R. v. Momprevil, a detention does not become unlawful merely by the passage of time, as the initial detention is presumed valid. [4]

[29] Finally, the Myers court does not give clear instruction on who bears the onus at a detention review, and the jurisprudence I have reviewed appears divided. There is a clear tension in the authorities about whether the absence of comment in Myers or in s. 525 proper should be interpreted as supplanting s. 515(6) reverse onus provisions simply because 90 days has elapsed since a detention order. Whether the passage of time can supplant statutory onus provisions, however, is not an issue I believe needs to be resolved here.

[30] Therefore, the scope of review is relatively broad, but the extent of the evidentiary record should be relatively narrow. As noted in Myers, the detention review hearing requires an analysis of multiple factors. Unreasonable delay is not a threshold required for reviewing detention. To determine whether the detention is still justified, I may consider any new credible and trustworthy evidence or change in the circumstances of the accused, the impact of the passage of time and any unreasonable delay on the proportionality of the detention, and the rationale offered for the original order. But that does not mean that we start the bail hearing over again or that it usurps the function of a bail review.

[31] Of course, the right to reasonable bail is entrenched in s. 11(e) of the Charter and is closely connected to other entrenched constitutional rights such as the presumption of innocence (s. 11(d)), the right not to be arbitrarily detained or imprisoned (s. 9) and the right to liberty and security (s. 7).

[32] As recognized in Myers, “pretrial detention can have a serious detrimental impact on accused person’s ability to raise a defence… It also comes at a significant cost in terms of their loss of liberty, the impact on their mental and physical well-being and on their families, and the loss of their livelihoods.” [5]

[33] The Supreme Court iterates that the pre-trial release of accused persons is the cardinal rule and detention the exception. The jurisprudence and s. 493.1, which codifies the principle of restraint, provides that release on reasonable terms is favoured at the earliest reasonable opportunity on the least onerous appropriate conditions including conditions that are reasonably practicable for the accused to comply with, while taking into account the grounds referred to in s. 515(10) as the case may be.

Analysis

The scope of evidence at this hearing

[34] As I have noted, a number of exhibits, both from the previous bail proceeding and related to the new release plan, were filed for my consideration. The evidentiary record was confirmed at the commencement of the hearing.

[35] In addition to the filed materials, the Applicant sought to have the new residential sureties examined by way of viva voce evidence to amplify the record beyond the affidavits submitted. The Crown objected to the calling of further evidence citing the purpose and scope of s. 525 hearings. The Crown further relies upon the reasoning of Goodman J. in R. v. J.D.:

In my opinion, the detention review process is not a reconducted de novo hearing or a s. 520 bail review. Unless there is a waiver, the methodology for a detention review can be accomplished by presenting the appropriate, and relevant documentary evidence, affidavits and transcripts. The Crown is at liberty to argue the material admissibility considerations in regard to any proposed or renewed surety affidavits. Generally speaking, there ought to be no need for viva voce evidence, cross-examinations or protracted hearings. [6]

[36] I adopt this reasoning from J.D. The objective of a detention review is to allow for an assessment of the continued justification for an accused’s detention in light of the passage of time with the goal of avoiding an accused languishing in custody. While it admittedly affords broad discretion on the part of the reviewing justice, that does not equate with a Parliamentary intention to supplant the existing s. 520 bail review authority. These hearings are different in purpose and ought to be different in scope.

[37] Here, I refused to allow further viva voce evidence at this hearing. A detention review is a review of the detention itself, not a bail hearing de novo focused exclusively, for example, upon a new and improved release plan. For a thorough exploration of that, the Applicant ought to avail himself of the s. 520 bail review hearing emphasizing a ‘material change in circumstance’.

The bail detention order reasoning

[38] I now turn to the bail detention reasoning, as one factor in the s. 525(5) consideration: am I “not satisfied that the continued detention of the accused in custody is justified within the meaning of subsection 515(10)”?

[39] As I have noted, I must show respect for any findings of fact made by the first-level decision maker if there is no cause to interfere with them. Here, the Applicant does not raise any errors of law respecting the bail jurist’s reasons for detention nor any concern over that court’s factual findings. Instead, he more broadly queries whether his detention is still justified under s. 515(10) of the Code.

