Court File and Parties

Court File No.: CR-24-00000070-00BR Date: 2024-09-23 Corrected Decision Released: 2024-09-25

Ontario Superior Court of Justice

Between: His Majesty the King, Respondent – and – Carrie Long, Accused/Applicant

Counsel: Serge Hamel, for the Crown Ben Dawkins, for the Accused/Applicant

Heard: September 20, 2024

Amended Reasons for Decision on Bail Review

Amendment: Paragraph 3 was amended to correct the typographical error, underlined.

CULLIN J.

[1] This matter appeared before me for a bail review pursuant to s.520 of the Criminal Code. The applicant, Carrie Long, was ordered detained on May 17, 2024 following a contested bail hearing before Justice of the Peace E.T. Bérubé (“JP Bérubé”). She asks the court to review that decision on the basis that there is new evidence which supports her release.

[2] The Crown opposes the applicant’s release.

[3] At the completion of the hearing on September 20, 2024, I reserved my decision to September 23, 2024. For the reasons that follow, the application is denied.

Background

[4] The applicant, Carrie Long (“the applicant”), is 38 years of age and is a resident of Kirkland Lake, Ontario.

[5] The applicant appears before the Court as a result of an incident that occurred on May 12, 2024. It is alleged that she used physical force to enter a residence located at 46 Woods Street, Unit 2, Kirkland Lake, where she stole a cellphone and two laptops and assaulted one of the occupants when he attempted to contact the police. She was not known to the occupants; when she entered, she advised them that she was with the police and accused them of being terrorists and having a bomb.

[6] The police attended and arrested the applicant. They noted that they had two complaints earlier in the day in which she was involved. It is alleged that she resisted arrest by pulling her arms away and trying to evade the police.

[7] At the time of her arrest, the applicant was charged under five other unrelated informations; two were from Timmins, and three were from Kirkland Lake. On August 1, 2024, she resolved these outstanding charges. She received 90 days, time served, 12 months’ probation, restitution, a DNA Order and a two-year weapons prohibition.

[8] The applicant’s remaining outstanding charges arising from the incident of May 12, 2024 are: Resist Peace Officer; Assault; Theft (3 counts); and, Breach of Probation.

Bail Hearing of May 15, 2024

[9] Following the applicant’s arrest on May 12, 2024, she was held for a bail hearing, which was conducted on May 15, 2024. The applicant received preliminary advice from duty counsel but then elected to represent herself at the bail hearing.

[10] At the time of her arrest, the applicant was on release on an undertaking for prior charges. Some of the charges were subject to a bench warrant. The Crown brought an application pursuant to s.524 of the Criminal Code to revoke the prior form of release. The applicant consented to the application.

[11] The applicant was required to satisfy a reverse onus at the hearing. She presented a bail plan that included no fixed address and no surety. She proposed to report to the OPP every evening at 7pm. She also proposed to continue with any programs recommended by her probation officer, including anger management. The Crown submitted that the applicant should be detained on the primary and secondary grounds.

[12] On May 17, 2024, JP Bérubé released a decision detaining the applicant in custody. She noted that the applicant presented as a vulnerable person who was unemployed and had no fixed address, as well as mental health and substance use disorders. She expressed concerns about the applicant’s escalating, unpredictable incidents of violence and her failure to abide by the Court’s orders, noting the importance of public safety in addressing issues of bail.

[13] JP Bérubé found that the proposed bail plan failed to satisfy the concerns raised on the secondary grounds. She ordered the applicant to be detained.

Evidence Considered

[14] During the hearing, I received oral evidence from the applicant. I also had the benefit of the Crown’s Bail Brief, the Applicant’s CPIC summary, and the transcripts of the Bail Hearing and JP Bérubé’s decision.

Updated Bail Plan

[15] The applicant presented an updated bail plan for the Court’s consideration. She proposed the following:

1. She will reside at 39 Kirkpatrick in Kirkland Lake.
2. She will report to police.
3. She will have no contact or communications with the complainants.
4. She will not possess weapons.
5. She will promise to pay up to $1000, without deposit.

[16] There was also a discussion about terms including an electronic ankle monitor, a curfew, and an alcohol and drug prohibition. The applicant submitted that these conditions were not necessary but confirmed that she would abide by any conditions imposed by the Court.

General Legal Principles re: Bail Review

[17] The Applicant’s request for bail review has been submitted pursuant to s.520 of the Criminal Code.

[18] A bail review is not a hearing de novo. As a preliminary issue, the presiding Justice must determine whether it is appropriate to exercise their power of review, within the following parameters (R. v. St-Cloud, 2015 SCC 27, paras. 92, 120-121):

a. Whether there is admissible new evidence that demonstrates a material and relevant change in the circumstances of the case; b. Whether the decision denying release contains an error of law; or, c. Whether the decision denying release contains findings or reasoning which are clearly inappropriate (specifically, whether the Court gave excessive weight to one relevant factor or insufficient weight to another).

[19] If the Court determines that it is appropriate to exercise its power of review, the presiding Justice may conduct an independent review of the evidence in accordance with s.515(10) of the Criminal Code (R. v. St-Cloud, paras. 138-139). If the independent review determines that release is appropriate, terms of release may be ordered in accordance with s. 515 of the Criminal Code.

[20] Pursuant to s.520(7)(e) of the Criminal Code, the onus at a bail review rests with the accused. This is the case both in establishing that the threshold for review has been satisfied and also in demonstrating that detention is no longer justified and necessary. The applicant must satisfy the Court on a balance of probabilities that their detention is not justified on the primary, secondary or tertiary grounds.