Is the Applicant’s detention still justified?

[40] The Applicant proposes a release plan that is largely consistent with that which was proposed at his bail hearing. The difference here, a suggested material change in circumstance, is the availability of two new sureties as replacements for those recommended previously.

[41] While the Crown contested the primary ground at the bail hearing, that court found that any primary ground concern could be alleviated based upon the release plan presented. With a mind to my function, that determination will not be reviewed, let alone disturbed.

Secondary grounds considerations

[42] I must now turn my attention to the secondary ground for detention consideration – simply stated, is there a substantial likelihood that the Applicant will commit a criminal offence or interfere with the administration of justice if released such that the protection or safety of the public, including the victim or any witness, would be put at risk? As noted by the Supreme Court in R. v. Morales, detention must be necessary for public safety, not merely convenient. [7]

[43] The Applicant was detained on the secondary ground at his bail hearing. The court found that he posed a substantial likelihood of reoffending, putting the safety of the public and the complainant at risk and that there was a risk that he would interfere with the administration of justice. In making these findings, the court considered the seriousness of human trafficking offences and their impact upon public safety. Having considered the fact that the Applicant has no criminal history, the court nevertheless found that the seriousness of the substantive charges coupled with the allegations respecting court order non-compliance and providing a false name to police upon apprehension established the secondary ground concern. I have been presented with no cause to interfere with these findings.

[44] Further to the court’s risk-based concerns, the bail jurist found that the proposed sureties, the Applicant’s mother and sister, were unsuitable for the role of surety because:

a. they were not sufficiently at the residence to supervise the Applicant due to their employment and educational pursuits outside the home;

b. they lacked present insight into the Applicant’s lifestyle, unaware of his associates or relationships, or source of income; and

c. the mother, in particular, was less than forthright with police when she knew the Applicant was wanted and she had contacted the complainant to see if these matters could be resolved without police involvement.

[45] As a result, the plan proffered could not sufficiently mitigate the risk posed by the Applicant’s release. I also defer to these uncontested findings. Upon my review of the evidentiary record, they were not only available but obvious to the bail court.

[46] The new release plan shifts sureties to the remaining adults in the familial home – father and maternal grandmother. Having reviewed the affidavit evidence filed, I am not concerned that they were otherwise available at the original bail hearing. Father was then working full-time with limited capacity for full time supervision. Now he is unemployed for the foreseeable future and available for intrusive supervision. As a backup, the Applicant’s grandmother also resides at the familial home without competing work or personal obligations. She was away on travel at the time of the Applicant’s bail hearing but is now back for the foreseeable future.

[47] In R. v. St-Cloud, the new evidence admissibility standard for a “material change in circumstance” was defined as including a due diligence consideration respecting the first proceeding, a relevancy assessment bearing on a decisive issue, that the proposed evidence is credible or reasonably capable of belief, and that it must, if believed, be reasonably capable of affecting the result. [8] As noted in R. v. Ferguson, Hill J. noted in the context of a s. 520 bail review that simply proposing new sureties will not amount to a material change in circumstance. It is only where “it can be said that the commitment and nature of the newly proffered suretyship materially calls into question the continued validity of the reasons for detention can it reasonably be said that the submitted material change in circumstances is relevant to the existing cause for detention.” [9]

[48] On the Ferguson standard, I have concerns about the Applicant’s new release plan and the extent to which it offers meaningful improvement over the original plan proposed. While it offers the prospect of a more robust and intrusive supervisory regime, that appearance may realistically be illusory. I have no contemporaneous or historical evidence respecting the Applicant’s history of compliance with the demands of either surety. The Applicant was residing with and under the influence of these proposed sureties during the alleged offence timeframe. That members of this household, present proposed sureties or not, have attempted to engage with the complainant to alternatively resolve these criminal proceedings is an uninspiring reflection upon their capacity to differentiate their personal and court ordered role as designated public jailer. I am asked not to visit the actions of the Applicant’s mother upon his father and grandmother, but in the context of a single household that submission is naïve.

[49] The presentation of a house arrest plan with GPS monitoring does not tip the balance. It is important to acknowledge that electronic monitoring is not a direct preventative measure. In United States of America v. Pannell, [10] an extradition case, Nordheimer J. (as he then was), correctly observed that the system does not restrict the subject from breaching, it merely alerts the service provider of a breach. The Ontario Court of Appeal in R. v. J.J., [11] noted that GPS monitoring has been described as a risk management tool, rather than crime prevention tool. Therefore, GPS monitoring provides some increased level of certainty as some breaches will be detected relatively rapidly but does not prevent such non-compliance. Realistically, it acts as a deterrent to noncompliance. So, while electronic monitoring may assist the sureties, a plan of supervision is only as good as the sureties who monitor it. Electronic monitoring does not replace the need for good, effective, and dependable sureties.

[50] However, given the repetition of noncommunication breach allegations, the deterrent effect of court ordered restrictions upon the Applicant is questionable. New evidence respecting the February 13, 2024, breach charge relating to continued attempted communications with the complainant presents a more ominous factual narrative. The Applicant had been alleged to have attempted 30 communications over 6 days upon arrest and incarceration, in the face of a court order prohibiting contact with the complainant. Now, it is alleged that within 2 weeks of his detention order, he attempted further communications with the complainant having not been deterred by the former global breach charge laid. Coupling these alleged breach allegations with the nature of the substantive conduct, which includes allegations of trafficking by coercion, assault causing bodily harm, threats to cause death and dangerous driving, no release plan involving the Applicant’s family can reasonably mitigate the risk posed by the Applicant to the safety of the complainant. His history and persistence vis-à-vis this complainant remains troubling. Further, by allegation he has palpably demonstrated a propensity for interfering with the administration of justice by attempts to repeatedly communicate with the Crown’s principal witness.

[51] As a result, I find that despite the Applicant’s lack of criminal history, his ongoing detention from a secondary ground perspective remains justified. The passage of time has not altered this reality.

Tertiary grounds considerations

[52] The Applicant concedes that “the gravity of the nature of the alleged offences, the circumstances surrounding the alleged commission and the potential for a lengthy term of imprisonment, all tend to weigh against his release.” However, the Applicant asserts that, based upon new evidence, the Crown’s case “remains weak”.

[53] As the Applicant notes in his application materials, particularly from his Statement to Police (Exhibit 8), he loved the complainant, she never gave him money (which appears contrary to new Crown evidence presented here), and he only found out about her prostitution 6 – 7 months into their relationship. Nevertheless, he asserts, as a presumed credibility attack, that these allegations are the product of the complainant’s jealousy respecting his relationships with other women.

[54] At the heart of the Applicant’s attack upon the strength of the Crown’s case is the new evidence respecting the March 16, 2024, TPS Occurrence Report. Before I address what merit this position has in the context of a detention review, I must first address its admissibility as part of a s. 525 hearing.

What new ‘credible and trustworthy’ evidence is permissible

[55] The Crown has suggested that the Occurrence Report relied upon by the Applicant ought not be considered given the restrictions of the detention review process and pursuant to application of ss. 276 and 278 of the Code. No s. 276 application is before me. Any reference to the complainant’s involvement in the sale of her sexual services, even post-offence, constitutes “other sexual activity” as prescribed by s. 276 and, short of an application being brought, it cannot be considered by the court.

[56] The application of s. 276 to these offences requires consideration of the statutory and procedural applicability of this regime to human trafficking and prostitution related offences. First, the Crown relies upon the Supreme Court’s reasoning in R. v. Barton wherein it was determined that the s. 276 regime applies not only to the offences enumerated in s. 276(1), but also to cases where there is “some connection” between the offences charged and the offences listed in s. 276(1). A broad interpretation of which offences may be considered to have some connection to an enumerated s. 276 offence is required given the section’s inclusion of the permissive phrase “in respect of” as a qualifier to the listed offences. [12] As noted in Barton, giving a generous interpretation to this regime’s scope best achieves Parliament’s intentions to protect trial integrity, protect the accused’s fair trial interests, and protect the security and privacy of complainants involved in the process. [13]

[57] With this broad scope in mind, I adopt the reasoning of Braid J. in R. v. Maldonado Vallejos, finding that human trafficking offences fall properly within the ambit of the s. 276 regime’s scope:

The power and breadth of the language in Barton demonstrates that the s. 276 regime is intended to apply to sex work offences and pimping-related charges. Human trafficking offence in s. 279.01 are connected to the enumerated offences in s. 276(1) because of the sexual nature of the offences and the element of sexual exploitation, to which there can be no consent. [14]

As a result, I am satisfied that the s. 276 regime applies to the human trafficking offences, and by extension and for the same reasoning, the prostitution related offences before this court.