[21] At a bail review, and indeed throughout the detention process, the Court must always be mindful of the accused’s constitutional right to be presumed innocent. Corollary to that is the right not to be denied bail on reasonable terms without just cause (R. v. Antic, 2017 SCC 27, para. 67). Bail is the cardinal rule and detention the exception (St-Cloud, para.70).

Issues & Analysis

Has the applicant demonstrated that it is appropriate for the court to exercise its power of review?

[22] The applicant does not allege either an error of law or inappropriate reasoning in the decision below. She submits that there is admissible new evidence that demonstrates a material and relevant change in circumstances justifying a bail review.

[23] Initially, the Crown argued that there was no jurisdiction to conduct a bail review. After hearing the evidence of the applicant, they acknowledged that, among other things, the complainant’s mental health appeared to have stabilized and she demonstrated insight and clarity. They conceded that this evidence met the threshold of a material and relevant change in circumstances.

[24] As the applicant has satisfied her burden, it is appropriate for this court to exercise its power of review.

Does the Applicant’s bail plan satisfy the grounds for release provided in s.515(10) of the Criminal Code?

1. Conceded Grounds

[25] The Crown conceded that the primary and tertiary grounds were not at issue in this application. The only issue to be determined is whether the applicant has satisfied the secondary grounds.

2. Secondary Ground

[26] The secondary ground is concerned with ensuring the protection and safety of the public. It requires the Court to examine all of the circumstances to determine whether there is a substantial likelihood that the accused will commit a criminal offence or interfere with the administration of justice if released from custody.

[27] The secondary ground attempts to predict the applicant’s future conduct by considering: (1) whether there is evidence that the applicant is engaged in an ongoing criminal lifestyle; and, (2) whether is a supervisory plan that will deter the applicant from engaging in further criminal activity or interfering with the administration of justice (R. v. Lutczyk, 2013 ONCJ 127 at para. 44).

[28] As noted by JP Bérubé, a concerning circumstance in this matter is the applicant’s escalating violent conduct. The incident that led to her detention in custody involved an unprovoked attack on a stranger in his residence. This was not her first incident of violence.

[29] A further concerning circumstance is the fact that this incident occurred while the applicant was released on undertakings and was subject to a probation order. She was also facing several outstanding charges, including charges for breaching the same probation order.

[30] A review of the bail brief suggests that a lack of stable housing and financial pressure were contributing factors to at least some of the applicant’s offences. At the time of the May 13, 2024 offences, she was in the process of vacating an apartment in the same building. The Show Cause Hearing Report (“the Report”) in the Crown Brief described that, “The accused has no fixed address and is known to couch surf in the Town of Kirkland Lake”.

[31] Another contributing factor was the applicant’s mental health. The Report described that, “The accused has a history of mental health issues. The accused has an extensive history of mental health occurrences with Kirkland Lake OPP.” It also described that, “The accused has a history of drug abuse” and “The accused has associates that are involved with the CDSA subculture”.

[32] It is difficult to predict what the future will hold for the applicant. Her counsel argues, and the Crown acknowledges, that her mental health appears to have improved based upon her testimony. She was lucid and articulate. She demonstrated some insight into her circumstances.

[33] Although I made similar observations of the applicant’s demeanour, I also observed that she deflected blame to others and minimized the impact of her mental health issues. She testified that she has been prescribed, but has not been taking, Seroquel, a psychiatric medication, because she does not like the way it makes her feel. She also testified that she has been involved in altercations with other inmates while she has been in custody, although I recognize that it was her evidence that she was the victim.

[34] The applicant testified that, if released, she would be living at 39 Kirkpatrick Street in Kirkland Lake with an individual named Theo Schnabel. Although the hearing was conducted virtually, Mr. Schnabel did not testify, nor did he prepare an affidavit, to confirm that he was prepared to house the applicant. The court has no confirmation that the applicant’s proposed housing arrangements are stable and would continue to trial.

[35] Even if Mr. Schnabel had testified, the applicant’s proposed housing plan is problematic. The Crown Brief disclosed:

1. That an incident on February 8, 2024 giving rise to charges against the applicant occurred at 40 Kirkpatrick Street. It was alleged that the applicant was, “on [the occupant’s] doorstep attempting to get into the residence”.
2. The occupant of the property at 40 Kirkpatrick Street was Mark Green.
3. The applicant is subject to a probation order, dated July 7, 2023, prohibiting her from communicating with Mark Green or being within 50 meters of any place where he lives or frequents.
4. The applicant is subject to a probation order, dated August 1, 2024, prohibiting her from communicating with Mark Green or attending at his place of residence.

[36] The absence of evidence that the applicant would be released to stable housing is problematic on a reverse onus bail review where her unstable housing arrangements contributed to her criminal conduct. The fact that her proposed housing is across the street from a residence where she was involved in an incident in February is concerning. The fact that, as of February 2024, the residence was occupied by someone that she is now prohibited from contacting or being within 50 meters of, is extremely concerning.

[37] In my view, the bail plan presented by the applicant at this hearing has not discharged her onus under the secondary ground. I am not satisfied that the applicant has presented a plan that will deter her from engaging in further criminal activity. I am concerned that there is a substantial likelihood that she will commit a criminal offence if released from custody, and that her continued detention is necessary for the protection or safety of the public.

Disposition

[38] In the circumstances, I find that the continued detention of the applicant is justified under the secondary ground found in s.515(10)(b) of the Criminal Code.

[39] The applicant shall continue to be remanded in custody pending trial.

The Honourable Madam Justice K.E. Cullin

Date: September 23, 2024 Corrected Decision Released: September 25, 2024