[58] Second, the application of the s. 276 regime to a detention review hearing must be considered. The Crown submits that there is no bar, statutory or otherwise, to its application in this hearing. By analogy, the Crown points to authority for this position in R. v. Alliman. [15] There, a s. 520 bail review court found that evidence of other sexual activity, found in text messages, should not have been relied upon (even without Crown objection) at the bail hearing stage and that further reliance during a bail review required, then and now, procedural compliance with ss. 276 and 278.92-94.

[59] I have reviewed the reasons of Rees J. in Alliman. They come as no surprise. The ‘credible and trustworthy’ evidentiary bail hearing standard is analogous to that found at the preliminary inquiry stage where statutory evidentiary shortcuts are present, yet strict application of ss. 276 and 278 is required. [16] That court noted that protecting the dignity, equality, and privacy interests of complainants should not take a backseat to the procedural efficiencies enabled at the bail hearing stage. The language “proceedings in respect of”, from a procedural perspective, permit a broader interpretation than mere trials. [17]

[60] Of course, a detention review is not akin to a bail hearing. Nor is it akin to a bail review whereby changes in circumstance are assessed alongside any errors committed by the bail hearing justice. A statutory bail detention review cannot become a shortcut for the proper exercise of the bail review hearing. That is not its purpose. Instead, it is a safeguard meant to address concerns over languishing accused pending trial.

[61] While, arguably, I have the discretion to amplify the scope of this hearing to address new evidence that speaks to relevant factors for my s. 515(10) reassessment, I should only do so when the proposed evidence is relevant to the purpose of this proceeding. Just because the Applicant asserts that the Occurrence Report evidence is relevant to the complainant’s credibility, and therefore to the strength of the Crown’s case, does not make it so. My residual discretion to assess the probative value of the evidence as against its prejudicial effect exists independent of a formal application of the s. 276 statutory regime.

[62] Here, the Applicant baldly asserts that the complainant’s post offence conduct informs her prior offence specific circumstances. Whether or not this engages prohibited stereotypical reasoning in the sexual offence realm, which I fear that it does, I find that this reasoning is conceptually flawed on this evidentiary record. The Occurrence Report offers no context for the complainant’s alleged activities, let alone the impetus behind them. Just because the Applicant is willing to infer that the complainant is acting alone does not make that inference reasonable. Nor, frankly, does the suggestion that if the complainant was self-starting relative to this activity, that this motivation is, by the by, indistinguishable from her motivation relative to this offence narrative. Absent a fulsome admissibility application, it is difficult to conceive of the probative value of this proffered evidence beyond rank propensity-based speculation when measured against its prejudicial effect upon the personal dignity and privacy of this witness.

[63] In sum, having been allegedly more greatly exposed to this lifestyle at the behest of the Applicant, repeating that which has been learned is as available an inference as is that crudely proposed by the Applicant. In that regard, assuming its admissibility for these proceedings, how does this evidence offer a counterpoint to the factual findings of the bail hearing jurist, who concluded that the Crown’s case was strong? I am required to defer to reasonable and available factual findings made at the bail hearing stage. On a detention review, this speculative evidence cannot supplant the presiding Justice of the Peace’s findings.

[64] Having come to that conclusion, on its face I need not engage with a determination of the propriety of engaging the ss. 276 and 278 process. But, if I am wrong, I would have otherwise concluded, unequivocally, that consideration of new evidence in a detention review does not permit, as of right, the conduct of a s.278.93/94 hearing. That is not the purpose of nor the proper scope for a s. 525 detention review. Whether it should be, instead, considered as part of a s. 520 hearing, is not before me.

Is a tertiary ground concern still justified?

[65] Here, the Applicant has fairly conceded that most of the s. 515(10)(c) enumerated factors in the assessment of public confidence in the administration of justice have been met: the gravity of these offences is unquestionably high, the circumstances surrounding their commission, including an alleged pattern of breaches which buttress the power and control dynamic allegedly at play are concerning, and the fact that, if convicted on the most serious of these offences, a lengthy term of imprisonment is virtually assured.

[66] The gravity of human trafficking, in particular, cannot be understated. It is an insidious crime which Campbell J. in R. v. Lopez described as “a form of slavery, with pimps living parasitically off the earnings of prostitutes.” [18] The local proliferation of this form of serious criminal conduct has received much notice and significant concern from the public and policing and public safety services. It has the potential to destroy lives and merits significant denunciatory treatment by courts.

[67] The contested issue, of course, is the “apparent strength of the prosecution’s case”. When assessing any tertiary ground issue, I turn my attention to St-Cloud and the Supreme Court’s emphasis upon a reasonable member of the community who is properly informed about the philosophy of the legislative provisions, constitutional bail values, and the actual circumstances of the case. Bail is not precluded simply because each enumerated factor is met, let alone when only three of four factors are satisfied. [19]

[68] Since the Applicant’s bail detention, the Crown’s evidentiary record has improved. While the case still largely hangs upon the complainant’s evidence, subsequent investigative efforts have resulted in the discovery of important corroborative pieces to the complainant’s account. These include the cell phone analysis and the parties’ banking records.

[69] Here, it is difficult to form a firm position on the strength of the Crown’s case in its totality. On its face, while the prostitution related offence counts may appear most solid on this evidentiary record, the complainant’s active participation in a trial could shift the dynamic towards realistic human trafficking and other offence exposure. How a trier of fact will wrestle with the competing narratives surrounding the TPS Occurrence Report evidence, assuming it is ruled admissible upon a s. 276 application and finding of relevance, is unknown. Experience also instructs this court that human trafficking and prostitution related charges are notoriously difficult prosecutions to undertake given the complexities of the surrounding human condition. I cannot confidently and independently conclude that a reasonable member of the community would invariably come to the conclusion that, in its totality, this is a strong Crown case.

[70] Regardless, on this evidentiary record, I also do not have cause to interfere with the findings of bail hearing jurist. Therefore, there remains cause for the justifiable detention of the Applicant on the tertiary ground.

Will further detention cause the Applicant to languish in custody?

[71] As an umbrella consideration, given the purpose of a detention review, I must consider whether the Applicant will nonetheless languish in custody if not released.

[72] The Applicant has raised a concern respecting unreasonable delay surrounding the provision of disclosure which, he says, delayed the setting of trial dates. The Crown contests the related disclosure timeframe characterization and I have no evidence to contextualize, let alone resolve, the dispute.

[73] Overall, based upon the current estimate, the Applicant will have completed his trial within approximately 14 months. Within, and frankly even outside, the context of the local pandemic backlog, this time to trial is relatively encouraging. I do not have cause to find that the Applicant’s trial has been unduly delayed.

[74] Finally, it has been suggested that the prospect of the complainant’s participation in this trial is remote based upon her reluctance to provide follow up police statements when sought. This, it is argued, could realistically result in the Applicant serving more time than he would otherwise receive even in the event of convictions for the prostitution related offences. The inference supporting this position is inherently speculative and unpersuasive on this evidentiary record. Fortuitously, however, the Applicant will not have to wait until March 2025 to test this theory as the trial is, instead, slated to start in less than 2 months. The complainant’s degree of participation will crystalize shortly. And, what sentence could result from a trial court’s findings, with or without the complainant’s active participation, is further beyond my capacity to assess.

Conclusion

[75] Having considered the general discretion afforded by a s. 525 detention review, I find that, based upon the totality of all these present circumstances, I am, pursuant to s. 525(5), satisfied that the continued detention of the Applicant in custody is justified within the meaning of subsection 515(10) of the Criminal Code.

[76] On this enhanced evidentiary record, the secondary and tertiary ground concerns remain which are not reasonably attenuated by the newly proposed release plan. I believe that a reasonable, fair minded community member, aware of all the circumstances, the Applicant’s lack of criminal history, and mindful of the presumption of innocence, would not lose faith in the justice system faced with an affirmation of the Applicant’s continued detention.

[77] As a result, the Applicant’s s. 525 detention review application is dismissed. At this time, his detention remains justified.

M. B. Carnegie

Released: September 18, 2024